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2019 DIGILAW 1107 (GAU)

Ratneswar Kumar v. Chief General Manager, State Bank of India

2019-09-26

SONGKHUPCHUNG SERTO

body2019
JUDGMENT : SONGKHUPCHUNG SERTO, J. These are writ petitions, jointly filed by people who are engaged as Canteen Boys, Messengers, Sweepers and Storekeepers in several SBI branches on casual basis for the last more than 10 years with wages or salaries ranging from Rs. 1250/- to Rs. 2000/- per month praying for regularization of their services. 2. Heard Mr. M.K. Choudhury, learned senior counsel appearing for the petitioners and also heard Mr. S.S. Sharma, learned senior counsel appearing for the respondents. 3. Mr. M.K. Choudhury, learned senior counsel appearing for the petitioners submitted the case of the petitioners as follows:- 4. That the petitioners were appointed/engaged by the SBI branches given against each of their names in the writ petition as Canteen Boys, Messengers, Sweepers and Storekeepers on different dates and years on casual basis with a meagre monthly wage of Rs. 1250/- to Rs. 2000/- per month. Inspite of the meagre pay, since they are from poor families, the petitioners took their respective jobs and have continued serving as such for the last so many years for their survival and to support their family members. That the allowances of the employees including their canteen allowance out of which the petitioners are paid their wages/salaries have been revised from time to time but the wages of the petitioners have never been revised. Due to non revision of their wages they have been forced to face so much hardships while trying to make both ends meet specially these days when inflationary rates are rising at the galloping speed. Therefore, the respondents may be directed to at least, revised the wages/salaries of the petitioners to commensurate their hard works which they have been rendering continuously for the welfare of the staff of SBI branches and smooth running of the Banks branches so that they are able to live a life with dignity. 5. The learned senior counsel further submitted that even though they may not be entitled for regularization, they are at least entitled to additional wages which is sufficient enough to enable them to live a life with dignity. The learned counsel continued and submitted that the wages they are given is too meagre and too little, so it amounts to exploitation on the part of the employers and it cannot be permitted to continue under the Constitution like ours. The learned counsel continued and submitted that the wages they are given is too meagre and too little, so it amounts to exploitation on the part of the employers and it cannot be permitted to continue under the Constitution like ours. The learned senior counsel submitted a chart showing the years on which the petitioners were appointed or engaged, the names of their jobs for which they are engaged and other information. The same chart is reproduced here below:— No of Petitioners Appointed in Whether any appointment letter has been issued. Whether any certificate has been issued. Working as Whether any Identity card has been issued. 1. Sri. Ratneswar Kumar 1995 No Yes Canteen boy, Messenger, Sweeper. Yes 2. Sri. Kandarpa Talukdar 1995 No Yes Do Yes 3. Sri. Rubul Barman 2000 No Yes Do Yes 4. Sri. Jibeswar Das 1997 No Yes Do Yes 5. Sri. Taroni Deka 1997 1997 No Yes Do No 6. Sri. Tulsi Deka 1996 No Yes Do No 7. Sri. Pradip Boruah 1997 No Yes Do No 8. Sri. Bipul Choudhury 1995 No Yes Do Yes 9. Sri. Rama Rathak 1990 No Yes Do Yes 10. Sri. Hareswar Kalita 1995 No Yes Do No 11. Sri. Nikhil Kalita 1996 No Yes Store Keeper No 12. Sri. Ganga Deka 1995 No Yes Do No 13. Sri. Sarbeswar Saikia 2004 No Yes Do No 14. Sri. Khargeswar 1995 No Yes Do No 15. Sri. Krisna Barman 1997 No Yes Do No 16. Sri. Haren Saharia 1997 No Yes Do No 17. Sri. Bipul Medhi 2000 No Yes Canteen Boy, Messenger, Sweeper No 18. Sri. Pranab Kalita 1997 No Yes Store Keeper No 19. Sri. Ganesh Haloy 2007 No Yes Canteen Boy, Messenger, Sweeper No 20. Sri. Pradip Kumar Hira 1997 No Yes Messenger No 21. Sri. Muninda Deka 2004 No Yes Messenger No 22. Sri. Ajit Das 1997 No Yes Messenger No 23. Sri. Upen Das 1996 No Yes Canteen Boy, Messenger, Sweeper No 24. Sri. Harakanta Das 2000 No Yes Do No 25. Bapu Pathak 2008 No Yes Do No 26. Sri. Basudev Das 2006 No Yes Do No 27. Sri. Madan Kalita 1994 No Yes Do No 28. Sri. Hitesh Das 1995 Yes Yes Do Yes 29. Sri. Dipak Kalita 1995 No Yes Do No 30. Sri. Tapen Deka 1992 No Yes Store Keeper No 31. Sri. Bapu Pathak 2008 No Yes Do No 26. Sri. Basudev Das 2006 No Yes Do No 27. Sri. Madan Kalita 1994 No Yes Do No 28. Sri. Hitesh Das 1995 Yes Yes Do Yes 29. Sri. Dipak Kalita 1995 No Yes Do No 30. Sri. Tapen Deka 1992 No Yes Store Keeper No 31. Sri. Jhantu De 1992 No Yes Store Keeper No 32. Sri. Haren Sarma 1992 No Yes Canteen Boy, Messenger, Sweeper No 33. Sri. Dinesh Ch. Das 1995 No Yes Do No 34. Sri. Nandeswar Patwari 1988 No Yes Do Yes 35. Sri. Dipul Das 2001 No Yes Do Yes 36. Sri. Monoj Das 2001 No Yes Do No 37. Sri. Dhiren Deka 1998 No Yes Do Yes 38. Sri. Anil Barman 1999 No Yes Do Yes 39. Sri. Kumud Haloi 2008 No Yes Do No 40. Sri. Bhabesh Das 2010 No Yes Do No 41. Sri. Lakhadhar Das 2007 No Yes Do No 42. Sri. Tulen Ch. Das 1995 No Yes Do No 43. Sri. Balen Deka 1995 No Yes Do No 44. Sri. Khagen Das 1998 No Yes Do No 45. Sri. Prahalad Das 2004 No Yes Do No 46. Sri. Rinku Das 2005 No Yes Do No 47. Sri. Tapen Das 2009 No Yes Do Yes 6. The learned senior counsel lastly submitted that the case of the petitioners may be considered in the light of the judgments of the Hon'ble Supreme Court passed in the case of State of Punjab v. Jagjit Singh reported in (2017) 1 SCC 148 , paragraph 54 and 55 and in the case of Secretary, State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1 , paragraph 55. The relevant paragraphs of the 2 judgments referred to by the learned senior counsel are reproduced here below :— The first case is paragraphs 54 & 55 54. There is no room for any doubt, that the principle of ‘equal pay for equal work’ has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of ‘equal pay for equal work’ has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again. 55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. The second judgment: is paragraph 55 reads as follows:— “55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” 7. Mr. S.S. Sharma, learned senior counsel appearing for the respondents submitted that the petitioners were never employees of the SBI therefore, the question of regularizing their services does not arise. The learned senior counsel further submitted that there is no record to show that the petitioners were appointed through proper procedure and against sanctioned posts therefore, they cannot claim to have had any reasonable expectation for regularization in their respective services. In support of his submission, the learned senior counsel referred to paragraph 20, 25 and 26 of the judgment of the Hon'ble Supreme Court passed in the case of Nanda Kumar v. State of Bihar reported in (2014) 5 SCC 300 . The contents of the 3 paragraphs are reproduced here below :— “20. Therefore, considering the facts of the present case, it appears to us that the appellants were never appointed through a proper procedure. It is not in dispute that they all served as daily wagers. Therefore, it was within their knowledge all the consequences of appointment being temporary, they cannot have even a right to invoke the theory of legitimate expectation for being confirmed in the post. Accordingly, we cannot accept the contention of the appellants in the matter.” 25. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term ‘appointment’. They do not hold a post. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term ‘appointment’. They do not hold a post. The scheme of alternative appointment framed for regular employees of abolished organisation cannot, therefore, confer a similar entitlement on the daily wagers of abolished organisation to such alternative employment. [See Avas Vikas Sansthan v. Avas Vikas Sansthan Engineers Association ( (2006) 4 SCC 1 32)]. Their relevance in the context of appointment arose by reason of the concept of regularisation as a source of appointment. After Umadevi (supra), their position continued to be that of daily wagers. Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently. 26. In these circumstances, in our considered opinion, the regularisation/absorption is not a matter of course. It would depend upon the facts of the case following the rules and regulations and cannot be de hors the rules for such regularisation/absorption.” 8. The learned senior counsel further submitted that in a similar case the Hon'ble Supreme Court had ruled that the employees of Canteens which are run by Local Implementation Committees as per the welfare scheme framed by the SBI are not employees of the Bank therefore, they cannot claim for regularization. The case cited by the learned senior counsel is State Bank of India v. State Bank of India Canteen Employees Union (Bengal Circle) reported in (2000) 5 SCC 531 . The relevant paragraph is 41. The contents of paragraph 41 is reproduced here below:— “41. We, therefore, hold that employees of the canteens which are run at various branches by the Local Implementation Committees as per the welfare scheme framed by the SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising under the Award to run such canteens. We, therefore, hold that employees of the canteens which are run at various branches by the Local Implementation Committees as per the welfare scheme framed by the SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising under the Award to run such canteens. Hence, it is not necessary to decide the second question that fresh petition for the same cause was not maintainable in view of the order dated 14.10.1985 passed by this Court in Civil Appeal No. 840 of 1977.” 9. Since the learned senior counsel for the petitioners has abundant the claim for regularization, there is no more need for any discussion on that issue. However, on the prayer for increasing the wages of the petitioners, this Court is of the view that the SBI cannot just ignore its responsibility altogether on the plea that they are not its employees. The scheme as it appears from the submission of the petitioners and which is not denied by the respondents is that the SBI allocates certain amount of funds out of which allowances are paid to its employees to help meet their canteen expenses and other contingency expenditures and such allowances or subsidies are revised from time to time. And for management of such funds provided under the scheme and proper running of such canteens etc. local committees are formed and the local committees are responsible for engaging the persons required to do such jobs. Therefore, what is being paid as wages or salaries to the Canteen Boys and the other contingent employees depends on how much is given by the SBI to each employees or SBI branches for meeting such contingency needs in the form of subsidies or allowances. It is true that in the strict sense of the term, the petitioners may not be employees of the SBI but they are engaged for implementation of the scheme of the Bank which are introduced and implemented for the welfare of its staffs and for the smooth running of the Banks. The scheme is not only to help the staffs of the Bank but also to make them more efficient in their services which in turn helps in smooth running and growth of the Bank's business. The scheme is not only to help the staffs of the Bank but also to make them more efficient in their services which in turn helps in smooth running and growth of the Bank's business. Therefore, the SBI which is an instrumentality of the Government of India cannot closed its eyes to the welfare of the people who are in its service though they may not be its employees in the strict sense of the term. 10. Our fore fathers while fighting for freedom had dreamed of a society where each and every citizen will live their lives in equality and dignity and, where the resources of the country will be equally distributed to all the people. Those dreams have been enshrined in our Constitution starting from the Preamble. However, it is sad to say that even after 70 years of independence we are yet to see even a semblance of that kind of a society. The father of our nation Mahatma Gandhi in his book called “India of My Dreams” talked of a country of his dreams as follows :— “I shall strive for a constitution, which will release India from all thraldom and patronage, and give her, if need be, the right to sin. I shall work for an India, in which the poorest shall feel that it is their country in whose making they have an effective voice; an Indian in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men. Since we shall be at peace with all the rest of the world, neither exploiting, nor being exploited, we should have the smallest army imaginable. All interest not in conflict with the interest of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign and indigenous. This is the India of my dreams…….I shall be satisfied with nothing less.” 11. All interest not in conflict with the interest of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign and indigenous. This is the India of my dreams…….I shall be satisfied with nothing less.” 11. But it is still a common sight to see people specially in the lower strata of the society being exploited and denied their due shares in the nations resources, therefore, it should be the endeavour of every citizen specially, people in authority to see that slavery and exploitation in any form and discrimination in every work of life are eradicated and all citizens particularly, who are in such unfortunate circumstances are emancipated. Only when that happens the true meaning of independence of freedom will dawn in this country. 12. Now coming to this case, it is difficult to imagine how a person will even support himself when such kind of wage is being paid in today's world. Just because they have no choice they have accepted and continued in their respective jobs even with such meagre wages. But that does not mean that the State and its instrumentalities should go on exploiting them. It should not be for them to ask, it should be for the people in authority to think for their welfare and give them a wage that is not only commensurating the service they render but also to enable them to live a life with dignity as fellow citizens of this free country. We talk so much about economic liberalization and the benefits that the country has already enjoyed and, the high growth in our GDP. Indeed, we can say that in many ways our economy has developed at the much faster pace than it were in the past. But the question one may asked is has the benefits percolated to everyone, specially to such group of society who are helpless and has no voice. If this Country has to live out the dreams of its founding fathers who gave their sweat and blood people in authority must act and ensure that the last man in the system also gets his due share and live in dignity. The Hon'ble Supreme Court has expounded the meaning of Article 21 of the Constitution by stating that right to life as enshrined in this Article does not guarantee mere existence but life with dignity. The Hon'ble Supreme Court has expounded the meaning of Article 21 of the Constitution by stating that right to life as enshrined in this Article does not guarantee mere existence but life with dignity. That has remained the guiding light for the courts in this country. 13. In view of what has been stated above, and in the light of the judgments passed in the two cases referred to by the learned counsel of the petitioners, this Court is of the view that the wages and salaries paid to the petitioners is too little and too meagre, therefore, it is time for the SBI to ensure that they get at least a wage or salary which would commensurate the service they render and which would also enable them to live a life with dignity. Though I would refrain from giving or fixing the amount to be paid, I would say that at least they are paid at the rate of daily wages determined by the Labour Department of the State which is revised from time to time. The exercise should be completed within a period of 5 months from the date of receipt of a copy of this judgment and order. 14. The writ petition is disposed of.