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2020 DIGILAW 590 (UTT)

Rajesh Kushwah v. State Of Uttarakhand

2020-12-29

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Petitioners have filed instant writ petition seeking following reliefs: i) Issue a writ of mandamus directing the respondents to pay the minimum of salary as other regular employees working with the respondent are getting in view of the judgment of Hon'ble Supreme Court in State of Punjab Vs Jagjit Singh, (2016) AIR SC 5176 and also consider the petitioners for regularization on the vacant post of Mali (Gardner) in accordance with law. ii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 28.11.2018 and 07.05.2018 (Annexure no. RA-1 to the rejoinder affidavit) and direct the respondents to treat the petitioners as daily wager employee in the establishment of respondent no. 3 as they are earlier working. 2. Brief facts, as averred in the writ petition, are that petitioner no. 1 joined the services of the third respondent in the year 1997 and petitioner no. 2 joined the services of the third respondent in the year 2002 on the vacant post of Mali (Gardener) and both of them are continuously working without any hindrance on fixed salary till date. The third respondent is completely State Government owned factory and control of the said factory is with the State Government i.e. the first and second respondents. 3. It is averred in the writ petition that at the time of joining with the third respondent in September 1997, petitioner no. 1 was getting the salary of Rs.735/- per month and after about 20 years of services his salary was increased from Rs.735/- to Rs.5,262/- and after statutory deduction of Rs.1,262/- under the law he is getting Rs.4,000/- per month. Similarly, petitioner no. 2 having joined the services with the third respondent in December 2002 was initially getting salary of Rs.1,276/- per month and after completing 15 years of service his salary was increased from Rs.1,276/- to Rs.5,262/- and after statutory deduction of Rs.1,262/- he is getting Rs.4,000/- per month. The petitioners earlier filed an application with Information Officer of third respondent and in reply to question no. 5, it was informed that after the retirement of three incumbents from the post of Mali (Gardener) no one was posted on the said post and other employees, who are available with the third respondent, are engaged in the work of plantation and gardening. 5, it was informed that after the retirement of three incumbents from the post of Mali (Gardener) no one was posted on the said post and other employees, who are available with the third respondent, are engaged in the work of plantation and gardening. It is further averred that as per the information supplied by the third respondent under Right to Information Act, as on 12.03.2018, three posts of Mali (Gardener) are available with the third respondent and same are vacant till date. It is alleged that petitioners are working on the three vacant posts of Gardener (Mali) with the third respondent, but neither the respondents are considering the case of the petitioners for regularization on the vacant post of Gardener (Mali) nor the respondents are giving minimum of salary as other regular employees are getting. It is further averred that like the other employees working with the third respondent, statutory deductions are being deducted from the salary of the petitioners and is being deposited with Employees Provident Fund Organization under the Employees Provident Fund Scheme, 1952, and the Employees Pension Scheme, 1995 and in the papers the third respondent is clearly showing the petitioners as its employee. It is alleged that on the one hand, the State authorities accepted the recommendations of 7th Pay Commission and, on the other hand, the petitioners are getting a meager amount after a long period of continuous service with the respondents which is clear violation of the mandate of Constitution of India. 4. It is stated that petitioners moved many representations to the respondents for redressal of their grievances, but to no avail. The last representation moved by the petitioners before the respondents for considering their cases for payment of regular pay at par with similarly situated employees and also for regularization on the sanctioned vacant posts of Gardener (Mali) was of 25.04.2018. 5. It is alleged that during the pendency of present writ petition the respondents put the petitioners under contract as contractual employees for the same work which they are doing since long with the respondents. 5. It is alleged that during the pendency of present writ petition the respondents put the petitioners under contract as contractual employees for the same work which they are doing since long with the respondents. It is also alleged that the respondents knowingly send the petitioners under the contractor in order to safeguard themselves and to deny payment of minimum of pay scale vis-a-vis other regular employees in the light of judgment of the Hon'ble Apex Court in Jagjit Singh's case (supra), as also to deny the cases of the petitioners for regularization on the vacant post of Mali (Gardener) in accordance with law. 6. Counter affidavit has been filed by the respondent nos. 2 and 3. It is stated that the answering respondents had preferred a Special Appeal against the judgment dated 29.05.2018, passed in the present writ petition. The relevant portion of judgment and order dated 29.05.2018 is as under: "Learned counsel for the petitioner submitted that the present lis is squarely covered by the judgment of the Hon'ble Apex Court in the case of State of Punjab Vs Jagjit Singh, (2016) AIR SC 5176. Accordingly, the writ petition is disposed of in terms of aforesaid judgment. The respondent no. 3 is directed to pay minimum pay scale instead of fix pay to the petitioners in view of the judgment cited above, within a period of eight weeks from today." 7. The Division Bench of this Court was pleased to allow the special appeal vide judgment and order dated 06.07.2018. The impugned judgment was set aside and the matter was remitted back to this Court for consideration of the case for the relief granted by the Court. It was observed that no expression regarding merits of the case has been made. It was directed that the appellants (respondent nos. 2 and 3 herein) are permitted to file their counter affidavit on or before 30.07.2018 and the case was directed to be listed on 3rd August 2018. 8. Pursuant to the order passed by the Division Bench, counter affidavit has been filed by respondent nos. 2 and 3. It was directed that the appellants (respondent nos. 2 and 3 herein) are permitted to file their counter affidavit on or before 30.07.2018 and the case was directed to be listed on 3rd August 2018. 8. Pursuant to the order passed by the Division Bench, counter affidavit has been filed by respondent nos. 2 and 3. It is stated in the counter affidavit that petitioners are agriculture labourers and their wages are being fixed by the Government of Uttarakhand time to time, therefore, as per the fixation of wages by the Labour Department of State of Uttarakhand, notified on 15.07.2015, the petitioners are getting the wages at the rate of Rs.219.23 per day, on which the dearness allowance has also been paid and which is revised after an interval of every six months. In addition to above, petitioners are also being paid an amount of Rs.2,500/- per month as an additional incentive. The amount of wages is also being revised after an interval of every six months by the Department of Labour, Government of Uttarakhand. It is further stated that the nature of work in the plantation in the unit of third respondent is quite different in comparison to the work done by the labourers, who are engaged in the Sugar Mill and performing different type of duties. It is contended that the petitioners are not entitled to get the same salary as is being paid to the employees, who are posted in the Sugar Mill of the third respondent. It is stated that the financial position of the Sugar Company of the third respondent is not so sound and the sugar mill of the third respondent is suffering losses to the tune of Rs.264 crores till 31.03.2017. The pay scale of the workmen of Sugar Mills are being revised from time to time, who are governed by the provisions of the Wage Board, but the workmen who are not governed by the Wage Board, are not entitled to get the revision of pay scale. It is also stated that in the Government Order dated 29.12.2016, it has been provided that the revision of pay scale will only be available to the workmen, who are getting their salary in the pay scale of Sugar Wage Board and it will not be applicable to the workmen who are not getting their salary as per the Sugar Wage Board. It is averred that there was a ban on the appointment in the Sugar Mills of Govt. Companies as well as Co-operative Sectors in the State of Uttarakhand. Sugar Mills in the State of Uttarakhand are also suffering losses, therefore, the State of Uttarakhand had issued some guidelines in order to save the losses. 9. In the rejoinder affidavit, most of the averments made in the writ petition are reiterated. In reply to facts mentioned in paragraph no. 4 of the counter affidavit it has been stated that the fact admitted by the answering respondents that the petitioners are getting the wages @ Rs.219.23 per day and on which they are also getting dearness allowance and in addition to above, the petitioners are also being paid Rs.2,500/- as additional incentive per month clearly shows the admission of the answering respondent that the petitioners are on the roll of the third respondent till the filing of the counter affidavit and getting the salary for their work from the third respondent and they are daily wager employees working with the third respondent. In reply to the facts mentioned in paragraph no. 5 of the counter affidavit it has been stated that the petitioners since their engagement as a daily wager employees did the work of plantation only in the entire premises of the third respondent as per the directions given by the superior or senior officers of the third respondent and they performed the duty of only plantation, now the answering respondent is changing the stand saying that the petitioners are labourers just to deny the benefit of the judgment of Jagjit Singh (supra). It is also stated that it is wrong to say that the case of the petitioners is not covered by the judgment of Hon'ble Apex Court. It is further stated that it is wrong to say that merely as the petitioners are not involved in manufacturing process in the unit of third respondent they are not the employees of third respondent. In reply to the facts mentioned in paragraph nos. 17 and 18 of the counter affidavit it has been stated that both the petitioners are working with the third respondent much before the issuance of the Government Order dated 18.10.2003. In reply to the facts mentioned in paragraph nos. 17 and 18 of the counter affidavit it has been stated that both the petitioners are working with the third respondent much before the issuance of the Government Order dated 18.10.2003. Lastly it is stated that as per the principle of law laid down by the Hon'ble Apex Court in State of Karnataka Vs Uma Devi, the case of the petitioners is also covered for their regularization under the scheme framed by the answering respondent in this regard. 10. Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit & other documents brought on record. 11. Learned counsel for the petitioners vehemently argued that the petitioners were engaged as Gardener (Mali) in the unit of the third respondent in the year 1997 and 2002 respectively and are continuously working since then on fixed salary, but now the respondent authorities are asking the petitioners to render their services through outsourcing. 12. To this, learned counsel for the private respondents would submit that there was a ban on the appointment in the Sugar Mills of Government Companies as well as Cooperative Sectors in the State of Uttarakhand. He referred to Government Order no. 370(1)/Cane-Sugar/2003 dated 18.10.2003 in this regard. 13. A perusal of Government Order dated 18.10.2003 would depict that it relates to ban in respect of creation of new posts and appointment thereon in the sugar mills. Said Government Order nowhere states that the employees working since prior to issuance of said Government Order will not be entitled for grant of regular pay scale. 14. Learned counsel for the petitioners would submit that the G.O. dated 18.10.2003 has no application in the matter of the petitioners as the said G.O. was issued subsequently whereas the petitioners are working in the unit of the third respondent since long, as such, all the employees who were working there prior to issuance of said G.O. are entitled for regular pay scale as fixed by the State Government for the post of Mali (Gardener) as the petitioners are working on the sanctioned vacant post of Gardener (Mali) with the third respondent. Thus, the action of the third respondent is violative of Articles 14 of the Constitution of India. Thus, the action of the third respondent is violative of Articles 14 of the Constitution of India. Lastly, it is argued that the petitioners are being denied the equal pay for equal work and are getting a meager amount whereas the other regular employees are getting much more then the petitioners as fixed by the State Government, as such it is a clear case of discrimination. 15. Learned counsel for the petitioners placed reliance on the judgment rendered by the Hon'ble Apex Court in Western U.P. Electric Power and Supply Co. Ltd. Vs State of U.P., (1969) 1 SCC 817 in support of his contention. 16. In Western UP. Electric Power1, Hon'ble Supreme Court has held as under: "7. Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by law." 17. Per contra, learned Senior Counsel appearing for the third respondent would submit that the petitioners are not engaged in the Sugar Company, rather they were engaged in a unit of the Sugar Company. He would further submit that from a bare perusal of the attendance register it is evident that the petitioners were engaged as an agriculture labourers on daily wages on the farm of the third respondent and they were getting the wages for 26 days. 18. The question which arises for consideration of this Court is whether the service condition of the petitioners can be changed by an instrumentality of the State abruptly and can their position be reduced worse than they were holding? 19. Be that as it may, the fact remains that the petitioners are the employees of the Sugar Company for what purposes they were engaged and work is taken from them is of no relevance. In so far, the Government Order dated 29.12.2016 relied upon by the private respondents that the petitioners are not entitled to get the revision of pay scale as per the provisions of the Wage Board is concerned, the same has no application in the case in hand. In so far, the Government Order dated 29.12.2016 relied upon by the private respondents that the petitioners are not entitled to get the revision of pay scale as per the provisions of the Wage Board is concerned, the same has no application in the case in hand. The G.O. dated 29.12.2016 issued by the State Government is in regard to the labourers working in other departments, and all the notifications of the State Government does not apply to the Sugar Company. The fact remains that since the petitioners were engaged as Gardener (Mali) with the third respondent they are entitled to the minimum wages. 20. Admittedly, the petitioners are working as daily wagers with the third respondent. The third respondent has no authority to reduce their position worse than they were previously holding. Furthermore, the State Government being a welfare State, cannot discriminate the petitioners with other similarly situated persons and has no right to reduce their service conditions on the ground that the petitioners were engaged as labourers in the farm of the third respondent whereas the fact of the matter is that the petitioners since their engagement as daily wagers did the work of plantation as per the directions given by the superiors or senior officers of the third respondent. It appears that the third respondent is changing its stand. The moment it is said that the petitioners were engaged as labourers, it amounts to admission that the petitioners are working as daily wagers with the third respondent. In the opinion of this court such a flimsy ground taken by the third respondent to reject the claim of the petitioners cannot sustain in the eyes of law. Thus, the question of law is answered in favour of the petitioners and against the respondents. 21. Having considered the pleadings of the parties as well as the documents brought on record, this Court is convinced that the respondents, more particularly, the Sugar Company which is an instrumentality of the State, cannot deprive the petitioners of their fundamental rights guaranteed under the Constitution of India. In other words, being an instrumentality of the State, the respondent Sugar Company cannot be permitted to change the service conditions of the petitioners without any reasonable basis and reduce them to the position worse than they were holding. 22. In other words, being an instrumentality of the State, the respondent Sugar Company cannot be permitted to change the service conditions of the petitioners without any reasonable basis and reduce them to the position worse than they were holding. 22. In this view of the matter, the denial of the benefits to the petitioners at par with the similarly situated employees in the respondent Sugar Company is violative of Article 14 of the Constitution of India. The writ petition is, accordingly, allowed. The orders dated 28.11.2018 and 07.05.2018 (Annexure RA-1 to the rejoinder affidavit) are hereby quashed qua petitioners only. A writ of mandamus is issued directing the respondent nos. 2 and 3 to pay the minimum of salary as other regular employees working with the respondent Sugar Company are getting keeping in view the spirit contained in the judgment rendered by Hon'ble Apex Court in Jagjit Singh's case (supra). The petitioners shall be treated working as daily wage employees in the unit of the third respondent as they are earlier working and shall also be entitled for consequential benefits. 23. No order as to costs.