Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 305 (GAU)

Khiungkiu Yimchunger v. State of Nagaland

2022-03-24

SONGKHUPCHUNG SERTO

body2022
JUDGMENT : SONGKHUPCHUNG SERTO, J. 1. Heard Mr. L. Likhase Sangtam, learned counsel appearing for the petitioners in these nine Writ Petitions, which are analogous in the subject matter. I have also heard Mr. E. Thiba Phom, learned Government Advocate appearing for all the respondents. 2. The petitioners who were appointed as Work-Charged Labours under the establishment of the Executive Engineer, Public Works Department (Housing), Tuensang Division, Nagaland, after having served for a period of 35 years, 33 years and 27 years (the petitioners in W.P. (C) No. 241/2021, W.P. (C) No. 242/2021, W.P. (C) No. 245/2021, W.P. (C) No. 246/2021, W.P. (C) No. 247/2021, W.P. (C) No. 248/2021 and W.P. (C) No. 249/2021 having served for 35 years and the petitioner in W.P. (C) No. 243/2021 having served for 33 years and the petitioner in W.P. (C) No. 244/2021 having served for 27 years) were made to retire on superannuation and released from service by different Release Orders but no pensionary benefits and other retiral benefits were given to them. Being aggrieved, they are here before this Court praying for issuance of a appropriate Writ/Order/Direction, directing the respondents to consider their prayer for regularization of their services for the purpose of pension and pensionary benefits. 3. Mr. Likhase, learned counsel for the petitioners submitted at the very outset that the case of the petitioners are covered by the common Judgments of this Court dated 27.03.2015 passed in W.P. (C) No. 96(K)/2014, W.P. (C) No. 104(K)/2014 and W.P. (C) No. 105(K)/2014. Thereafter, he also submitted that the petitioners having served for so many years with such meager pay must not be allowed to go empty handed as that would mean invasion of their rights under Article 14 and 21 of the Constitution of India. In support of his submission, the learned counsel referred to the Judgment of the Division Bench of this High Court dated 29.11.1996 passed in W.A. No. 102/1995 (In CR No. 434/1990). The relevant portion of the Judgment referred to by the learned counsel is paragraph No. 11. Contents of the same paragraph are given here-below: “11. We are being disturbed that the petitioners were compelled to go on superannuation after putting in 28 and 29 years of service respectively without any pensionary and other retiral benefits. The relevant portion of the Judgment referred to by the learned counsel is paragraph No. 11. Contents of the same paragraph are given here-below: “11. We are being disturbed that the petitioners were compelled to go on superannuation after putting in 28 and 29 years of service respectively without any pensionary and other retiral benefits. In a welfare state like ours committed to a socialistic pattern of society, it is unconscionable that employer compels the employee to go on retirement without any retiral benefits after putting in 28 and 29 years of service on the pretext of contract service. It will be hit by equality clause as enshrined in Article 14 of the Constitution. The writ petitioners/respondents have spent the entire youthful life to the service of the State rendering valuable services to the State as an Artist. It will be too cruel to allow them to go empty handed when they are aged, old and infirm and incapable of earning by themselves. It is common knowledge that Government servants work for future security. The argument that the writ petitioners accepted the appointment with full knowledge of the terms and conditions laid down in contract and therefore, their services cannot be regularized and they are not entitled pension and other retiral benefits would amount to exploitation of labour. May be the petitioners have knowing fully well the terms and conditions of contract accepted the employment because of compelling circumstances. State, being a model employer are not permitted to use method of exploitation against the weaker section of the people.” 4. Mr. E. Thiba Phom, learned Government Advocate appearing for the State Respondents submitted that the petitioners were appointed as Work-Charged Labours without any sanctioned post, therefore, they cannot be regularized for the purpose of pension and pensionary benefits. The learned Government Advocate further submitted that under OM dated 17.03.2015, issued by the Department of Personnel and Administrative Reforms (Administrative Reforms) it was provided for regularization of Work-Charged Employees who have completed 30 years of service and enjoyed Scale of Pay. But since the petitioners have not enjoyed Scale of Pay, they are not covered by this OM too. 5. I have considered the submissions of the learned counsels by keeping in view the facts and circumstances and also perused the Judgments referred to by Mr. Likhase, learned counsel for the petitioners. But since the petitioners have not enjoyed Scale of Pay, they are not covered by this OM too. 5. I have considered the submissions of the learned counsels by keeping in view the facts and circumstances and also perused the Judgments referred to by Mr. Likhase, learned counsel for the petitioners. There is no dispute on the fact that the petitioners were appointed as Work-Charged Labours and they were made to serve for 35 years, 33 years and 27 years respectively, with meager salary and, there is also no dispute on the fact that they were allowed to serve till they reached the age of superannuation as per the existing Rules in the State on the Age of Retirement. All these shows that the services of the petitioners were required and their services were utilized fully till they attained the age of superannuation. Therefore, the only palpable reason, for non-creation of post and non-regularization of their services appears to be only due to lack of concern or indifference on the part of the people in authority. Had the people in authority been a little concerned timely action could have been taken towards that end. Therefore, to deny the petitioners of their prayer would amount to letting them to be victims of circumstances created or arising out of the lack of concern or indifference of people who are responsible. This cannot be permitted in a State where democratic form of government and principles of Welfare State are in practice and in existence. Further, I agree with the submission of the learned counsel of the petitioners that the case of the petitioners are squarely covered by the impugned Judgment and Order of this Court dated 27.03.2015 passed in three Writ Petitions, i.e. W.P. (C) No. 96(K)/2014, W.P. (C) No. 104(K)/2014 and W.P. (C) No. 105(K)/2014 because the subject matter and the facts and circumstances in those three Writ Petitions and in these Writ Petitions are more or less the same. To show the same, the relevant portions of the Order dated 27.03.2015 are reproduced here-below: “W.P. (C) No. 96(K)/2014, W.P. (C) No. 104(K)/2014 and W.P. (C) No. 105(K)/2014 involves similar nature of facts and reliefs sought for and therefore, these three writ petitions are been disposed of by this common judgment and order. To show the same, the relevant portions of the Order dated 27.03.2015 are reproduced here-below: “W.P. (C) No. 96(K)/2014, W.P. (C) No. 104(K)/2014 and W.P. (C) No. 105(K)/2014 involves similar nature of facts and reliefs sought for and therefore, these three writ petitions are been disposed of by this common judgment and order. W.P. (C) No. 96 (K)/2014 The petitioner was appointed as Labour from 1.8.1975 under the establishment of Sub-Divisional Officer, Public Works Department (PWD Housing) Tuensang, Nagaland and after serving in the said post for 35 years, he was superannuated w.e.f. 31.7.2010 by order dated 25.4.2013 without giving any pension and retirement benefits. Being aggrieved, he has filed the present writ petition praying for regularizing of his service w.e.f. 1.8.1975 to 31.7.2010 and also for grant of pension and retirement benefits as per the rules. W.P. (C) No. 104 (K)/2014 The petitioner was appointed as Labour from 8.7.1977 under the establishment of Sub-Divisional Officer, Public Works Department (PWD Housing) Tuensang, Nagaland and after serving in the said post for 35 years he was superannuated without giving any pension and retirement benefits despite serving the department for 35 years. Being aggrieved, he has filed the present writ petition praying for regularizing of his service w.e.f. 8.7.1977 to 31.7.2012 and also for grant of pension and retirement benefits as per the rules. W.P.(C) No. 105 (K)/2014 The petitioner was appointed as Labour from 8.7.1977 under the establishment of Sub-Divisional Officer, Public Works Department (PWD Housing) Tuensang, Nagaland and after serving in the said post for 35 years he was superannuated without giving any pension and retirement benefits despite serving the department for 35 years. Being aggrieved, he has filed the present writ petition praying for regularizing his service w.e.f. 8.7.1977 to 31.8.2012 and also for grant of pension and retirement benefits as per the rules. ............ 7. In the present case in hand, there is no dispute that all the 3 writ petitioners were appointed as Labour on fixed pay by the respondents and that they have continued in service for 35 years before been superannuated by the common order dated 25.4.2013 issued by the Sub-Divisional Officer, Public Works Department (PWD Housing) Tuensang, Nagaland. By the said order, all the 3 writ petitioners are shown to have completed 35 years of service w.e.f. 31.7.2012 and 31.8.2012 respectively. 8. This Court has also considered the CCS pension rules 1972. By the said order, all the 3 writ petitioners are shown to have completed 35 years of service w.e.f. 31.7.2012 and 31.8.2012 respectively. 8. This Court has also considered the CCS pension rules 1972. Further, the reliance placed upon by the learned counsel for the parties has also been considered by this Court. This Court has also considered the length of service rendered by the petitioners in their respective post before been superannuated with effect from the dates as indicated herein above. It is seen that the petitioners been in continuous service, though under fixed pay, for 35 long years and they had given their prime time of their life to the service of the State Government. The State being a model employer cannot be allowed to apply the method of exploitation against such petitioners. After having extracted the best part of their lives, this Court is of the considered opinion that the petitioners cannot be allowed to go high and dry after 35 long years of service. The stand of the State respondents that as the petitioners were appointed on fixed pay and had retired as such, they are not entitled to pension and other retirement benefits appears to be very harsh and in-human more particularly when they have sacrificed the best part of their life to the service of the State Government. 9. In the facts and circumstances of the case, this Court is therefore, of the considered opinion that the State respondents should re-consider the case of the petitioners again. Accordingly, this writ petition is disposed of with a direction to the State respondents to consider the case of the petitioners for regularization of their service only for the purpose of paying pensionary benefits and thereafter pass appropriate orders. Let such consideration be done within a period of 3 months from the date of receipt of a certified copy of this judgment and order. It is also made clear that any decision taken by the respondents shall be communicated to be petitioners forthwith. 11. With the above direction and observations all these 3 writ petitions stands disposed of.” 6. It is true that the petitioners served as Work-Charged Labours and they continued their services though they were never regularized. It is also made clear that any decision taken by the respondents shall be communicated to be petitioners forthwith. 11. With the above direction and observations all these 3 writ petitions stands disposed of.” 6. It is true that the petitioners served as Work-Charged Labours and they continued their services though they were never regularized. But it must not be forgotten that for people who serve in that kind of employment, with such wages/salary, it is not by choice but by compulsion of needs. Therefore, the Welfare State, instead of taking advantage of the compelling circumstances they are in should have taken up measures for providing better conditions of service and should also have regularized their services. To do so would have been most just, equitable and reasonable, after all their services had been utilized for the best part of their lives. However, the State Government chose not to take any action to alleviate the service conditions of the petitioners. Right to Life as provided in Article 21 of the Constitution of India has been interpreted as life with dignity and not mere existence. The Government in a Welfare State is duty-bound to take care of the welfare of its citizens and not exploit them. Slavery or bonded-labour are things of the past after the country had attained independence. But it appears that in this State the same has continued to exist though it may be under different names. The State ought to have played a model role as an employer so that other employers who are non-State bodies or individuals may follow and treat the citizens of the State with dignity. It is time the State wakes up to its calling. 7. At the cost of repetition, I may again state here that the petitioners have served the State with the best part of their lives and with so much sacrifice, therefore, it is time the State should come forward and atleast give them pensionary benefits so that they do not suffer from penury and continue to live in want for the rest of their lives. They are after all, not only citizens of this State but they have also given the best part of their lives for the State. 8. They are after all, not only citizens of this State but they have also given the best part of their lives for the State. 8. In view of what has been stated above, this Court is of the view that the State represented by the respondents should consider the case of the petitioners for regularization of their services for the purpose of pension and pensionary benefits. 9. Accordingly, the respondents are hereby, directed to initiate the process and complete the same within a period of four months from the date of receipt of a copy of this Order. 10. The Writ Petitions are allowed and disposed.