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2023 DIGILAW 1556 (ALL)

Indra Devi v. State of U. P.

2023-07-03

SARAL SRIVASTAVA

body2023
JUDGMENT Saral Srivastava, J. Heard Sri Om Prakash Chaube, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel. 2. The petitioner by means of present petition has prayed for following main reliefs:- "(i) Issue a writ order or direction in the nature of mandamus commanding the respondent Nos.2, 3 & 4 to permit the petitioner for working and paid the salary continuously. (ii) Issue the writ order or direction in the nature of mandamus commanding the respondent No.2 to paid the salary of the petitioner as regular employee." 3. The facts of the case in brief are that the husband of the petitioner was working as Chaukidar in Pt. Laxmi Narain Agnihotry Netra Chikitsalaya, Banda (hereinafter referred to called as 'the Hospital') and the said hospital is a Mobile Unit of the District Hospital, Banda. 4. The husband of the petitioner died on 19.08.1993. After the death of her husband, the petitioner was engaged as Chaukidar in the hospital on a salary of Rs.1200/-. It appears that service of the petitioner was terminated vide order dated 05.12.2005 which was challenged by the petitioner in Writ Petition No.1301 of 2006 which was allowed by this Court vide judgment and order dated 24.08.2012 whereby this Court quashed the termination order dated 05.12.2005 and directed the respondent to permit the petitioner to join her post forthwith and to pay entire salary of the petitioner from the date of termination. 5. Against the judgment dated 24.08.2012, the State Government preferred a Special Appeal Defective No.330 of 2013 which was also dismissed by this Court vide judgment and order dated 02.04.2013. As the respondent failed to comply with the judgment of this Court in Writ Petition No.1301 of 2006, the petitioner preferred contempt petition No.5858 of 2012 in which notices were issued. However, the respondent filed a compliance affidavit in the Contempt Petition on 31.07.2013 enclosing therewith a cheque of Rs. 1,35,800/- towards payment of wages. The contempt Court on 31.07.2013 passed order calling upon the respondent to submit as to why the petitioner is not being paid minimum wages, the respondent thereafter preferred Special Leave Petition No.26464 of 2013 against the order of this Court dated 31.07.2013 in Contempt Petition and Apex Court stayed the order dated 31.07.2013 passed by this Court in Contempt Petition. Later on, the Special Leave Petition was dismissed by Apex Court. Later on, the Special Leave Petition was dismissed by Apex Court. In the aforesaid background, the petitioner has stated that the respondent are acting arbitrarily in paying only Rs.1400/- per month as wages to the petitioner whereas the petitioner is entitled to all benefits as admissible to Government Employee in view of the fact that the petitioner was given appointment under Dying in Harness Rules. In the aforesaid factual backdrop, the petitioner has prayed for aforesaid relief. 6. In the counter affidavit, the respondent stated that the Hospital was being run by non Government self society of which the District Magistrate was nominated as (Ex-Officio) chairman of the society. It is stated that the Hospital was not a Government Hospital nor was established/created by the Government of U.P., Lucknow. It is further stated that after death of the husband of the petitioner, the petitioner has been engaged as Chaukidar on humanitarian ground. The appointment of the petitioner was not under Dying in Harness Rules. The petitioner is being paid wages from the funds of the society. It has also been stated that the petitioner has been paid wages up to date and there is no amount due to the petitioner which is also evident from the affidavit of the petitioner dated 09.12.2022 enclosed with the counter affidavit. Accordingly, it is submitted that the writ petition lacks merit and deserves to be dismissed. 7. Learned counsel for the petitioner has contended that it is not in dispute that the service of the petitioner was terminated vide order dated 05.12.2005 which order was set aside by this Court in Writ-A No.1301 of 2006 and this Court directed the respondent to reinstate the petitioner and pay the entire salary of the petitioner from the date of his termination. It is submitted that against the order dated 02.04.2013 in Writ-A No.1301 of 2006, the respondent State preferred a Special Appeal Defective No.330 of 2013 which was also dismissed by this Court vide judgment dated 02.04.2013. It is submitted that against the order dated 02.04.2013 in Writ-A No.1301 of 2006, the respondent State preferred a Special Appeal Defective No.330 of 2013 which was also dismissed by this Court vide judgment dated 02.04.2013. It is submitted that the judgment of this Court dated 02.04.2013 passed in Special Appeal has attained the finality as the same has not been assailed by the respondent, and thus, it is submitted that once this Court has recognized the fact that the hospital is being run by the State Government, the petitioner is entitled to continue in service and she is also entitled to minimum wages as prescribed by the State Government from time to time. Accordingly, it is submitted that the respondents are acting arbitrarily in taking the work from the petitioner at the wages which is too meagre to survive despite the fact that the petitioner is entitled to minimum wages as prescribed. 8. Per contra, learned Standing Counsel would contend that the petitioner has been engaged by the society after the death of her husband on humanitarian ground. The hospital is not the Government hospital rather it is private hospital run by the funds of the society and the salary of the petitioner has been paid from the funds of the society. In such view of the fact, it is submitted that as the society has limited means to raise the fund, therefore, the petitioner was being paid salary as per the financial capacity of the society. Accordingly, it is submitted that no case for interference by this Court is made out. 9. I have considered rival submissions of the parties and perused the records. 10. The record reveals that the petitioner was appointed as Chaukidar in the Hospital after the death of her husband who was working as Chaukidar in the hospital. The service of the petitioner was terminated vide order dated 05.12.2005. This Court held the termination order of the petitioner illegal inasmuch as the society transferred the eye hospital to the State Government with the post of Class-IV on which the petitioner's husband was working. The Special Appeal Defective No.330 of 2013 was also dismissed by this Court vide judgment dated 02.04.2013. Para-7 of the judgment is reproduced hereinbelow:- "7. The Constitution of the Society shows that the District magistrate, Banda is the Ex-Officio President of the Society. The Special Appeal Defective No.330 of 2013 was also dismissed by this Court vide judgment dated 02.04.2013. Para-7 of the judgment is reproduced hereinbelow:- "7. The Constitution of the Society shows that the District magistrate, Banda is the Ex-Officio President of the Society. There are four vice Presidents including Adyaksha, Zila Parishad, Banda, President, Grain Merchants Association, Banda, Civil Surgeon, Banda and one elected Vice President along with other executive members with a charitable object for running the said eye hospital for public purpose. The society initially had a corpus of Rs.2 lacs, and it is all the trapping of the State. The District Magistrate who had transferred the society in the year 1992 and thereafter to the District Viklanga Kalyan Adhikari/Joint Secretary, Banda. In these circumstances, it cannot be stated that the Society is a private charitable society and that the petitioner was appointed without there being any post or without following the procedure. It was not open to the District Magistrate, who has appointed the petitioner on 10.09.1993, to have terminated the services of the petitioner on 05.12.2005 for lack of funds. There is absolutely nothing to show that the District Magistrate being President of the Society with charitable object had taken any steps requesting the State Government for providing funds. Even otherwise the District Magistrate is the keeper of entire funds allocated by the State Government to the district for different charitable activities and for charitable purposes in the district. The State Government is running several schemes and keeps announcing new schemes, the corpus of which runs into crores of rupees. It is, therefore, arbitrary and unjust for the same State Government to allege that the charitable society of which the District Magistrate is the President and is fully armed and controlled by the State Government does not have funds to pay the salary of one class IV employee." 11. The judgment of the Special Appeal reveals that the Special Appeal Court found that as the District Magistrate transferred the society in the year 1992 and thereafter to the District Viklanga Kalyan Adhikari/Joint Secretary, Banda. Therefore, society is not a private charitable society. The Court further recorded that there was nothing on record to indicate that the District Magistrate made any endeavour to request the State Government to provide fund to run the society. Therefore, society is not a private charitable society. The Court further recorded that there was nothing on record to indicate that the District Magistrate made any endeavour to request the State Government to provide fund to run the society. It further noted that even otherwise the District Magistrate is keeper of the entire fund allocated by the State Government for charitable purposes, therefore, the termination of the petitioner on the ground of lack of fund was not justified. 12. The record further reveals that the petitioner has been reinstated in service and pursuant to the judgment of this Court, she has been paid wages. Now the question as to whether the petitioner is entitled to minimum wages will depend upon several factors whether the petitioner is the employee of the State Government and whether the society is being funded by the State Government and is liable to pay the minimum wages is a question of fact which cannot be determined by this Court in exercise of power under Article 226 of the Constitution of India as adjudication of such question requires necessary evidence. 13. In such view of the fact, this Court does not find that the writ petition is appropriate remedy for the relief prayed for and the petitioner may raise industrial dispute to claim benefit of minimum wages. 14. Accordingly, the writ petition is disposed of subject to above observations with no order as to costs.