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2023 DIGILAW 269 (JK)

Gulzar Ahmad Dar v. Union Territory of J. &K.

2023-07-13

M.A.CHOWDHARY

body2023
JUDGMENT : 1. Petitioners through the medium of instant Writ Petition seek following reliefs:- i) Issuance of writ in the nature of certiorari to set aside the impugned Order No. 53-Accounts of 2022 dated 20.04.2022. ii) Issuance of writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents to release the minimum wages as per the existing rates @ Rs.300/- per day in favour of the petitioner Nos. 1 and 10 being skilled workers, as per the existing rates prescribed for the skilled workers. iii) Issuance of writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents to pay arrears withheld from 01.01.208 till date with admissible rate and interest accrued thereto. 2. Pursuant to notice, respondents have filed their response, wherein it has been contended that the impugned Order No. 53-Accounts of 2022 dated 20.04.2022 has been passed by the respondents in compliance to the directions of this Court passed in WP(C) No.324/2022 titled Gulzar Ahmad Dar & Ors. Vs. UT of J&K & Ors., as on consideration, the claim of the petitioners was found devoid of merits, hence rejected in light of the rules and norms governing the field. It is further contended that so far as the minimum wages as per the existing rates @ Rs.300/- per day is concerned, it is legally impermissible, as the petitioners were engaged as Sweepers/Chowkidars on consolidated wages and are being paid monthly remuneration as prescribed in the Government Order No. 236-F of 2012 dated 19.10.2012 and their claim for release of minimum wages as per Government order No. 27-F of 2018 dated 25.01.2018 is legally impermissible; that this order is applicable to daily rated workers including causal labourers working in Government Departments/Municipalities/Local Bodies, whereas SRO 460 of 2017 covers Scheduled Employment notified by the Labour and Employment Department, as such, the instant writ petition was sought to be dismissed. 3. Petitioners are aggrieved of the dissimilar treatment by the respondents. Learned counsel for the petitioners submits that, on one hand, respondents have accepted the claim of the similarly placed copetitioners and on the other hand, rejected the identical claim of the petitioners herein. 3. Petitioners are aggrieved of the dissimilar treatment by the respondents. Learned counsel for the petitioners submits that, on one hand, respondents have accepted the claim of the similarly placed copetitioners and on the other hand, rejected the identical claim of the petitioners herein. The petitioners and co-petitioners earlier filed Writ Petition bearing WP(C) No. 324/2022 with the prayer to pay minimum wages in accordance with SRO 460 of 2017 read with Government Order No. 27-F of 2018 dated 25.01.2018. This petition was disposed of with similar and identical direction, however, the respondents, in the case of co-petitioners, acted upon the court direction and paid minimum wages as per SRO 460 of 2017 in favour of co-petitioners, whileas in the case of the petitioners herein, their claim was rejected, on the ground that they are not Scheduled Employees though being similarly situated with the co-petitioners. 4. Heard and considered. 5. Learned counsel submits that the status of the petitioners have been changed from January 2018 as Casual Labourers, as such, the impugned rejection order is without application of mind, and is liable to be set aside. Government of J&K in exercise of the powers conferred under sub section 2 of Section 5 of the Minimum Wages Act 1948, revised the minimum rates of wages in respect of Scheduled Employments. Learned counsel for the petitioners would further argue that the claim of the petitioners have been rejected by the respondents on the basis of they being consolidated Sweepers/Chowkidars, whileas the fact of the matter is that they have been converted into Casual Labourers. To buttress this contention, learned counsel has placed on record the copy of ‘Aadhar Based Biometric Identification And Skill Profiling’ of the employees, wherein the petitioners have been shown as ‘Casual Labourers’ against their names in the said list. 6. Whether the petitioners herein fall under the Scheduled Employment or not, learned counsel for the petitioners submits that as per Annexure-A Part-I of SRO 460 of 2017, the petitioner No.4 comes under Scheduled Employment at item No.41 (sweeping and cleaning) and rest of the petitioners come under Scheduled Employment at item No.20 (Light Engineering Works). 6. Whether the petitioners herein fall under the Scheduled Employment or not, learned counsel for the petitioners submits that as per Annexure-A Part-I of SRO 460 of 2017, the petitioner No.4 comes under Scheduled Employment at item No.41 (sweeping and cleaning) and rest of the petitioners come under Scheduled Employment at item No.20 (Light Engineering Works). Simultaneously, as per definitions under Annexure-B of the SRO 460 of 2017 (Unskilled and Skilled), petitioners 11 & 13 being unskilled are classified under General Category at item 5 & 7 while as petitioners 1 to 10, being skilled have been classified under General category at item No.22, therefore, the services of the petitioners fall within the category of unskilled and skilled workers in terms of the definition contained in SRO 460 of 2017. As per the definition of SRO, ‘unskilled’ means work which involved simple operations, requiring little or no skill or experience on the job whileas ‘skilled’ means work which involved skill or competence acquired through experience on the job or through training as an apprentice, in a technical or vocational institute and the performance of which calls for initiative and judgment. The minimum wages under revised rates under SRO 460 of 2017 is prescribed per day for unskilled employees is Rs.225/- and for skilled is Rs.350/-. 7. The important question which emerges for consideration is as to whether the petitioners after having rendered services in the capacity of Sweepers/Chowkidars for the last so many years can continue to be paid a minimum amount of Rs.300/-. In this regard reliance can be placed on the Division Bench judgment of this Court in a case titled Zoona Bibi Vs. State & Ors. reported as 2001 SLJ 352, whereby the appeal of the appellants therein was allowed while making the below observations:- “Despite the order aforesaid, we are of the view that it is really a pitiable case. It is un-thinkable that in the present context of society where prices of essential commodities are sky high, a person can survive by a meager income of Rs.260/- per month. It would amount to exploitation. It is un-thinkable that in the present context of society where prices of essential commodities are sky high, a person can survive by a meager income of Rs.260/- per month. It would amount to exploitation. section 13 and 19 of the Directive Principles of State Policy enshrined in the Constitution of Jammu and Kashmir as adopted on 26th January, 1957, provide that there shall be socialistic pattern of society with a vow to promote social order and welfare of the people of State and all sort of exploitation has been abolished. Keeping in view the Directive Principles of the State Policies as enshrined in Section 13 and 19 of the Constitution of the State of Jammu & Kashmir, it is a high time that to give a meaningful interpretation to Section 13 and 19 of the Constitution, the State should evolve a formula or a scheme so that the citizen like the appellant at hand who toil and labour for earning daily bread must have two coarse meal a day. Keeping them a meager contingent paid of Rs.260/- per month, whatever nature of the employment may be, in our view is too meager for them to survive. The appropriate Govt. must therefore, seriously consider the plight of these lowest strata of the people in the State and either to frame a scheme or any other formula so that they can survive with honour and dignity.” 8. Right to life, as enshrined under Article 21 of the Constitution of India, has been interpreted by the Supreme Court as to live with dignity and honour and not mere living. The petitioners after rendering their services for a pretty long time, cannot be denied at least the minimum wages payable and permissible, otherwise it shall be travesty of justice and complete denial of the rights guaranteed under the Constitution to ask the petitioners to continue to render their services on a meager amount. The petitioners are required to be paid at the rate of Minimum Wages Act as applicable in the UT of Jammu and Kashmir, which shall, however, be subject to the condition that the engagement is full-time and not part-time. The petitioners, as per the record of the respondents, as discussed hereinabove, have been working as Casual Labourers and not part time. 9. The petitioners, as per the record of the respondents, as discussed hereinabove, have been working as Casual Labourers and not part time. 9. WP(C) No. 393/2020 was filed by Parvez Ahmad Ganai and Others and WP(C) No. 324/202 was filed by the petitioners of the present petition, which were disposed of by a co-ordinate Bench vide orders dated 18.02.2020 and 25.02.2022 respectively with the following identical directions:- “….Considered the limited nature of the controversy, this writ petition is disposed of with a direction to the respondents to determine the eligibility of the petitioners on the touchstone of SRO 460 of 2017 dated 26.10.2017 read with Government Order No. 27-F of 2018 dated 25th January 2018. Necessary orders be passed within a period of six weeks and payments be made accordingly.” 10. Petitioners, in both the petitions were similarly placed, therefore, they should have been dealt with in the same manner. Strangely the direction passed in Parvez Ahmad Ganai & Ors. case was complied with by the respondents vide Government Order No. 37 –F of 2021 dated 10.02.2021, granting them minimum wages, with following observations:- “…Now, therefore, in view of facts and circumstances given herein above and in compliance of the Order dated 18.02.2020, passed by the Hon’ble High Court I WP(C) No. 393/2020, CM No. 799/2020, titled Parvaiz Ahmad Ganie and Others V/S Union Territory of J&K and Others, the claim of the petitioners regarding enhancement/release of their wages @ Rs. 225/- per day in terms of SRO 460 of 2017 read with Government Order No. 27-F of 2018 dated 25.01.2018 is considered and therefore, it is ordered that the petitioners shall be paid wages @ Rs.225/- per day and fractions thereof for lesser period. However, the other terms and conditions of their engagements shall remain unchanged.” However, the respondents, in case of present petitioners, in compliance to the directions considered and passed Order No. 53-Acctts of 2022 dated 20.04.2022, with the following observations:- “…Now, therefore, in view of facts and circumstances given herein above, the claim of the petitioners is considered in compliance to the directions of the Hon’ble Court and in light of the rules/norms governing the field and the claim is found devoid of merits, hence rejected.” 11. Article 14 of the Constitution provides for right to equality, however, the respondents, who have taken different decisions in the cases of similarly placed persons, cannot take different decision in similarly circumstanced cases, offending Article 14 of the Constitution. Both the cases should have been given same treatment and rightly so as in case of ‘Parvez Ahmad Ganai & Ors’ in terms of Order No. 37-F of 2021 dated 10.02.2021. 12. Keeping in view the nature of controversy involved, the instant petition is allowed. Petitioners herein as unskilled and skilled Casual Labourers are found entitled, to be paid the minimum wages under the Minimum Wages Act. Impugned Order No. 53-Accounts of 2022 dated 20.04.2022, as a result, is quashed, with a direction to the respondents to pass fresh order granting petitioners wages in terms of SRO 460 of 2017 read with Government Order No. 27-F of 2018 dated 25.01.2018 as Casual Labourers with effect from the date impugned order was passed and also the revised wages, if enhanced later. The arrears of the wages earned by the petitioners are also ordered to be paid. Needful shall be done by the respondents within a period of four weeks from the date a copy of this order is made available to them. 13. Petition is accordingly, disposed of. 14. Record, as produced, be returned back to learned GA.