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2024 DIGILAW 774 (RAJ)

Dhana S/o Shri Kastura v. State Of Rajasthan

2024-05-09

MANINDRA MOHAN SHRIVASTAVA, MUNNURI LAXMAN

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JUDGMENT : 1. Heard. 2. The appellant seeks to assail the correctness and validity of the order dated 26.10.2021 passed by the learned Single Judge in S.B. Civil Writ Petition No.12301/2020, whereby the writ petition filed by the appellant was dismissed. 3. The appellant was engaged intermittently for cleaning work including cleaning of washrooms/toilets in the Government hostel, earlier attached with Department of Social Justice and Empowerment, Oberi, District Doongarpur (now the said hostel has been transferred to the Department of Tribal Area Development). The appellant worked from July, 2003 to October, 2019 and thereafter his services were dispensed with. 4. Aggrieved by the action of the respondents in discontinuing appellant’s employment, a writ petition was filed challenging the order dated 21.10.2019 by which the representation demanding payment of minimum of pay scale for the post of Sweeper (Safai Karmchari) was rejected. The appellant also prayed for direction to grant him regular pay scale on the post of Sweeper (Safai Karmchari) and/or any other equivalent post with all consequential benefits, taking into consideration 17 years of services rendered by him. 5. The respondents, however, opposed the relief sought mainly on the ground that he was not working for full working hours, but was asked to discharge his duties only for short time in the morning and that, later on, he himself stopped coming to work voluntarily since 01.11.2019. 6. Accepting the stand taken by the respondent-State, the learned Single Judge dismissed the writ petition vide order dated 26.10.2021 giving rise to this appeal. 7. Learned counsel for the appellant would submit that the appellant was engaged in July, 2003 as Sweeper (Safai Karmchari) to carry out cleaning work in the Government hostel, which duty he performed until he was discontinued from his job in the year 2019. He would further submit that as the appellant has worked for a long time, his services ought to be regularised on the post of Sweeper (Safai Karmchari). 8. Relying upon the decision of the Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. [1 SCC 148], learned counsel for the appellant would submit that the appellant was also entitled to minimum of the pay scale with other admissible allowances. 9. 8. Relying upon the decision of the Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. [1 SCC 148], learned counsel for the appellant would submit that the appellant was also entitled to minimum of the pay scale with other admissible allowances. 9. He would further submit that the respondent-State has subjected the appellant to misery and exploitation in neither regularising his services nor paying him minimum of the pay scale specified for the post of Sweeper (Safai Karmchari). Therefore, in these circumstances, the respondents ought to be directed to make payment of minimum of the pay sale and also to regularise his services. 10. Dr. Praveen Khandelwal, learned Additional Advocate General appearing for the respondent State, on the other hand, would submit that a specific stand was taken by the respondents in the reply that the appellant was never appointed by any order, but he was merely engaged to do cleaning work in the hostel. He would also submit that the work of the appellant was only for few hours of the day and not through out the day. 11. According to learned counsel for the State, the record indicates that the work used to be taken from the appellant as and when required and it is not a case that he was regularly working as a Sweeper every day, but he used to work as Sweeper for few days and, therefore, it was not continuity of the work. Therefore, the principles laid down by the Hon’ble Supreme Court in the case of Jagjit Singh (supra) will have no application in the present case. 12. The pleadings which have been made in the writ petition are to the effect that the appellant-petitioner was appointed as Sweeper (Safai Karmchari) on fixed payment. Annexure-1 certificate certifies that the appellant had been regularly engaged in the work of cleaning as Safai Karmchari in the Government Ambedkar Hostel, Oberi, Doongarpur. The other certificate issued on 14.12.2018 also states that he is working regularly since 2003- 4 as Safai Karmchari. The documents relating to payment of wages have also been annexed along with the petition, which show that the appellant has been paid certain amount towards the work performed by him. The other certificate issued on 14.12.2018 also states that he is working regularly since 2003- 4 as Safai Karmchari. The documents relating to payment of wages have also been annexed along with the petition, which show that the appellant has been paid certain amount towards the work performed by him. However, with the petition no appointment order has been annexed nor any particular date of issuance of appointment order has been mentioned in the writ petition. 13. The respondents in their reply have taken a categorical stand on affidavit that the appellant was never appointed as Sweeper (Safai Karmchari) and there was not even an appointment on temporary or contractual basis but his services were utilised on call basis meaning thereby that as and when requirement arose, the appellant used to be called and mostly within a period of one hour, he would get free from the work required to be done. He never rendered his services for full eight hours in a working day. Therefore, the claim for grant of regular pay scale much less minimum of the pay scale was denied. 14. In the absence of there being any appointment order issued in favour of the petitioner, it is difficult to hold that a due appointment has been made against any vacant post of Sweeper (Safai Karmchari). There is no material on record to show that any vacant post existed against which the appellant was made to work. 15. If that be the position, we are unable to accede to the prayer that the appellant should be granted minimum of the pay scale prescribed for the post of Safai Karmchari. 16. No material has been placed before the Court as to whether there was a post of Sweeper (Safai Karmchari) in the concerned hostel or in the larger establishment of the Department of Social Justice and Empowerment. Therefore, in the absence of foundational fact with regard to existence of vacancies, pay scale prescribed for such post and any appointment order, the claim based on the decision of the Hon’ble Supreme Court in the case of Jagjit Singh (supra) cannot be granted to the appellant. 17. We, however, find that it is an undisputed position that the appellant had been working as Sweeper (Safai Karmchari) since July, 2003 until his services were discontinued in the month of October, 2019. 17. We, however, find that it is an undisputed position that the appellant had been working as Sweeper (Safai Karmchari) since July, 2003 until his services were discontinued in the month of October, 2019. The certificates which have been attached along with the writ petition, have not been disputed. An averment made in the reply that the services used to be taken on call basis, is against the certificates which have been issued by the officers of the respondents. Therefore, we have to accept what has been stated in the certificates that ever since 2003, the appellant had been regularly working as a Sweeper (Safai Karmchari). 18. Even if it could be said to be an employment and not an appointment in the sense that any appointment order was issued in favour of the appellant and even if we assume that he was made to work without there being any post of Sweeper (Safai Karmchari), the appellant nevertheless was entitled to minimum protection granted under the Minimum Wages Act, 1948. 19. On 08.05.2024, we had directed the learned Additional Advocate General to place before us the details with regard to minimum wages applicable since the date of engagement/ employment of the appellant till the date his services were discontinued. 20. 19. On 08.05.2024, we had directed the learned Additional Advocate General to place before us the details with regard to minimum wages applicable since the date of engagement/ employment of the appellant till the date his services were discontinued. 20. Following minimum wages have been submitted before us:- S No Effective from Un-Skilled Semi-Skilled Skilled Highly Skilled Date of Notification 7 16.11.1999 1560/- Per Month 60.00/- Per Day 1644/- Per Month 64.00/- Per Day 1768/- Per Month 68.00/- Per Day - 11.11.1999 8 20.07.2004 1898/- Per Month 73.00/- Per Day 2002/- Per Month 77.00/- Per Day 2106/- Per Month 81.00/- Per Day - 20.07.2004 9 01.03.2008 2600/- Per Month 100.00/- Per Day 2782/- Per Month 107.00/- Per Day 2990/- Per Month 115.00/- Per Day - 24.05.2008 10 01.01.2011 3510/- Per Month 135.00/- Per Day 3770/- Per Month 145.00/- Per Day 4030/- Per Month 155.00/- Per Day 5330/- Per Month 205.00/- Per Day 27.12.2010 11 01.05.2012 3822/- Per Month 147.00/- Per Day 4082/- Per Month 157.00/- Per Day 4342/- Per Month 167.00/- Per Day 5642/- Per Month 217.00/- Per Day 06.08.2012 12 01.01.2013 4316/- Per Month 166.00/- Per Day 4576/- Per Month 176.00/- Per Day 4836/- Per Month 186.00/- Per Day 6136/- Per Month 236.00/- Per Day 01.05.2013 13 01.01.2014 4914/- Per Month 189.00/- Per Day 5174/- Per Month 199.00/- Per Day 5434/- Per Month 209.00/- Per Day 6734/- Per Month 259.00/- Per Day 29.01.2015 14 01.01.2015 5122/- Per Month 197.00/- Per Day 5382/- Per Month 207.00/- Per Day 5642/- Per Month 217.00/- Per Day 6942/- Per Month 267.00/- Per Day 21.12.2015 15 01.04.2016 5226/- Per Month 201.00/- Per Day 5486/- Per Month 211.00/- Per Day 5746/- Per Month 221.00/- Per Day 7046/- Per Month 271.00/- Per Day 05.07.2016 16 01.01.2017 5382/- Per Month 207.00/- Per Day 5642/- Per Month 217.00/- Per Day 5902/- Per Month 227.00/- Per Day 7202/- Per Month 277.00/- Per Day 03.07.2017 17 01.01.2018 5538/- Per Month 213.00/- Per Day 5798/- Per Month 223.00/- Per Day 6058/- Per Month 233.00/- Per Day 7358/- Per Month 283.00/- Per Day 12.06.2018 18 01.05.2019 5850/- Per Month 225.00/- Per Day 6162/- Per Month 237.00/- Per Day 6474/- Per Month 249.00/- Per Day 7774/- Per Month 299.00/- Per Day 21.08.2020 21. The appellant was therefore entitled to minimum wages as prescribed under the law for unskilled labour. 22. The appellant was therefore entitled to minimum wages as prescribed under the law for unskilled labour. 22. In the petition, it has been averred that the appellant was being paid Rs.30/- per month. Pay slips have also been attached. However, we find that even at the time when the appellant was engaged in the year 2003, the then existing wages were Rs.1,560/- per month (Rs.60/- per day). 23. We have also looked into the pay slips annexed along with the writ petition. Likewise for all subsequent period, as and when minimum wages were revised, the appellant was entitled to wages for the days on monthly basis because the pay slips as well as certificates issued in favour of the appellant show that he was working regularly and not on intermittent days in any month. Therefore, in that case, he would be entitled to minimum wages on monthly basis and not on per day basis. 24. Apparently, the amount of minimum wages which were payable to the appellant were not being paid though some amount was being paid to him. 25. We are of the view that since the date of his employment and till the date of his disengagement, the appellant was entitled to minimum wages per month fixed for an unskilled worker, as revised from time to time. Taking into consideration the date of engagement and discontinuance from work, the appellant would be entitled to monthly wages for unskilled worker which were effective from 16.11.1999 up to 01.05.2019. 26. The claim of the appellant has also been denied on the ground that since he was working only for few hours and not for full eight hours, he was not entitled to full wages. This argument is required to be rejected at the threshold in view of the judgment of the Division Bench of this Court at Jaipur in the case of Darshan Devi Vs. Authority Under Minimum Wages Act, 1948, Alwar and Others [2023 SCC Online Raj 4692]. In that case, similar controversy arose where even full daily wages were denied on the ground that the worker (Safai Karmchari) was not working for eight hours but working only for few hours in a day. This Court, repelling the contention made on behalf of the State-employer, ruled that irrespective of the number of hours of work, the Safai Karmchari would be entitled to wages for whole day. 27. This Court, repelling the contention made on behalf of the State-employer, ruled that irrespective of the number of hours of work, the Safai Karmchari would be entitled to wages for whole day. 27. Applying the aforesaid principle, even the monthly wages are payable to the appellant because the certificate and pay slips clearly show that the appellant was engaged on monthly basis and not on daily basis. 28. We must deprecate the practice of engaging Safai Karmchari on minimum wage basis for years together as has happened in the present case. The very fact that the appellant worked as a Safai Karmchari since 2003 upto 2019 clearly shows that the nature of work was perennial. In fact it cannot be accepted that the work of cleaning in any institution is temporary in nature. Washrooms, corridors and other parts of the building are required to be continuously cleaned everyday. It is rather surprising that such work is not being treated as work of perenial nature. The object seems to deny the benefit of status as a regular employee. It is rather unfortunate that the hostel belongs to the Department of Social Justice and Empowerment of the Government and was named as “Government Ambedkar Hostel”. However, the manner in which the appellant has been treated by the respondents, they completely defied the very basic constitutional idea of Social Justice and Empowerment and have subjected the appellant to exploitation. The respondent is a welfare State. Engaging for decades Safai Karmchari on exploitary terms and conditions by making them to serve on minimum wages without creating posts and giving them regular appointments is nothing but a device to deny them regular status and pay scale which is applicable to the post of Safai Karmchari. We are at complete loss as to why the post of Safai Karmchari was not sanctioned in the Government hostel and work was taken from the appellant for such a long period of about one and half decades. This is a case of sheer exploitation at the hands of the State and we deprecate it in most strong words. 29. We are at complete loss as to why the post of Safai Karmchari was not sanctioned in the Government hostel and work was taken from the appellant for such a long period of about one and half decades. This is a case of sheer exploitation at the hands of the State and we deprecate it in most strong words. 29. All said and done, as there was no post and the appellant was engaged in cleaning work of the hostel, we are unable to direct payment of minimum of pay scale prescribed for the post of Safai Karmchari in the Department of Social Justice and Empowerment for want of there being any post in the institution where the appellant was engaged and worked from 2003 to 2019. 30. However, in view of the above discussion, the requirement of payment of minimum wages was to be scrupulously followed, it being a beneficial Legislation aimed at protecting workers against exploitation. What could be more unfortunate that the appellant was subjected to exploitation by the State authority and its officials. The appellant is required to be paid monthly minimum wages from the date of his engagement till the date his employment was discontinued which are payable to unskilled worker w.e.f. 16.11.1999, revised from time to time upto 01.05.2019. Moreover, we are of the view that the manner in which the appellant has been subjected to exploitation by paying him less than minimum wages for one and half decades, the State should also be saddled with exemplary cost. Therefore, we direct the respondents to pay an exemplary cost of Rupees 1,00,000/-(one lac) to the appellant. The amount of the minimum wages shall be worked out within a period of three months without fail. 31. The respondents shall ensure that the arrears of minimum wages is paid to the appellant within a period of three months. 32. In view of the above consideration, the appeal is allowed and the order passed by the learned Single Judge is set aside. Consequently, the writ petition stands allowed in the manner stated hereinabove.