Madhya Pradesh High Court
Santosh Kumar Sen vs State Of Madhya Pradesh on 19 September, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:47832
1 WP-7607-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 19th OF SEPTEMBER, 2024
WRIT PETITION No. 7607 of 2014
SURYAKANT NAMDEO AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
WITH
WRIT PETITION No. 8026 of 2014
RAM KHELAWAN SONDHIYA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
WRIT PETITION No. 9307 of 2014
SURESH KUMAR SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Parties through their counsel.
WRIT PETITION No. 14900 of 2014
Signature Not Verified SMT. KESHKALI KUSHWAHA AND OTHERS
Signed by: NAVEEN
KUMAR SARATHE
Signing time: 24-09-2024
Versus
6.53.56 PM
NEUTRAL CITATION NO. 2024:MPHC-JBP:47832
2 WP-7607-2014
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Parties through their counsel.
CONTEMPT PETITION CIVIL No. 314 of 2015
RAJESH SONDHIYA
Versus
SHRI PRAVEER KRISHUN AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
CONTEMPT PETITION CIVIL No. 316 of 2015
DINESH SAKET
Versus
SHRI PRAVEER KRISHN AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
CONTEMPT PETITION CIVIL No. 1340 of 2017
SURYAKANT NAMDEO AND OTHERS
Versus
SMT GAURI SINGH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
CONTEMPT PETITION CIVIL No. 1341 of 2017
RAM KHELAWAN SONDHIYA AND OTHERS
Signature Not Verified
Signed by: NAVEEN Versus
KUMAR SARATHE
Signing time: 24-09-2024
6.53.56 PM
NEUTRAL CITATION NO. 2024:MPHC-JBP:47832
3 WP-7607-2014
SMT. GAURI SINGH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
WRIT PETITION No. 24101 of 2018
ALAMGEER AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Parties through their counsel.
WRIT PETITION No. 8428 of 2020
SANTOSH KUMAR SEN
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Sr. Advocate with Shri Awadhesh Kumar Ahirwar -
Advocate the petitioners.
Shri Yash Soni - Dy. Advocate General for the respondents / State.
ORDER
All the cases are on identical facts and similar issues, therefore, they are being taken up for decision by this common order . The reference to documents and facts is being taken from WP No.7607/2014 for the sake of convenience.
2 . The challenge is made in the present petition to the order dated 07.03.2014 placed on record as (Annexure P-5).
3. Signature Not Verified It is the case of the petitioners that petitioners were Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:47832 4 WP-7607-2014 appointed as ward-boys and other posts in Rogi Kalyan Samiti and they were working since the year 2006-07 on fixed honorarium. By the order (Annexure P-2) the Rogi Kalyan Samiti took a decision to pay salary to the petitioners on Collector rate in place of fixed honorarium and therefore, the petitioners started to be paid at Collector rate. It is further contended that thereafter the respondents passed an order (Annexure P-5) dated 07.03.2014 thereby the order dated 30.07.2013 was cancelled whereby the minimum wages at Collector rate were allowed to the petitioner. It is the case of the petitioners that the petitioners are entitled for minimum wages as per Collector rate and order could not have been withdrawn or modified by the respondents.
4. The respondents-State initially filed a reply in the case in December, 2014 and in the reply it was contended that the petitioners were appointed by Rogi Kalyan Saimiti which is a hospital management society and they were working as ward boys and peons . It is further contended in the reply that the Rogi Kalyan Samiti is now not able to generate sufficient fund for payment of salary at Collector rate and therefore, the order (Annexure P-5) has been validly issued withdrawing the earlier order granting Collector rate to the petitioner.
5. By further referring to subsequent affidavits, the learned Signature Not Verified counsel for the State submits that various irregularities were found in Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 5 WP-7607-2014 the matter of engagement of ward boys and peons in Rogi Kalyan Samiti and it was subsequently found that the basic appointment of the petitioners was not proper and therefore, a departmental enquiry has been instituted against the then Chief Health and Medical Officer and other senior officers of the department who were instrumental in the wrongful appointment of the petitioner. The affidavit of Collector Rewa, dated 11.09.2020 is strongly relied by the learned counsel for the State contending that the Collector found the appointments to be illegal that also that the amount was paid from treasury account of State which should not have been paid and the funds of treasury account of the District was being leaked from the account head 12- 000 which should not have been the case.
6. Heard the learned counsel for the parties and perused the record.
7. In the present case the initial dispute that was raised was that the petitioners were working on fixed honorarium in Rogi Kalyan Samiti and thereafter in the year 2013 the CMHO decided to grant Collector rate to the petitioners. The Collector rate has been grossly misunderstood by the State authority to be the regular salary. Collector rate is not a regular salary but is the rate fixed by the Collector of the District for payment of workmen in unskilled, semi-
Signature Not Verifiedskilled and skilled categories by exercising its power under Minimum Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 6 WP-7607-2014 Wages Act, 1948. The Collector fixes such rates by exercising his powers under Section 12 of the Minimum Wages Act, 1948. The wages that an employee will draw on Collector rate would be the minimum wages as prescribed to be paid to an unskilled, semi-skilled or skilled daily rated employee. These are not the wages payable to a regular employee but are simply minimum wages payable to a daily rated employee. The daily wages are fixed by the Collector of the District while exercising its powers under Sections 3 & 5 of the Minimum Wages Act, 1948. No private employer, leave alone undertaking of the State can be allowed to pay any workman wages less than the minimum wages prescribed under Section 3 & 5 of Minimum Wages Act. The State Government or any authority of the State cannot defend its action of paying any workman at any rate less than the minimum wages fixed by the Collector of the District which would violate Section 12 of Minimum Wages Act. The Collector and Labour Commissioner fixes minimum wages even for daily rated employees engaged in Government department and undertakings. Once such wages are fixed for Government daily rated staff, then Government cannot avoid paying such wages knows as 'Collector Rates". It is surprising that the State Government by filing the initial reply filed on December, 2014 has defended the action of Signature Not Verified withdrawing the minimum wages payable to a workman on wages Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 7 WP-7607-2014 fixed by the Collector. Therefore, the order (Annexure P-5) reverting the petitioners to wages on the rates lesser than minimum wages prescribed by the Collector cannot be allowed to withstand judicial scrutiny. The order (Annexure P-5) deserves to be and is hereby quashed.
8. The petitioner are held entitled to be paid wages on minimum rates as notified by the Collector of the District for Government daily wage staff by exercising powers under Section 3 & 5 of Minimum Wages Act, 1948.
9 . So far as the subsequent aspect raised by the State and subsequent affidavits is concerned, it is seen that the State has relied on an enquiry report dated 18.03.2014 prepared by Additional Collector, District Rewa and District Treasury Officer, District Rewa placed on record as (Annexure R-2) with the affidavit of Collector dated 11.09.2020.
10. From a perusal of said report dated 18.03.2014 it is evident that in the report it is recognized that certain employees were earlier working on fixed honorarium in Rogi Kalyan Samiti and then CMHO has given Collector rates to the said previously working employees. It is further mentioned in the said enquiry report that the amount is being paid from a Treasury head which is meant for regular Signature Not Verified employees. All these are the aspects which are the administrative Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 8 WP-7607-2014 internal function of the State that from which head the amount has been paid to the petitioners. In the said enquiry report aspersions are cast on the initial appointments of the petitioners that the initial appointments of the petitioner were carried out without authority of law in some irregular manner.
11. However, nothing has been placed on record by the State to show that if the petitioners were not validly appointed but were appointed by misusing the powers by the then CMHO and Block Medical Officer etc. then whether any order of termination of services of the petitioners or cancelling appointment of the petitioners has been issued till date or not. Nothing has been placed on record apart from the plain assertion that there were irregularities in the matter of engagement of employees in Rogi Kalyan Samiti and that departmental enquiry has been instituted against the then Chief Medical and Health Officer and other senior officers of Health Department. Once the petitioners were appointed in the Department and even if there was later on detection of some irregularity in the matter of appointment then the State was always free to terminate the petitioners or to cancel their appointments. Nothing has been placed on record which shows that till date neither the petitioners have been terminated nor any order of cancelling their appointments have been Signature Not Verified passed by the State authorities. Till the time the petitioners are not Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 9 WP-7607-2014 terminated from services they have right to work and get salary.
12. Other contention raised was that the petitioners were appointed by the Rogi Kalyan Samities which are societies and no funds are available with the societies is also taken up. From a bare perusal of the para-4 of the reply dated 03.12.2014 filed by the State it is clear that Rogi Kalyan Samiti has been established for managing the hospitals run by the health department and Rogi Kalyan Samiti has been referred to as hospital management society. It is further mentioned in the reply that the Rogi Kalyan Samiti charges fees on various hospitals services like OPD, investigation charges, X-Ray charges, operation theater charges etc. and now the State Government has done away with such charges and therefore, Rogi Kalyan Samiti does not have sufficient funds to pay as per Collector rate. Following has been contended in para-4 of the reply:-
"It is submitted that the petitioners were appointed in the Rogi Kalyan Samiti which is a registered society and the nature of appointment was temporary basis and their salary will be payable from the fund available with the Rogi Kalyan Samiti. It is submitted that initially the Rogi Kalyan Samiti was charging fees on account of services rendered by the Hospital like O.P.D. charges, Investigation charges, Indoor charges, X-Ray charges, charges for minor & major operation and plaster etc and therefore in earlier point of time the society had sufficient fund for payment of its employes. Since, now the new policy has been changed by the Govt. and as per new policy no charges are being levied from the patient or beneficiary and therefore, there is no sufficient fund available in the society for payment of its employees. It is further submitted that the State Government has sanctioned annual fund or Rs.1,00,000/- in favour of Rogi Signature Not Verified Signed by: NAVEENKalyan Samiti but there are so many expenses which is to be KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 10 WP-7607-2014 bear by aforesaid fund and thus there is no sufficient fund available with the society to make the payment of petitioners at the rate fix by the Collector."
13. It is evident from bare perusal of the aforesaid para-4 of the reply that the Rogi Kalyan Samiti is a hospital management society which performs the core works of hospital. It is for the State to manage its hospitals. If the State Government has created any parallel structure that the hospitals will generate their own funds and certain employees will be employed by such society to perform the core functions of hospitals like ward-boys etc. then the State Government cannot deny salaries to such employees only on the ground that the societies are unable to generate sufficient funds. It is undisputed that Rogi Kalyan Samiti is not doing any such work which is different from the core work of the hospital. The petitioners were employed as ward-boys which is one of the core works. Ward- boys perform such duties which are among the core functioning of the hospitals. Working of ward-boys is not to provide some anciliary services in the hospital but they are essential for proper functioning of the hospital. The State Government cannot create a parallel system and gave its core works to such societies formed by the State and then to submit that the societies are unable to generate the sufficient fund from the hospital services and they will not pay the employees on the minimum wages. Such a contention from the State cannot be Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:47832 11 WP-7607-2014 accepted.
14. Consequently, by quashing the order (Annexure P-5), the writ petitions are allowed holding that the petitioners are entitled to get salary on Collector rates for the period they have worked. No comments are made in the present order on the aspect of appointment of petitioners being legal or otherwise because said enquiry is beyond the scope of this petition. The State is always at liberty to enquire into the matter and take appropriate action in the said matter. However, it cannot deny the salary lower than minimum wages fixed by the Collector for Government daily rated staff to the petitioners for the period they have worked. The writ petitions are allowed and disposed of. The Contempt Petitions Nos.314/2015, 316/2015, 1340/2017, 1341/2014 filed in the matter of non-compliance of interm order stand disposed of.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 24-09-2024 6.53.56 PM