Kerala High Court
Mercy vs State Of Kerala on 18 June, 2004
Equivalent citations: [2004(102)FLR953], 2004(2)KLT848
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. Part-time employees are expected to render part-time service in Government offices. But many of them have been on the corridors of this Court as full time litigants for quite sometime. Despite several rounds of litigation they are denied at least part-time peace in service.
2. Equal pay for equal work is one of the social and economic goals enshrined in the Constitution of India. Article 39 mandates that the State should avoid discrimination amongst the people doing similar work in matters relating to pay. It is a constitutional obligation of the State. As the Supreme Court observed, the constitutional philosophy must be allowed to become a part of every man in this country; then only would the Constitution reach everyone and he or she would be nearer the goals set by it, (Dharwad P.W.D. Employees Association v. State of Karnataka, (1990) 2 SCC 396). In the celebrated decision of the Supreme Court in Daily Rated Casual Labour v. Union of India, (1988) 1 SCC 122, the apex court considered the plight of the employees in the lowest rungs of the service. It was held therein as follows :-
"The State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. Such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. But he does so because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer".
There are several decisions of the Supreme Court and this court on this principle. It is not necessary to refer to them in extenso since it is the very same principle which is emphasised in the decisions. The question raised in these Writ Petitions can be analysed only in the light of the guidance on the constitutional philosophy, as interpreted by the Supreme Court and this court.
3. All these cases pertain to wages payable to Part-time Sweepers. The earliest relevant Government Order governing their service is traceable to G.O. (P)831/80 (253) Fin. dated 3.11.1980. The order reads as follows:-
" Government are pleased to sanction the following further benefits to part-time employees:-
1. The existing rates of remuneration of part-time contingent employees shall be revised as shown below with effect from 1-10-1980 Area to be swept/cleaned Pay DA Total
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Below 200 Sq.Metres 200 Rs.95/- Rs.36/- Rs. 131.00 Sq.Metres and above Rs. 140/- Rs.43/- Rs. 183.00
Hereafter all part-time contingent employees shall be accommodated against sanctioned , posts/in one of the categories detailed below. In all cases where fixed contingent charges are being paid without posts, the Heads of Departments shall take immediate steps to obtain Government Sanction creating part-time contingent posts in one of the categories mentioned, based on the area to be swept/cleaned in each case, and the existing incumbent accommodated against each post."
Thus it can be seen that the classification for the purposes of pay is based only on sweeping area - below 200 Sq.Metres and above 200 Sq.Metres. Further there was a direction that all part-time contingent employees should be accommodated against the sanctioned posts. Still further, probably the most crucial direction in the order is on creation of posts. The Government also directed to accommodate the existing incumbents against such posts.
4. The petitioners who are Part
-time Sweepers in these cases, have been appointed by the Controlling Officers and they were generally being paid at the rates noted in the Government order referred to above which have been revised from time to time. It is significant to note that their case has been considered in all pay revision orders. In the pay revision order now in force G.O (P) No. 3000/98/Fin. dated 25.11.1998 which came into effect from 1.3.1997, it has been ordered thus in the matter of sweeping area and payment thereon:-
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PTC employee Category Existing rate Revised rate 1. Part-time Sweepers/cleaners Rs. 460/-p.m Rs. 1500p.m. whose area is 400 sq.ms. and plus DA plus plus DA above but below 800 sq.ms. interim relief, and Part-time contingent employees other than those in category (1) whose Remuneration cannot be determined based on sweeping area 2. Part-time sweepers/cleaners Rs.370/-p.m Rs. 1250/-p.m. whose area of work is plus DA plus plus DA 100 sq. ms. and above interimrelief but below 400 sq.ms.
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a. i)For those who have put in a total of 10 years of service as Part-time contingent employee, an increase of Rs. 100/-in the basic pay will be allowed.
ii) For those who have put in a total of 20 years of service an increase of Rs. 250/-(Rs. 100 + Rs. 100) in the basic pay will be allowed.
iii) For those who have put in a total of 25 years of service an increase of Rs. 250/-(Rs. 100 + Rs. 100 + Rs. 50) in the basic pay will be allowed."
5. Apparently there were yet a category who were not covered by the 100 sq.ms. and above sweeping area and therefore, yet another order was issued as G.O. (P) No. 3002/98/Fin. dated 25.11.1998, which reads as follows :-
"Government are pleased to enhance the wages of Casual Sweepers from Rs. 100 p.m. to Rs. 600p.m. with effect from 1.11.1998."
Despite all these orders it appears quite a few Part-time Sweepers had to approach this court several times, on being threatened of termination, on being denied their due wages and on several other grievances. Inspite of the mandate under Part IV of the Constitution of India, the State has not given any serious thought on the service conditions of these low paid employees who do not have the might to have an organisational set up and put pressure on the Government. Consequently they have always been marginalised. Apparently they were always at the mercy of either the Controlling Officers or the Government obviously because they were not regulated by specific service conditions. Now, the petitioners are either denied work and if engaged they are paid only Rs. 600/- stating that they are only casual sweepers.
6. Recently Government issued an order G.O (P) No. 390/03/Fin. dated 17-7-2003 to the effect that the Part-time sweepers need only be engaged for a period of two months and they should be changed every two months. Apparently realising it as an unreasonable and unwise policy, the same was not implemented and as per G.O (P) No. 500/2003/Fin.dated 25-9-2003 it was frozen. Immediately thereafter the Government issued a letter No. 2855/T1/03/RD dated 6-10-2003 providing certain clarifications. One important clarification is that : "the sweeping area is the area excluding staircase, veranda and courtyard etc." There was also an order to the effect that "if the Casual Sweepers are appointed for two months and sweeping area is more than 100 Sq.mts. they can be paid at par with Part-time Sweepers. If the sweeping area is below 100 sq.mts. the Casual Sweepers engaged for the period of two months have to be paid Rs. 600/- per month as consolidated pay." There was also a direction to make appointments through the Employment Exchange against the sanctioned posts.
7. It appears the Government had still doubts regarding the prudence in implementing the instructions and therefore another letter dated 1.12.2003 was issued which reads as follows.
"I am to invite your attention to the reference cited. "As per G.O (P) No. 500/03/Fin. dated 25.9.2003 Government have frozen the G.O.(P)390/03/Fin. dated 17.7.2003. Hence the directions contained in the letter dated 6.10.2003 issued on the basis of G.O. (P)No. 390/03/Fin. dated 17.7.2003 need not be implemented hastily. But the issue related to the sweeping area implementation of court order etc. to be implemented as per existing directions". In the cases which are having Court directions, the action is to be taken on the basis of Court Order, and on the basis of directions issued earlier."
8. Evidently there is total confusion in the matter leading to arbitrary decisions by the Controlling Officers. Sweeping area is the area as they like and as they decide. The Part-time Sweepers who have been in service for decades are being sent away for the reason that the engagement can only be for a maximum period of two months. It is in the wake of these arbitrary orders and actions, the petitioners approached this court. As already observed above, some of them have been before this court on several rounds of litigation and yet they are not even getting at least part-time peace in service. The Government guardedly said that in individual cases, they will respect court orders: should each one of them be driven to the court? Therefore, it has become necessary for the court in the interests of these low paid Part-time Sweepers, to clarify the position.
9. Though there are several decisions whereby this court in the light of the Government Order dated 3.11.1980 directed to pay the notified wages to the Part-time Sweepers, even though they were working against posts which were not sanctioned, there is only one decision that is seen reported and that too as short note, only in part. It was a case where a Part-time Sweeper was paid only a meager consolidated wages of Rs. 50/- on the ground that she was only a casual Sweeper. Repelling the contentions taken by the State, it was directed to pay her wages on the basis of the scale as granted to the Part-time sweepers. It will be profitable to extract the decision as such as reported in Santhamma Amma v. State of Kerala, 2001 (1) KLT SN 53, Case No. 59.
" Even though the petitioner was not appointed to a sanctioned post or by regular appointment by the competent authority as contended by the petitioner, in view of the fact that it is not disputed that the petitioner has been performing the duties of Part-time Sweeper in the office of the Furka Revenue Inspector from the date of her joining duty, she is entitled to equal pay for equal work along with the other Part-time Sweepers for the work done by her, which follows that she is entitled to the benefits of the pay revision granted by the Government to the Part-time employees. Under the circumstances the contention of the respondents that since the petitioner was appointed as a menial on a monthly wages of Rs. 50/- she is not entitled to claim any amount over and above Rs. 50/- per mensem and she is not entitled to claim the emoluments of Part-time Sweeper appointed to a regular post under the Government, is not sustainable."
10. Though the Government from the very beginning in the matter of employment of Part-time Sweepers had made their intention clear regarding creation of Part-time posts, even after 25 years no steps have been taken by the Controlling Officers. For want of sanction no regular appointment is made and the casual are treated as casual for ever. Obviously the Government is happy; there is no other burden. But it is sheer exploitation of labour, opposed to the constitutional mandate of good governance.
11. Depending on the area to be swept and cleaned, Government is perfectly justified in fixing their wages and taking note of the small area in certain Government offices, the Government is also justified in fixing only a consolidated wages of Rs. 600/- as it stands now in the case of those offices where the area to be swept is only below 100 Sq. mts. Except in the case of below 100 Sq. metres sweeping area there has to be a sanctioned post. Appropriate orders shall be passed by the Government within six months from the date of production of a copy of the judgment.
12. There is a serious dispute on the sweeping area. For the first time as per letter dated 6.10.2003 it has been clarified that while calculating the sweeping area, the stair-case, veranda and courtyard are to be excluded. What is the idea behind that exclusion of those places is not quite clear and how far it is prudent to leave the courtyard, veranda and staircase at the premises of a Government office from being swept and cleaned is also a serious question the Government has to address itself. For the purpose of these cases it is not necessary to go into the legality of the said order. The clarification regarding the sweeping area can apply only to those Part-time Sweepers/Casual Sweepers employed after the clarification dated 6.10.2003. All the petitioners before the Court, it is not in dispute, are those Part-time Sweepers who were in service prior to 6-10-2003.
13. Though the court made several attempts to find out as to what is the definition of sweeping area despite the fact that in all orders the wages are fixed on the basis of sweeping area, there is no Government instruction anywhere defining the area to be swept in a Government office. However there is one instruction issued by the P. W.D. Executive Engineer of the Buildings Division, Malappuram issued in the year 1999, which reads as follows:-
"Referring to the above, I may suggest that as a general guideline, the sweeping area of the building proper may be taken as the plinth area of the building and premises may be taken as one and half time the plinth area or the actual area of the premises which area is less."
As far as the Government office is concerned, unless the premises of the office including the veranda, staircase, corridor, bathrooms, courtyard etc. are swept and cleaned, it may not be possible to have a healthy working atmosphere. Only if the body is clean, the mind will be clean (Mens Sana in Corpore Sano). It is for the Controlling Officers to see that the premises are properly cleaned and swept. Learned Government Pleader submits that only the carpet area that is generally swept in an office. I am afraid the submission cannot be accepted. Yet there requires to be a clarification, so as to give a quietus to the dispute. Sweeping are will be calculated in the case of Part-time sweepers engaged prior to 6.10.2003 as the carpet area, the veranda/corridor, stair-case and the courtyard usually swept. In any case the area shall not exceed one and half times the plinth area.
14. All those Part-time Sweepers engaged prior to 6.10.2003 will come under three categories: (1) below 100 Sq.metres. (2) between 100 and 400 Sq. metres and (3) above 400 Sq.metres. As the apex court has made it clear in several cases, taking note of the fact that the State has enjoyed the fruits of their labour for quite long, for the only reason that they have not been appointed through the Employment Exchange, they shall not be terminated from service. Hereafter the engagement of Part-time Sweepers shall only be through the Employment Exchange and in the event of delay it will be open to the Controlling Officers as directed in the Government order dated 6.10.2003 to have the service on a contract basis for two months. But at the earliest they shall be replaced by regular hands through the Employment Exchange.
15. Since there is also a grievance regarding payment of wages including arrears, there will be a direction to the State and the Controlling Officers to see that the petitioners in these cases and also those Part-time Sweepers who have not approached the court, but covered by this decision, are paid their arrears as calculated on the basis of the 1997 pay revision order, with effect from 1.3.1997. This shall be done within a period of three months from the date of production of a copy of the judgment. It is also made clear that in the case of individual petitioners covered by decisions for payment of salary even prior to the 1997 pay revision order, they shall be governed by the respective judgments. But in any case no Part-time Sweeper shall be denied the benefits of 1997 pay revision order. If in any case Part-time Sweepers have been terminated based on G.O (P) No. 390/03/Fin. dated 17.7.2003 they shall be re-engaged forthwith and they will also be governed by this judgment.
The Writ Petitions are disposed of as above.