Tripura High Court
Sri Ajoy Choudhury vs North East Regional Agricultural ... on 12 June, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 168 of 2012
1. Sri Ajoy Choudhury,
son of Sri Sudhangshu Narayan Choudhury,
resident of Badharghat, Sripalli, P.O. Dukli,
Agartala, West Tripura
2. Sri Bijay Kumar Deb,
son of Sri Manik Deb, resident of Camperbazar,
Hospital Road, P.O. S.D.Mission, Agartala, West Tripura
3. Sri Kanti Laskar,
son of late Rabindra Chandra Laskar, resident of
Road No.6, A.D. Nagar, P.O. A.D. Nagar,
Agartala, West Tripura
... Petitioners
- Versus -
1. North East Regional Agricultural Marketing Corporation
Ltd. (NERAMAC), 9- Rajbari Path, G.S. Road, Ganeshguri,
P.O. Guwahati-781005, represented by its Managing Director
2. Sri Subhas Bhattacharjee,
Managing Director NERAMAC Ltd., 9- Rajbari Path,
G.S. Road, Ganeshguri, P.O. Guwahati-781005, Assam
3. The Joint Secretary,
Government of India, Ministry of Development of North-East
Region (for short 'DONER'), Vigyan Bhavan Annexe,
P.O. New Delhi, 110001,
(Ex-officio Chairman, NERAMAC Ltd.)
4. Managing Director, NERAMAC Ltd.,
9- Rajbari Path, G.S.Road, Ganeshguri,P.O.Guwahati-781005
5. The Union of India,
represented by the Secretary,
Ministry of DONER, Vigyan Bhawan Annexe,
New Delhi-110001
... Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioners : Mr. DK Biswas, Advocate For respondents no. 1,2,4 : Mr. Somik Deb, Advocate For respondents no. 3,5 : Mr. H. Deb, ASG Date of hearing and delivery of Judgment and Order : 12.06.2017 Whether fit for reporting : YES W.P.(C) No. 168 of 2012 2 JUDGEMENT AND ORDER Heard Mr. DK Biswas, learned counsel appearing for the petitioner as well as Mr. Somik Deb, learned counsel appearing for the respondents No. 1,2 and 4 and Mr. H. Deb, learned ASG appearing for the respondents No. 3 and 5.
2. At the outset, it should be noted that the spearhead of the entire grievance is aimed at the respondents No. 1 and 4. No relief has been urged against the respondents no. 3 and 5 and as such Mr. H. Deb, learned ASG has submitted that the Union of India has preferred not to file any reply.
3. The petitioners, all are working under the respondent No.1 namely North East Regional Agricultural Marketing Corporation Limited (in short NERAMAC). The petitioner No. 1 was engaged following the due selection process as Assistant Manager (Accounts) on contract basis whereas the petitioners No. 2 and 3 were appointed without any formal procedure for selection. The admitted position is that the petitioner No. 1 has been working as the Assistant Manager (Accounts) on contract basis in the NERAMAC, whereas the petitioner No. 2 and 3 were working as the casual employees respectively discharging the duties of the Store Keeper and the Bill Clerk in NERAMAC.
4. Mr. Biswas, learned counsel appearing for the petitioner has submitted that there are regular posts of the Assistant Manager (Accounts) as well as for the Store Keeper and the Bill Clerk in the Corporation with the regular pay scale. The W.P.(C) No. 168 of 2012 3 petitioners of the writ petition have asserted in paras 14 and 14(b) as under:
"14. That, the petitioner No. 1 was appointed as Assistant Manager after being selected in interview on contract basis for a monthly salary of Rs.8,000.00, when there was regular sanctioned posts in the pay scale of Rs.5600-150-8600. Similarly the petitioner No.2 and 3 inducted as casual employee to work as Store Keeper and Bill clerks (Asst. Executives) in the scale of 4500-150-6600. But since the employment was on contract basis the amount under contract was only paid. But Hon'ble Supreme Court while explaining the doctrine of "Equal pay for equal work" pronounced that irrespective of status, either as casual, contractual etc. the employed person should get the minimum of the time scale available at the relevant time. Thus, the petitioners are entitled to the minimum of the time scale of the posts in which they were required to work under the principle of "Equal pay for equal work", irrespective of their status whether casual, contractual or not. The respondents have unlawfully denied the pay since their appointment.
14(b) The petitioners humbly submit that at the time of engagement of the petitioners by selection by interview there were sanctioned posts in the Agartala office of the respondent which will be evident from the Inter-office-communication dated 31.10.2008".
5. By means of this writ petition, the petitioners have fundamentally challenged the orders of termination dated 16.12.2011 in respect of the petitioner No.1 dated 19.12.2011 in respect of the petitioner no.2 and dated 19.12.2011 in respect of petitioner No. 3 [pages 17 to 19 of the writ petition]. The facts are mostly admitted. The petitioners were engaged on diverse days. So far the petitioner no.1 is concerned, his engagement was made on 19.08.2009 initially for two years and thereafter his engagement was extended time to time. The petitioner no.2 was engaged as a Store Keeper in the year 1996. No specific date either has been averred or is available with the records. That apart, the petitioner no.2 was a graduate when he was engaged as a casual worker to work as the Store Keeper. Similarly, the petitioner no. 3 who however, is an under-graduate was W.P.(C) No. 168 of 2012 4 engaged as a casual worker to work as the Bill clerk in the year 1996. There is no specific averment as to the date of engagement nor is there any record bearing the day of engagement. The respondents however did not by filing their reply dispute that position of their engagement. The petitioners while questioning the orders of termination have submitted that these termination orders are not the orders simplicitor but these are fraught with vendetta for the petitioners' participation in the trade union which has been demanding regularization of the employees working in NERAMAC.
6. Mr. Biswas, learned counsel has brought to the notice of this court a copy of inter-office communication wherefrom it is noticed that a discreet study was carried out to regularize the casual and the contratual employees of NERAMAC. The financial requirement was assessed. Mr. Biswas, learned counsel from the said note has pointed out that after the said exercise the following policy was taken:
"Workers/employees who have completed four years services only may be considered for regularization".
7. The said decision has been taken by the Committee which was constituted for studying the aspects of regularization and that committee had clearly recommended those persons who have completed four years of service for regularization. Mr. Biswas, learned counsel has further submitted that this recommendation has extended the legitimate expectation to the petitioners that they would be regularized inasmuch as all the W.P.(C) No. 168 of 2012 5 petitioners except the petitioner no. 1 had completed more than four years of service. In addition thereto, the petitioners have claimed the relief of having the wages equal to the minimum of the regular scale which are attached to those posts against which the petitioners were engaged to serve. In this regard, Mr. Biswas, learned counsel has referred a decision of the Apex Court in State of Punjab and others vs. Jagjit Singh and others reported in (2017) 1 SCC 148 where it has been observed that subject to the onus of the parity, the employees who are borne in the casual employment, contractual employment or adhoc appointment are entitled to get the minimum of the regular pay scale attached to the post where their services were utilized. For purpose of reference, the following passage from Jagjit Singh (supra) is extracted:
"Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the W.P.(C) No. 168 of 2012 6 State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post".
[Emphasis added]
8. Mr. Somik Deb, learned counsel has categorically submitted that the petitioner does not have any right, substantive or of any other nature to claim regularization, because the NERAMAC does not have any statutory scheme or otherwise to regularize the employees. As a committee constituted by it has carried out a study or that committee has recommended certain procedure that will not infer any right to the petitioner to claim regularization. Further, the petitioner no.1 knowing full well that his appointment would be governed by the provision of the contract he had accepted the engagement. Other petitioners were not even selected following any transparent procedure of selection as they were so engaged for attending the stop-gap requirement and as such in view of Secretary, State of Karnataka and others vs. Uma Devi (3) and others reported in (2006) 4 SCC 1, they cannot claim regularization at all because that will be denial of Article 14 and 16 of the Constitution of India inasmuch as other persons having required eligibility did not get any opportunity to be filtered through the process of selection. Mr. Deb, learned counsel has pointedly submitted that the petitioners cannot get any relief by means of this writ petition as according to him they have failed to demonstrate existence of any substantive right in W.P.(C) No. 168 of 2012 7 their favour inasmuch as the onus of parity has to be discharged by them. Mere statement that they are working in such a post will not fetch for them the benefit as determined in Jagjit Singh (supra). That apart, Mr. Deb, learned counsel has referred the following passage [para 8] to unfold the stand taken by NERAMAC in this matter. In paragraph 8, the respondents have averred as under:
" With reference to the statements/averments/contentions, made in Paragraph 4 of the writ petition, it is most respectfully submitted that the petitioner no.2 and 3 were engaged on casual basis, without however, following the due recruitment process. It is submitted that the said appointments of the petitioner nos. 2 and 3 were only for management of miscellaneous works, when the NERAMAC had its Cashew Processing unit and a number of retail outlets. It is submitted that with the passage of time, some of the retail outlets have been closed down and the Cashew Processing Unit has become non- functional, and hence, a conscious decision was taken, to dispense with the services of the petitioner nos. 2 and 3. It is submitted that since the appointments of the petitioner nos. 2 and 3 were of casual nature, therefore, the termination of the said appointments of the petitioner nos. 2 and 3, cannot be assailed in the Extra-ordinary jurisdiction, conferred under Article 226 of the Constitution of India"."
9. There are other allegations made against the petitioners no. 2 and 3 but those are not germane in the controversy at all. That apart, Mr. Deb, learned counsel has submitted that the NERAMAC was suffering huge loss and it was bound to downsize the strength of the employees. According to the condition of the contract NERAMAC has terminated the services of the petitioner No.1 without having any stigma whatsoever. That authority to terminate is part of the contract.
10. It is apparent from the records that the paragraphs 14(a) and 14(b) of the writ petition have not been disputed by the respondents despite the consolidated writ petition was supplied W.P.(C) No. 168 of 2012 8 to them in due course and as such it will be the instance of non- traverse and the court will be exercising its discretion. In Uma Devi (supra), there is no doubt that the Apex Court has observed [in paragraph 55] that the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Mr. Deb, learned counsel has having referred to the said observation has submitted that if this court is inclined to grant the benefit in terms of Jagjit Singh (supra) that should be from the date of the judgment. This court is unable to accept the said submission. In the event, the regularization is not directed and the orders of the termination are not interfered, then the petitioners will not get anything out of the decision in Jagjit Singh (supra).
11. It is really shocking that an employee after serving so long, so far the petitioner no. 2 and 3 are concerned for about 15 years, they have been shown the door without considering regularization. At the same time, it cannot ignore that the statute does not permit this court for directing the respondents to regularize their services. Even the respondents do not unfold what action they have taken on the said committee's recommendation in respect of the regularization of the services of the casual employees like the petitioners. However, in this respect Mr. Deb, learned counsel has submitted that as the petitioners have continued by dint of the interim order dated 15.06.2012, that part of the service cannot be considered for W.P.(C) No. 168 of 2012 9 purpose of regularization. This court is not in agreement to such proposition as this court has not been considering regularization in terms of any scheme.
12. Having appreciated the submissions as extended by the learned counsel appearing for the parties, this court is of the view that the petitioners are entitled to the minimum of the regular pay scale attached to the post they were required to serve from the date of their engagement. However, this court cannot pass any order directing the respondent- NERAMAC to regularize the service in absence of any enabling statute or policy.
13. While observing thus, this court is conscious and accordingly it is observed that if the recommendation of the said committee is considered, the petitioners shall be given the benefit of that recommendation. Thus, the respondents are directed to consider the recommendation of the committee constituted by them for regularization within a period of 3(three) months from today. Till such consideration is made, the termination orders of the petitioners shall not be given effect to. Needless to say that, the difference between the pay that has been already paid and the pay which the petitioners are entitled be paid to the petitioners within a period of six months from the day when the petitioners shall submit a copy of this order. W.P.(C) No. 168 of 2012 10
14. With these observation and directions, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.
JUDGE Saikat W.P.(C) No. 168 of 2012