Rajasthan High Court - Jodhpur
Union Of India & Ors vs Rajesh Rathod (Sunil) & Ors on 22 August, 2013
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters]
// 1 //
32
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:::
ORDER
1. D.B. Civil Writ Petition No.49/20013
UOI & Ors. Vs. Abdul Kadar & Ors.
2. D.B. Civil Writ Petition No.10/2013
UOI & Ors. Vs. Vikram Arya & Ors.
3. D.B. Civil Writ Petition No.11/2013
UOI & Ors. Vs. Jai Singh Saranagdevot & Ors.
4. D.B. Civil Writ Petition No.12/2013
UOI & Ors. Vs. Rajesh Rathod (Sunil) & Ors.
5. D.B. Civil Writ Petition No.13/2013
UOI & Ors. Vs. Kuldeep Singh & Ors.
6. D.B. Civil Writ Petition No.5974/2013
UOI & Ors. Vs. Pushkar Lal Dangi & Ors.
7. D.B. Civil Writ Petition No.1631/2013
UOI & Ors. Vs. Ravi Shanker Bagoria & Ors.
8. D.B. Civil Writ Petition No.2579/2013
UOI & Ors. Vs. Ramesh & Ors.
9. D.B. Civil Writ Petition No.2580/2013
UOI & Ors. Vs. Arun Kumar & Ors.
10. D.B. Civil Writ Petition No.2581/2013
UOI & Ors. Vs. Manoj Kumar Bora & Ors.
11. D.B. Civil Writ Petition No.2582/2013
UOI & Ors. Vs. Indra Singh Chauhan & Ors.
12. D.B. Civil Writ Petition No.2807/2013
UOI & Ors. Vs. Teji Lal Meena & Ors.
13. D.B. Civil Writ Petition No.2808/2013
UOI & Ors. Vs. Ram Sagar Meena & Anr.
14. D.B. Civil Writ Petition No.3387/2013
UOI & Ors. Vs. Rajendra Gurjar & Ors.
15. D.B. Civil Writ Petition No.3390/2013
UOI & Ors. Vs.Yaswant Kumar Rawal & Anr.
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters]
// 2 //
16. D.B. Civil Writ Petition No.3554/2013
UOI & Ors. Vs. Anil Kumar Solani & Ors.
17. D.B. Civil Writ Petition No.3555/2013
UOI & Ors. Vs. Vimal Kumar Swami & Ors.
18. D.B. Civil Writ Petition No.3556/2013
UOI & Ors. Vs. Hari Ram Meena & Ors.
19. D.B. Civil Writ Petition No.3557/2013
UOI & Ors. Vs. Gopal Lal Prajapat & Ors.
20. D.B. Civil Writ Petition No.3561/2013
UOI & Ors. Vs. Praveen Singh & Ors.
21. D.B. Civil Writ Petition No.5873/2013
UOI & Ors. Vs. Tabish Anwar & Ors.
22. D.B. Civil Writ Petition No.5886/2013
UOI & Ors. Vs. Jitendra Kachawaha & Ors.
23. D.B. Civil Writ Petition No.5887/2013
UOI & Ors. Vs. Devi Lal & Ors.
24. D.B. Civil Writ Petition No.5889/2013
UOI & Ors. Vs. Kamal Kishore Swami & Ors.
25. D.B. Civil Writ Petition No.5890/2013
UOI & Ors. Vs. Lalit Gehlot & Ors.
26. D.B. Civil Writ Petition No.5891/2013
UOI & Ors. Vs. Gaurav Sharma & Ors.
27. D.B. Civil Writ Petition No.5892/2013
UOI & Ors. Vs. Mohd. Irfan & Ors.
28. D.B. Civil Writ Petition No.5895/2013
UOI & Ors. Vs. Sharwan Kumar Meghwal & Ors.
29. D.B. Civil Writ Petition No.5975/2013
UOI & Ors. Vs. Jaideep Solanki & Ors.
30. D.B. Civil Writ Petition No.5976/2013
UOI & Ors. Vs. Sanjay Kumar & Ors.
DATE OF ORDER: 22nd August 2013
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters]
// 3 //
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE V.K. MATHUR
Mr. K.K. Bissa, for the petitioners.
Mr. J.K. Kaushik, for the respondents.
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BY THE COURT: (Per Dinesh Maheshwari,J.)
These writ petitions involving identical issues and arising out of the common order dated 14.08.2012 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the CAT') in a batch of similar nature Original Applications ('OAs'), have been considered together and are taken up for disposal by this common order. A few defects pointed out by the office in some of the petitions are taken note of and are ignored.
The OAs leading to these writ petitions were filed by the persons engaged as casual workers/labourer in different offices of the petitioners on their grievance against reduction of wages because of an order dated 31.05.2011, as issued by the Chief Commissioner of Income Tax (CCA), Jaipur with reference to OM dated 12.09.2008 of the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi (DoPT). The applicants contended that such an action of the present petitioners was in contravention of the principle of equal pay for equal work. The CAT upheld the contentions of the applicants and, while allowing the OAs by the impugned common order dated 14.08.2012, granted the reliefs as under:-
"(I) The impugned order dated 31.5.2011 [A1] is hereby quashed.
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 4 // (II) The respondents are directed to continue making payment to the applicants @ 1/30th of the pay at the minimum of the time scale of the Group 'D' staff plus dearness allowance ie., Rs.292 per days as basic pay w.e.f 1.7.2008 with all consequential benefits.
(iii) No modification of the OM dated 12.9.2008 is warranted as the legality of the OM has not been in challenge nor would the same be necessary for granting the reliefs (i) and (ii).
(iv) No order as to the costs."
The relevant background aspects of the matter are that the applicants (respondents herein) are the persons engaged on daily wages in different offices of the present petitioners, performing auxiliary office duties 8 hours a day. The applicants asserted that there was no difference between the nature of work entrusted to them and that being performed by the regular employees. The applicants also referred to an office memorandum dated 07.06.1988, being the policy for recruitment of casual workers and persons on daily wages, which provided, inter alia, as under: -
"Subject: Recruitment of causal workers and persons on daily wages - Review of policy.
The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgment of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
i) Persons on daily wages should not recruited for work of regular nature.
ii) Recruitment of daily wagers may be made only for work which is causal or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 5 // be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised. If considered necessary.
iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
v) In cases where the work done by a causal worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
vi) The casual workers may be given one paid weekly off after six days of continuous work.
vii) The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
---- ----- ----- ------ ------"
(emphasis supplied)
The applicants also referred to the other circular dated 10.09.1993 relating to the grant of temporary status and regularization of casual workers, which was issued pursuant to the directions of the Principal Bench of CAT in the case of Rajkumar & Ors Vs. UOI; but submitted that the aforesaid guidelines dated 07.06.1988 continued to hold good simultaneously and they were paid the wages @ 1/30th of the minimum of pay plus DA, which too had been periodically revised; and that with application of the guidelines of DoPT for merger of 50% of DA with basic pay, they were, by 01.10.2010, being paid Rs.292/- per day. The applicants particularly referred D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 6 // to the OM dated 09.07.2007 reading as under: -
"In accordance with the instruction laid down in the Department of Personnel & Training's O.M. No.49014/2/86Estt.(C) dated 07/06/1988 read with DOPT Circular No.49014/5/2004 dated 31/05/2004, sanction is hereby accorded to the payment of casual workers paid on daily wage basis, where nature of work is the same as that of the regular employees at the rate of 1/30th of the pay at the minimum of time scale of pay of the Group D Staff plus Dearness Pay plus Dearness Allowances i.e. 1/30th of [Rs.2,550/- +Rs.1,275+Rs.1109.25 i.e. Rs.4934.25] i.e. Rs.164/- per day for 8 hours of work a day.
2. In cases where the work done by casual worker is different from the work done by regular employees, the daily wages payable will be Rs.144/- per day in terms of Dy. Labour Welfare Commissioner (Central) communication Ref.No.Dy.LWC(C)/MWR/2005/4000 dated 30/09/2005.
3. The above rates of daily wages payable to casual workers in the Department of Income-tax, Jaipur are effective from 01/07/2007.
4. The respective Building-in-charge/Heads of office will draw the bills at the stipulated rates subject to fulfillment of the condition as laid down in Government of India's O.M. dated 07/06/1988 with regard to performance of duties similar to that of regular employee or otherwise.
5. This issues with the approval of the Chief Commissioner of Income-tax (CCA), Jaipur."
The applicants also referred to office orders dated 12/17.11.2008 and 18.10.2010 in relation to the payment of daily rate of wages for casual daily rated workers reading as under: -
Order dated 12/17.11.2008 "Reference to this office Order No.1724 dated 09-07- 07 regarding fixation of daily rates of wages for Casual Workers.
In pursuance of the instructions laid down in the Department of Personnel & Training's Office Memorandum No.49011/31/2008 Estt.(C) dated 12-09- 2008 and Ministry of Finance, Department of Revenue, Government of India's O.M. F.No.7/33/2008-Coord. (Circular No.58/2008) dated 26-09-2008 and consequent upon implementation of the 6th Central Pay Commission w.e.f. 01-01-2006 to the Central D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 7 // Government Employees, the daily rate of wages of the Casual Workers/Contingent Paid Staff engaged in this region has been fixed provisionally at Rs.222/- from 01-07-2008 onwards on "no work no pay" basis, subject to the fulfillment of the conditions as laid down in Govt. of India, Ministry of Finance, Department of Revenue's O.M. F.No.7/33/2008-Coord (Circular No.58/2008) dated 26-09-2008 based on the minimum of relevant pay scale of Group-D staff and doing the same nature of work as done by the regular employees and working for 8 (eight) hours per day.
This issues with the approval of the Chief Commissioner of Income-tax (CCA), Jaipur. The order shall come into effect from 01-11-2008."
(emphasis supplied) Order dated 18.10.2010 "Reference to this office order No.2773 dated 12th November, 2008 regarding fixation of daily rates of wages for Casual Workers.
In pursuance of the instructions laid down in the Department of Personnel & Training's Office Memorandum No.49011/31/2008 Estt.(C) dated 12-09- 2008 and Ministry of Finance, Department of Revenue, Government of India's O.M. F.No.7/33/2008-Coord. (Circular No.58/2008) dated 26-09-2008 and consequent upon implementation of the 6th Central Pay Commission w.e.f. 01.01.2006 to the Central government Employees, the daily rate of wages of the Casual Workers/Contingent Paid Staff engaged in this region has been fixed provisionally at Rs.292/- from 01-07-2008 onwards on "no work no pay" basis, subject to the fulfillment of the conditions as laid down in Govt. of India, Ministry of Finance, Department of Revenue's O.M. F.No.7/33/2008-Coord. (Circular No.58/2008) dated 26-09-2008 based on the minimum of relevant pay scale of Group-D staff and doing the same nature of work as done by the regular employees and working for 8 (eight) hours per day.
This issues with the approval of the Chief Commission of Income-tax (CCA), Jaipur. The order shall come into effect from 01-10-2010."
(emphasis supplied) The applicants stated the grievance in the manner that the present petitioner No.3 issued the impugned order dated D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 8 // 31.05.2011 while observing that the recommendations of 6th Pay Commission were applicable only to such casual labourers who had been conferred temporary status and not to the casual labourers without temporary status. By this order, the aforesaid earlier orders dated 12/17.11.2008 and 18.10.2010 were withdrawn and it was directed that the casual workers without temporary status would be paid the wages @ 164/- per day where the nature of their work was the same as that of the regular employees. The impugned order dated 31.05.2011 reads as under: -
"A communication No.PCC/CBDT/CDN-
II/CL/Temp.Status/994-955 dated 25.03.2011 has been received from Principal CCA, CBDT, New Delhi through ZAD, CBDT, Jaipur stating as under: -
"As regard payment to casual labourers at the revised rates as per 6th CPC's recommendations, it is stated that rates are applicable only in the case of Casual labourers who have been conferred with temporary status and are not applicable in respect of casual labourers without temporary status.
In this connection, this office has already taken up the matter with Joint Secretary (Admn.) CBDT, M/o Finance as well as Joint Secretary (Estt.), DoPT vide D.O. No.F.2/DPL(CL)/2010-11/PCCA/CBDT/853-57 dated 21-02-2011 for seeking clarification/order on the issue. Hence, till any order/clarification is received from CBDT/DoPT payment to casual labourers (without temporary status) should be made at old rates only.
In view of the above, the earlier orders pertaining fixation/review of daily rates of wages for casual workers bearing number 2773 dated 12-11-2008 & 289 dated the 18-10-2010 are hereby withdrawn. Consequently, it is hereby sanctioned/ordered that the daily wages to casual workers without temporary status is to be paid at the old rates as fixed vide order No.1724 dated the 9th July, 2007 which is rupees 164/- per day, where nature of the work of casual workers is the same as that of regular employees.
This issue with the approval of the Chief Commissioner of Income tax (CCA) Jaipur."
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 9 // The applicants also submitted that the said order was based on the OM dated 12.09.2008 wherein it was suggested that the 6th Pay Commission recommendations were applicable only to the casual workers with temporary status. The applicants contended that they were doing the same work as the regular workers and continued to do so; and that the 6th Pay Commission report never excluded them and if done so, it would amount to drawing distinction between the same categories of workers in violation of constitutional mandate. The applicants further contended that such orders had been issued without any notice or opportunity of hearing to them and the same being prejudicial and intended at withdrawing/reducing the wages being received by them, could not have been issued without affording proper opportunity of hearing. The applicants, therefore, prayed for the following relief: -
"That impugned order dt., 31.5.2011 (Annexure A-1), issued by 3rd respondent may be declared illegal and the same may be quashed. The respondents may be directed to make payment to the applicant @ 1/30th of the pay at the minimum of the time scale of pay of the Group D staff plus dearness allowances i.e. Rs.292 per day as basic pay w.e.f. 1.7.2008 and applicants allowed with all consequential benefits including the due arrears thereof. The OM dated 12.9.2008 [Annexure A/2] may be ordered to be modified accordingly."
The present petitioners (respondents in OAs), on the other hand, submitted that the work of employees like the applicants was different and as such, they were given the wages at the highest of the minimum wages at Rs.164/-. It was submitted that D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 10 // as per the OM dated 12.09.2008, only the workers with temporary status were held entitled to receive their wages on the basis of scales of Group D employees as per the pay band and the corresponding grade pay recommended by 6th Central Pay Commission; and the applicants were not entitled to claim parity with the regular employees or the casual workers with temporary status.
On the submissions of the parties, the CAT proceeded to consider two major issues viz., (i) as to whether the applicants had been performing the same nature of duties as the regular employees; and (ii) as to whether the reduction of wages as ordered by the impugned order was violative of the constitutional mandate.
After a thorough analysis of the material on record including the orders above-mentioned, the CAT found that the applicants were discharging the duties of regular employees and they would continue to be governed by the OM dated 07.06.1988 (supra). It was also held that the nature of the duties performed by the applicants had not undergone a change for mere issuance of circular by the DoPT and the applicants continued to do the similar nature work, rather more than those of the regular employees. The CAT observed that the doctrine of equal pay for equal work was directly applicable to the case; and that the orders impugned suffered from the violation of basic principles of natural justice. The CAT, inter alia, held as under:-
"15. On the basis of the aforesaid discussions we reached the conclusion - the payment of wages to the D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 11 // daily wage employees discharging the duties of a regular employee will continue to be governed by the provisions of OM dated 7.6.1988 despite the fact that the OM dated 10.9.1993 has been deemed to be a one time dispensation. Even in the case of Union of India Vs. Mohanlal and others (supra), the principle that once attained the status of a temporary it is well protected only violate to the condition that such employee is found guilty of misconduct when his services can be dispensed with altogether. Under other conditions the services are protected. The Hon'ble Supreme Court while holding so have not dispensed with this principle. The second conclusion is that it is more than clear that the applicants have been doing the same work as regular employees and even more. We cannot imagine that a regular UDC being asked to do the work of cleaning and watering the plants. In fact they are doing more. The nature of the duties being performed by the applicants has not undergone a change by virtue of the mere fact the impugned circular has been issued by the DoPT. It is well recognized that a circular from above does not changed the ground realities in effect. Where the applicants have been performing the duties of a regular employee or more and continue to do so is a fact their status cannot change overnight by the mere fact that a circular has been issued by a superior authority. The third conclusion is that by issue of the impugned OM dated 31.5.2011 [A1] the material facts are not altered by one stroke-of pen. What the applicants were doing earlier they continue to do so even after the issue of the impugned OM. As already held that where the nature of work remains to be the same as the regular employees the payment will also continue to be the same
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18. It is also significant to note that no show cause notice has been issued to the applicants before reducing their daily wages structure. While certainly the services of the applicants as decided in the case of Union of India Vs. Mohanlal and others, (supra) can be dispensed with one month's notice by means of a termination simplicitor. For reducing or altering the wage structure to their disadvantage will require prior show cause and giving them opportunity of being heard. The principle of audi alteram partem is inviolate in such cases. In any event, such a reduction is not justified in the cases in hand.'' The CAT, therefore, allowed the OAs and granted the relief as noticed hereinbefore.
Seeking to question the order so passed by the CAT, the D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 12 // basic contention of the learned counsel for the petitioners is that the CAT has failed to consider the difference of the legal rights available to the persons like the applicants, who are simply the casual labourers/workers and those available to the other casual workers holding temporary status. It is submitted that the different office orders earlier issued did not specify the difference between the casual workers without temporary status like the applicants and the other casual workers holding the temporary status; and hence, the order dated 31.05.2011 came to be rightly issued because of such different class of casual workers in the department. It is submitted that the rights, including those of wages, cannot be claimed by the applicants equal to or at parity with the other casual workers holding temporary status.
Per contra, the learned counsel for the respondents (applicants before the CAT) has duly supported the order impugned and has, inter alia, submitted that so far the payable wages are concerned, the parity that had continued until issuance of the questioned order dated 31.05.2011 could not have been disturbed by the department; and that the casual workers like the applicants cannot be put at a disadvantageous position, particularly when they are doing the same work as regular employees and even more.
After having given thoughtful consideration to the rival submissions and having examined the record, we are unable to find any jurisdictional error in the order impugned so as to consider interference in the writ jurisdiction.
D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 13 // As noticed above, by the orders dated 12/17.11.2008 and 18.10.2010, the petitioners consciously provided for fixation and enhancement of daily rates of the wages for the casual labouers.
The orders did not draw any distinction in the casual workers holding temporary status and other casual workers. As noticed, the department had consciously issued earlier the memorandum dated 07.06.1988 providing that where the nature of the work entrusted to the casual labourers and regular employees be the same, the casual labourers would be paid @ 1/30 of the pay at the minimum of the relevant pay scale plus dearness allowance for a work of 8 hours per day.
For the facts that the nature of work entrusted to the applicants is the same as entrusted to the regular employees and their working hours are also the same, or to say, minimum 8 hours of day, in our view, they could not have been discriminated against by providing that they would be getting the wages lesser than the other casual workers who had been given temporary status. The CAT has recorded categorical findings that the nature of the duties being performed by the applicants has not undergone a change; and that the applicants have been performing the duties of the regular employees or even more.
These findings have not, as such, been put to contention before us, and rightly so. The department has never adduced any material to show that for the applicants, there had been a shortened length of the duties or lesser quantum of work than the regular employees or any other difference in the nature of the D.B. Civil Writ Petition No.49/20013.
UOI & Ors. Vs. Abdul Kadar & Ors.
[Alongwith 29 similar matters] // 14 // duties. That being the position, the view taken by the CAT that there was nothing cogent available with the petitioners to reduce or alter the wage structure to the disadvantage of the applicants cannot be faulted at.
While concluding, we may observe that the order as passed by the CAT and this order relate only to the question of wages of the applicants while working as the casual workers and the subject matter of these petitions is not related to any other issue. Therefore, it is always open for the parties to otherwise take recourse to the appropriate proceedings in accordance with law in regard to other legal rights/obligations.
Subject to the observations foregoing, these writ petitions stand dismissed. No costs.
(V.K. MATHUR), J. (DINESH MAHESHWARI),J.
Cpgoyal//-