Central Administrative Tribunal - Cuttack
Bijay Ketan Mohanty vs Nsso-National Sample Survey Office on 21 September, 2022
1 O.A.No. 260/00449 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00449 of 2021
Reserved on 30.08.2022 Pronounced on 21.09.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Bijay Ketan Mohanty, aged about 50 years, S/o
Satyanarayan Mohanty, presently serving as
Investigator, National Statistical Office, (Field Operation
Division), Bhubaneswar, Dist- Khurda.
.....Applicant
For the Applicant : Mr. D.K.Panda, Counsel
-Versus-
1. Director General, National Statistical Office, (Field
Operation Division), Sankhiyyki Bhawan, G.P.O.A
Building, AT-CBD, Shahdara, Near - Karkardooma Court,
New Delhi - 110032.
2. The Addl. Director General, National Statistical Office,
(Field Operation Division), Sankhiyyki Bhawan, G.P.O.A
Building, AT-CBD, Shahdara, Near Karkardooma Court,
New Delhi - 110032.
3. Deputy Director General (Admn), National Statistical
Office, (Field Operation Division), Sankhiyyki Bhawan,
G.P.O.A Building, AT CBD, Shahdara, Near -Karkardooma
Court, New Delhi - 110032.
4. Deputy Director General, National Statistical Office,
(Field Operation Division), Bhubaneswar, Commercial
2 O.A.No. 260/00449 of 2021
Complex, 1st Floor, Acharya Vihar, Bhubaneswar 13,
Dist- Khurda.
..... Respondents
For the Respondents: Mr. P.K.Ray, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
The issue involved in this O.A. falls in a short compass and is stated in brief that the Ministry of Statistics and Programme Implementation, national Sample Survey of India issued a letter under Annexure-A/4 dated 19.12.2017 inter alia stating as under:
"Subject: - Enhancement in remuneration of contractual staff engaged through agency in NSSO (FOD) - reg.
Reference is invited to this Division's letter No. M- 12011/13/PLFS/MS dated 16.03.2017 & letter of even number dated 23.06.2017 vide which eCentric Solutions Pvt Ltd was awarded the contract of supplying manpower for PLF survey and 75th round of NSS respectively. In this connection, I am directed to state that, the rate of remuneration for different categories of contractual employees viz. Field investigators (FIs), Field Officers (FOS) & Administrative Staff; engaged for surveys of NSSO through e-Centric Solution Pvt Ltd has been revised as per details given below:
Designation Existing rate of Enhanced rate of
Remuneration remuneration
Field Investigators Rs 16,500/- Rs 19,590/-
(Fls)
3 O.A.No. 260/00449 of 2021
Field Officers (FOS) Rs 17,600/- Rs 21.300/-
Administrative Rs 12,100/- Rs 19,590/-
Staff
The enhanced rate of remuneration would be effective for the remuneration for the months of January 2018 to March 2018."
2. The applicant submitted representation for payment of the remuneration at revised rate provided in Annexure-A/4 dated 19.12.2017. Thereafter, alleging non-consideration of his representation, he had approached this Tribunal in O.A. 289/2021, which was disposed of at the admission stage with direction to the respondents department to consider and dispose of the representation. In compliance of the order of this Tribunal, the respondents department consider his representation and intimated the outcome of such consideration to him vide letter dated 24.08.2021 under Annexure-A/10, which is quoted asunder:
"Sub: Monthly Remuneration in respect of Shri B.K. Mohanty, Field Investigator (contractual)-reg.
Please refer to your representation dated 08/01/2020 on the subject cited above. In this connection, it is informed that Shri Bijay Ketan Mohanty is engaged on terms and conditions of the agreement signed by him at the time of his engagement with a stipulated remuneration of Rs 16,500/- per month. Further, due to the stay order passed by Hon'ble CAT "that there shall be interim stay operation of Judgment dated 21/03/2014 passed by Hon'ble CAT in 0.A. No. 374 of 2011." no change in terms & 4 O.A.No. 260/00449 of 2021 conditions can be made. The manpower which has been hired through manpower providing agencies is being paid remuneration of Rs. 19,500 and Shri B.K. Mohanty has not been hired through manpower providing agency. It is also informed that remuneration presently being paid to Shri B.K. Mohanty is higher than present Minimum Wage rates prevailing in state of Odisha.
2 Further, the same reply has been provided earlier on PG Portal against Grievance No. MoSPI/E/2020/00142 of Smt. Mitanjali Pattanayak. Further, it is informed that enhancement of monthly remuneration to contractual staff continuing due to Court Case is under consideration in this Division."
3. Being aggrieved, the applicant has filed the present O.A. seeking to direct the respondents department to pay him remuneration at the enhanced rate of Rs. 19,590/- w.e.f. 01.01.2018 in terms of the order under Annexure-A/4 quoted above after quashing the order under annexure-A/10 dated 17.08.2021.
4. Respondents filed their counter stating therein that the applicant, who was engaged on contractual basis, has been continuing on his contractual engagement on the strength of order of the Hon'ble High Court passed in W.P.(C)No. 7012/2014. Further, it has been submitted that Sri Naresh Jaswal and Shailendra Koshore of Shimla are continuing on their contractual engagement as Field Investigator on the interim order passed 5 O.A.No. 260/00449 of 2021 by the Hon'ble Apex Court on 04.09.2018 in SLP(C) No. 22407/2018 (Annexure-R/1). It has been submitted that as a matter of policy, the remuneration of contractually engaged employee through outsourcing was enhanced by the order under Annexure-A/4. Since the applicant was not engaged through any outsourcing agency, the enhanced remuneration carved out in order under Annexure-A/4 is not applicable in his case. The applicant was given due opportunity to be engaged through contractor so as to enable him to get the enhanced remuneration carved out in Annexure- A/4 but he did not avail the same. Insofar as getting the enhanced remuneration by other similarly situated persons engaged on contractual employees is concerned, it is the stand fo the respondents is that none of the employees engaged as such through the department have been paid the enhanced remuneration and enhanced remuneration have been paid to such employees who were engaged through outsourcing. It has been submitted that the applicant has been paid the remuneration as per the contract signed by him and he has been paid the remuneration higher than the present minimum wage rates prevailing in state of Odisha. Accordingly, the respondents have prayed for dismissal of this O.A.
5. Applicant has filed rejoinder stating therein that the W.P(C) No. 7024/2014 filed by him before the Hon'ble High Court of Orissa seeking 6 O.A.No. 260/00449 of 2021 regularization has already been disposed of on 04.02.2022 (Annexure- A/12). According to him, General Financial Rule, 2017 for providing remuneration to a contractual manpower outsourced through man power providing agencies came into force w.e.f. 01.01.2018 and monthly remuneration was given per terms and conditions laid down in the memorandum of agreement but the applicant was reappointed in 2009 on contractual basis, i.e. much prior to the GFR Rules. The applicant as well as man power provided by agency are discharging the similar nature of duties but the applicant is having 20 years of experience and hence he should not be discriminated with regard to monthly remuneration. Although the remuneration was enhanced during pendency of the court cases, but the said enhancement was not given to the applicant, which is highly discriminatory. The case of Sri Naresh Jaswal and Sri Shailendra Kishore of RO Shimla are pending before the Hon'ble Apex Court for regularization of their services still they have been paid enhanced remuneration. The NSSO being a Central Govt. organization, the scale of pay and remuneration as applicable to Central Govt. is also applicable to NSSO and hence the question of minimum wages prevailing in the State of Odisha is not applicable in his case. Hence, he has prayed for the relief as claimed in the O.A. 7 O.A.No. 260/00449 of 2021
6. Ld. Counsel for the respective parties reiterated their stand in their pleadings as discussed above. Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Jagjit Singh and others, (2017) 1 SCC 148, relating to pay parity/equal pay for equal work, which has also been perused.
7. Going through the order under Annexure-A/4, it appears that the remuneration of the Investigator, engaged through outsourcing, was enhanced. Admittedly, the applicant is engaged as contract Investigator not through outsourcing and, therefore, he has been paid as per the agreement signed by him and rates applicable to the persons contractually engaged by the department. It is seen that in the impugned order under Annexure- A/10, the respondents while rejecting the claim of the applicant has specifically intimated that enhancement of monthly remuneration to contractual staff continuing due to Court Case is under consideration but no whisper has been made in the counter of the outcome of such consideration. This Tribunal has gone through the decision cited by the Ld. Counsel for the applicant in the case of Jagjit Singh (supra), which was a case before the Hon'ble Apex Court for decision regarding grant of equal pay for equal work in relation to temporary employees (daily-wage 8 O.A.No. 260/00449 of 2021 employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like), whether the employees concerned were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. It is not the case of the respondents either in the counter or in course of hearing that the duties discharged by the applicant is different than the duties of the persons engaged through outsourcing agencies.
8. It is seen that the Hon'ble Apex Court in the aforesaid case has held that an employee engaged for the same work cannot be paid less than another, who performs the same duties and responsibilities. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. Any act of paying less wages, as compared to others similarly situated, constitutes an act of exploitative enslavement emerging out of a domineering position and the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. Such an action would be in violation of Article 14 of the Constitution, which guarantees equality and the Directive Principles of welfare state enshrined under Article 38 and 30 of the Constitution. It is admitted by the Respondents that the enhanced pay 9 O.A.No. 260/00449 of 2021 has been allowed to the similarly situated persons engaged as Investigator through outsourcing but as the applicant has not been engaged through outsourcing he is not entitled to said remuneration which appears to be unjust and arbitrary being opposed to the very concept that there should be no discrimination in the matter of remuneration. Further, it is apt to state that State may not unfairly discriminate directly or indirectly against anyone on one or more grounds. In view of the discussions made above, this Tribunal is constrained to hold that non-payment of enhanced remuneration to the Applicant is wholly unjustified.
Hence, the impugned order dated 24.08.2021 under Annexure-A/10 is hereby quashed. The Respondents is directed to pay the applicant enhanced remuneration as per Annexure-A/4 as was given to the persons engaged through outsourcing/man power providing agency within a period of 60 (sixty) days from the date of receipt of a copy of this order.
9. This OA is accordingly allowed. However, the parties to bear their own costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS