Andhra Pradesh High Court - Amravati
Janapareddy Surya Narayana vs The Muncipal Administration And Urban ... on 16 April, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.25434 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, questioning the proceedings RC.No.16394/P.O (Balyam) dated 19.06.2017 as illegal, arbitrary and violative of Articles 14, 16, 21 & 39(d) of the Constitution of India and consequently set-aside the same and direct the respondents to regularise the services of the petitioners in terms of judgment of the Apex Court in Amarkant Rai v. State of Bihar1, as the petitioners fall within the exception carved out by the Apex Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors2 and to pay all consequential benefits.
The petitioners case in nutshell is that, the petitioners were appointed as Balwadi Teachers, working under Greater Visakhapatnam Municipal Corporation in their respective posts. The main duties of the petitioners are to promote adult education and non-formal education (drop outs) and educate 3 to 5 years children, particularly in slum areas according allotted areas to individual petitioners/ balyam teachers/supervisors respectively. The respondent authorities are using the petitioners services as and when necessary for election, census, enumeration of ration cards, verification of eligible persons to extend welfare scheme benefits to individual and not particular prescribed duties apart 1 2015 (8) SCC 265 2 (2006) 4 SCC 1 MSM,J WP.No.25434 of 2020 2 from their regular duty as balyam teacher/supervisors. It is the case that the respondents never paid any additional remuneration for allotting other than actual duties. The petitioners never hesitated to do works allotted by the respondents only with a hope to get their permanent employment.
It is the specific contention of the petitioners that, according to Article 39(d) of the Constitution of India, Equal pay for equal work shall be extended to temporary employees (differently described as work charged, daily wage, casual, ad-hoc, contractual) and they can claim wages on par with minimum pay scale being paid to regularly engaged government employees and by applying the principle of equal pay for equal work, the same benefit shall be extended to temporary employees in view of the principle laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra).
It is contended that the petitioners were initially appointed as Balwadi Teachers and sewing teachers on monthly remuneration of Rs.375/-. Subsequently the remuneration was enhanced to Rs.1300/- per month. The petitioners with lot of hope to get permanent employment after some period in the corporation, they have joined for low monthly payment but years passing, they did not get any assurance from the corporation. The petitioners joined the service when they were young and energetic and all the petitioners worked in the corporation with a hope that their services would be regularized by absorbing as permanent employees by the corporation authorities. It is submitted that the MSM,J WP.No.25434 of 2020 3 petitioners' services were not regularized till date and the action of the respondents in discriminating the petitioners' amounts to violation of Articles 14, 16, 21 and 39(d) of the Constitution of India.
It is submitted that, respondents issued G.O.Ms.No.542 dated 31.08.2009 sanctioning minimum time scale to 310 employees working in different categories i.e. NMR/contract workers of merged village/part time sweepers/bill collector/safaiwalas/care takers/communities health volunteers/ ANMs, ignoring services of the petitioners herein.
It is submitted that the petitioners are appointed by the respondents and utilizing the services of the petitioners for all purposes continuously since long time without any further enhancement in remuneration. Similarly, community health volunteers appointed who stand on similar footing and on par with the petitioners have been included in G.O.Ms.No.542 and granted minimum time scales. It is submitted that, non-inclusion and ignoring the names and services of the petitioners in G.O.Ms.No.542 is nothing but discriminating the petitioners, in violation of Articles 14, 16, 21 and 39(d) of the Constitution of India.
The Government issued G.O.Rt No.333 dated 07.03.2011, enhancing the remuneration of the contract/outsourcing employees working in municipalities and municipal corporation to Rs.6,700/- and that the Municipal Standing Committee had MSM,J WP.No.25434 of 2020 4 approved by way of Resolution No.547/2011 dated 09.11.2011 as per G.O.Rt No.333 dated 07.03.2011, Balyam Teachers should be paid maximum of Rs.6,700/- and Ayas should be paid Rs.2,000/-.
Despite the petitioners discharging their duties as Balyam Teachers/Balyam Supervisors, the Municipal Corporation did not regularize their services and finally, denied to extend the regular time scale to these petitioners, inspite of their representations and issued proceedings RC.No.16394/P.O (Balyam) dated 19.06.2017 contrary to the law declared by the Apex Court and also failed to extend the time scale in terms of the principles laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra), thereby, the proceedings are illegal, contrary to law and violative of Articles 14, 16, 21 and 39(d) of the Constitution of India and requested to grant the relief as stated supra.
The Respondent Nos. 2 & 3 filed counter affidavit, while denying material allegations, inter alia, contending that, regularization of services of these petitioners and to grant consequential benefits to the petitioners is not permissible under law, as they are not entitled for regularization and that they are not engaged by the respondent/municipal corporation at any point of time, as such, question of regularization of their services, as claimed by the petitioners does not arise. On this ground alone, the petition is liable to be dismissed.
MSM,J WP.No.25434 of 2020 5 Respondent Nos. 2 & 3 further contended that, as per the records available with the municipal corporation, the petitioners were employed as Balwadi teachers, sewing teachers, adult education and NFE (Non Formal Education) on outsourcing basis and they were being paid their remuneration in order to upgrade the children in slum and urban areas with the financial assistance of ODA (under Visakha slum improvement project on the recommendations of the neighbourhood committee on honorarium basis, so as to have an effective cleanliness and hygiene atmosphere in the Balwadi centers and the financial assistance towards honorarium of the petitioners has been released through self help groups and the petitioners were never engaged by the corporation neither as NMRs nor on daily wage and they are working on outsourcing basis by paying honorarium/ remuneration through third party agency, as such the petitioners are not entitled to claim regularization in service.
It is submitted that, originally honorarium was being paid to the petitioners at Rs.375/- and it was enhanced from Rs.375/- to Rs.1300/- per month and the same was continued till 2011. Subsequently, the honorarium was fixed at Rs.3,700/ with effect from 01.04.2012 as the petitioners were working only for three hours from 09:00 a.m to 12:00 noon and subsequently the respondent corporation passed Resolution No.431/2016 dated 26.03.2016 enhancing the honorarium from Rs.3,700/ to Rs.6,700/- while extending their agreement period from 01.04.2016 to 31.03.2017 as their outsourcing period came to be MSM,J WP.No.25434 of 2020 6 concluded by 31.03.2016. Accordingly the petitioners were being paid their honorarium at Rs.7,000/- per month as per Council Resolution No.1284/2018 dated 14.07.2018 till date.
While the things stood thus, the writ petitioners filed W.P.No.10374 of 2013 before this Court seeking a direction to sanction minimum time scale as per G.O.Ms.No.542 dated 31.08.2009 and sought to consider their representation dated 09.01.2013. This Court disposed of the writ petition directing the respondent/corporation to dispose of the representation dated 09.01.2013 within a period of ten weeks, if not already disposed of. Pursuant to the order passed by this Court in W.P.No.10374 of 2013 dated 17.04.2013 the respondent/Corporation disposed of the representation dated 09.01.2013 through proceedings dated 19.06.2017 informing that the respondent/corporation has considered their request for enhancement of honorarium at Rs.6,700/- under Resolution No.431/20169 dated 26.03.2016 and the petitioners have been receiving the same. The petitioners filed C.C.No.1812 of 2017 alleging that the orders passed by this Court in W.P.No.10374 of 2014 dated 17.04.2017 has not been complied with, and the contempt case is pending for consideration.
It is submitted that, suppressing the above said facts, the petitioners filed the writ petition seeking regularization of their alleged service though the petitioners are not entitled for regularization as they were not engaged by respondent corporation on outsourcing basis through the third party agency i.e. Mahavisakhi Mahila Samkshema Sangham on outsourcing basis, MSM,J WP.No.25434 of 2020 7 as such question of regularizing their services does not arise as they were not engaged by the respondent/corporation and they are working on outsourcing basis through the third party agencies and they were being paid their remuneration on honorarium basis only. Thereby, the alleged relationship of employee and employer is not existing between the petitioner and Respondent Nos. 2 & 3 and consequently they are not entitled either for extension of minimum time scale or regularization of their services in the respondent/corporation and requested to dismiss the writ petition.
During hearing, Sri P. Lakshmana Rao, learned counsel for the petitioners would vehemently contend that the services of these petitioners were engaged on temporary basis. But, the respondents did not enhance the remuneration payable to these petitioners from time to time. However, refused to extend the regular time pay scale payable to the similarly situated persons and also refused to regularise their services in terms of G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department, dated 22-04-1994 (for short 'G.O.Ms.No.212 dated 22.04.1994'). Learned counsel for the petitioner contended that, the action of the respondents is illegal, arbitrary and contrary to the principles laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra), Amarkant Rai v. State of Bihar (referred supra) and G.O.Ms.No.212 dated 22.04.1994 issued by the State Government and requested to issue a direction as claimed in the writ petition.
Whereas, Sri S. Lakshminarayana Reddy, learned Standing Counsel for Greater Visakhapatnam Municipal Corporation MSM,J WP.No.25434 of 2020 8 contended that, when G.O.Ms.No.542 dated 31.08.2009 has no application, since the services of the petitioners are engaged on outsourcing basis from Mahavisakhi Mahila Samkshema Sangham, but not on contract basis or temporary or any other basis, therefore, the petitioners contention that their services are engaged on temporary basis is false and G.O.Ms.No.542 dated 31.08.2009 is applicable only to the categories of employees engaged on temporary basis i.e. NMR/contract workers of merged village/part-time sweepers/ bill collector/safaiwalas/ care takers/communities health volunteers/ ANMs, but not applicable to these petitioners whose services are engaged on outsourcing basis, thereby, the writ petition is liable to be dismissed and requested to dismiss the writ petition.
In view of rival contentions, the points needs to be answered by this Court are:
1. Whether the services of these petitioners were engaged on outsourcing basis. If not, by any other mode. If so, whether the petitioners are entitled to claim benefit of equal pay for equal work, as laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra) and regularization of their services in view of the judgment of the Apex Court in Amarkant Rai v. State of Bihar (referred supra)?
2. If, Point No.1 is answered in affirmative, whether proceedings impugned in the writ petition are liable to be set-aside, declaring the same as illegal, arbitrary and violative of Articles 14, 16, 21 and 39(d) of the Constitution of India?
MSM,J WP.No.25434 of 2020 9 P O I N T Nos.1 & 2:
In view of the issue involved in both the points, I find it expedient to decide both the points by common discussion.
The main contention of the petitioners from the beginning is that, the services of these petitioners are engaged by Respondent Nos. 2 & 3 on different dates and they are discharging their duties.
But, the petitioners did not specify the nature of engagement of their services in the corporation, more particularly, as to whether it is on temporary basis, daily wage, casual, ad-hoc, contractual basis or outsourcing basis. In the absence of any details regarding engagement of the petitioners' services, it is difficult for this Court to decide the issue involved in this matter. However, the petitioners placed on record the proceedings in RC.No.16394/P.O (Balyam) dated 19.06.2017, whereunder it is specifically mentioned that, in terms of judgment of the High Court, the respondents passed Resolution No.547/2011 dated 09.11.2011, enhancing the duty time to eight hours instead of three hours from 31.03.2016, while agreeing to pay Rs.6,700/-. The same is questioned before this Court. However, the proceedings are silent as to the nature of engagement of the services of these petitioners. Even in W.P.No.10374 of 2013 filed before this Court, it was disposed of by this Court with a direction to dispose of the representation dated 09.01.2013. As a consequence of this direction, the proceedings impugned in this writ petition are issued.
MSM,J WP.No.25434 of 2020 10 The petitioners, except filing copy of the orders in various writ petitions and miscellaneous petitions, no material is placed on record to prove their contention that their services are engaged on temporary basis, daily wage, casual, ad-hoc, contractual basis or outsourcing basis. But simply, narrated the facts without disclosing the nature of engagement of their services in the writ affidavit. Whereas, Respondent Nos. 2 & 3 specifically contended that the services of these petitioners were engaged on outsourcing basis through third party agency i.e. Mahavisakhi Mahila Samkshema Sangham on outsourcing basis, as such the services of these petitioners cannot be regularized.
When the petitioners approached this Court contending that their services were engaged by the corporation, it is for the petitioners to disclose the nature of their appointment or engaging their services of these petitioners as to whether it is on temporary basis, daily wage, casual, ad-hoc, contractual basis or outsourcing basis etc. But, for reasons best known to the petitioners, the petitioners did not disclose the same.
The respondents placed on record the resolution passed by Respondent Nos. 2 & 3 in proceedings RC.No.16394/P.O (Balyam) dated 26.03.2016. According to resolution of municipal corporation, they agreed to continue the outsourcing services of these petitioners from 01.04.2016 to 31.03.2017 while fixing their working hours from 9:00 a.m to 12:00 noon at GVMC Balyam Vidya Kendras and from 12:00 noon to 5:00 p.m at the wards of U.S.D Project Divisions, thereby ordered to work for total eight MSM,J WP.No.25434 of 2020 11 hours for a total remuneration of Rs.6,700/- for the said Balyam Teacher/Supervisor to be paid by the third party agency.
Thus, it is evident from proceedings RC.No.16394/P.O (Balyam) dated 26.03.2016, the corporation agreed to continue engagement of these petitioners on outsourcing basis for another year from 01.04.2016 to 31.03.2017 on payment of Rs.6,700/ per month, and sanctioned an amount of Rs.81,99,192/- for the year 2016-2017. Therefore, the same is not questioned before this Court, except the letter addressed by the respondent. From this letter, it is evident that the petitioners' services are engaged on outsourcing basis. Though Respondent Nos. 2 & 3 contended that the services of these petitioners are engaged on outsourcing basis, the petitioners did not file any rejoinder, denying or refuting the said contention. In the absence of any rejoinder or reply to the counter affidavit, denying the engagement of services of these petitioners on outsourcing basis, this Court has no option except to accept the contentions of the respondents that the services of these petitioners are engaged on outsourcing basis through Mahavisakhi Mahila Samkshema Sangham, as contended in the counter affidavit, since it is not rebutted. Therefore, based on the material on record, more particularly, resolution passed in RC.No.16394/P.O (Balyam) dated 19.06.2017, the services of these petitioners are engaged only on outsourcing basis, but not on temporary basis, daily wage, casual, ad-hoc, contractual basis or outsourcing basis. Accordingly the point is answered.
MSM,J WP.No.25434 of 2020 12 When the petitioners approached the Court seeking a discretionary relief under Article 226 of the Constitution of India, they must approach the Court with clean hands disclosing all facts. When the petitioners approached the Court claiming relief of regularization of services, and for extension of regular minimum time scale, it is for the petitioners to disclose each and every detail, more particularly nature of engagement of their services i.e. whether they were appointed on temporary basis, daily wage, casual, ad-hoc, contractual basis or outsourcing basis and produce necessary documentary proof in support of their contention, as the relief claimed under Article 226 of the Constitution of India is purely discretionary and equitable. But, for the reasons best known to the petitioners, the petitioners did not disclose the details of the nature of engagement of their services and no documentary proof is filed in support of the contentions of these petitioners, since the initial burden is upon the petitioners to establish the nature of their engagement of services in the municipal corporation. Conveniently, the petitioners avoided to disclose the nature engagement of their services for the reasons best known to them. Thus, the petitioners also did not disclose the orders passed by the Court in W.P.No.10374 of 2014 and C.C.No.1812 of 2017 pending before this Court, thereby suppressed a material fact which disentitled these petitioners to claim discretionary and equitable relief under Article 226 of the Constitution of India.
MSM,J WP.No.25434 of 2020 13 As discussed above, the petitioners did not approach this Court with clean hands, but suppressed material fact i.e. nature of engagement of their services by the respondent/corporation. Therefore, the claim of these petitioners that they were appointed in the corporation initially on payment of Rs.175/- and later enhanced from time to time is hereby rejected, while holding that the services of these petitioners are engaged on outsourcing basis through Mahavisakhi Mahila Samkshema Sangham.
One of the contentions of these petitioners is that, when the services of these petitioners are engaged by the respondents, they are entitled to the benefit of G.O.Ms.No.212 dated 22.04.1994 for regularization of their services.
No doubt, if the services of these petitioners are engaged on temporary basis, daily wage, casual, ad-hoc, contractual basis, as mentioned in G.O.Ms.No.212 dated 22.04.1994, the petitioners are entitled to claim benefit under G.O.Ms.No.212 dated 22.04.1994. A copy of G.O.Ms.No.212 dated 22.04.1994 is also placed on record. According to G.O.Ms.No.212 dated 22.04.1994, the Government on a careful examination of the whole issue and in supersession of all previous orders on the subject, it had formulated a scheme for regularization of services, as per which, persons appointed on daily wage/NMR or on consolidated pay and were continuing on the date of commencement of the Act should be regularized in service, if they had worked continuously for a minimum period of five years and were continuing on 25.11.1993, subject to fulfilment of the following conditions:
MSM,J WP.No.25434 of 2020 14
1) The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularized.
2) They should be within the age limits as on the date of appointment as NMR/Daily wage employee.
3) The rule of reservation wherever applicable will be followed and back-log will be set-off against future vacancies.
4) Sponsoring of candidates from Employment Exchange is relaxed.
5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee.
6) In the case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of workcharged establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade Service.
The benefit of G.O.Ms.No.212 dated 22.04.1994 can be extended only to the persons appointed on daily wage/NMR or persons appointed on consolidated pay etc., if they had worked continuously for a minimum period of five years and were continuing on 25.11.1993. But, in the present case, the petitioners' services were not engaged on daily wage basis or NMR or on consolidated pay. But, their services were engaged on outsourcing basis through an agency known as Mahavisakhi Mahila Samkshema Sangham. Hence, the petitioners are disentitled to claim the benefit of G.O.Ms.No.212 dated 22.04.1994 for regularization of their services, since, it is not their claim that their services were engaged either as daily wage or as NMR or on consolidated pay and worked continuously for a period of five years MSM,J WP.No.25434 of 2020 15 as on 25.11.1993 while in service as on date of the G.O.Ms.No.212 dated 22.04.1994 came into force.
The major contention of the petitioners is that, the petitioners are entitled for regularization of their services and in support of their contention, learned counsel for the petitioners relied on judgment of the Apex Court in Amarkant Rai v. State of Bihar (referred supra), wherein the Apex Court while dealing with the case of regularization of a clerk engaged on daily wage basis was considered, noted the principle laid down in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors (referred supra), State of Karnataka v. M.L. Kesari3 and Nihal Singh v. State of Punjab4 concluded that the appellant who was temporarily appointed in Class IV post of night guard by Principal of College who was not competent authority to make such appointment, serving on said post for 29 years on daily-wage basis, appointment of appellant was out of necessity and concern for college and duly intimated to University in 1988. No issue was raised by the University pertaining to appointment of appellant as ultra vires of the Bihar State Universities Act, 1976. The Supreme Court held that appointment of appellant cannot be termed as illegal, but was only irregular. Besides, as per sanctioned staffing pattern, there were two vacant posts of Class IV employees in college and the appellant was appointed against them. Moreover, in terms of Resolution No.989 dated 10.05.1991 issued by Government, employees working up to 10.05.1986 were to be adjusted against 3 (2010) 9 SCC 247 4 (2013) 14 SCC 65 MSM,J WP.No.25434 of 2020 16 vacancies arising in future. Thus, though appellant was appointed in 1983 temporarily against unsanctioned post, but he was entitled to regularization pursuant to said resolution. Case of appellant fell in exception carved out in Umadevi case (referred supra)wherein it was held that though appointments made against temporary or adhoc posts were not to be regularized, but irregular appointments of duly qualified persons in duly sanctioned post who had worked for 10 years or more could be considered on merit and as one-time measure could be regularized. Hence held, considering that appellant was duly qualified for post and had unblemished record for over two decades, his services directed to be regularised w.e.f 03.01.2002 or date on which post became vacant whichever was later but without monetary benefit.
The facts of the present case are distinguishable from the facts of Amarkant Rai v. State of Bihar (referred supra), an employee was appointed temporarily and it is an irregular appointment. But, here in this case, these petitioners were engaged on outsourcing basis through an agency known as Mahavisakhi Mahila Samkshema Sangham. Therefore, the principle laid down in Amarkant Rai v. State of Bihar (referred supra) has no application to the outsourcing services of employees.
Curiously, learned counsel for the petitioner also further drawn attention of this Court to the judgment of the learned single Judge in G. Srinivasa Chary v. The State of Telangana5. In the said judgment, the learned single Judge went to the extent of 5 W.P.No.47675 of 2018 dated 07.08.2020 MSM,J WP.No.25434 of 2020 17 making serious observations about engaging the services of the employees on outsourcing basis and noted the principle laid down in Hussainbhai v. Alath Factory Thezhilali Union6, where the Court laid down the test to decide the relationship of employee and employer and Court held that mere contracts are not decisive and the complex of considerations relevant to the relationship is different; and that where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. The Court explained:
"mere contracts are not decisive and the complex of considerations relevant to the relationship is different. Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the Rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine-spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner.
5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or 6 1978 AIR 1410 MSM,J WP.No.25434 of 2020 18 services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
( emphasis supplied) Based on the test laid down by the Apex Court in the judgment referred supra, the learned single Judge of Telangana High Court concluded that there is relationship of employee and employer between the department and the outsourced employee, ignoring the intermediary contractor or outsourcing agency. But, at this stage, it is relevant to refer certain principles laid down by the Apex Court to determine the relationship of employee and employer.
The determination of whether an individual is an employee or independent contractor depends upon whether or not a "employer-employee" relationship exists between the payer and the payee. Normally an employee is subject to the direct supervision of MSM,J WP.No.25434 of 2020 19 their employer who controls the manner in which tasks are performed. An independent contractor works independently to achieve a specified result.
There are a number of considerations when evaluating whether an individual is an employee or an independent contractor for income tax purposes, and the courts over the years have developed key tests to assist in determining this. Four of the most significant tests are:
1. Control test This test deals with the ability of the company or institution to control the actions of the individual. The distinction to be made is whether a contract between the individual and the University is a contract for service or a contract of service. Revenue Canada's IT 525 states that:
"A contract of service generally exists if the [University] has the right to control the amount, the nature, and the management of the work to be done and the manner of doing it. A contract for services exists when a person is engaged to achieve a defined objective and is given all the freedom required to attain the desired result."
In addition to this is the ability, where possible, of the contractor to control the place of work and the ability to delegate items to others.
The University specifies the courses (and curriculum) to be taught, as well as the times and locations of these courses. In addition to this degree of control is the integration of the courses into the business of the University, and the requirement to co-
MSM,J WP.No.25434 of 2020 20 ordinate all efforts toward the objective of education, according to the standards and policies established for the institution. These factors preclude entering an independent contractor relationship.
2. Economic reality test This test deals with the economic practices of the individual. If the individual has ultimate responsibility for the profit or loss of the contract, then this test would indicate a self-employed situation. Where there is financial risk, opportunity to profit or possibility of loss and responsibility for costs, it is inferred that the taxpayer is an independent contractor. On the other hand, where these elements do not exist, there is an inference of employment. The extent to which the individual uses the property of the employer (i.e. classroom, learning resource materials, audio-visual equipment, tools, etc.) in the course of the contract is also considered.
3. Specific results test This test deals with the nature of the service provided. If an individual is contracted to achieve a certain objective or result, then the service provided would indicate that the individual is an independent contractor. If, however, the contract is for personal services with no specific objective, the contract would resemble one for employment. In other words, this test looks to whether the alleged employee is required to make their services available on an ongoing basis or whether services are made available to achieve a specified result.
MSM,J WP.No.25434 of 2020 21
4. Integration test This test deals with the individual's degree of involvement in the organization. This test presupposes that if the services provided by an individual are integral to the organization, then their involvement is one of employee. If the services can be viewed as part of a separate business of the individual who provides the services, the individual may then be viewed as an independent contractor. The courts have tended to downplay this test, however, on the basis that businesses can be mutually dependent on each other without a "master-servant" relationship.
If, these tests are applied to the present facts of the case, though the respondent herein is a principal employer, the outsourcing system is totally different from contract of employment. If the contract of employment is directly between the employee and employer, there is direct relationship of employee and employer. But, here, due to intervention of an intermediary, the respondents have no control over them and the agency may deploy anyone of the persons who are on the rolls to do certain work. Hence, the principle applicable to contract employment cannot be applied to the outsourced employees. But, the learned single Judge of Telangana High Court observed that the respondents cannot avoid recruitment to the post in question to engage persons like the petitioners through intermediaries/ contractors thorough the system of "outsourcing", pay them paltry wages, and deny them regularisation of services basing on the decision in Uma Devi case (referred supra) entitles them to deny MSM,J WP.No.25434 of 2020 22 relief of regularisation. They cannot take advantage of their own wrong. Engagement of the persons like the petitioners through outsourcing agencies/ intermediates violates the law laid down in Uma Devi case (referred supra). Based on such serious observations, the learned Single Judge of Telangana High Court concluded that, engaging services of an employee on outsourcing basis is a camouflage and such employees are also entitled for regularization. But, it is difficult for me to accept this principle in view of the law laid down by the Apex Court in view of the judgment in Amarkant Rai v. State of Bihar (referred supra).
Hence, in view of the principle laid down in Amarkant Rai v. State of Bihar (referred supra), I am unable to agree with the decision of the learned single Judge of Telangana High Court in G. Srinivasa Chary v. The State of Telangana (referred supra), though it has got persuasive value.
In Gade Basaveswara Rao and others v. Government of Andhra Pradesh7, similar question came up for consideration before High Court of Andhra Pradesh, but the learned single Judge did not lay down any law. Therefore, considering the facts and circumstances of the case and the law declared by the Apex Court and the judgment referred above, the employees engaged on outsourcing basis i.e. through an intermediary i.e. Mahavisakhi Mahila Samkshema Sangham are not entitled to claim regularization.
7 W.P Nos.18988 of 2014 and batch dated 14-09-2016 MSM,J WP.No.25434 of 2020 23 The bone of contention of the petitioner is that, in view of G.O.Ms.No.212 dated 22.04.1994, the contract employees are entitled for regularization of their services, subject to satisfying the conditions mentioned in G.O.Ms.No.212 dated 22.04.1994, which I extracted in the earlier paragraphs. The employees whose services are engaged on outsourcing basis are not included in G.O.Ms.No.212 dated 22.04.1994, but only daily wage/NMRs/ employees engaged on consolidated pay were included in the G.O, as on the date of enactment of the Act. Consequently, G.O.Ms.No.212 dated 22.04.1994 has no application to the outsourcing employees.
In view of my foregoing discussion, I find that these petitioners are not entitled to claim regularization, being the employees engaged by Respondent Nos. 2 & 3/Municipal Corporation for discharging their duties on outsourcing basis through Mahavisakhi Mahila Samkshema Sangham.
Turning to the other contention regarding payment of time scale, the petitioners relied on the impugned memo issued to this petitioners which is now challenged in RC.No.16394/P.O (Balyam) dated 19.06.2017. According to this memo, the petitioners have to discharge their duties for eight hours in a day, like a regular employee. When the petitioners are discharging services on par with regular employees, on payment of enhanced meagre amount of Rs.6,700/-, the petitioners are entitled to claim minimum time scale to pay in terms of the judgment of the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra), where the Apex MSM,J WP.No.25434 of 2020 24 Court held that, there is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated, yet again. It is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and discharging responsibilities. Certainly not, in a welfare state. 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. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, MSM,J WP.No.25434 of 2020 25 suppressive and coercive, as it compels involuntary subjugation. Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays." India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis. 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 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'. However, insofar as the instant aspect of the matter is concerned, it is not difficult to record the factual position. 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 MSM,J WP.No.25434 of 2020 26 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 State, that any of the temporary employees would not be entitled to pay parity. 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."
In view of the principle laid down by the Apex Court in the above judgment, when the petitioners are working though on outsourcing basis, on payment of meagre salary while discharging duties on par with regular employees, they are entitled for minimum scale in terms of judgment and in consonance with Article 39(d) of the Constitution of India. Non-payment of salary on par with the regular employees extending minimum time scale of pay to the petitioners amounts to arbitrary exercise of power and that the petitioners are solely living on the income they earn from MSM,J WP.No.25434 of 2020 27 the employment. It is not sufficient for an ordinary living person to live with dignity of life. Therefore, extracting services for eight hours as per the impugned memo, on payment of Rs.6,700/- per month, besides engaging their services for different purposes as averred in the affidavit is nothing but exploitation of the situation, as the petitioners are unemployees who are discharging their duties with fond hope that their services will be regularized, amounting to violation of right to life guaranteed under Article 21 of the Constitution of India, as the petitioners are expected to live with dignity and not as animal existence, life does not mean animal existence. Thus, the respondents violated fundamental right guaranteed under Article 21 of the Constitution of India.
One of the contentions of the petitioners before this Court is that, though it is a fundamental duty under Article 13(1)(b) of the Constitution of India and not enforceable in a Court of Law, still, it is the obligation of the State to give effect to such an article under the Constitution of India. A similar question came up before the Apex Court in Nehru Yuvak Kendras8 and the Apex Court concluded that, 'Doctrine of Equal Pay for Equal Work' was a mere abstract doctrine and that it was not capable of being enforced in a Court of Law. He referred us to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India9. But, this view was not accepted by the Apex Court in Suminder Singh and another v. Engineer-in-Chief, C.P.W.D10, where the Apex Court held that it was a peculiar attitude to take on the part of the 8 1986 SCC (L&S) 187 9 A.I.R. 1962 S.C. 1139 10 AIR 1986 SC 584 MSM,J WP.No.25434 of 2020 28 Central Government to say that they would pay only daily wages and not the same wages as other similarly employed employees, though all of them did identical work. The court said that, this argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the Choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer.
In view of the judgment of the Apex Court referred supra, State is not expected to raise such contention while avoiding it's fundamental duty i.e. payment of equal pay for equal work.
Similar case came up before the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra), wherein the Apex Court described such practice of avoidance to pay equal pay for equal work as an exploitative enslavement and called the various fallacious terms used by employers to classify and discriminate their employees as 'artificial parameters to deny fruits of labour'. Such classifications resulting in disparity and denial of the principle of "equal pay for equal work" is nothing short of "oppressive, suppressive and coercive" conduct by employers which is antithetical to the ideal of a Welfare State.
The Apex Court further observed that, "An employee engaged for the same work cannot be paid less than another who performs MSM,J WP.No.25434 of 2020 29 the same duties and responsibilities. Certainly not in a Welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity" and classified such act as involuntary subjugation to the will of the employer. "Anyone who is compelled to work at a lesser wage does not do so voluntarily". "He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth and at the cost of his integrity ... For, he knows that his dependants would suffer immensely if he does not accept the lesser wage," the Supreme Court emphasized with the condition of a helpless employee. The Supreme Court also referred to Article 7 of the International Covenant on Economic, Social and Cultural Rights of 1966, observed that "any act of paying less wages, as compared to others similarly situated, constitutes an act of exploitative enslavement, emerging out of a domineering position.
It is appropriate to deal with the issue of payment of 'equal pay for equal work' in constitutional perspective, in view of the argument of the learned counsel for the petitioners and respondents. The legal principle of "equal pay for equal work" is contained in Article 39(d), part IV of the Constitution of India. It states that the State should direct its policy towards securing the objective that there is an equal remuneration for both men and women. It indicates that where the work is same, all the circumstances and considerations are similar then the people holding identical posts or ranks shall not be treated in a different way on the basis of the gender.
MSM,J WP.No.25434 of 2020 30 In Randhir Singh v Union of India11, it was held by Supreme Court that though this doctrine is mentioned under Part IV of the Constitution and it does not have a status of a Fundamental Right, but it is certainly regarded as a constitutional goal. Therefore, it can be enforced through the remedies provided under the Article 32 of the Constitution. The Apex Court in Deb Narayan Shyam v. State of West Bengal12 has also held that this principle can only be invoked if there is a similarity in the nature of the job and it carries the same qualification otherwise it cannot be said to qualify the doctrine. This Article aims to establish equality between men and women and to ensure that there is equal status of individuals in India. This doctrine seeks to balance the rights of individuals and try to promote respect, equity and respect. The Preamble of the Constitution seeks to achieve and provide social, economic and political justice to all the citizens of the country. Article 14 guarantees equality within the Indian Territory and Article 15 prohibits discrimination on the grounds of sex, religion, caste etc. Hence the Constitution treats each and every citizen equal and further provides them with equal right. The same principle was also laid down in Dharwad District P.W.D. Literate Daily Wage Employees Association and others v. State of Karnataka and another13.
The International Covenant on Economic, Social and Cultural Rights reiterates the equal right of men and women to the enjoyment of all human rights mentions that the State Parties to 11 (1982) LLJ 344 12 (2005) 2 SCC 286 13 (1991) II LLJ 328 (SC) MSM,J WP.No.25434 of 2020 31 the Covenant shall provide basic rights to the people with respect to the equal remuneration for equal work and women shall not be treated inferior to men. The same has been provided by the European Social Charter under Article 4(9).
As on date, the unemployment in the State reached peak levels and in the forced circumstances, the educated youth are accepting the employment either on outsourcing basis and contract basis or on any other basis for meagre salary for their survival. But, the State Government is taking advantage of the unemployment of the youth and failed to provide employment and avoiding to pay minimum pay scales to the State. Thus, the State is taking advantage of it's own failure by inventing different modes of selection of employment and disowning its duty to generate employment and pay equal pay for equal work. Such act of the State is contrary to the International Covenant on Economic, Social and Cultural Rights of 1966, besides disowning it's responsibility under Article 39(d) of the Constitution of India.
In any view of the matter, whether it is taken in international perspective or constitutional perspective, the State is under obligation to pay equal pay for equal work to the persons who are similarly situated. But, time and again, the Government by is adopting several modes to avoid payment of equal pay for equal work and outsourcing system is one such invention to avoid payment to the employees engaged on outsourcing basis though they are discharging their duties on par with regular employees and sometimes working more than the regular employees. The MSM,J WP.No.25434 of 2020 32 State, instead of generating employment and providing employment to the qualified youth, is adopting oppressive methods to get the work done for minimum payment, while making the employees and their family members to starve, for the reason that, hardly it is difficult to maintain their family with the meagre amount paid to the outsourcing employees while insisting to work for eight hours or more and in those circumstances, failure to extend the benefit of equal pay for equal work is nothing but failure of the State to discharge it's fundamental duty enshrined under Article 39(d), part IV of the Constitution of India.
In view of the law laid down by the Apex Court in State of Punjab v. Jagjit Singh and others14 and other judgments, including law declared by the Apex Court in constitutional perspective and international perspective, more particularly, with reference to employees rights, failure of the respondents to pay equal pay for equal work would constitute violation of fundamental right under Articles 14 and 21 of the Constitution of India, and International Covenants referred supra.
One of the contentions of these petitioners is that, issuing notification without informing these petitioners is illegal and contrary to G.O.Ms.No.542 dated 31.08.2009 on the letter addressed by Commissioner, Greater Visakhapatnam Municipal Corporation, for regularization of certain NMR/contract workers of merged village/part time sweepers/bill collector/safaiwalas/care takers/communities health volunteers/ ANMs working in Greater 14 AIR 2016 SCC 5176 MSM,J WP.No.25434 of 2020 33 Visakhapatnam Municipal Corporation. The proposal was accepted and permitted to regularize the services of those employees extending minimum time scale of pay.
No doubt, the respondents denied regularization of these petitioners and engaged their services on payment of meagre amount of salary. When part time workers or NMRs are regularized, they are entitled to get minimum time scale of pay prescribed for the post they are discharging their duties for limited office hours, whereas, these petitioners are discharging their duties for eight hours as per the proceedings impugned in the writ petition. When these petitioners are discharging their duties for eight hours, they are entitled to get equal pay in terms of Article 39(d) of the Constitution of India, otherwise, it amounts to discrimination, which is prohibited under Article 14 of the Constitution of India.
When the act of the State is arbitrary and exploiting the situation of unemployment by paying meagre amount as salary, engaging the services of these petitioners on outsourcing basis, such act can be described as discriminatory and arbitrary and the Court can exercise power under Article 226 of the Constitution of India and declare such action as discriminative and arbitrary. Therefore, by following the principle laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra), I find that it is a fit case to issue a direction to the respondents to extend minimum time scale of pay to the petitioners who are discharging their duties for eight hours in a day on par with MSM,J WP.No.25434 of 2020 34 regular employees of the same cadre. Accordingly, the point is decided partly in favour of the petitioners.
One of the contentions of the petitioners is that, the memo impugned is illegal and arbitrary.
As discussed above, the petitioners are entitled for minimum time scale of pay and they are bound to serve during regular office hours of an employee on par with regular employees of the same cadre. Therefore, the petitioners are estopped to raise such contention while claiming minimum time scale of pay based on their office hours and they cannot approbate and reprobate. Therefore, RC.No.16394/P.O (Balyam) dated 19.06.2017 cannot be declared as illegal and arbitrary and not liable to be set-aside, when a direction is issued to extend minimum time scale of pay to these petitioners of same cadre of regular employees.
In view of my foregoing discussion, writ petition is allowed- in-part, while directing the respondent/Municipal Corporation to extend minimum time scale on par with regular employees of the same cadre, while declining to direct the respondents to regularise the services of these petitioners and to set-aside the impugned proceedings RC.No.16394/P.O (Balyam) dated 19.06.2017.
Consequently, miscellaneous applications pending if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:16.04.2021 SP