Gujarat High Court
Das Bakuleshkumar Bachubhai & 54 vs Page 1 Of 2 on 4 February, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/21920/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21920 of 2005
With
SPECIAL CIVIL APPLICATION NO. 7301 of 2004
With
SPECIAL CIVIL APPLICATION NO. 6755 of 2008
With
SPECIAL CIVIL APPLICATION NO. 14928 of 2005
With
SPECIAL CIVIL APPLICATION NO. 18054 of 2006
With
SPECIAL CIVIL APPLICATION NO. 16935 of 2010
With
CIVIL APPLICATION NO. 7877 of 2011
In
SPECIAL CIVIL APPLICATION NO. 16935 of 2010
With
CIVIL APPLICATION NO. 7878 of 2011
In
SPECIAL CIVIL APPLICATION NO. 7301 of 2004
With
CIVIL APPLICATION NO. 11067 of 2005
In
SPECIAL CIVIL APPLICATION NO. 7301 of 2004
With
CIVIL APPLICATION NO. 685 of 2013
In
SPECIAL CIVIL APPLICATION NO. 21920 of 2005
With
SPECIAL CIVIL APPLICATION NO. 21994 of 2005
With
SPECIAL CIVIL APPLICATION NO. 15695 of 2005
TO
SPECIAL CIVIL APPLICATION NO. 15697 of 2005
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DAS BAKULESHKUMAR BACHUBHAI & 54....Petitioner(s)
Versus
Page 1 of 20
C/SCA/21920/2005 ORDER
GOVT OF INDIA & 2....Respondent(s)
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Appearance:
MR SHALIN MEHTA, SR. ADVOCATE, MR RK MISHRA, ADVOCATE, MR
KAUSHAL PANDYA AND MS VIDHI BHATT, ADVOCATES, for the
Petitioner(s)
MR SHAKEEL A QURESHI, ADVOCATE for the Respondent(s)
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s)
MR RUTVIJ OZA, AGP for the respondent-State.
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 04/02/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) These petitions present a sorry state of affairs concerning the project employees of the Central Government funded and State Government implemented project for tribal areas. They have been engaged in different capacities since the year 1993. They have been receiving salaries which have marginally increased only once so far, that too in the year 2000. Lowest of these categories of employees are receiving a monthly fixed salary of Rs.2300/ which was fixed way back in the year 2000. Fifteen long years have passed without any revision of such salary. Such employees have filed these petitions seeking directions to be placed in the regular pay scale prescribed for similar positions in the Page 2 of 20 C/SCA/21920/2005 ORDER State Government establishments.
We propose to give certain interim directions which, in our opinion, cannot wait any longer, pending further and fuller consideration of various issues arising in these petitions. Brief factual background may be noted first.
Under a communication dated 8th December 1992 from the Government of India to the State Government, the Central Government evolved a Scheme of Vocational Training Institute in tribal areas (hereinafter to be referred to as 'the Scheme') which was 100 per cent Central Government aided. The Scheme provided that a need for vocational institution in trial belts where left wing extremism was on rising was felt for large scale of employment in tribal youth. The extremism was a manifestation of frustration and lack of faith in the development. It was, therefore, found necessary that both the State and the Central Government should make efforts to wean away the tribal youths from disruptive activities. One of the major efforts was to establish vocational training institutes for large scale employment of unemployed tribal youths. For such purpose, the Central Government had during the 8th Five Year Plan, set apart a sum of Rs.9 crores. The allocation for Page 3 of 20 C/SCA/21920/2005 ORDER 199203 was Rs.1 crore. The Scheme envisaged setting up of training institutes in the tribal areas. Each training institute would have to cater to five vocational courses depending upon the employment potential of the tribal areas. It was stated that keeping in view the limited potential of even skilled persons in interior areas, it was proposed to train each tribal boys or girls in three trades of his/her choice, course in each trade being for a duration of four months. Each trainee would be attached at the end of one year to master craftsman in a semiurban/urban area for a period of three months to learn his skills by practical experience. The idea was that at the end of fifteen months, each trainee would emerge as a multiskilled person, who can utilize the existing employment potential in his best advantage. The Scheme envisaged residential accommodation in Ashram Shalas and residential schools located in interior tribal areas away from district headquarters or major towns. The Training institutes were made primarily for tribal trainees. The Scheme was to be implemented through the State Government. From the letter dated 22nd July 2002, as at Annexure R 1 to Special Civil Application No.7301 of 2004, and the affidavit in reply filed by Smt.N.N.Chaudhari, Under Secretary, Tribal Page 4 of 20 C/SCA/21920/2005 ORDER Development Department, State of Gujarat, in the same petition, it can be seen that the Central Government was to provide recurring grant of Rs.13500/ per trainee per year to the State Government for implementation of the Scheme.
For implementation of the Scheme, the State authorities established the necessary set up and issued various advertisements for filling up the posts of Chief Instructor, Trade Instructor, Accountant, Peon and Workshop Attendants. One such advertisement dated 13th November 1996 is produced along with Special Civil Application No.21920 of 2005. Under such advertisement, eligible candidates were invited to apply for the said positions which carried the following fixed pay:
Name of post Fixed pay per month
Chief Instructor Rs.3500/
Trade Instructor Rs.2500/
Accountant Rs.2000/
Peon Rs.1500/
Workshop Attendant Rs.1500/
A new scheme for vocational training in
tribal areas (hereinafter to be referred to as ('the new Scheme') was introduced by the Central Government with effect from 1.4.2009 substituting the original scheme. The objective of the scheme Page 5 of 20 C/SCA/21920/2005 ORDER was the same, namely, to train tribal youth in vocational courses to make them suitable for employment or to enable them to become self employed. It was observed that Scheduled Tribes are most marginalized section of the society. There was an imperative need to provide for more employment avenues and income generation opportunities. With these objectives in mind, the scheme was framed. Like in the original scheme, the new Scheme also envisaged Central funding and State implementation. The Scheme would continue to be implemented predominantly in remote tribal areas. Training would be imparted preferentially to tribal youth for trades including modern trades having employment potential in the region in question. It was emphasized that the Scheme would be exclusively for the benefits of the Scheduled Tribes as well as PTGs (Particularly vulnerable tribes). The new Scheme envisaged involvement of NGOs also. It was provided that institutions and organizations who are already running projects with the assistance of the Central Government should get themselves recognized and affiliated. 100 per cent grant in aid would be provided to the State, Union Territories and State owned institutions. Such grantinaid would be released in one installment in a year. It was further provided that:
Page 6 of 20 C/SCA/21920/2005 ORDER"The funding under this scheme will be in following two ways: (i) By setting up and running VTCs mainly in remote areas/rural areas deficient in facilities, (ii) by supporting vocational training for ST as also PTG candidates in already existing institutions in townships/districts, etc. like it is, Polytechnics, computer training centres, and other private recognized institutions subject to the maximum assistance of Rs.30,000/ per annum per ST training as per norms in AppendixI."
The new Scheme envisaged that each vocational training center set up under the Scheme running five trades would provide training to 100 or more trainees, i.e. for one trade there would be at least 20 candidates. We are informed that so far as the State Government is concerned, the new Scheme has not been implemented. Though no reasons are forthcoming from the record, it seems that due to the pendency of these petitions, the implementation of the new Scheme has been withheld.
It is an undisputed position that all the petitioners were appointed to various posts under the said Scheme from time to time ranging from 199293 to 1996. We have recorded the fixed salary provided for such posts at the inception in the year 1992293. It is undisputed that such fixed salary underwent one revision with effect Page 7 of 20 C/SCA/21920/2005 ORDER from 1.4.2000 prescribing following fixed monthly salary for different posts in question:
Name of post Fixed pay per month Chief Instructor Rs.4000/ Trade Instructor Rs.3025/ Workshop Attendant Rs.2300/ Peon Rs.2300/ Accountant Rs.3000/ Watchman Rs.2300/
Shocking as it may sound, since 1.4.2000, there has not been any further revision in the fixed salary paid to different employees under the Scheme. Thus, a Peon or a Watchman who was receiving Rs.2300/ per month in April 2000 continues to draw the same salary even in the year 2015. The Chief Instructor, the highest paid employee received Rs.4000/ per month then continues to get the same amount now. Admittedly, all these salaries are way below the minimum wages prescribed by the State Government for different categories of workers. It is true that minimum wages are not applicable to State agencies. Can the State Government agencies, however, offer salary to its staff members for full time work at the rate even below the minimum wage? The answer has to be in the negative. Minimum wages are prescribed by the State Government in exercise of powers of Page 8 of 20 C/SCA/21920/2005 ORDER delegated legislation. The notification issued by the Government prescribing minimum wages thus has force of law which would supersede even a private contract between an employer and an employee, the basic philosophy being that even if the worker out of compulsion is prepared to work for an employer at an exploitive wage, modern democratic society would not permit the employer to exploit such a situation and pay wages below the minimum fair wage structure. If this be the philosophy of prescribing minimum wages for different trades, obviously, the State or its agencies cannot offer wages below the minimum so prescribed. The very basic constitutional philosophy of social, political and economic justice would prevent the State from arguing to the contrary. The fundamental rights guaranteed under Articles 14, 16 and 21 and the fundamental duties under Article 39(d) of the Constitution would preclude the State from allowing any situation where its employees are made to work full time for wages which cannot be prescribed as a fair wage.
Quite apart from the fact that the wages offered are far below the minimum wages prevailing at present, the very fact that the salaries which were fixed way back in April 2000 have not been revised for nearly 15 years Page 9 of 20 C/SCA/21920/2005 ORDER would demonstrate the unreasonableness of the pay structure. In the meantime, for the permanent employees of the Central and State Governments, one pay revision has been implemented and Commission for making recommendations for the next one has already been constituted. The inflation has eroded the purchasing power of rupee. It is impossible to expect a full time employee of a Government organization to survive on a salary of Rs.2300 per month. The issue can be looked from a slightly different angle. Many of these employees are Instructors of the trainees. These Instructors would be imparting education and training different tribal youth. They are the teachers of the trainees. If their own wage structure is so exploitative that they would be forced to seek avenues of extra income elsewhere, we wonder what values such Instructor would impart on the impressionable tribal youth who would be their wards.
We are informed that across the State there are less than 100 such employees. There are 13 training centers, each with a capacity of 100 trainees, i.e. 20 trainees for each of the five trades. Their number is too small to make any significant or forceful representation against their gross exploitation for years together. It Page 10 of 20 C/SCA/21920/2005 ORDER is perhaps because of this while the regular staff members of the State and the Central Government and its Corporations and agencies receive periodical DA increase twice a year and Pay Commission recommendations implemented every 10 years, for 15 long years, there has not been any increase at all in the pay structure of these employees.
In an interim order dated 28.1.2014 passed in Writ Petition (PIL) No.244 of 2014, this Court had considered the question of the State Government paying salary of Rs.1350/ per month to its various parttime employees rendering 6 hours duty per day. The Court made the following observations:
"1. The Constitution of India was framed soon after the independence of the nation with a solemn resolve to achieve social, political and economic justice for all the citizens of the country. Articles 14 and 16 talk of lofty ideas of equality. Article 21 guarantees to every person right to life and liberty. More than 65 years later, a small group of Government workers have been deprived of such rights and privileges. Their voice is too feeble. Their future too uncertain for want of any protection of Article 311 of the Constitution. Their number too small. They are almost a forgotten lot. It is at this stage, the Court in the arena of public interest litigation, comes into picture.
2. The State Government for the purpose of carrying out complex functions and duties need to Page 11 of 20 C/SCA/21920/2005 ORDER employ a large number of people. Howsoever, one may wish and desire, it is not possible over a period of time to completely regulate such employment in terms of Articles 14 or 16 of the Constitution. By the very nature of things, the Government, its Corporations, its different wings, need the workers in different fields and trades carrying out different duties possessing specified skills and qualifications. A small portion of such workers come in the nature of part time workers. They are engaged in small numbers almost in every office, establishment or unit of the Government. Whether they are called water server, sometimes cleaner, sometimes gardener and other times watchman, their employment is mostly contingency based and work charged with little permanency attached. They are so called part time, because atleast on paper their engagement is for a period ranging from one hour to six hours a day though in some cases, either in broken spells or otherwise, they may be for all practical purposes, available through out the office time and in some cases, such as watchman, even beyond that.
xxxx
4. Shocking as it may sound to the reader of this order, since then, there has been no rate revision of the remuneration for such part time employees. In other words since September 1998 till date, for more than 15 long years, such workers have been receiving remuneration month after month, year after year, at a rate which froze in the year 1998. In the meantime, many things happened. The purchasing power of rupee considerably eroded. The Government employees, Central as well as State, were the beneficiaries of one pay revision with effect from 1.1.2006. This would be in addition to periodic DA increases released every six months. One can take judicial notice of the fact that the State as well as the Central Government employees have received consecutive three double digit DA increases in their salaries. In the meantime, the Page 12 of 20 C/SCA/21920/2005 ORDER scale of pay of Rs.2250/ which was the minimum prescribed under the Revision of Pay Rules, 1998 implemented with effect from 1.1.1996 was revised to Rs.4440/ under the Revision of Pay Rules , 2009 implemented with effect from 1.1.2006. This basic pay currently carries 100% DA. In fact, the Central Government has also announced the pay panel for making recommendations for the next pay revision.
5. On one hand, thus with high inflation, the cost of living mounted, on the other hand, a small group of citizens continued to draw remuneration at the same level which they were receiving more than 15 years back. All the economic development and prosperity achieved during this period which the rest of the regular employees of the Government shared simply by passed such unfortunate class of citizens. Today these workers are receiving remuneration at the rate of approximately Rs. 40/ to Rs.50/ per day as against the minimum wage prescribed by the Government agency itself to be Rs.220/ plus special allowance in the area specified as A category in the State of Gujarat, at Rs.218/ plus special allowance in B category and Rs.216/ plus special allowance in category C. Explanation (2) to the notification dated 5.8.2013 prescribing such rates, reads as under :
(2) The employees employed on parttime basis shall be paid fifty percent of the minimum rates of wages plus special allowance if he works up to four hours and if he works more than four hours, he shall be paid full minimum rates of wages plus special allowance.
6. The State Government implements the legislative policy of minimum wages to be paid by private employers. The Legislature has fixed such minimum wages to ensure that there is no exploitation of workers. In the country like India, where due to high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law however, does not permit such exploitation even at the hands of private Page 13 of 20 C/SCA/21920/2005 ORDER employer. Can the State Government which is wedded to Constitutional philosophy of implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers? The answer has to be in the negative. We are conscious that ipsofacto, minimum wage prescribed for the private employers would not govern the Government employees. Nevertheless, for the purpose of immediate relief to such persons and to take a reasonable yardstick for revising their remuneration, pending further directions and consideration by the Government, we are of the opinion that such rates may be accepted for the purpose of remunerating such workers by way of interim measure, subject to further orders."
With these observations, the State Government was directed to pay to all its part time workers at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work as the minimum wages with special allowance if payable as prescribed by the State Government. Such writ petition ultimately came to be disposed of along the lines of the interim order.
From the Government resolution dated 21st February 2014, a copy of which is produced by the learned AGP, which we are informed holds the field for prescribing the minimum wage structure in the State, we notice that for area 'C' which Page 14 of 20 C/SCA/21920/2005 ORDER is least developed area in the State, the minimum wage prescribed for workers employed in sweeping and cleaning work is Rs.216/ per day plus special allowance. We are informed that currently, the special allowance is Rs.87/ per day. Thus the minimum wages for the lowest paid employee in the sweeping and cleaning work comes to Rs.216 + 87 = Rs.303/ per day (rounded off to Rs.300/ per day). Such amount should be paid to the lowest paid employees of the present organization. Thus Peon, Workshop Attendant and Watchman who are currently receiving Rs.2300/ per month should receive an amount of Rs.7500/ calculated on an average of 25 working days in a month (Rs.300 x 25 = Rs.7500/). Considering the difference in the existing salaries of the rest of the staff members, Accountants and Trade Instructors would receive an addition of Rs.1500/ i.e. Rs.9000/ per month and the Chief Instructor would Receive an addition of Rs.2500/ i.e. Rs.10,000/ per month. This is a rough and ready formula pending further consideration. These are amounts, in our opinion, the State Government under no circumstances can avoid paying to these staff members.
Since the new Scheme was introduced by the Central Government with effect from 1.4.2009, we Page 15 of 20 C/SCA/21920/2005 ORDER direct the State Government subject to outcome of these petitions and adjustment if found necessary to pay such wages with retrospective effect from 1.4.2009. We are conscious that the minimum wages in the year 2009 were lower than the present rates. However, these employees have been exploited by paying fixed unchanged salary since the year 2000. They were in any case entitled to fair increase only considering inflation. The Central Government had also revised the grant to Rs.30,000/ per trainee per year from 1.4.2009. The Central Government shall release grant at the rate of Rs.30,000/ per trainee per year for the different training centers as envisaged in the new Scheme. Some of the petitioners who are present in Court orally informed us that in almost all the training centers, there is usually full strength of trainees and barring some exceptions, such training centers impart training to 100 students from year to year. This would be significant since the Central Government grant is calculated per trainee per year. This would show that a training center would receive Rs.30 lacs as Central Government grant with effect from 1.4.2009 if 100 trainees were enrolled.
Yet another aspect of the matter is regarding continuation of the employees on purely temporary Page 16 of 20 C/SCA/21920/2005 ORDER basis for over 20 years by now. According to the petitioners, the very fact that the Scheme has continued in one form or the other for all these years since 1992 would demonstrate that the work is of perennial nature. The State agencies cannot execute such scheme through adhoc staff and regular establishment must be created. Alternatively, it is argued that at any rate the renumeration to the existing staff must be at the rate of minimum of the matching scale of the employees of regular establishments. These two aspects need further elaboration and can be gone into only at the time of final disposal of the matters. We notice that the replies filed by the respondents are not sufficient to permit us to deal with these two issues effectively. We would, therefore, direct the respondents to file suitable further replies on the points hereinabove noted.
Under the circumstances, at this stage, following interim directions are issued:
(i) The State authorities shall with effect from 1.4.2009 subject to outcome of these petitions and adjustment if eventually found necessary pay to different employees at the following rates:Page 17 of 20 C/SCA/21920/2005 ORDER
Name of post Fixed pay per month Chief Instructor Rs.10000/ Trade Instructor Rs.9000/ Workshop Attendant Rs.7500/ Peon Rs.7500/ Accountant Rs.9000/ Watchman Rs.7500/
(ii) The Central Government shall release necessary grant for such purpose at the rate of Rs.30,000/ per trainee per year as envisaged in the new Scheme with effect from 1.4.2009.
(iii) These directions shall be carried out latest by 31st March 2015. It is, however, clarified that for the month of February 2015, the salaries which will be paid to the employees in the beginning of March 2015 shall be as per the directions contained in clause (i) above.
(iv) These directions will include all employees of the Scheme similarly situated whether they have moved this Court in these petitions or not.
(v) The State authorities as well the Central Government shall file detailed affidavits concerning following aspects:
(a) For how long the new Scheme is envisaged, in other words, whether the Scheme has a terminal Page 18 of 20 C/SCA/21920/2005 ORDER point or it is a perennial scheme.
(b) If the Scheme for training tribal youth has continued since the year 1992 unabated in one form or the other, why a permanent establishment is not created.
(c) Even if the employees are not brought in the permanent establishment, why they should not be paid wages on the minimum of the scale prescribed for different posts in the State Government carrying out the same duties and responsibilities.
(d) From Annexure E to Civil Application No.7878 of 2011, we prima facie gather that in the year 200809, the Central Government grant to the tune of Rs.33,02,000/ remained unspent. The State Government shall give full details of such unspent grant, if any, from the year 200001 till date.
(vi) These affidavits shall be filed before the next date of hearing.
S.O. to 11th March 2015.
Direct service is permitted.
(AKIL KURESHI, J.) Page 19 of 20 C/SCA/21920/2005 ORDER (MS SONIA GOKANI, J.) (vjn) Page 20 of 20