Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Khanday & Others vs State Of J&K; And Others on 1 September, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.950/2011
MP no.1562/2011
Date of order: 01.09.2017
Ghulam Nabi Khanday and others
Versus
State of J&K and others
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Appearing Counsel:
For Petitioner(s): Mr Hilal Ahmad Wani, Advocate
For Respondent(s): Mr A. M. Mir, Dy.AG vice Mr Q.R.Shamas, Dy.AG
1. Petitioners are labourers (mazdoors), who are illiterate and earning their livelihood by physical labour while loading and unloading material that comes or goes from the Procurement Store, Pampore and some of them have been doing this job for about three decades while as some of their colleagues due to ill health have given up or have died. It is submitted that labourers, 26 in number, working like petitioners, in Jammu have been regularised vide Government Order no.587 of 1987 dated 8th October 1987. Petitioners claim to have moved a representation for similar treatment, which was forwarded to respondent no.3 by Additional Commissioner, Kashmir, vide letter dated 22nd August 1992 for examination of the issue and submission of factual report. The aforesaid letter is stated to have been followed by letter of respondent no.2 to the address of respondent no.1, for creation of posts of mazdoors for Central Stores, Pampore. Inter se communications are averred to have been addressed and even communications as regards regularisation as well.
2. It is claimed by petitioners that since 1998 they are regularly and uninterruptedly paying C.P. Fund contribution to respondent SWP no.950/2011 Page 1 of 10 2 department, which amount is being reflected by respondents 2&3 in their official accounts and cheques are being issued to them to reflect the said amount in their bills. Petitioners' grouse is that respondent no.4 vide letter dated 3rd February 2011, addressed to respondent no.2 has informed that labourers at Srinagar are being paid higher rates than labourers at Jammu, besides payment on account of labour charges are made to labour mate and not to labourers and the department is paying C.P.Fund share for such labourers, who are employed by mate, which is irregular. It is contended that on the basis of aforesaid letter dated 3rd February 2011, a detailed reply was furnished by respondent no.2 to respondent no.4 vide letter dated 11th February 2011, clarifying that rate difference of labour charges between Jammu and Srinagar is always matter of fact as labour rate at Srinagar is always higher especially at Pampore than the rates at Jammu and with regard to objection for payment of C.P.Fund, respondent no.2 has stated that respondent no.3 was asked to look into the matter. The method used by respondent no.3, as was stated by respondent no.2 in his aforementioned letter, for utilizing services of labourers, was for only reason that in last year's turmoil rather during the whole turmoil period the department did not face any difficulty in functioning as far as loading and unloading of the material is concerned. Respondent no.2, acting on respondent no.4's aforesaid letter, asked respondent no.3 to consult a lawyer for clarification on the objection of respondent no.4 and meanwhile not to pay C.P.Fund unless the matter was not cleared by the lawyer. Petitioners maintain that Additional Provident Fund Commissioner, Kashmir Division, Srinagar vide letter dated 23rd March 2011 has informed respondent no.3 that his establishment is already covered under the Provident Fund Act and Scheme under the Code No.JK/K-
SWP no.950/2011 Page 2 of 10 31212 and non-depositing of Provident Fund Contribution from 11/2010 is in violation of the law and directed respondent no.3 to deposit the Provident Fund in respect of employees working in his establishment from the date it has been stopped. This was followed by Notice dated 29th March 2011, asking respondent no.3 as to why prosecution case should not be launched and it was also made clear therein that if compliance was not made upto 6th April 2011, action would follow against respondent no.3. However, as asserted by petitioners, respondent no.3 has not deposited the amount. Inaction of respondent no.3 in furnishing Provident Fund amount into the account of petitioners from November 2010 is avowed to have caused unnecessary harassment to petitioners, forcing them to knock at door of this Court with writ petition on hand. Petitioners, on the strength of averments made in writ petition, seek following relief:
a) Writ of mandamus, commanding respondents 1&2 to consider bringing of petitioners on regular temporary establishment as has been done in case of their counterparts working in Jammu;
b) Writ of certiorari, quashing impugned letter/order dated 3rd February 2011, of respondent no.4 raising objections with regard to C.P. Fund of petitioners;
c) Writ of certiorari, quashing impugned letter no.DSP/8017 dated 11th February 2011, of respondent no.2 asking respondent no.3 not to pay C.P. Fund amount of petitioners unless the matter is not cleared;
d) Writ of mandamus, commanding respondent no.3 to deposit C.P. Fund of petitioner from November 2010 till date and release the wage arrears of petitioners, which are withheld/ lying with him on that count;
e) Writ of mandamus, commanding respondent no.5 to start penal action against erring officials, who have contravened provisions of Provident Fund Act and Scheme made thereunder;
f) To direct respondent no.2 not to take any step to deprive petitioners from earning their livelihood.
3. Reply has been filed by respondents 1 to 3&6. They insist that petitioners are being paid for material loaded/unloaded by them as per MT basis in case of steel, per bag in case of cement and per drum basis for bitumen and no wages are being paid to labourers as they SWP no.950/2011 Page 3 of 10 4 are being engaged by the mate and payment is, therefore, being released through mate. It is asserted that it is not a fact that any labour who was working and receiving payment against work done in Jammu, has been regularised, in that, labour, engaged at Jammu, were already working as Casual Daily Rated Workers and regularised as per Government orders, while as in Srinagar, labour preferred to take payments on tonnage/per bag basis and did not show their consent to work as daily rated workers and continued to work as contract labourers through mate. The labourers working in Pampore Stores, according to respondents, thought it better to receive payments against actual work done and the department accorded a fair treatment to all such labourers. Petitioners, respondents maintain, have been trying to get themselves directly inducted into Government service as regular employees and that only those workers were regularised, who had completed 07 years of continuous service as daily rated workers, paid on daily wage basis and no person, other than these, were regularised by the department.
4. Respondents 1 to 3&6, in their reply, further aver that the proposal to engage petitioners on permanent basis was not agreed to as the rules did not permit to absorb contract labourers through mate on permanent basis, as such, petitioners could not be regularised. Qua work done claims of the mate, respondents maintain that the same were processed and payment made to him for disbursement among labourers engaged by him as and when required. There is no transaction of material from out stores for days together, especially in winter season, according to respondents. However, the payment of C.P. Fund is stated to have wrongly been made against amount of labour cost for loading/ unloading of steel and bitumen, which is not SWP no.950/2011 Page 4 of 10 5 as per rules because C.P. Fund matching share has to be paid for those employees, who are working and are paid on daily rated basis and that all the petitioners are not being paid as per daily rated basis, therefore, no C.P. Fund is to be paid by the respondent department. Labourers can claim C.P. Fund, but, as stated by respondents, from the mate if applicable under rules and not from respondent department. Regarding furnishing of information of workers to higher authorities, respondents claim that the same has been sent from time to time, but no outcome came out of it because regularisation was not covered by rules.
5. It is spelt out by respondents in their reply that every year the rate for loading/unloading of bitumen, cement, steel etcetera, is fixed and payment is made to mate on these bases and no monthly wages on per day basis are being paid by respondent department and therefore, deduction of C.P. Fund from payments of the mate is not covered by the rules and was being paid by mistake. Any improper action by any of the officer/ official can be rectified any time as and when same comes to the notice of government officers and same is the case here, respondents said. It is further stated by respondents that as soon as it was pointed out by the audit party of the Principal Accountant General that respondent department is paying C.P. Fund, which is not as per rules, timely directions were issued to stop payment of C.P. Fund to safeguard the government interests. Document in the form of annexure (P11) is said to have been clearly showing that action had to be taken as per the rules and in view of the said letter, respondent department could not take them on permanent establishment, in that, labourers, engaged through mate on itemized rate basis were not falling under any category viz. TDL/PDL and sometimes labourers, were not engaged for SWP no.950/2011 Page 5 of 10 6 months/years together. Respondents say that due to oversight, respondent department has inadvertently been paying C.P. Fund to labourers, who were working through mate for loading/unloading of materials on itemized rates and were not covered under C.P. Fund rules and that this fact was brought to the notice of respondent department by Principal Account General's audit party and, therefore, respondent department had no option but to stop the payment of C.P. Fund to petitioners, who form only a section of labourers engaged by the mate. As regards payment of C.P. Fund, respondents maintain that the same is to be paid by mate and not by respondent department.
6. Respondent no.4 has also filed reply, wherein he insists that during audit of Deputy Director, Stores Procurement, Pampore, in November 2010, it was observed that Deputy Director had paid an amount of Rs.6.01 lakh on account of matching share of C.P. Fund of labourers engaged through labour mate. Since labourers were engaged by labour mate with whom the department had entered into a contract, the matching share of C.P. Fund was recoverable from such labour mate. Accordingly, Deputy Director, Stores Procurement, Pampore was advised to recover the amount from labour mate. It was further observed in audit that the loading and unloading charges of material were paid by Stores Procurement Department, Pampore, at higher rates as compared to loading/unloading charges being paid at Stores Procurement, Jammu. These irregularities are stated to have been brought to the notice of Director, Stores Procurement Department, Jammu, vide letter dated 3rd February 2011, who vide letter dated 11th February 2011 confirmed that labourers were engaged through mate as on particular date as per requirement. The employer, it is insisted, for SWP no.950/2011 Page 6 of 10 7 whom employees are working either directly or indirectly or through some contractor, is responsible for depositing provident fund amount either by means of deduction made on the amount payable to the contractor or directing contractor to deposit the provident fund contribution in respect of the employees working for him, but matching share of C.P. Fund on behalf of labourers had been paid by the department in addition to the payments made on account of handling of key construction material to the contractor/ labour mate at the approved rates without deducting the same from such payments made to the contractor/labour mate.
7. Petitioner, to controvert what respondents asserted in their reply, has filed rejoinder, ingeminating the same submissions averred in the writ petition.
8. I have heard learned counsel for parties and considered the matter.
9. The first question to be determined in this petition, is as to whether petitioners are similarly situated with daily wagers/ labourers, working in Procurement Store, Jammu, who have been regularised by respondent no.1, vide Government order no.587 of 1987 dated 8th October 1987. The case set up by petitioners is that they are also labourers, working in similar capacity in the Procurement Store, Pampore, and therefore, cannot be discriminated vis-à-vis their counterparts performing similar duties in Procurement Store, Jammu. They claim to have moved a representation but same has not met with positive results. On the other hand, respondent department has stated that petitioners are not in any manner similarly situated with daily wagers, who were working in Procurement Store in Jammu. It is submitted by respondents that so far as labourers, who were working in Procurement Store, Jammu, are concerned, they were working as daily wagers and were paid wages under the SWP no.950/2011 Page 7 of 10 8 Minimum Wages Act and subsequently regularised in terms of Government orders, on completion of five years' continuous service. It was further submitted that so far as petitioners are concerned, they were never directly engaged as daily wagers in Procurement Store, Pampore, rather they had opted to work as per MT basis in case of steel, per bag in case of cement and per drum basis for bitumen, and had been engaged by the mate. Distinction as sought for has been drawn by respondent department between petitioners, on one hand, who, respondent department claims, were only contract labourers and the labourers, who were doing similar duties in Procurement Store, Jammu, as claimed by respondent department, were daily wagers, working directly under the Department. It is, thus, submitted that the labourers working in Jammu were treated as TDL/PDL and were given the benefit of Government order and their services were regularised after completion of five years' continuous service. The same benefit, however, could not be extended to petitioners, who had not agreed to work as daily wagers directly under the department, but had opted to work under a mate on payment as per MT basis in case of steel, per bag in case of cement etcetera. This aspect projected by respondents, however, has not been rebutted by petitioners by placing on record any contrary evidence. This Court has, therefore, no option but to accept the stand taken by respondents and to hold that as claimed by petitioners they are not the persons similarly situated with labourers working in Procurement Store, Jammu, who on completion of five years' continuous service as daily wagers, have been regularised. As is apparent from the pleadings, the petitioners too had an option to work as daily wagers directly under the Department but for pecuniary gains, they, instead, opted to work under the mate on per MT basis for loading and SWP no.950/2011 Page 8 of 10 9 unloading of steel and per bag basis in case of cement. Petitioners, therefore cannot have a cake and eat it too. In that view of matter, first contention of petitioners is devoid of any force and therefore, rejected.
10.The other question, which has been projected by petitioners in this petition, is with regard to their entitlement to C.P. Fund contribution by respondents. It is averred by petitioners that at one point of time, respondents had been depositing their C.P. Fund contribution, but subsequently on the objection raised by office of respondent no.4, in the audit, it was stopped. They however, claim to have approached Additional Provident Fund Commissioner, Kashmir, Srinagar. So far as this submission of petitioners is concerned, the same also does not have any substance for the reason that they, as held above, were never engaged as labourers/daily wagers by the department directly, nor did they ever receive any wages from respondent department. They were, however, paid wages through the mate and were, thus, merely contract labour. Otherwise also, while making C.P. Fund contribution by employer, the equal share is also to be deducted from the wages of the employees. It is not the case of petitioners that any such contribution was made by them also towards their share in C.P. Fund Account. Be that as it may, the aforesaid issue is an issue, which can be determined by Statutory Authority created under J&K Provident Fund Act, and as stated by petitioners, Additional Provident Fund Commissioner, Kashmir Division, Srinagar, is already seized of the matter. It would not be, therefore, appropriate to comment upon the merit of the claim of petitioners insofar as it relates to C.P. Fund contribution. The issue, therefore, is left to be determined by Statutory Authority under the Act, for which petitioners, if have not already approached, may approach aforesaid SWP no.950/2011 Page 9 of 10 10 Authority and seek adjudication of their claim. It is made clear that nothing said herein above would be taken as expression of any opinion on the merits of the aforesaid issue.
11.Writ petition, insofar as relief claimed by petitioners with regard to their parity with labourers working in Procurement Store, Jammu, whose services have been regularised, is found to be devoid of any merit and, accordingly, rejected. However, insofar as relief with regard to C.P. Fund contribution is concerned, petitioners are left free to agitate the aforesaid matter before Additional Provident Fund Commissioner, Kashmir Division, Srinagar, or any other Statutory Authority under the aforesaid Act. Needless to say, if petitioners have already approached or approach the Statutory Authority under aforesaid Act with their grievance, the same shall be adjudicated upon by the said Authority with promptitude and strictly in accordance with J&K Employees Provident Fund and Miscellaneous Provisions Act, 1961, and rules made thereunder.
12.With these observations writ petition is disposed of.
(Sanjeev Kumar) Judge Srinagar 1st September, 2017 Ajaz Ahmad SWP no.950/2011 Page 10 of 10