Allahabad High Court
State Of U.P. Thru Prin.Secy. P.W.D. & 3 ... vs Moharram Ali on 2 August, 2019
Author: Ajai Lamba
Bench: Ajai Lamba, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL No. - 406 of 2007 Appellant :- State Of U.P. Thru Prin.Secy. P.W.D. & 3 Ors. Respondent :- Moharram Ali Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Shishir Jain,Shishir Pradhan Hon'ble Ajai Lamba,J.
Hon'ble Narendra Kumar Johari,J.
(C.M. Application No.15564 of 2007).
1. The application seeks condonation of delay in filing the special appeal.
2. For reasons given in the affidavit in support of the application for condonation of delay, the application is allowed.
3. Delay in filing the special appeal is hereby condoned.
Order Date :- 2.8.2019 Nishant/-
Court No. - 2Case :- SPECIAL APPEAL No. - 406 of 2007 Appellant :- State Of U.P. Thru Prin.Secy. P.W.D. & 3 Ors.
Respondent :- Moharram Ali Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Shishir Jain,Shishir Pradhan Hon'ble Ajai Lamba,J.
Hon'ble Narendra Kumar Johari,J.
(ORAL)
1. State of U.P., through Principal Secretary, Public Works Department, U.P., Lucknow and three other State functionaries have preferred this intra-Court appeal against order dated 02.03.2006 rendered in Writ Petition No.1606 (SS) of 2006 titled 'Moharram Ali vs. State of U.P. and others'.
Vide the impugned order, the writ petition filed by the respondent/writ petitioner has been decided in favour of respondent/writ petitioner.
2. The respondent is represented by Shri Shishir Pradhan, Advocate.
3. Learned counsel for the appellants/State has pointed out that the issue raised by virtue of the writ petition at the instance of the respondent/writ petitioner has been settled against the respondent/writ petitioner by virtue of decision dated 23.07.2010 rendered in a bunch of 228 cases, the lead case being Special Appeal No.64 of 2006 titled 'State of U.P. & Ors. vs. Prabhu Narain Sharma and Ors.'.
4. Learned counsel for the respondent has very fairly stated that indeed the issue would be covered against the respondent/writ petitioner by virtue of judgment dated 23.07.2010.
5. We have considered the facts and circumstances of the case. We deem it appropriate to extract relevant portion from judgment dated 23.07.2010 (supra) rendered by the Division Bench:-
"..................
The learned Judge has traced the history of dearness allowance and its payment to employees. The learned Judge, however, failed to take into consideration that the pay fixed for work charged employees, included as a component, dearness allowance. The D.A. included in the consolidated pay, in labour law, is known as Fixed Dearness Allowance (F.D.A.) vis-a-vis Variable Dearness Allowance (V.D.A.) which is based on the increase or decrease in the Consumer Price Index. At what point, neutralization should be effected for a component of dearness allowance to be treated as F.D.A. is within the realm of the State authorities based on the recommendations received from the bodies assigned to do the work of fixation of pay. What the employees on work charged establishment were denied was the V.D.A. The learned Judge, without taking into consideration this aspect, came to the conclusion that the Government Order dated 26.08.1999 is discriminatory and there should not be any restriction on payment of dearness allowance, overlooking the vital fact that the consolidated pay consists of four components, i.e. basic pay, dearness allowance, special pay and leave encashment, if any, and undisputedly, the employees working on work charged establishment form a separate class, as has been held by the Supreme Court in the judgments, earlier referred to including the judgment in the case of Jaswant Singh (supra). Once work charged employees constitute a different class from regular employees, the employer is not bound to treat all employees alike for the purpose of wages. This principle has been enunciated by the Apex Court in several cases. This Court was also seized of that issue in respect of daily rated employees/employees on work charged establishment in the case of State of U.P. & Ors. Vs. Putti Lal, [(1998) 1 UPLBEC 313. The matter ultimately was heard and decided by the Supreme Court in State of U.P. & Ors. Vs. Putti Lal [(2002) 2 UPLBEC 1595, wherein the Hon'ble Supreme Court, in paragraph 5, had observed as under:-
"5. In several cases this Court applying the principle of equal pay for equal work has held that a daily wager, if he is discharging the similar duties as these in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counter part, in the Government. In our opinion that would be the correct position and was therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterpart in the Government and would not be entitled to any other allowances or increment so long as they continue on daily wager. The question of their regular absorption will obviously be dealt with in accordance with the statutory rule already referred to."
The principle, therefore, is well settled that the State need not, in exercise of its executive power or otherwise, treat all employees alike merely because they are in its employment. The State can classify the employees, based on the nature of employment, and pay them differently. If so done, it can not be said to be arbitrary. In the case in hand, after going into the issue, the State Government fixed a consolidated pay for work charged employees. This, therefore, cannot be said to be arbitrary. This principle has also been referred to in a Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors., (2006) 4 SCC 1.
In view of the above discussion, it is not possible to hold that the action of respondents was arbitrary and/or that the work charged employees are entitled to be treated alike, like regular employees for the purpose of dearness allowance. The Judgment of the learned Single Judge, therefore, is liable to be set aside and is, accordingly set aside.
However, in the course of argument, and as noted earlier, the State Government by its notifications dated 14.01.2010 and 18.01.2010 has in respect of employees working in work charged establishment placed them in the corresponding pay scale of regular employees and also the system of consolidated wage has been abandoned. This was permissible for the State to do and it has so done, but that would only be from the date from which the notification has been given effect to, in the instant case, 01.01.2006. The judgment of the learned Single Judge was delivered on 06.05.2005. It is in that context that we shall have to consider and mould the relief.
At this stage, learned Chief Standing Counsel submitted that as this Court has set-aside the judgment of the learned Single Judge and as such, liberty may be granted to recover the amount of arrears and difference of wages from the respondents-employees. Counsel for the respondents-petitioners submitted that it will be too harsh to recover the amount which has already been paid to them pursuant to the judgment of this Court. They further added that it is not the case of the appellants that they have been paid the amount on account of misrepresentation of facts. Moreover, there are large number of employees who have already attained the age of superannuation or going to attain the age of superannuation very soon and recovery of amount, which has already paid to them, will cause serious prejudice apart from adverse affect on the family. Considering the peculiar facts and circumstances of the case, we with the consent of the parties' counsel evolved a formula in respect of recovering the amount, which should be adopted by the appellants. The formula so evolved with the consensus of the parties, is as follows:-
(i) There will be no recovery from the persons who have already superannuated or are going to attain the age of superannuation within five years from today.
(ii) In respect of the employees, who will be superannuating after five years, from such employees, 50 % arrears paid as dearness allowance less component of fixed pay can be recovered.
(iii) The amount of arrears, which can be recovered from the employees, shall be in easy installments spread over a period of five years.
(iv) In respect of the employees working in the U.P. State Bridge Corporation or other governmental bodies, who have not yet been paid arrears and in respect of whom the recommendations of the Sixth Pay Commission are still pending though made applicable to regular employees, the respondents, whether it be the Government or the Corporation, are directed to complete the process within a period of three months from today and make applicable the revised pay from the date the work charged employees in the State are being paid."
6. From the above extracted portion of the judgment rendered by Division Bench of this Court, it is evident that the appeal filed by the appellants/writ respondents deserves to be allowed. Law laid down by Division Bench of this Court is contrary to the dictum followed by learned Single Judge. The view taken by learned Single Judge in the impugned order has been reversed.
7. Consequently, the appeal is allowed, in terms of judgment dated 23.07.2010 rendered in Special Appeal No.64 of 2006 titled 'State of U.P. & Ors. vs. Prabhu Narain Sharma and Ors.', relevant portion whereof has been extracted above.
Order dated 02.03.2006 rendered by learned Single Judge in Writ Petition No.1606 (SS) of 2006 titled 'Moharram Ali vs. State of U.P. and others'.
Order Date :- 2.8.2019 Nishant/-