Madhya Pradesh High Court
Munna Lal Rajak vs State Of Madhya Pradesh on 16 August, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
THE HIGH COURT OF MADHYA PRADESH
WA.1326.2019
(Munna Lal Rajak, Vs. The State of M.P. & Ors.)
1
Gwalior, Dated:-16.08.2019
Shri Shivendra Singh Raghuvanshi, learned counsel for the
appellant.
Shri Pratip Visoriya, learned Government Advocate, for
respondent/State.
Additional documents filed vide IA.3902/2019 are taken on record.
Order dated 26.07.2019 passed in Writ Petition No.3842/2019 is taken exception of in this appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.
Precise case of the petitioner before Writ Court was that although the petitioner was classified as a Supervisor; however, the respondents have taken the work of "Ameen" for which the petitioner was sent for training and fixed salary was given to the petitioner. On these facts, it was stated that the petitioner, in fact, being a Class IV employee, therefore his age of superannuation is 62 years; whereas, he is being retired on attaining the age of 60 years w.e.f. 01.04.2019 treating him to be Class III employee.
Learned Single Judge, by impugned order, declined to cause any indulgence on the findings:
THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 2 "The only question for determination in the present petition is that whether the petitioner was a Class-III employee or Class-IV employee.
It appears that on 04/10/2018 the petitioner had made a representation to the Chief Engineer for retiring him on attaining the age of 62 years and in the said representation, he had claimed himself to be a permanent skilled supervisor. Thus, the case of the petitioner himself is that he is a permanent skilled supervisor, which according to the petitioner himself, is a Class -III post. If the petitioner was being paid the fixed salary, then it is a separate cause of action and the status of the petitioner cannot be adjudicated on the basis of salary which he was being paid but the status of the petitioner has to be adjudicated on the basis of post which he is holding. Undisputedly, the petitioner was a permanent Skilled Supervisor, which is a Class III post.
One Ramjilal Prajapati had filed a writ petition claiming that his age of retirement is 62 years and the writ petition was dismissed by order dated 13/07/2016 against which he had filed a Writ Appeal No.308/2016 and the same was allowed by order dated 03/04/2017. However, the order passed in Writ Appeal No.308/2016 was reviewed by this Court in Review Petition No.587/2017 and the order dated 03/04/2017 passed in Writ Appeal No.308/2016 was recalled and the writ appeal filed by Ramjilal Prajapati was dismissed and accordingly, it is submitted by the counsel for the respondents that the petitioner is not entitled for the relief prayed for. Furthermore, by circular dated 03rd May, 2017, it has been held that the Class-III employees would retire after attaining the age of 60 years. Accordingly, this Court is of the considered opinion that the respondents did not commit any mistake in retiring the petitioner after the age of 60 years as he is a Class-III employee."
Petitioner takes exception to the order contending inter alia that with the State constituting a new service of "Sthai Karmi" as per policy brought in vogue on 07.10.2016 and the petitioner having been classified as 'Skilled' in said service in place of daily wager who are THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 3 Class IV, and his entitlement to serve till 62 years of age. To substantiate the contention, petitioner has adverted to the Circular No.F 5-1/2013/1/3 dated 07.10.2016. The said Circular lays down the policy relating to regularization of workmen classified as permanent (dk;Zjr nSfud osru Hkksxh Jfedksa ds fy, ^^LFkk;h dfeZ;ksa dks fofu;fer djus dh ;kstuk). Close look at the policy reveals that it does not make any provision as to what shall be the age of superannuation of the personnels designated as "Sthai Karmi".
The said aspect, however, was later on spelt out vide Circular C-5-1-2013-1-3 dated 03.05.2017 which made provision for extension of various benefits to "Sthai Karmis" including age of superannuation.
Clause I of the Circular envisages:
^^1- vf/kokf"kZdh vk;q& lkekU; iz'kklu foHkkx ds vkns'k Øekad lh&5&1&2012&1&3] fnukad 09 uoEcj] 2012 }kjk r`rh; ,oa prqFkZ Js.kh rFkk buds led{k inkas ij nSfud osru ij fu;ksftr O;fDr;ksa ls dke ysus dh vf/kdre vk;q&lhek Øe'k% 60 ,oa 62 o"kZ fu/kkZfjr dh xbZ gSA ;g O;oLFkk fujUrj ;Fkkor~ gSA vr% lqfuf'pr fd;k tk; fd r`rh; Js.kh ds inksa ij dk;Zjr nSfud osru Hkksxh 60 o"kZ rFkk prqFkZ Js.kh ds inksa ij dk;Zjr nSfud osru Hkksxh 62 o"kZ dh vk;q iw.kZ gksus ij lsok fuo`Rr gkasxsA^^ Circular No.C5-1/2012/1/3 dated 09.11.2012, which finds mention in Circular dated 03.05.2017, stipulates:
THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 4 e/;izns'k 'kklu lkekU; iz'kklu foHkkx ea=ky;] oYYkHk Hkou] Hkksiky & 462004 Øekad lh 5&1@2012@1@3] Hkksiky] fnukad 9 uoEcj] 2012 izfr] 'kklu ds leLr foHkkx] v/;{k] jktLo e.My] e-iz- Xokfy;j] leLr foHkkxk/;{k] LkeLr laHkkxk;qDr] LkEkLr ftyk dysDVj] leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r] e/;izns'k-
fo"k;%&nSfud osru ij fu;ksftr O;fDr;ksa ls dke ysus dh vf/kdre vk;q&lhek dk fu/kkZj.kA &0& jkT; 'kklu ds fofHkUu foHkkxkas esa dk;Z fo'ks"k ds laiknu gsrq le;≤ ij vko';drkuqlkj nSfud osru ij deZpkjh j[ks tkrs gSaA ,sls dk;ksZa dh fujarjrk ds vk/kkj ij ;s nSfud osruHkksxh deZpkjh yach vof/k rd dk;Z ij jgrs gSa] fdUrq buls vf/kdre fdl vk;q rd dk;Z fy;k tkuk gS] blds dksbZ Li"V funsZ'k ugha gSaA 2@ mijksDr ifjizs{; esa jkT; 'kklu }kjk fu.kZ; fy;k x;k gS fd r`rh; ,oa prqFkZ Js.kh rFkk buds led{k inksa ij nSfud osru ij fu;ksftr O;fDr;ksa ls dke ysus dh vf/kdre vk;q&lhek Øe'k% 60 ,oa 62 o"kZ fu/kkZfjr dh tk, vFkkZr~ jkT; 'kklu ds leLr foHkkxkas esa r`rh; ,oa prqFkZ Js.kh rFkk buds led{k inksa ij nSfud osru ij fu;ksftr O;fDr;ksa ls vf/kdre Øe'k% 60 ,oa 62 o"kZ dh vk;q iw.kZ gksus rd gh dk;Z fy;k tk ldsxkA 3@ mDr izko/kku ;g vkns'k tkjh gksus ds fnukad ls izHkko'khy gksaxsA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj gLrk-@& ¼vkj-ds-xtfHk;s½ mi lfpo e/;izns'k 'kklu] lkekU; iz'kklu foHkkx THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 5 In the present case, as it is the petitioner's own admission that he was working against the post of Supervisor, which is a Class III post in Regular Establishment, no error can be found either in the decision taken by the Authority in retiring him on attaining the age of 60 years, nor with the decision by learned Single Judge, as would warrant any indulgence.
However, not without a caveat, learned Single Judge found that the petitioner's retirement was stayed by an interim order and till date of decision i.e. 26.07.2019 was discharging his duties by virtue of said interim order. Learned Single Judge while dismissing the petition directed for recovery of salary for the extended period by relying on the decision in "Style (Dress Land) Vs. Union Territory, Chandigarh and another [(1999) 7 SCC 89]" which related to Excise Duty levied on the petitioner therein which was stayed, the duty was later found to be justified and since the petitioner was found to have the benefit of keeping back the payment of duty were held to be liable for interest, which Hon'ble Supreme Court declined to interfere observing that "Holding otherwise would be against public policy."
In our considered opinion, the case of a workman having worked for extended period under an order of the Court cannot be equated with that of manufacturer who holds back the Excise Duty.
THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 6 Workman having put his labour is entitled for the wages, the denial of which may tantamount to "begar" which is contrary to our Constitutional philosophy. Article 23 of the Constitution mandates:
"23. Prohibition of traffic in human beings and forced labour.-
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."
Division Bench of Allahabad High Court in "Sita Ram Yadav V. District Inspector of Schools, Jaunpur and another [1990 LAB. I.C. 1025]", has observed:
"14. We see no justification for non-payment of the salary to the petitioner for the period for which he has worked. He is entitled for the salary for the period beyond last terminus date of approval for the duration for which he has worked. The matter has to be viewed seriously in view of the fact that non-payment of salary amounts not only deprivation of the right of livelihood covered under Art. 21 of the Constitution, but it also breaches the mandate under Art.23 of the Constitution."
Similarly, dwelling upon the aspect as to whether Article 23 of the Constitution is wide enough to include in its sweep exploitation of a Government servant or employees of instrumentality of State, in "Shri Mukesh Chandra Vs. State of U.P. and others [2000 LAB.
THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 7 I.C. 1000]" it was observed by the learned Single Judge of Allahabad High Court in paragraphs 12 and 13:
"12. The article prohibits begar and other similar form of forced labour. The meaning of these expression and the ambit and scope of the article has been discussed in detail in People's Union for Democratic Rights (supra). The Court held that the sweep of the article was very wide and unlimited as the Constitution makers were endeavouring to bring about socio-economic regeneration with a view to reach social justice to common man. The Court held that the article struck at forced labour in whichever form it manifested itself because it was violative of human values. The Court took notice of social conditions prevailing in our society and observed that poverty and unemployment resulted in unequal bargaining power leading to Hobson's choice either to starve or submit to exploitative terms dictated by the employer giving rise to legitimate presumption that when a person provides labour of service to another person against receipt of remuneration which is less than the minimum wage he is acting under force of such compulsion which drives him to work though he is paid less than what be is entitled to receive. The Court having explained, forced labour thus extended its scope by applying it to situations where a person was forced by economic considerations to accept lesser remuneration and held that :
"The word 'force' must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leave no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wages Act."
13. This decision was rendered by the apex court on a public interest litigation filed for benefit of workers engaged by the contractors to whom the work of construction was entrusted by Delhi Development Authority or Union of India for completing projects during Asiad. The entire decision was based on admission by the THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 8 Union of India that even though it paid the minimum wages of Rs. 9/25 per worker to the contractor he deducted Rs. 1/- as his commission. The worker thus received one rupee less. The importance of the decision lies in that it explains the scope of Article 23. It has been extended to any form of begar or forced labour either due to economic compulsion or otherwise. The words and expressions used in the article are of wide sweep. They were construed broadly by the apex court. The word begar has been described by Molesworth as "labour or service extracted by a Government or person in power without giving remuneration for it." It was approved by the apex court in People's Union for Democratic Rights (supra). Therefore, the article is wide enough and extends to actions of the Government if it results in taking service without paying any or full remuneration. In Suraj v. State of M. P., AIR 1960 MP 303 the salary of a teacher was stopped as he was not willing to work against the terms of his appointment. The Court held that begar includes taking work without remuneration even temporarily. It was observed "To ask a man to work and then not to pay him any salary or wages savours of begar." Similarly, if the Government or its instrumentality pays lesser amount than the amount fixed for a particular job then it is as much begar as paying nothing.........."
We respectfully agree with the view taken by the learned Single Judge of Allahabad High Court.
In view whereof, in the case at hand, as the petitioner had worked for the period from his actual date of retirement till the date of passing of order in Writ Petition by virtue of an interim order, he cannot be deprived of the wages of said period. He will be entitled for the wages as a right; though the period shall not be counted for other retiral dues. Consequently, the direction for recovery of the salary for THE HIGH COURT OF MADHYA PRADESH WA.1326.2019 (Munna Lal Rajak, Vs. The State of M.P. & Ors.) 9 the period from 01.04.2019 till the decision in Writ Petition is set aside.
Appeal is disposed of finally in above terms. No cost.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.08.28
15:23:26
+05'30'