Allahabad High Court
Kanchi Lal And Anr. vs U.P. State Road Transport Corporation ... on 1 November, 2000
Equivalent citations: (2001)1UPLBEC221
JUDGMENT S.R. Singh, J.
1. Petitioners, who found their access of the service of Corporation as Conductors on contractual basis and who are being paid wages at the rate of 35 paise per (earned) kilometres as and when they are temporarily engaged for a specified period of one year and which period is liable to be extended, have instituted this phalanx of the writ petitions for the reliefs that the respondents be directed to assimilate the petitioners in the service of the Corporation as regular conductors and pay them the salary and other emoluments in parity with the regularly appointed conductors under the Corporation and further not to terminate their services in virtue of the conditions envisaged in the contract and also the respondents be directed to abolish the practice of contract appointment. Since all the petitioners are knit together by similar facet of controversy being based on identical facts, they are amenable to disposal by a composite order and they were taken up with the consent of the Counsel for the parties for disposal accordingly.
2. I have heard Sri K.N. Misra for the petitioner and Sri Sameer Sharma for the respondents. The Counsel appearing for the petitioners canvassed that the petitioners were subjected to hostile discrimination inasmuch as apprentice trainees belonging to scheduled caste were pronounced selected for regular appointment to the exclusion of the petitioners who it has been alleged, have been invidiously singled out for not being the member of Scheduled Caste; that the work for which the petitioners have been engaged are of perennial nature and as such their engagement on contract basis for stipulated periods is arbitrary, unjust, unfair and infringes upon Article 14 of the Constitution; that the method of contract appointment is tantamount to unfair labour practice and verges on exploitation by capitalising on their plight of being unemployed and too poor and too insignificant to matter, that the contract appointment is liable to be abolished qua the ratio decidendi flowing from the decision of the Apex Court in the Secretary Haryana State 'Electricity Board v. Suresh and Ors., (1990) 2 UPLBEC 1186. The learned Counsel for the respondents, in opposition, contended inter alia that the U.P. State Road Transport Corporation is striving to provide adequate economical and properly coordinated transport service to the travelling public of the State and with that end in view, it took a policy decision to engage trained apprentices and retired army men etc. to work as conductors purely on contractual basis on a remuneration of 35 p. per (earned) Kilometers in the crucible of sudden shortage of regular conductors so that the transport services do not suffer for want of regular conductors; that the Corporation has been running into huge losses owing to which it could not replace its old and unserviceable buses and hence it started taking private buses on hire for plying under its own supervision and since the hired buses are taken purely on contractual basis, it was decided to engage conductors on contract basis; that the remuneration payable to the petitioners under the contract at the rate of 35 paise per (earned) Kilometers was pegged by the Corporation taking into consideration that their wages may not fall short of what is being paid to regular conductors i.e. Rs, 3050/- per month; that the petitioners having been directly engaged by the Corporation purely on contractual basis and there being no intermediary involved in such appointments, the decision of the Apex Court in Secretary Haryana State Electricity Board (supra) is not intended for application to the present case and that the petitioners are not entitled to claim rcgularisation cle hors the rules.
3. I have bestowed my anxious considerations to the submissions made across the bar. From the interim order passed by the Court, it would appear that impression was sought to be given to the Court that the respondents had taken recourse to contract labour system which was liable to be abolished as per Section 10 of the Contract Labour Regulation and Abolition Act, 1970 and it was as a sequel to this argument that the Court reckoning into consideration the decision of the Apex Court in Secretary Haryana State Electricity Board (supra) was persuaded into passing the interim orders that "until further orders by the Court, the respondents should continue the petitioners in service as conductors and pay them minimum pay scale which was applicable in the State of Uttar Pradesh." The decision of the Apex Court in Secretary Haryana State Electricity Board (supra) is unavailing to the present case inasmuch as, no intermediary was interposed between the petitioners and the Corporation inasmuch as no intermediary came to be interposed between the petitioners and the Corporation. The contract of employment in the instant case was directly between the petitioners individually and the respondent Corporation. As such, neither the provisions of the Contract Labour Regulation and Abolition Act, 1970, nor the decision aforestated are attracted for application. Since the petitioners were considered for regular appointment in accordance with law, they cannot be heard to say that they were denied regularisation arbitrarily by the Corporation in contravention of the directions issued by the Supreme Court in U.P. State Road Transport Corporation v. U.P. Parivahan Nigam Sishuksh Berozgar Sangh, JT 1995(2) SC 26. The decision aforestated has been subsequently improved upon the by Apex Court itself that Section 22 of the Apprentice Act does not confer a right upon the apprentices to claim absorption/regularisation as of right. The apprentices, according to the directions embodied by the Apex Court, are only entitled to certain relaxations and they were not at all entitle to claim regularisation without facing recruitment test.
4. The question that begs consideration is whether the petitioners who are working on contract basis, are entitled to claim regularisation. Copy of the agreement between the petitioner No. 1 and the Corporation being (Annexure 4) would manifest that the petitioners accepted the contract appointment voluntarily for a period of one year which period was, of course, liable to be extended from time to time on remuneration of 35 .p per kilometre earned by the individual. In the counter-affidavit filed on behalf of the Corporation, the stand taken is that the Corporation is running into losses and the accumulated losses of the Corporation upto Nov., 1999, had touched the figure of Rs. 5,21.35 crores. The Corporation, it is further alleged, had to pay dues of almost Rs. 364.76 crores to various Government Agencies etc. and due to financial straits, the Corporation was stymied in replacing its hackneyed buses and even the State Government gave vent to its inability to lend any financial assistance to bail out the Corporation. In the circumstances, policy decision was taken by the Corporation to engage private buses on hire and pursuant to such, decision, the Corporation hired 387 buses for providing service to the people in addition to its own fleet of buses numbering 6053 upto Sept. 1999 out of which 5075 buses of the Corporation were on road besides the hired ones. The drivers for the contract buses are provided by the owners of the buses while the Conductors for such buses arc engaged by the Corporation on contract basis. Under the contract, the petitioners are to be provided work only when it is available. In State of Himachal Pradesh v. Suresh Kumar Verma, 1996 (72) Factory Law Reports 804, the essence of what has been held is that even for Class 4 employment recruitment according to rules is a prerequisite condition. It would transpire that the petitioners, who were trained apprentices, appeared in the interview test held by the Corporation for recruitment in accordance with the judgment of the Supreme Court in U.P. State Road Transport (supra) but they flunked in the text. The petitioners in the absence of any statutory rule or scheme providing for regularisation of contract-conductors, are not entitled to be regularised and the Court cannot direct regularistion of the petitioners who were working on contract basis.
5. The argument advanced by Sri K. M. Misra that the Corporation has been deriving undue advantage out of its dominant position as against the petitioner in the matter of giving contract employment, cannot be countenanced. As stated supra, the engagement of the petitioners is qua the private buses taken on contract by the Corporation and such contract is terminate at any time. The petitioners, in my opinion, are not entitled to claim any right outside the scope of the agreement under which they have been employed. The decision of the Lucknow Bench of this Court in Writ Petition No. 3550 (S/S) 1992, Suresh Chand Tiwari and Ors. v. State of U.P. and Ors., connected with several other petitions and disposed of by a common judgment dated 18.5.94 has no application to the facts of the present case.
6. The next question that surfaces for consideration is as to whether the petitioners arc entitled to claim remuneration at par with regularly appointed conductors working under the Corporation. The petitioners are being paid remuneration at the rate of 35 paise per kilometre earned by "the individual. A regular conductor is paid salary of about Rs. 3050/-. The remuneration paid to the petitioner at the rate of 35 paise per km. if worked out on the average distance travelled by the bus per day would be equal to the salary paid to regularly appointed conductors. In State of Haryana v. Jasmer Singh JT 1996(10) SC 876, it has been held that daily rated employees cannot be treated as on par with the persons of regular service of State and they cannot claim minimum of the regular scales payable. They difference, it has been pointed out, may be justified keeping in view the fact that the daily rated workers are not required to possess the qualification prescribed for regular workers not arc they selected in the manner in which the regular employees are selected. The manner of appointment, it has been laid down, is one of the factors which may justify the difference in salary between the daily rated and regular employees. Similar view has been echoed in State of U.P. and Ors. v. J.P. Chaurasia and Ors., 1989(1) SCC 121, wherein it has been clearly spelt out that the principle of "equal pay for equal work" has no mechanical application to every cases of similar work, Obviously, Art, 14 of the Constitution permits reasonable classification based on qualities or characteristics of persons grouped together as against those who are left out. As long as the qualities and characteristics have reasonable nexus with the objects sought to be achieved, the classification cannot be termed to be arbitrary and violative of Article 14 of the Constitution in Harbans Lal and Ors. v. State of Himachal Pradesh and Ors., JT 1989(3) SC 296. It has been held that daily rated workmen who were before the Court in that case, where entitled to be paid minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees of regular service. In my opinion, no direction can be given to the respondents to pay remuneration and wages to the petitioners at par with regularly appointed conductors working under the Corporation.
7. So far as discrimination in the matter of regularisation as against Scheduled Caste Candidate has been alleged, suffice it to say that pursuant to the directions given by the Apex Court in U.P. State Road Transport Corporation and another, (supra) a test was held in which the petitioners appeared but they did not romp home. The Scheduled Caste Candidates were not regularised de hors the Rules. The plea of hostile discrimination in the above conspectus is not sustainable.
8. As a result of foregoing discussion, the petitions fail and are dismissed in limine.