Orissa High Court
Bimbadhar Pradhan vs State Of Orissa And Others on 1 December, 2015
Author: S. N. Prasad
Bench: S.N.Prasad
ORISSA HIGH COURT: CUTTACK.
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W.P.(C) Nos. 18072, 18074 to 18094, 18243 to 18254, 25509,
25511 to 25514, 25516 to 25519 and 25521 of 2012.
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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Bimbadhar Pradhan (in W.P.(C) No.18072/2012)
Dharyadhar Samal (in W.P.(C) No.18074/2012)
Jagannath Reddy (in W.P.(C) No. 18075/2012)
Bidyadhar Moharana (in W.P.(C) No. 18076/2012)
Sk. Miskin (in W.P.(C) No.18077/2012)
Sarat Chandra Parida (in W.P.(C) No.18078/2012)
Md. Zamilur Rahaman (in W.P.(C) No.18079/2012)
Harmohan Mohapatra (in W.P.(C) No.18080/2012)
Abhimanyu Mohapatra (in W.P.(C) No.18081/2012)
Makunda Chandra Das (in W.P.(C) No.18082/2012)
Laxmidhar Sethi (in W.P.(C) No.18083/2012)
Rama Chandra Das (in W.P.(C) No.18084/2012)
Adikanda Muduli (in W.P.(C) No.18085/2012)
Banshidhar Maharana (in W.P.(C) No.18086/2012)
Prasanna Kumar Sahu (in W.P.(C) No.18087/2012)
Somnath Khuntia (in W.P.(C) No.18088/2012)
Purna Chandra Sahoo (in W.P.(C) No.18089/2012)
Brundaban Biswal (in W.P.(C) No.18090/2012)
Rangadhar Senapati (in W.P.(C) No.18091/2012)
Dillip Kumar Rao (in W.P.(C) No.18092/2012)
Pravakar Naik (in W.P.(C) No.18093/2012)
Narayan Chandra Das (in W.P.(C) No.18094/2012)
T. Narasingh Rao (in W.P.(C) No.18243/2012)
Upendra Jena (in W.P.(C) No.18244/2012)
Madan M. Moharana (in W.P.(C) No.18245/2012)
Krushna Chandra Ojha (in W.P.(C) No.18246/2012)
Golekha Cheri (in W.P.(C) No.18247/2012)
Jhari Sahoo (in W.P.(C) No.18248/2012)
2
Kanhu Srichandan (in W.P.(C) No.18249/2012)
Abhimanyu Rout (in W.P.(C) No.18250/2012)
Bijay Kumar Nayak (in W.P.(C) No.18251/2012)
Bhajaman Barik (in W.P.(C) No.18252/2012)
Krushna Ch. Routray (in W.P.(C) No.18253/2012)
Bhagyarathi Patnaik (in W.P.(C) No.18254/2012)
Umakanta Champati (in W.P.(C) No.25509/2012)
Trilochan Mallick (in W.P.(C) No.25511/2012)
Kalandi Ch. Mishra (in W.P.(C) No.25512/2012)
Durga Pr. Pattajoshi (in W.P.(C) No.25513/2012)
Darga Hembrum (in W.P.(C) No.25514/2012)
Gangadhar Tripathy (in W.P.(C) No.25516/2012)
Biranchi Ku. Badajena (in W.P.(C) No.25517/2012)
Bijay Kumar Pradhan (in W.P.(C) No.25518/2012)
D. Balaram Reddy (in W.P.(C) No.25519/2012)
Laxmidhar Pati (in W.P.(C) No.25521/2012)
Ashok Kumar Jena (in W.P.(C) No.25522/2012)
.... Petitioners
-Versus-
State of Orissa & others (in all the cases)
..... Opp. Parties
For Petitioners : M/s. Mr. Manoj Kumar Mishra, Sr.Advocate
D. K. Pattnaik. S.K.Pradhan,
S.K.Panda,T. Mishra & J. Sahoo.
For Opp. Parties : Mr. Amit Pattnaik & Miss Sanjibani Mishra
(For State )
PRESENT :
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment :- 1.12.2015
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S. N. Prasad, J.In these writ petitions since similar prayer has been made for issuance of direction upon the opposite parties to grant arrear salary as per the Orissa Revised Scales of Pay Rules,1998 and also to extend benefit of Orissa 3 Revised Scales of Pay Rules,2008 and associated D.A. till 13.1.2011 and to pay arrears of salary, hence by common judgment all these writ petitions are being disposed of.
2. Brief facts of the case is that petitioners have been engaged as DLR Helpers on different dates and were discharging their duties without any break. When their services having not been regularised some of the employees approached before this Court vide O.J.C. Nos.4131 of 1989 and O.J.C. No.4132 of 1989 claiming equal pay for equal work and regularization of their service and vide judgment dated 11.11.1992 the writ petitions were allowed, direction has been passed for equal payment to those petitioners at part with counter parts in regular establishdment, challenging the said order the opposite parties moved before the Hon'ble Supreme Court in Civil Appeal Nos.2541-42 of 1994 and the Hon'ble Supreme Court has been pleased to dispose of the appeals with a direction to pay minimum pay scale to the petitioners as prescribed for the regular employees doing in similar nature of work.
3. In pursuance to the order passed by this Court having been affirmed by the Hon'ble Supreme Court the Government has allowed minimum pay scale with usual D.A. to similarly placed persons. The petitioners have been given benefit of minimum pay scale on the basis of the Orissa Revised Scales of Pay Rules,1989 as applicable.
4. In the meanwhile, Orissa Revised Scales of Pay Rules,1998 came into force on 17.4.1998 and was given effect retrospectively from 1.1.1996 and at that time when Orissa Revised Scales of Pay Rules,1998 came into effect, petitioners were getting benefit of minimum pay scale as per the Orissa Revised Scales of Pay Rules,1989.
5. Grievance of the petitioners is that after coming into effect of Orissa Revised Scales of Pay Rules,1998 the petitioners automatically be given pay scales on the basis of the Orissa Revised Scales of Pay Rules,1998 along with admissible D.A. but that has not been extended in favour of the petitioners. Likewise Orissa Revised Scales of Pay Rules,2008 has also come into effect w.e.f. 1.1.2006, accordingly they ought to have been given benefit of minimum pay scale on the basis of the Orissa Revised Scales of Pay Rules, 4 2008 along with usual D.A., but in spite of repeated representation made in this regard, said benefit has not been extended.
6. Grounds taken by the learned senior counsel appearing for the petitioners are that since there is direction of this Hon'ble Court for extending benefit of minimum pay scale which has been confirmed by the Hon'ble Supreme Court in Civil Appeal No.2541-42 of 1994, in pursuance to the same petitioners have been given benefit of minimum pay scale by virtue of Orissa Revised Scales of Pay Rules,1989, hence after coming into force of Orissa Revised Scales of Pay Rules,1998 and Orissa Revised Scales of Pay Rules,2008 they should automatically be given benefit of minimum pay scale on the basis of revision.
Learned senior counsel appearing for the petitioners has also submitted that this Court has disposed of similar matter bearing W.P.(C) No.17405 of 2012.
7. After filing of all the writ petitions Court has issued notices to the opposite parties, appearance has been entered but no counter affidavit ihas been filed on their behalf.
8. Heard learned counsel for the parties and perused the documents available on record.
9. The sole question which fell for consideration before this Court in this case is as follows:-
(i) As to whether the petitioner are entitled to be given the benefit of replacement of scale of minimum of pay scale by virtue of ORSP Rules, 2008 ?
(ii) Whether the petitioner are entitled to get extending benefit of D.A. from 41% onwards ?
10. In order to appreciate the arguments advanced on behalf of the parties, it is relevant to go through the resolution of the ORSP Rules 1989, ORSP Rules 1998, OSRP Rules 2008 and provision of Article 309 of the Constitution of India.
511. So far as point no.(i) is concerned, for deciding the issue it would be appropriate to appreciate the arguments advanced on behalf of the parties.
12. After coming into effect of the 4th Pay Revision Commission by the Central Government, the State Government has implemented the benefit by virtue of the resolution of the ORSP Rules 1989 w.e.f. 1.1.1986 and thereafter 5th and 6th pay revision commission under ORSP rules, 1998 and ORSP Rule 1998 has been given effect to w.e.f. 1.1.1996 and 1.1.2006 respectively.
13. Contention of learned counsel appe;aring for the opposite parties- state that the petitioners cannot be extended benefit of minimum of pay scale on the basis of the ORSP Rule 1998 and OSRP Rule 2008 for the reasons that they are being paid minimum pay scale from contingent fund and ORSP Rule 1998 and 2008 put embargo to pay regular pay scales to the DLR employees, this contention has been raised by the learned counsel for the opposite parties- State that since the minimum of pay scale being service conditions cannot be extended to the petitioners in view of provision of ORSP rules having been enshrined under Article 309 of the Constitution of India because the petitioners are not in regular establishment, they are being paid out of contingencies, are not drawing pay in regular scales of pay for them no revised scales of pay are prescribed.
14. These arguments can be said to be correct only if the minimum of pay scale will be a service conditions as per the provision of ORSP rules, 2008 otherwise not.
Hence, now question is whether minimum of pay scale is a service conditions ?
15. Minimum of pay scale is a concept not provided in Orissa Service Code or any service code applicable to any Central or State Government employees. This benefit has come only upon the direction of the Hon'ble Supreme Court.
The reason is that if an establishment is in need of work of workers but due to financial restraint cannot be regularized on regular basis, in the establishment they have rendered their services for its smooth functioning and the workers continue the work in anticipation of regularization. In that 6 anticipation they continue years together, but when not regularized they moved to court of law and Hon'ble Supreme Court although deprecated regularization but in order to avoid unfair labour practice and to follow the rule of equal pay for equal work has directed the authority to pay minimum of pay scale at par with the regular employees of the cadre which will be a minimum of entry scale i.e., for example an employee's pay scale in Rs.4000-7440/-, so the minimum of pay scale will be Rs.4000/-.
16. Further Hon'ble Supreme Court in C.A. No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy & others the wherein following direction has been passed:-
"Heard parties. The only thing that needs to be clarified is that respondents/workmen who were directed to be paid the same wages as the regular employees would be placed only on the minimum of pay scales, which is prescribed for the regular employees belonging to the same categories. The impugned order of the High Court is modified accordingly and the appeal is allowed to the above extent. There will be no order as to costs."
Even by constitution Bench of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others vrs. Umadevi (3) and others reported in (2006) 4 SCC 1 wherein their lordships has approved the concept of minimum of pay scale to be paid at par with the regular employee of the cadre minus increment and other allowances wherein at para-55 needs to be referred.
"55. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them."
In the case of State of U.P. and others vrs. Puttilal reported in (2006) 9 SCC 337 wherein their lordships has been held at paragraph-5 needs to be referred:-
"5. In several cases this Court applying the principle[le of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to any increment or nay other allowance that is permissible to his counterpart in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers 7 would be entitled to draw at the minimum of the pay scale being received by their counterparts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wagers."
Minimum of pay scale has been directed to be paid by virtue of Hon'ble Supreme Court on the principle of equal pay for equal work but not entitling the daily rated employee for all the benefits which are being paid to the employees of regular establishment due to different nature of employment and differences in mode of engagement but simultaneously Hon'ble Supreme Court has taken into consideration and for avoiding unfair labour practice on the ground that since daily rated employee are working same nature of employment they at least be entitled for minimum of pay scale.
17. Hence minimum of pay scale is not a service conditions since not provided in Orissa Service Code.
18. When minimum of pay scale is not a service condition rather by virtue of order passed by Hon'ble Supreme Court in C.A. Nos.2541-42 of 1994, this Court has passed order in W.P.(C) 4131 of 1989 and 4132 of 1989. Hence arguments of the learned counsel for the opposite parties cannot be said to be correct.
19. Now regarding entitlement of the petitioner for minimum of pay scale on the basis of ORSP Rules 1998 and 2008, there is no dispute that the petitioners have been given minimum of pay scale by virtue of order passed by this Court having been confirmed by the Hon'ble Supreme Court in CA No.2541-42 of 1994 on the basis of ORSP Rule 1998. Thereafter, w.e.f. 1.1.1996 and 1.1.2006by virtue of ORSP Rules 1998 and 2008 replacing the scale of pay based upon ORSP Rule 1989.
20. It is settled that an employee will be given benefit of pay scale adopted by the State Government in pursuance to the same petitioners being DLR employees were given minimum pay scale at par with the regular employee in pursuance to the ORSP Rule 1989 and are being paid but the pay scale on the basis of OSRP Rule 1989 has been superseded by OSRP Rule 1998 w.e.f. 1.1.1996 and OSRP Rule 2008 w.e.f. 1.1.2006, hence petitioners will got pay scale at its minimum pay scale on the basis of the replacement scale and the 8 employees concerned will automatically be sent to the corresponding pay scale after revision.
21. Here petitioners being DLR employees are being paid wages equal to the salary at the lower grade of employees of their own cadre and the moment pay scale has been revised and given effect to, the petitioners will automatically come in replacement scale although at its minimum. This can be demonstrated by an example.
Suppose an employee was having pay scale Rs.4500-125-7000 and was getting said pay scale the moment it has been revised by virtue of ORSP rules, 2008 to the pay scale of Rs.5200-20200 he will automatically go to the corresponding scale from Rs.4500-125-7000 to Rs.5200-20200.
22. Here in this case the petitioners have been directed to be paid minimum of pay scale by virtue of order passed by this Court and on the basis of the same petitioners are being extended said benefit on the basis of the ORPS Rule 1989 and after replacement of the scales by virtue of OSRP Rule 1998 then the recommendation of 6th Pay Revision Commission has been adopted and the pay scale has been revised, enhanced, concerned employee will automatically will go on enhanced revised pay scale w.e.f. 1.1.2006.
Accordingly, petitioners in these cases also will be entitled for minimum pay scale on the basis of the ORSP Rules 1998 and 2008 with effect from 1.1.1996 and 1.1.2006 respectively. This point has been answered in favour of the petitioners.
23. So far as point (ii) is concerned i.e., prayer for enhanced D.A. from 41% on the basis of ORSP rules, 2008 to be given at par with the regular Government employee.
In this regard, Hon'ble Supreme Court has been held that the DLR employees will be paid minimum of pay scale at par with the regular Government employee of the cadre minus increment in the case of Secretary, State of Karnataka vrs. Umadevi (3) and others.
24. It is settled that determination of D.A. depends upon the Price Index and rate of inflation to meet out the inflationary rate as would be evident from the definition of "Dearness Allowance" means that "D.A. is a cost of 9 living adjustment allowance paid to the Government employees as per the rate of inflation".
25. The State Government in this case has taken decision admitting to pay D.A. @ 41% which suggests that the State Government has taken decision to pay minimum of pay scale along with D.A. @ 41% on the basis of order passed by Hon'ble Supreme Court in the case of Upal Krishna Reddy as would be evident from Annexure-1 dated 28.10.1995 wherein it has been stated the relevant part is being quoted herein below:-
"Further, it is also clarified that as per the judgment of the Hon'ble Supreme Court of India passed in the Civil Appeal No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy and others in regard to payment of D.A. the casual workers (D.L.Rs) involved in the above mentioned cases are entitled to get D.A. only."
26. Thus, decision has been taken by the authority to enable the petitioner to be entitled to get D.A. @ 41%, so only question is what would be the quantum of D.A. to be paid to the petitioners since D.A. depends upon price index hence it would be proper to direct the authorities to determine the present percentage of D.A. on the basis of price index prevailing on the date.
27. Hence the authorities are directed to release differential amount as indicated above within reasonable period preferably within six months from the date of receipt of copy of this order.
On the basis of observation made hereinabove, the writ petitions are disposed of.
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S. N. Prasad, J.
Orissa High Court, Cuttack.
Dated the 1st December,2015/Palai