Uttarakhand High Court
Uttarakhand Cooperative Sugar Mill vs Deep Chandra Tiwari And Others on 11 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 722
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No.949 of 2019
Uttarakhand Cooperative Sugar Mill
Federation Limited and another ..........Appellants
Vs.
Deep Chandra Tiwari and others ...........Respondents
with
Writ Petition No. 2141 of 2019 (S/S)
Deep Chandra Tiwari and others ...........Petitioners
Vs.
State of Uttarakhand and others .......Respondents
And
Special Appeal No.950 of 2019
Uttarakhand Cooperative Sugar Mill
Federation Limited and another ..........Appellants
Vs.
Narendra Singh and others ...........Respondents
with
Writ Petition No. 2136 of 2019 (S/S)
Narendra Singh and others ...........Petitioners
Vs.
State of Uttarakhand and other .........Respondents
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. T.A. Khan, learned Senior Counsel assisted by Mr. Aditya Kumar Arya, learned counsel for the appellants, Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand and Mr. S.K. Mandal, learned counsel for private respondents-writ petitioners. Learned Senior Counsel and learned counsel either side agree that, though these 2 appeals are preferred against the interlocutory order passed by the learned Single Judge, the writ petitions itself be finally disposed of.
2. The respondents in these appeals had invoked the jurisdiction of this Court filing these two writ petitions seeking a writ of certiorari to quash the orders dated 05.08.2019 and 24.08.2019 passed by the third respondent; and for a writ, order or direction in the nature of a mandamus directing and commanding the respondents not to appoint any employee through an outsource agency, and not to substitute the terms and conditions of services of the petitioners.
3. Facts, to the limited extent necessary, are that the respondents-writ petitioners are employed either on daily wages or on a contract basis with the appellant-Sugar Mill. Their services have been continued for a considerable length of time. While matters stood thus, the Government of Uttarakhand issued Government Order dated 27.04.2018 directing that the services of the employees, engaged on daily wages/contract/ outsourcing basis, should not be continued henceforth; and the services of such persons should be procured through an outsourcing agency. Clause 12 of the said Government Order dated 27.04.2008 reads as under :-
"(1) With regard to fill up sanctioned posts, the selection proceedings should be completed as soon as possible in accordance with relevant rules.
(2) No appointment should be made without the permission of the govt. against sanctioned posts, on contract/daily/wages/work charge/fixed salary/part time/ ad hoc basis. The appointment made on sanctioned posts other than the rules provided, will be deemed void and if such type of appointment is being done in future, the payment of their remuneration shall be recovered from the salary/pension of the concerned officer and departmental proceedings will be initiated against him.3
(3) On any departmental need in accordance with consent of personnel department on the basis of volume of work, services from out sources only, can be taken upto a period of 11 months or upto a period of closure of work. In that regard an agreement will be executed between the employers and service rendering agency but not between the employer and the workman and there should be a disclosure in the agreement itself with regard to the remuneration and the nature of work.
(4) On requirement of the services by the principal employer, having the job card of the workman engaged through the outsourcing agency, should be prepared and thereupon with the order prior permission of the Personnel Department a bond should be executed for a period of 11 months or up to the last of the work whichever is earlier. In that agreement the rate of remuneration and period of services should be mentioned specifically. At the time of renewal of the agreement pertaining to the worker engaged already though outsourcing agency, a procedure of rotation will be adopted.
(5) The payment of remuneration to the aforesaid engaged persons should be in accordance with the rates prescribed by Soldier Welfare Department or above Department, should be paid through outsourcing agency.
In any condition the payment will not be made directly to the person engaged by any organization/department nor they will be given any nomenclature of the cadre or the engagement against regular post or any pay scale of the post.
(6) The payment made other than the permission of the Government, shall be recovered from the salary/pension of the concerned officer/Drawing Distribution Officer.
(7) It is also clarified that the pay scale remains attached with any post. The person engaged as daily wager, work charge and engaged through outsource agency whose services are being taken by the employer, do not hold any post nor their position is like regular employee."
4. In terms of Clause 12(4), the services of workmen, employed through an outsource agency, were required to be engaged on a rotation basis on renewal of their agreement. This limb of Clause 12(4) was deleted by the proceedings dated 4 14.06.2018. The appellant-Sugar Mill issued directions, in terms of the orders impugned in the writ petitions, that the Government order dated 27.04.2018 should be adhered to. While the Government Order dated 27.04.2018 has not been subjected to challenge in the Writ Petitions, the consequential orders issued by the Sugar Mill have been put in issue. The present appeals are preferred by the Sugar Mill on the learned Single Judge passing an interim order, in both the writ petitions, directing that the operation of the impugned orders dated 05.08.2019 and 24.08.2019 shall remain stayed.
5. The basis for passing the interim order, as is evident from the order itself, is that the respondents-writ petitioners were appointed prior to issuance of the Government Order dated 27.04.2018; and the Sugar Mill could not, therefore, change the service conditions of the writ petitioners. It is not in dispute that the respondents-writ petitioners were engaged on daily wages /contract basis on the payment of the minimum scale of pay; their terms & conditions of service, unlike regular employees, is governed by the contract (in the case of contractual employees). Daily wages employees are engaged on a day to day basis, and have no right to claim that they should be continued in service in perpetuity. The writ petitioners' claim, of their terms and conditions of service being varied, may not be justified, more so in the light of the policy decision taken by the State Government and its order dated 27.04.2018 to disengage the services of employees hitherto employed on contract/daily wages, and to engage such workmen only through an outsourcing agency.
6. The submission of Mr. S.K. Mandal, learned counsel for the respondents-writ petitioners, is that the said Government Order cannot be given retrospective effect. The 5 said Government Order prohibits appointment to be made, without the permission of the Government, even against sanctioned posts, on contract/daily wages/fixed salary/work charged/part time/ad-hoc basis. From the date on which the said Government Order came into force on 27.04.2018, statutory bodies or organizations, to which the Government Order was directed to, were disabled from making any such appointment.
7. Mr. S.K. Mandal, learned counsel for the respondent-writ petitioners, would draw our attention to one such order whereby the employee concerned was engaged on a contract basis for a period of one year from 01.01.2019 till 31.12.2019. While it does appear that, even after the Government Order dated 27.04.2018, the Appellant-Mill has continued to engage the services of employees, contrary to the said Government Order, the respondents-writ petitioners can claim the right to be continued in service only in terms of the contract or the written terms and conditions of the engagement, and not beyond. While it does appear that, in so far as one of the respondent-writ petitioners is concerned, his contract would conclude by the end of the year 2019, it is not clear whether any similar contract was entered into with the other writ-petitioners in both the writ petitions.
8. Suffice it, therefore, to observe that, in case the appellant has engaged the services of any employee, even it is contrary to the Government Order dated 27.04.2018, then the services of such an employee shall be continued for the duration of the agreement period in terms of the contract already entered into with them, or till the end of the period specified in the letter of engagement. The appellant shall not, thereafter, engage the services of any contract/daily wage employee contrary to the conditions stipulated in the 6 Government Order dated 27.04.2018. The respondents-writ petitioners shall be informed, by the appellant, regarding the period for which their engagement would continue, and the reasons therefor. The exercise of dispensing with the services of such employees shall be undertaken only after such an order is passed, and is communicated to the respondents-writ petitioners. The salary and emoluments along with arrears, if any, due to the writ-petitioners shall be paid to them before their services are disengaged. They shall also be paid salary/wages and other emoluments, to which they are entitled to, for the period of engagement, in terms of the contract or the letter of engagement, whichever is applicable.
9. The order under appeal is set aside, and both the Special Appeals and both the writ petitions are disposed of accordingly. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) JKJ/Neha 11.12.2019