Bombay High Court
Rashtriya Shramik Aghadi vs The State Of Maharashtra And Others on 15 December, 2021
Author: S. G. Mehare
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
909 WRIT PETITION NO.4013 OF 2020
RASHTRIYA SHRAMIK AGHADI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. R. S. Deshmukh (Senior Counsel)
a/w Mr. Kunal Kale h/f Mr. A. V. Rakh.
AGP for Respondent/s-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.2 & 3 : Mr. V. D. Sapkal (Senior
Counsel) h/f Mr. L. C. Patil.
Advocate for Respondent No.4 : Mr. R. M. Shaikh.
Advocate for Respondent No.5 : Mr. J. C. Patil.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
DATE : 15.12.2021 PER COURT :-
1. We have perused our order dated 01.12.2021. We had granted the temple trust to comply with our directions. So also, we had directed respondent Nos.4 and 5 to file their affidavits.
2. Respondent No.4 has entered an affidavit dated 10.12.2021 through Mr. Prasad Nair S/o Purshottam Nair, Senior Manager-Legal. In paragraph No.6, it is averred that the contract labourers are paid D.A. in basic payments in which P.F. and G.S.T. was included. Conspicuously, a statement that ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 :::
2 909-WP.4013-20.odt the monthly wages of such contractual employees were in accordance with the Minimum Wages Act, is missing from the affidavit-in-reply. In paragraph No.8, it is stated that respondent No.4 has lawfully complied the terms of the agreement.
3. We find from the agreement that G.S.T. is included in the salary structure of the contractual labourers. The actual figure of gross salary, not to be mistaken as costs to the employer / company (CTC), is not divulged to the Court. It is also stated that the entire record of payment of wages and man power provided is submitted to the temple trust. No document indicating the delivery of attendance-cum-wage register and the P.F. challan having been handed over to the temple trust, are filed before us. In these circumstances, prima facie, we have developed an impression that respondent No.4 is suppressing material information from this Court.
4. We, therefore, direct respondent No.4 to place on record the gross wages actually paid to the workers on per month basis, not as per day attendance basis, to assess whether the prescribed minimum wages are being paid or not. Let such ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 ::: 3 909-WP.4013-20.odt affidavit be filed, on or before 10.01.2022, failing which, we would impose costs of Rs.1,00,000/- on respondent No.4.
5. Respondent No.5 / BVG India Limited, Pune has filed an affidavit-in-reply dated 10.12.2021 through Mr. Aslam Babasaheb Shaikh, Manager-Payroll, in which, it is stated that this entity has now received the contract of deploying 141 security guards since 01.07.2019 and such contract would expire by efflux of time on 30.06.2022. A statement is made in paragraph No.3 that the contract security guards were being paid wages as were fixed by the principal employer the temple trust. Voluminous documents are placed before us indicating a huge variance in the gross total i.e. being paid to the contract security guards. Such payments are based on the rate of Rs.327.08 per day. The dearness allowance is not mentioned. In cases where security guards have worked for a maximum of 25 days, such candidate has been paid basic + D.A. @ Rs.4088/-.
6. We are of the view that this is much below the minimum rates prescribed by the Minimum Wages Act for security guards. The learned advocate for respondent No.5 submits on ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 ::: 4 909-WP.4013-20.odt instructions from the representatives present in the Court that they agreed to the figures as were proposed by the temple trust and the temple trust agreed to the payment as is being made by the labour contractor. We have no doubt that the violation of the Minimum Wages Act could attract criminal prosecution and the representatives of the temple trust as well as the labour contractor for having paid wages below the minimum wages as prescribed by the Minimum Wages Act. We also find from the wage register that house rent allowance, washing allowance has been added in the figure of salary so as to inflate the gross total. Further additions in the form of P.F. contributions are made so as to further inflate the figures.
7. We, therefore, direct respondent No.1-temple trust and respondent No.4-labour contractor to file specific affidavits as to whether the minimum rates of wages prescribed by the Minimum Wages Act from 2019 onwards which undergo revision every six months, are paid. The exact figures be placed before us, failing which, we would be constrained to draw an inference that these authorities intend to suppress material information from us. Let such affidavits be filed, on or before 21.01.2022.
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8. The learned Senior Advocate representing the petitioner submits on instructions from the briefing advocate that about 40 of the security guards, who have been working for the last decade as security guards in the temple trust premises, have intentionally been deprived of daily work as they are taking lead in the present litigation.
9. The learned Senior Advocate representing the temple trust, and in our view, fairly, states that the temple trust will not involve itself in who is being deployed on duty as a security guard on daily basis. The contract with respondent No.5 is to deploy a maximum of 141 guards. Insofar as number of guards are required on day-to-day basis, the temple trust informs the supervisor of respondent No.5 and he accordingly deploys those number of guards.
10. It is settled law in Industrial Jurisprudence that the senior most employee has to be offered employment first notwithstanding whether he is a contractual employee or a temporary or a Badli in the light of the provisions under the Industrial Disputes Act and the Factories Act. Even, when it comes to retrenchment, the principle of "last come - first go" ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 :::
6 909-WP.4013-20.odt has to be made applicable. Even, while re-employing retrenched employee under the Industrial Disputes Act, the senior most employee has to be extended the invitation first to re-join duties. Keeping this uniform principle in mind, we direct respondent No.5 to deploy those security guards with the temple trust as per the requirement of the trust on daily basis, by following the rule of seniority. In short, the senior most contractual security guards, who may be working for the last several years, would be the first persons to be deployed on duty. Neither respondent No.5 nor the representative of the temple trust would have any authority to "pick and choose" any security guard as per it's preference.
11. The learned senior advocate representing the temple trust submits, on instructions from the Tahsildar present in the Court, that some times ex-serviceman guards are required to be deployed in the Gabhara and at locations where there are donation boxes. He is instructed to quote a figure of around 20 to 25 guards. The learned senior advocate representing the petitioner submits that there may not be so many locations where donation boxes may be placed all around the temple. ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 :::
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12. As such, we give this leeway to the trust to demand maximum of 10 security guards on per day basis, which includes shift working and Mr. Sapkal fairly submits that respondent No.5 would deploy the 10 senior most ex- serviceman security guards. We expect that there would be due compliance of these directions and any unjustified deviation would be considered by us to be an act of disobedience of the directions of the Court.
13. Mr. Sapkal has been instructed to submit that the Maharashtra State Security Corporation Act, 2010 brought into force on 11.03.2010, is likely to be brought into operation in relation to the temple trust. The learned Senior Advocate representing the petitioner submits that the probable fall out of such implementation would be that all these security guards, who have been working for more than a decade or for various durations, are likely to be permanently displaced and would be taken out of deployment leading to loss of employment.
14. Considering the above and since the contract of the temple trust with respondent No.5 is to last till 30.06.2022, we deem it appropriate to direct that the leave of the Court will be ::: Uploaded on - 17/12/2021 ::: Downloaded on - 18/12/2021 00:15:29 ::: 8 909-WP.4013-20.odt obtained prior to deploying security personnel under the Corporation Act until further orders on this issue.
15. Considering that we have granted liberty to the temple trust and respondent Nos.4 and 5 to file their affidavits-in-reply within the time schedule prescribed, we would grant time to the petitioners to file their rejoinder affidavit, if felt necessary, on or before 15.02.2022.
16. Needless to state, the directions set out by us in our order dated 18.11.2021 would be complied with, if not already complied with.
17. The issue of payment of salaries to those guards who were not allotted work during the Covid Pandemic, in the light of the Government Resolution dated 31.03.2020, would be considered before we dispose off this petition.
18. Stand over to 04.03.2022, at 2.30 p.m. In the event of any urgency, the litigating parties are at liberty to circulate this petition.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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vmk/-
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