Gujarat High Court
Harijan Chhatrabhai Somabhai vs State Of Gujarat & 2 on 16 February, 2016
Author: Akil Kureshi
Bench: J.B.Pardiwala, Akil Kureshi
C/SCA/1070/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1070 of 2016
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HARIJAN CHHATRABHAI SOMABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DAKSHESH MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR. RUSHANG D MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/02/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the applicant, a daily-wager serving with the Veterinary Polyclinic has prayed for the following reliefs:-
"A) To quash and set aside the inaction on the part of the respondent authorities in not paying the wages as directed by order dated 11.12.2014 passed in Writ Petition (PIL) No. 244/2014 by this Court;
B) Pending admission hearing and final disposal of the petition, to direct the respondent authorities to make payment of the wages to the petitioner as part time employee as per order dated 11.12.2014 passed in Writ Petition (PIL) No. 244/2014 by this Court;"
It is the case of the petitioner that he is serving as a daily wager (sweeper) at the Veterinary Polyclinic situated at Vadodara, past more than 20 years. It is his case that his hours of working is from 8.00 to 11.00 in the morning and 4.00 to 6.00 in the evening. The grievance voiced in this writ-application is that he is being paid a meagre salary of Rs. 50 per week and that would come to Rs. 200/- per month. It is Page 1 of 7 HC-NIC Page 1 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER his case that he is entitled to receive atleast the minimum wages fixed by the State Government for Class IV employees (unskilled). He places reliance on the order passed by a Division Bench of this Court dated 21.8.2014 in writ-petition (PIL) No. 244/14. The order reads as under:-
"CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/08/2014 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The Constitution of India was framed soon after the independence of the nation with a solemn resolve to achieve social, political and economic justice for all the citizens of the country. Articles 14 and 16 talk of lofty ideas of equality. Article 21 guarantees to every person right to life and liberty. More than 65 years later, a small group of Government workers have been deprived of such rights and privileges. Their voice is too feeble. Their future too uncertain for want of any protection of Article 311 of the Constitution. Their number too small. They are almost a forgotten lot. It is at this stage, the Court in the arena of public interest litigation, comes into picture.
2. The State Government for the purpose of carrying out complex functions and duties need to employ a large number of people. Howsoever, one may wish and desire, it is not possible over a period of time to completely regulate such employment in terms of Articles 14 or 16 of the Constitution. By the very nature of things, the Government, its Corporations, its different wings, need the workers in different fields and trades carrying out different duties possessing specified skills and qualifications. A small portion of such workers come in the nature of part time workers. They are engaged in small numbers almost in every office, establishment or unit of the Government. Whether they are called water server, sometimes cleaner, sometimes gardener and other times watchman, their employment is mostly contingency based and work charged with little permanency attached. They are so called part time, because atleast on paper their engagement is for a period ranging from one hour to six hours a day though in some cases, either in broken spells or otherwise, they may be for all practical purposes, available through out the office time and in some cases, such as watchman, even beyond that.
3. For the present case, we are not going into the intricacies of such employment, need of the Government and reality behind actual number of hours per day they may be discharging their duties. For the present we need to tackle a grim situation which has arisen on account of the Government totally forgetting their plight for over 15 years. We are informed by the counsel for the petitioner who represents the association of such workers that currently there are 10,000 to 15,000 such workers employed by the Government across the State. It may be, as pointed out by the learned Advocate General, that many of these workers are protected against their termination by Court orders. However, it is impossible to believe that all these 10,000 to 15,000 unfortunate workers enjoy the court protection and the Government of its own simply does not employ a single Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER person after 2012 when we are informed according to the circular dated 25.4.2012, the Government decided to discontinue such system. The rate of remuneration these workers received were revised from time to time and last revision was made under a GR dated 23.9.1998. The revised structure as per this circular is as follows :
Hours of work per day Monthly consolidated remuneration Upto 1 Hour Rs.225/-
Upto2 Hours Rs.450/-
Upto 3 Hours Rs.675/-
Upto 4 Hours Rs.900/-
Upto 5 Hours Rs.1125/-
Upto 6 Hours Rs.1350/-
4 Shocking as it may sound to the reader of this order, since then, there has been no rate revision of the remuneration for such part time employees.
In other words since September 1998 till date, for more than 15 long years, such workers have been receiving remuneration month after month, year after year, at a rate which froze in the year 1998. In the meantime, many things happened. The purchasing power of rupee considerably eroded. The Government employees, Central as well as State, were the beneficiaries of one pay revision with effect from 1.1.2006. This would be in addition to periodic DA increases released every six months. One can take judicial notice of the fact that the State as well as the Central Government employees have received consecutive three double digit DA increases in their salaries. In the meantime, the scale of pay of Rs.2250/-which was the minimum prescribed under the Revision of Pay Rules, 1998 implemented with effect from 1.1.1996 was revised to Rs.4440/- under the Revision of Pay Rules , 2009 implemented with effect from 1.1.2006. This basic pay currently carries 100% DA. In fact, the Central Government has also announced the pay panel for making recommendations for the next pay revision.
5. On one hand, thus with high inflation, the cost of living mounted, on the other hand, a small group of citizens continued to draw remuneration at the same level which they were receiving more than 15 years back. All the economic development and prosperity achieved during this period which the rest of the regular employees of the Government shared simply bypassed such unfortunate class of citizens. Today these workers are receiving remuneration at the rate of approximately Rs. 40/to Rs.50/per day as against the minimum wage prescribed by the Government agency itself to be Rs.220/plus special allowance in the area specified as 'A' category in the State of Gujarat, at Rs.218/plus special allowance in 'B' category and Rs.216/plus special allowance in category 'C'. Explanation (2) to the notification dated 5.8.2013 prescribing such rates, reads as under : "(2) The employees employed on part-time basis shall be paid fifty percent of the minimum rates of wages plus special allowance if he works up to four hours and if he works more than four hours, he shall be paid full minimum rates of wages plus special allowance."
6. The State Government implements the legislative policy of minimum wages to be paid by private employers. The Legislature has fixed such minimum wages to ensure that there is no exploitation of workers. In the country like India, where due to high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law however, does not permit such exploitation even at the hands of private employer. Can the State Government which is wedded to Constitutional philosophy of Page 3 of 7 HC-NIC Page 3 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers? The answer has to be in the negative. We are conscious that ipso facto,minimum wage prescribed for the private employers would not govern the Government employees. Nevertheless, for the purpose of immediate relief to such persons and to take a reasonable yardstick for revising their remuneration, pending further directions and consideration by the Government, we are of the opinion that such rates may be accepted for the purpose of remunerating such workers by way of interim measure, subject to further orders.
7. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter. The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the breadwinner. Workers are therefore concerned with the purchasing power of the pay-packet he receives for his toil. If the rise in the pay-packet does not keep place with the rise in prices of essentials the purchasing power of the pay-packet fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the pay-packet remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the cost-of-living sliding scale systems the basic wages are automatically adjusted to price changes shown by the cost-of-living index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leapfrogging must be avoided. If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and it is a common knowledge that this frequently happens during the period of inflation.
8. Under the circumstances, following directions are issued :
1) The State Government shall pay to all its part time workers at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 along with daily special allowance as payable subject to modification permissible under explanation (2) noted above with effect from 1.8.2014. In other words, for the salaries to be paid to all such workers across the State at the end of month of August 2014, such revised rates will be applied.
2) The Secretary to the Finance Department shall issue necessary circular to all the wings of the Government to implement such directions forthwith.
3) There shall be no change in the duty hours of any of these workers as long as such workers are in Government employment. The State Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998.
S.O. to 4.9.2014.
Page 4 of 7HC-NIC Page 4 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER He also places reliance on the order passed by a Division Bench of this Court dated 11.12.2014, disposing of the writ-petition finally. The order reads as under:-
"CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 11/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) We have heard learned advocate Ms. Ashlesha M. Patel for the petitioner and learned Additional Advocate General Mr. P.K. Jani assisted by learned AGP Mr. Vandan Baxi for the respondents.
2. This writ petition in the nature of public interest litigation was filed by the petitioner praying that wages paid to Gujarat State part-time employees as per Government Resolution dated 23.9.1998 has not been revised for the last so many years. Learned counsel for the petitioner has urged that price index has gone high, minimum wages have also gone high but the State Government has not revised minimum wages. The State Government issued a Notification dated 21.2.2014 wherein it was provided that Under Minimum Wages Act, 1948, minimum wages has been revised to Rs. 220/- plus special allowance per day for area A, Rs. 218/- plus special allowance per day for area B and Rs. 216/- plus special allowance per day for area C.
3. This writ petition was filed in August, 2014 praying that in spite of Notification dated 21.2.2014, remuneration for part-time employees Class-IV has not been revised and they are being paid their wages as per the Government Resolution dated 23.9.1998. This Court by order dated on 4.9.2014 directed for constitution of a five Member Committee and directed the Government to issue Circular in the line of directions contained in paragraph No. 2 of the order. Paragraph No. 2 of the said order is extracted as under:
"2. In our order dated 21st August 2014, in paragraph no.8, the following directions were issued. 1) The State Government shall pay to all its part time workers at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 along with daily special allowance as payable subject to modification permissible under explanation (2) noted above with effect from 1.8.2014. In other words, for the salaries to be paid to all such workers across the State at the end of month of August 2014, such revised rates will be applied.
2) The Secretary to the Finance Department shall issue necessary circular to all the wings of the Government to implement such directions forthwith.
3) There shall be no change in the duty hours of any of these workers as long as such workers are in Government employment. The State Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998."Page 5 of 7
HC-NIC Page 5 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER
4. It appears that since the directions were not complied with, contempt petition No. 2904 of 2014 was filed. Prior to the contempt petition was filed, the State Government has already issued Circular dated 6.9.2014 extending the benefits of minimum wages under the Minimum Wages Act to all part-timers i.e. those who are working for less than 4 hours per day, they will be paid Rs. 110/- plus special allowance and those who are working for more than 4 hours but less than 9 hours, they will be paid Rs. 220/- plus special allowance. After contempt petition was filed, another Circular was issued by the State Government on 21.10.2014 which provided that those who are working as part-time employees shall not be entitled for daily special allowance and the rates of minimum wages have been revised with effect from 21.2.2014. The Government has also made it clear that those part-time employees who are working with various Departments of the Government shall be paid in accordance with the Circular dated 6.9.2014 with effect from 1.8.2014. The Government has also extended the benefit of revision of daily wages as per the prevailing rates of the minimum wages provided under the Minimum Wages Act, 1948 to those part-time employees who are working for less than 4 hours per day and those part-time employees who are working for more than 4 hours but less than 9 hours per day in view of the Circular dated 6.9.2014. Therefore, the demand raised by the petitioner has been fulfilled.
5. We have thoughtfully considered the matter in view of the previous interim order passed by this Court and we are of the view that the employees who are working as part-timers since years and they are not getting any other benefits, we put them at par with the workers getting remuneration under the Minimum Wages Act. As and when the revision takes place for the minimum rates under the Minimum Wages Act, the same benefits shall be extended to the part-time employees who are working with various Departments of the Government either for less than 4 hours per day or more than 4 hours but less less than 9 hours per day. This exercise shall be taken by the State Government within a period of 3 (three) months from the date of revision under the Minimum Wages Act.
6. The State Government shall ensure regular month-wise payment to the employees. The prayer made by learned counsel for the petitioner that pay revision may be made with retrospective effect from 1998 is rejected. Learned Additional Advocate General Mr. P.K. Jani states that the Government Resolution dated 23.9.1998 stands revoked in view of recent Notification and now the wages will be governed by the aforesaid new Notifications dated 21.2.2014 and 6.9.2014.
7. With the aforesaid directions, this writ petition stands disposed of finally.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.)"
Mr. Sharma, the learned AGP appearing for the opponent vehemently opposed this writ-application and submitted after taking instruction from the Officer, who is present in the Court, that the petitioner works maximum for a period of two hours in a day. He submitted that the petitioner is the only Class IV employee in the entire hospital, who does the work of sweeping and scrubbing. Mr. Sharma however, fairly conceded that the amount paid to him towards remuneration is Rs. 50 per week, and Page 6 of 7 HC-NIC Page 6 of 7 Created On Wed Feb 17 03:46:12 IST 2016 C/SCA/1070/2016 ORDER that would come to Rs. 200/- per month and the amount is being paid from the Contingency Fund.
Let me assume for the moment that the petitioner is working for two hours every day, even then, paying him Rs. 50 per week could be termed something more than travesty of justice and exploitation of a Class IV employee.
In such circumstances referred to above, the respondents are directed to consider the two orders referred to above and fix a monthly remuneration in accordance with the same, within a period of four weeks from the date of receipt of the writ of the order.
With the above, this application is disposed of. Direct service permitted.
(J.B.PARDIWALA, J.) Mohandas Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed Feb 17 03:46:12 IST 2016