Madras High Court
Tamil Nadu Agriculture University ... vs The Registrar on 8 October, 2018
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.10.2018 Coram The Hon'ble Mr.Justice R. SURESH KUMAR Writ Petition No. 34880 of 2003 Tamil Nadu Agriculture University Worker's Union Rep. by S.Natarajan, Secretary, 493, Maruthamalai Road, Pappanayakkanpathur, Coimbatore - 41. ......Petitioner Vs. The Registrar Tamil Nadu Agriculture University, Coimbatore - 41. .....Respondent Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus, calling for the records in Circular No.A-6/4504/2003, dated 03.09.2003 issued by the respondent and quash the same and direct the respondent to restore the service conditions existed prior to 08.09.2003. For Petitioner : Mrs.D.Geetha For Respondent : Mr.Abdul Saleem ORDER
The prayer sought for herein is for a writ of certiorarified mandamus, calling for the records in Circular No.A-6/4504/2003, dated 03.09.2003 issued by the respondent and quash the same and direct the respondent to restore the service conditions existed prior to 08.09.2003.
2. The short facts which are required to be noticed for the disposal of this writ petition are as follows :
(i) The petitioner is Tamil Nadu Agriculture University workers union and according to the petitioner, 3000 employees were working under various categories in the respondent university and the workers are divided into field workers, administrative staffs and teaching staffs. The provincialised unskilled and skilled mazdoors are employed in the field and also in packaging and storing of the cultivated crops. This kind of provincialised unskilled and skilled mazdoors are employed in shifts between 6.30 a.m to 2.30 p.m, 2.30 p.m to 10.30 p.m and 10.30 p.m to 6.30 a.m. Apart from the aforesaid three type of shifts, they are also engaged in general shift between 8 a.m to 5 p.m.
(ii) These mazdoors had been engaged initially on daily wages. Subsequently, most of them had been converted into monthly salaried employees or regularised employees. Even in respect of their initial conditions of service at the time of appointment in the year 1974 and thereafter, they would be allowed for time scale of pay, for unskilled, a sum of Rs.130-195 and for skilled, a sum of Rs.140-210 and these mazdoors are treated on par with Last Grade Government Servants (LGGS) for the purpose of leave.
(iii) Only in that context, when they were working as mazdoors in the respondent university in the field, the university had issued the impugned circular, dated 03.09.2003, whereby the university had directed that, the unskilled provincialised and skilled mazdoors working in the university were ordered to work six days per week, i.e., including saturday, w.e.f 08.09.2003 onwards and there would be no change in the working hours.
(iv) Aggrieved over the said declaration of six days per week as working days for these provincialised unskilled and skilled mazdoors as they were not treated on par with other employees, where, the university employees have only 5 days week system, this petitioner union representing the grievance of the unskilled and skilled mazdoors, has filed this writ petition, challenging the said circular of the university, dated 03.09.2003.
3. I have heard Mrs.D.Geetha, learned counsel appearing for the petitioner who would submit that, the five days a week working pattern has been adopted both by the Central Government and State Government and the respondent university being instrumentality of the State and it is a statutory university, has already adopted five days a week system. It means that, all saturdays and sundays are declared holidays, apart from national and festival holidays. All the employees are entitled to have 12 days of casual leave and other facilities like Earned Leave and Unearned Leave etc.,
4. The learned counsel would further submit that, in so far as these mazdoors are concerned, even though they have to work in the field and also for sometime in shift system, they are otherwise to be treated on par with Last Grade Government Servants for the purpose of leave. In so far as the Last Grade Government Servants are concerned, the Government already adopted five days a week system and if at all the Last Grade Government Servants are pressed into service in any declared holidays including saturdays and sundays, they would be permitted to avail the compensatory leave.
5. However in so far as these mazdoors are concerned, the respondent university passed the impugned circular, by which compulsorily all these mazdoords have been placed into six days a week service. It is a clear discrimination among the members working in the university and therefore in order to restore five days a week system, the petitioner union espousing the cause of the members, who are provincialised unskilled and skilled mazdoors working in the respondent university, has filed this writ petition.
6. Per contra, Mr.Abdul Saleem, the learned standing counsel appearing for the respondent university by relying upon the averments made in the counter affidavit would submit that, the respondent university is an agricultural research university. At a time there could be a number of research programmes taken place in the respondent university campus and at research stations, which are spread over throughout the State.
7. The job of the provincialised unskilled and skilled mazdoors are mainly in the field, where the mazdoors must be in assisting the research persons in the field and their presence is very much required in almost all the days including saturdays and sundays.
8. The research activities would be taken place depending upon various factors and sometime the research have to be taken place in hot sun and in some time in evening and Wee hours.
9. Therefore the mazdoors who are mainly working in the field are expected to work on all the seven days. However since mazdoors cannot be pressed into service for all the seven days, the university decided to put them in service for six days in a week system. Therefore all the sundays have been declared holidays.
10. The learned counsel appearing for the respondent university by relying upon the circular issued by the respondent university, dated 12.01.2009 has submitted that, as per the said decision taken on 12.01.2009 the working hours per day for the mazdoors have already been fixed as 8 hours. In so far as the leave eligibilities are concerned, they are entitled to take leave on all sundays and second saturdays, apart from all Government holidays and 12 days Casual Leave and three Restricted Holidays and compensatory leave, if any.
11. By relying upon this circular, dated 12.01.2009, the learned standing counsel for the university submits that, six days per week system adopted through the impugned circular has been modified by the subsequent circular, dated 12.01.2009, by which all second saturdays have been declared as holidays for those mazdoors also.
12. He would also submit that, apart from the declared holidays, they are entitled to take leave on all Government holidays, besides they are entitled to 12 days Casual Leave and 3 Restricted Holidays. If at all those mazdoors are working in declared holidays like sundays, they can taken compensatory leave to the maximum extent of 20 days as restricted by the Government Order in G.O.Ms.No.2218, Public (Miscellaneous) Department, dated 14.12.1981.
13. The learned standing counsel would also submit that, these mazdoors cannot be equated with the permanent employees, as the mazdoors who are working in the respondent university are in two categories, one is that the mazdoors are permanent in nature and their services could have been regularised and they would be getting monthly salary by way of time scale of pay. In another category of mazdoors who are employees on daily rated wages and in so far as the second category of mazdoors, they would be paid salary as daily rated wages whenever they come for 8 hours work and those kind of daily rated wages mazdoors cannot claim any leave facilities on par with the permanent employees. Such question of declared holidays in so far as the daily rated wages mazdoors does not arise since, these mazdoors will be paid on daily basis whenever they work. Therefore representing their case also since the petitioner union filed this writ petition challenging the impugned order, the said claim made by the petitioner union on behalf of the daily wages mazdoors cannot be accepted, as there is no basis for such claim to be made on their behalf.
14. Therefore the learned counsel appearing for the respondent university would submit that, as the university statute does not provide for any specified leave pattern for these kind of mazdoors, the university is empowered to issue circular and therefore the wisdom of university to issue such circular fixing the working time per day for these mazdoors and also the working days per week including the holidays entitled for these mazdoors, can very well be decided by the university and therefore, such power of the university cannot be questioned by the petitioner union.
15. I have considered the rival submissions made by the learned counsel appearing for both sides and also perused the materials placed before this Court.
16. The only controversy arises in this writ petition is that, whether the provincialised unskilled and skilled mazdoors who are claimed to be the members of the petitioner union are entitled to seek five days a week pattern on par with other employees working in the respondent university.
17. As far as the respondent university is concerned, it is the research university in the field of agriculture and therefore the continuous research activities would be going on in this university and its centres throughout the State. As has been rightly pointed out by the learned counsel appearing for the respondent university, the research activities has to go on on various dates and it cannot be restricted with time limit. Sometimes the research activities has to be undertaken even in declared holidays including saturdays and sundays. Therefore in order to facilitate that kind of research activities, the field level employees are very much essential and therefore their services cannot be dispensed with even in declared holidays like saturdays and sundays. Even in respect of sundays, which are already declared to be holidays, whenever the services of those mazdoors are required to be utilised, they would be pressed into service in sundays also and in lieu thereof, they are entitled to take compensatory leave.
18. The said submissions made by the learned standing counsel appearing for the respondent university, no doubt, has to be accepted. However here in the case on hand, the issue was not that these mazdoors shall not be pressed into service in declared holidays, but their grievance appears to be that, they should be provided the facilities of leave on par with other permanent employees, which in fact had been assured to them in their appointment itself by stating that, they would be given time scale of pay and also they would be entitled to get the leave on par with Last Grade Government Servants.
19. No doubt the university has got every power to issue the circular to regularise these kind of service conditions, which are sundries in nature, but at the same time, the university cannot discriminate this type of employees called mazdoors with other employees of the university.
20. When it was specifically asked, the learned standing counsel appearing for the respondent university has submitted that, the university has already adopted five days a week system in respect of other eligible employees. When that being the position, why differential treatment was adopted, that is six days a week system in so far as these mazdoors are concerned, has not been explained by the university, except to state that, their services are required at any time because of on going research activities and also some essential service like maintaining the plants. There is no quarrel in respect of the said requirement of the services of these mazdoors even on declared holidays. However they must be made eligible to avail the compensatory leave for such service they rendered in declared holidays.
21. Once the university unilaterally adopt five days a week system and still the service of these mazdoors are required in saturdays also on rotation basis, they could be pressed into service and in lieu thereof, they can be permitted to avail the compensatory leave.
22. The learned standing counsel has raised a point that, the said facilities if at all to be extended, it can only be extended to permanent / regularised employees / mazdoors and such facilities cannot be extended to the daily rated wage employees / mazdoors and in those cases whenever they work they will be paid on daily wage basis and therefore the question of five days in a week or six days a week as their service conditions cannot be compared with the permanent employees. Certainly there is some force in the submissions made by the learned standing counsel appearing for the respondent university. As the working days are concerned, the principle of five days work or six days work, whatever may be, could not be made applicable to the daily rated wages employees or casual employees. However, the mazdoors whose services are permanent in nature and whose services are to be treated on par with Last Grade Government Servants or whose services were already regularised and for whose service they have already granted time scale of pay, definitely they should be treated on par with permanent employees, in respect of these service conditions, especially the working days and leave availability of these employees.
23. Even though by subsequent circular, dated 12.01.2009, the second saturdays have been declared as holidays for those mazdoors, that would not satisfy these mazdoors, as they are equally entitled to avail the facility of declared holidays for all saturdays and sundays. In other words they are entitled to five days work system, since the five days work system has already been adopted by the respondent university.
24. In that view of this matter, this Court has no hesitation to hold that the impugned circular, making it compulsory to the mazdoors who are permanent in nature also to work six days per week, cannot be sustained, and therefore, the said impugned circular, in so far as the permanent mazdoors are concerned, is liable to be quashed.
25. In the result, the following order is passed in this writ petition :
(1) The impugned circular is quashed in so far as the permanent mazdoors who are placed under time scale of pay and has been continuously and permanently working in the respondent university.
(2) The university shall declare five days a week system to these kind of permanent mazdoors also. However, it is open to the university to extract work from these mazdoors on need basis in declared holidays, saturdays and sundays. However, in lieu thereof, all these mazdoors / employees shall be permitted to avail compensatory leave as allowable to other employees.
(3) The aforesaid system of five days a week shall immediately be adopted by the respondent university and accordingly their compensatory leave shall also be regulated and be permitted.
(4) It is made clear that, the system of five days a week or six days a week working days, compensatory holidays etc., will no way be made applicable to casual employees / daily rated wage employees, who are not getting wages on monthly basis by way of time scale of pay.
(5) In so far as such kind of casual and daily rated wages employees, they shall be paid with the daily rated wage based on the minimum wage to be fixed by the university on par with the Government rate made from time to time.
26. With these clarifications, the impugned order is set aside as set above and the directions made above shall be executed scrupulously by the respondent university immediately.
This writ petition is ordered accordingly. There shall be no order as to costs.
08.10.2018 tsvn Index : Yes Speaking Order To The Registrar Tamil Nadu Agriculture University, Coimbatore - 41.
R.SURESH KUMAR, J tsvn W.P.No.34880 of 2003 08.10.2018