Orissa High Court
Basudevpur (R And B) N.M.R. Employees ... vs State Of Orissa Represented By The ... on 30 October, 1991
Equivalent citations: 1992(I)OLR4
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. This Full Bench has been constituted with a view to considering a question of considerable importance, namely;
Whether having regard to the provisions contained in Sections 15 and 28 of the Administrative Tribunals Act, 1985, the jurisdiction of this Court under Article. 226 of the Constitution of India can be invoked by a casual labourer/worker, daily rated worker, like a Nominal Muster Roll employee (for short 'N.M.R.') employed by the State Government, for enforcement of his fundamental right under Article 14 of the Constitution of India for payment of equal pay for equal work and to end his exploitation ?
2. Petitioner in OJC No. 1107 of 1989 is the All Orissa Irrigation Workers Union, a registered Trade Union, whereas the petitioner No. 1 in OJC No. 1191 of 1983 is the Basudevpur (R & B) N.M.R. Employees' Association, a registered association. Petitioners 2 to 6 are the N.M.R. employees serving under the Basudevpur and Soro (R & B) Subdivisions under the control of the Executive Engineer, Balasore (R & B) Division. It has been alleged that the employment of the N.M.R. employees is a precarious one, having no certainty bf tenure and the daily wages that they are paid is barely sufficient for their subsistence and that of the members of their families. Whereas persons in the regular establishment doing the same nature of work and discharging the same responsibility receive many times over the N.M.R. employees doing no less arduous work, they receive a paltry amount as daily/weekly/monthly wages. Many of them have rendered service for more than a decade. Some even for about two decades. Despite the requirement of the department, its need, with view to exploiting persons like the N. M. R. employees because of their penurious conditions, the State and its officials do not hesitate to treat them in an inhumane manner and continue to engage them as muster roll employees for years and decades on less than subsistence level wages. In O.J.C. No. 1191 of 1983, it has been urged that despite the need and requirement, the State and its officials, take advantage of the disadvantage condition of the nominal muster roll employees by terminating their employment at their sweet-will. Though the petitioners in OJC No. 1107 of 1989 have sought a mandamus directing the opposite parties to regularise the services of the muster roll employees and payment of remuneration on par with persons rendering same nature and type of work as they in the regular establishment, the prayer for regularisation was not pressed at the time of admission. Hence, the only question that survives for consideration fn that writ application is their claim for equal pay for equal work, In OJC No. 1191 of 1983, the petitioners seek annulment of the orders terminating the-employment of some nominal muster roll employees in the division.
3. In the counter affidavit filed in OJC No. 1107 of 1989 while questioning the jurisdiction of this Court to entertain the writ application having regard to the reliefs sought, it has been alleged that having regard to the need of a project, the requirements of the works, persons are employed as nominal muster roll employees end are disengaged on completion of the project or the works. The engagement of N.M.R. employees being temporery does not carry any scale and they are paid daily wages as approved from time to time by the Labour and Employment Department. Whereas the tenure of the regular employees-is of permanent nature and they have scales of pay, the N.M.R. employees are engaged for spells having regard to the need and requirement of particular projects or works. Absorption on permanent basis in the establishment of a particular project is by its very nature inconceivable since the project would be completed one day and there would be no need thereafter for employment of workers.
4. The question whether this Court has jurisdiction under Article 225 of the Constitution of India to entertain an application filed by a casual labourer like an N.M.R. employee for enforcement of his fundamental right for equal pay for equal work and for nullification of orders of removal has to be considered with reference to the provisions contained in Sections 15 and 28 of the Act. Section 15, so far as it is relevant for our purpose, reads as under:
"15. Jurisdiction, powers and authority of State Administrative Tribunals--(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shail exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to :
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State ;
(b) all service matters concerning a person not being a person referred to in Clause (c) of this Sub-section or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government :
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in Clause (b), being a person whose services have bean placed by any such local or other authority or corporation or society or other body as is controlled or owned by the State Government, at the disposal of the Government for such appointment."
Section 28 reads as under :
"28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution--On and from the date from which any jurisdiction, power and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post, no Court except-
(a) the Supreme Courts : or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947, or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
5. With a view to reducing mounting arrears in High Courts and to secure speedy disposal of service matters etc. Article 323A was incorporated in the Constitution by the 42nd Amendment authorising the Parliament to make law providing in Clause (1) for the adjudication or trial by the Administrative Tribunals of disputes and complainants with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Clause (2) thereof authorised the Parliament to make law excluding the jurisdiction of all Courts excepting the Jurisdiction of the Supreme Court under Article, 136 with respect to the disputes and complaints, referred to in Clause (1). Clause (3) thereof provided that the provisions contained in Clauses (1) and (2) shall have overriding effect over any order provisions in the Constitution and any other law for the title being in force.
In exercise of the said powers authorising the Parliament to make law, as aforesaid, the Administrative Tribunals Act, 1985, has been enacted. Provision has been made in Section 28 excluding jurisdiction of all Courts except the Supreme Court and Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act to exercise any jurisdiction, powers or authority in relation to such recruitment or such service matters on and from the date from which a Tribunal is constituted to exercise jurisdiction, power and authority under the Act in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post.
6. Hence the moot question is what jurisdiction, power and authority are exercisable by the Tribunal constituted under the Act ?
We are concerned here with persons employed by the State. The relevant section is Section 15.
The State Administrative Tribunal has been vested with jurisdiction to exercise on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts except the Supreme Court in relation to recruitment and matters concerning recruitment to any civil service of the State or to any civil post under the State and all service matters concerning a person appointed to any civil service of the State or any civil post under the State. Hence matters relating to recruitment or concerning recruitment must relate to the civil service of the State or any civil post under the State and the service matter must relate to a person appointed to a civil service of the State or a civil post under the State. The aforesaid analysis indicates that unless a person has been appointed to a civil service under the State or a civil post under the State, a complaint by him as regards any service matter is not cognisable by the State Administrative Tribunal. Similarly unless the matter relates to recruitment or concerns recruitment to any civil service of the State or to any civil post under the State, the State Administrative tribunal would not be competent to entertain it. The question, therefore, is if the complaint made by persons engaged as nominal muster roll employee is a service matter concerning persons appointed to any civil service of or civil posts under the State ?
(A) Does a casual labourer/worker like a muster roll employee hold a civil post under the State ? (B) Is he appointed to the civil service of the State ?
(A) In State of Assam v. Kanak Chandra Dutta, AIR 1367 SC 884, a Constitution Bench of the Supreme Court was called upon to answer if mauzadar engaged collection of revenue and other Government dues held a civil post. In paragraphs 5 to 8 are stated the scope and ambit of his function, the nature of his work, his duties and powers. In that context, it is observed that a civil post is distinguished from a post connected with defence; it is post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. A post is a service or employment. A person holding a post under the State is a person serving or employed under the State. There is relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant can be established by the presence of all or some of these indicia, in conjunction with other circumstances, and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. A post under the State is an office or position to which duties in connection with the affairs of the State are attached, an office or position to which a person is appointed and which may exist apart from and independently of the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment but every employment is not a post. A casual labourer is not the holder of post.
The decision in Kanaka Chandra's case has been referred to in large number of cases decided by the Supreme Court and has not been dissented from in any.
Our attention was invited to few other decisions which we do not consider helpful but refer to some of them out of courtesy to the counsel. Extra departmental agents have been held to be holders of civil posts having regard to the various conditions of service contained in the rules governing them and it has been held that extra departmental agent is not a casual labourer but holds a post under the Administrative control of the State. The post exists 'apart from' the person who happens to fill it at any particular time. Though the post is outside the regular civil services, there is no doubt that it is a post under the State. The observations contained in Kanak Chandra's case were followed (see Rajamma's case [(1977) 3 SCC 94].
Similarly Panchayat Officers in Gujarat have been held to be members of a civil service of the State having regard to the provisions contained in the Panchayat Act and the rules framed thereunder as regards constitution of the service, conditions of service, the powers in respect of appointments, transfers and promotions of officers and servants and disciplinary action which might be taken against them. On a conspectus of the provisions, it was held that they were servants of the State and hence were members of the civil service of the State (see Raman Lal's case, [1983 (2) SCC 33].
In view of the decision of the Supreme Court in Kanak Chandra's case (supra), a muster roll employee who is a casual labourer/worker cannot be said to be holder of a civil post under the State.
(B) The next question posed for answer is : Is he appointed to any service of the State ?
Some authorities with a view to getting over this difficulty have resorted to an untenable and fatuous line of reasoning, namely, the expression civil service' in Section 15 being in small 'c' and small 's', the word 'service' shall have the meaning given to it in the dictionary and the counsel for the State too adopted this line but we may forthwith draw attention to the fact that though the word 'civil service' in Section 15 began with small 'c' and small 's' in Section 28 which excludes the jurisdiction of all the Courts including this Court, the word 'service' appearing therein at three places begins with capital 'S'. But as we have observed an interpretation would not depend on whether the first letter of a particular word is capital or small. Hance, the argument has not appealed to us.
The expression used in Section" 15(1)(a) and (b) is 'any civil service of the State'. The expression 'civil service' means a constituted service or cadrs. Mere performance of some service to the State or in connection with the affairs of the Government does not render a person a member of the civil service of the State. We get considerable assistance in this context from the provisions of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, framed be the Governor in exercise of powers conferred on him by the proviso to Article 309 of the Constitution of India. 'Government servant' has been defined in Rule 2(h) as meaning a person who is a member of service or who holds a civil post under the State and includes any such person on foreign service or whose services are temporarily placed at the disposal of the Union Government or any other State Government or a local or other authority and also any person in the service of the Union Government or a local or other authority whose services are temporarily placed at the disposal of the State Government. Rule 2(h)(iii) defines 'service' as meaning a civil service of the State. The portion in Rule 3 so far as it is relevant for our purpose reads as under:
"3. Application. (1) These rules apply to all Government servants except-
(a)persons in occasional employment:
xx xx xx xx "
In Rule 6, civil services of the State have been classified as State Civil Services, Class I and State Civil Services, Class II and Rule 7 authorises constitution of State Civil Service Class I and Class II. Civil posts have been classified in Rule 8 as Civil Posts under the State other than those ordinarily held by persons to whom these rules do not apply and have been classified as State Civil Posts, Class I. Slate Civil Posts; Class II, State Civil Posts. Class III, and State Civil Posts, Class IV and in Rule 9 it has been provided that State Civil Posts of any class not included in any other State Civil Service, shall be deemed to be included in the General State Service of the corresponding class and a Government servant appointed to any such post shall be deemed to be a member of that service unless he is already a member of any other State Civil Service of the same class. Rule 8 makes it clear that civil post under the State are other than those held by the persons to whom the rules do not apply. Hence the post held by persons in occasional and casual employment are taken out of the ambit of Rule 8. Hence a casual labourer/worker does not hold a civil post under the State. Service meaning civil service of the State having been classified in Rule 6 and constituted in Rule 7 and the details of service and grades having been specified in schedule B, the casual labourers/ workers cannot be said to be members of the civil service under the State which means constituted civil service under the State as contemplated and provided in Rules 6 and 7.
7. That apart from a commonsense point of view it may be said, that if the Constitution Bench of the Supreme Court has held that casual labourer is not holder of a post, can it be said that he is appointed to a civil service ? Would mere rendering of services be sufficient to make a casual labourer/worker like the muster roll employee a member of the civil service of the State ? It is not shown that apart from the service constituted under the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, he is a member of any other service constituted under any other law. In Tirath Raj v. A. P. State Electricity Board and Ors., 1989 (4) SLR 360, It has been stated :
"...The concept of a post under an employer is distinct from the employment by him of casual workers. A mere assignment of a job, under an employer, has not been accepted to be appointment to a post under him in the service jurisprudence which has developed in our country.
Employment on Muster Roll basis can hardly be treated as employment of a person to a post under the Board."
I, therefore, hold that a casual labourer/worker like the N. M. R. employee is neither the holder of a civil post nor is he appointed to any civil service of the State. Hence, Section 15 of the Act conferring jurisdiction on the State Administrative Tribunal is not applicable to such person in regard to complaint made by him seeking enforcement of his fundamental right to equal pay for equal work and, therefore, Section 28 does not operate as a bar and this Court has jurisdiction to entertain matters brought before it by casual labourers/workers like the N. M. R. employees for grant of mandamus for payment of just and adequate emoluments/remuneration.
8. Petitioners in O. J. C. No. 1107/89 have alleged that they are being paid a nominal amount as wages for service rendered by them. The Supreme Court has deprecated the attitude and the system prevailing In the Government and Government corporations in indulging in hostile discrimination by denying such casual labourers minimum pay in the scale of pay to the regularly employed workman. It has been rapentedly observed that the Government cannot take advantage of its dominant position and compel the workers to work even on starving wages. The casual labourer agrees to work even on low wages to keep the walf from the door.
In U. P. Income-Tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors., AIR 1988 SC 517 a complaint was made that the contingent staff had not been regularised and they were being paid lowar than the salary which Class IV employees of the department were drawing. Following the decision in P. & T. Department v. Union of India, AIR 1987 SC 2342, it directed that having regard to the number of years that the members of the contingent staff had been serving a scheme should be prepared to absorb as many of them as possible and pay them wages at the rates equivalent to the minimum pay in the pay scales of regularly employed workers in the corresponding cadres. Such workers were also entitled to D. A. etc. Several Benches of this Court have denounced the exploitation of labour by the State taking advantage in dominant position and have directed payment of wages equivalent to that paid to the employee in the lowest cadre or doing the same nature ann type of work. After giving our anxious consideration to this aspect, we direct that the N. M. R. workers serving in the Baripada irrigation Circle shall be entitled to same remuneration as is being paid to their counterparts in the regular establishment with effect from 1-1-1990. The payment shall be made by the opposite parties within four months from today.
9. As regards O. J. C. No. 1191 of 1988 having regard to the fact that the services of the N. M. R. employees were terminated in 1988, it is difficult for us to direct restoration of their employment. We would, therefore, observe that such of these employees whose services were terminated because of completion of the work, if they approach the opposite parties within to months from today, their cases shall be considered on priority basis, for being engaged as N. M. R. employees.
10. In the result, O. J. C. No. 1107 of 1939 is allowed and O. J. C. No. 1191 of 1983 is disposed of with the observations made above. There shall be no order as to costs.
P.C. Misra, J.
11. I agree.
G.B. Pattnaik, J.
12. I agree.