Tripura High Court
Mihir Kanti Chakraborty vs State Of Tripura on 25 April, 2022
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 251 of 2020
Mihir Kanti Chakraborty
...........Petitioner(s)
Versus
State of Tripura
............Respondent(s)
WP(C) 252 of 2020 Smt. Sabita Ghosh ...........Petitioner(s) Versus State of Tripura ............Respondent(s) WP(C) 254 of 2020 Smt. Rina Deb ...........Petitioner(s) Versus State of Tripura ............Respondent(s) WP(C) 255 of 2020 Smt. Sima Dey ...........Petitioner(s) Versus State of Tripura ............Respondent(s) In all cases:
For petitioner(s) : Ms A Debbarma, Adv
For Respondent(s) : Mr. H Sarkar, Adv
Mr. N Majumder, Adv
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment and Order (Oral)
25.04.2022
Heard Ms A Debbarma, learned counsel appearing for the petitioner as well as Mr. H Sarkar, learned counsel appearing for the Page 2 of 13 respondents No. 1 and 4 and Mr. N Majumder, learned counsel appearing for the respondents No. 2, 3, 5 and 6.
All these writ petitions being WP(C) 251 of 2020 [Sri Mihir Kanti Chakraborty Vs. State of Tripura & Ors.], WP(C) 252 of 2020 [Smt. Sabita Ghosh Vs. State of Tripura & Ors.], WP(C) 254 of 2020 [Smt. Rina Deb Vs. State of Tripura & Ors.] and WP(C) 255 of 2020 [Smt. Sima Dey Vs. State of Tripura & Ors.] are combined for disposal by a common order, inasmuch as, all these writ petitions are set up in the resembling context and on identical question of law.
By means of these writ petitions, the petitioners have urged this court for directing the respondents to reckon the service of the petitioners as rendered by them as Part Time Worker (PTW) for determining their eligibility for purpose of regularization on completion of 10 years of service in Group-D Posts. Simultaneously, the petitioners have urged this court for directing the respondents to declare the petitioners as DRWs w.e.f. 01.12.2012 in terms of the Memorandum under No. F.10(12)- FIN(G)/2007 (Part-I) dated 07.11.2012 [Annexure-8 to WP(C) 251/2020].
It has been provided by the said memorandum that the Part Time Workers (PTWs) working in the government departments for 2 (two) hours/ 3 (three) hours/ 4 (four) hours having engaged on or prior to 31.03.2003 and having completed 10 (ten) years of service, will be treated as Daily Rated Workers (DRWs), Group-D w.e.f. 01.12.2012 subject to the conditions inter alia, that they have been paid out of the government fund. It has been also observed in the said memorandum dated 07.11.2012 that Page 3 of 13 the actual engagement of PTW as DRW will be done by the concerned department on receipt of the concurrence of the Finance Department. For the above purpose, engagements of PTWs shall be verified by the concerned department under whom PTWs are working. But after they are engaged as DRWs they will continue to perform the similar kind of work as they have been doing at the time of declaration as DRW.
Ms A Debbarma, learned counsel appearing for the petitioners has submitted that even though the petitioners have been engaged as PTWs but they have been serving for 8 hours a day from the very date of their engagement as PTW. As such, since, they have worked for 8 hours a day and completed 10 years of service they are entitled to be regularized as Group-D employee in terms of the memorandum under No. F.10(8)FIN(G)/2008 (Part) dated 01.09.2008 (Annexure-3 to WP(C) 251/2020) or the memorandum under No. F.10(2)-FIN(G)/2008(Part) dated 21.01.2009 (Annexure-4 to the writ petition).
In the memorandum dated 01.09.2008 (Annexure-3 to WP(C) 251/2020), it has been provided that the government has taken a policy decision to regularize the services of full time DRW/ Casual/Contingent workers who have completed their 10 years of service as on 31.03.2008. It has been provided there that those persons, in the above category, are entitled to be regularized w.e.f. 01.07.2008, subject to fulfilling the conditions as laid down in the said memorandum.
Page 4 of 13
By the memorandum dated 21.01.2009 [Annexure-4 to WP(C) 251/2020], it has been restated by expanding the scope of the regularization that the DRW/Casual/Contingent Workers who were engaged on full time basis in different departments with or without the concurrence of Finance Department, other than permanent labourers/part time workers/anganwadi workers/ helpers/home guards/ teachers and workers engaged in SSA and other schemes/programmes may be considered for regularization from the next date of completion of 10 years of service.
Ms Debbarma, learned counsel has referred to a decision of this court to buttress her contention that since the petitioners have been working for 8 hours a day they are liable to be treated as DRWs.
In Rubi Deb vs. State of Tripura & Ors. [judgment dated 28.06.2010 delivered in WP(C) No.131/2015] this court had occasion to observe as follows:
"14. Having held so, this court is of the view that the respondents did not act fairly while considering the cases of the petitioners. The petitioner in the writ petition, being W.P.(C) No.131/2015, Smti. Rubi Deb, even if is considered as the Part Time Worker like the petitioner in the writ petition, being W.P.(C) No.464/2015, Smti. Biva Thapa; on consideration of their working hours, both of them are entitled to be treated as the Full Time Worker, which is the engagement comparable with the Daily Rated Workers and in all respects, they are Full Time Contingent Workers. As such, both the petitioners are entitled to be considered for regularisation under the scheme as stated above. The respondents, particularly the respondents No.2 and 3 are directed to take all required steps to regularize the petitioners with effect from 01.07.2008 as both the petitioners have completed 10(ten) years of service in the required category in terms of the memorandum dated 01.09.2008 (Annexure-P/3 to the writ petition, being W.P.(C) 131 of 2015). The entire exercise shall be completed within a period of 3(three) months from the date when a copy of this judgment and order shall be placed to the respondents by the Page 5 of 13 petitioner. Hence the writ petitions are allowed to the extent as indicated above."
But the respondents have seriously controverted the claim of the petitioners that they were working for 8 hours a day. According to them, they are PTWs working for two hours a day or three hours a day and they cannot come within the purview of the memorandum dated 01.09.2008 or the memorandum dated 21.01.2009.
In the reply filed by the respondent No.1, as represented by Mr. H Sarkar, learned counsel it has been asserted that the petitioners have not adduced any document to substantiate that they had served for 8 hours a day or they were engaged as the Daily Rated Workers (DRW). According to them, from the petitioners' engagement letter and other documents, it evinces that they were appointed as PTW.
The petitioners were all through paid the wages for PTWs and not the wages of DRWs which was, at that relevant point of time, Rs.125.04 per day, i.e. Rs. 3751/- per month. The petitioners were getting the wages for PTWs on the basis of their daily hours that they were asked to serve.
The respondent No. 1 has categorically stated that on the basis of the information gathered from the Tripura State Electricity Corporation Ltd. [TSECL, for short], the status of the petitioners remained as PTW. The petitioners are entitled to be absorbed as DRWs under the memorandum dated 07.11.2012 but they are not entitled to be regularized Page 6 of 13 in any regular post. Since the petitioners have been engaged as PTWs they cannot clamour for wages of DRWs.
In support of that contention, the memorandum dated 17.07.2010 (Anenxure-1 to the reply filed by the respondent No. 1) has been relied on for demonstrating the various rates of wages for the part time workers, DRW, or other workers. For example, in terms of the said memorandum dated 17.07.2010 the existing rate of wages was revised. On such revision, PTW (4 hours) will be entitled to the monthly wage of Rs.2,713/-, PTW (3 hours) will be entitled to monthly wage of Rs.2,573/- and PTW (2 hours) will be entitled to Rs.2,433 per month. The petitioners were /are indisputably having the wages of the part time workers. For example, the petitioner in WP(C) 251/2020 namely, Sri Mihir Chakraborty was receiving the monthly wages of Rs.2713/- as he has been working for four hours a day. Similarly, the petitioner in WP(C) 252/2020 namely, Sabita Ghosh has been getting Rs.2713 as part time worker for working four hours a day, the petitioner in WP(C) 254/2020 namely, Smt. Rina Deb has been getting Rs. 2573/- per month as PTW for working three hours a day and the petitioner of WP(C) 255/2020 namely, Smt. Sima Dey has been getting Rs. 2713 per month for working as PTW for four hours a day. It has been thus contended by the counsel for the respondents that the petitioners have failed to substantiate their claim that they had been working for 8 hours a day and thus are liable to be treated at par with the petitioner of WP(C) 131/2015 (Smt. Rubi Deb Vs. State of Tripura). Page 7 of 13
In response, Ms A Debbarma, learned counsel has taken this court through the various communications/information sheets. For example, in WP(C) 251 of 2020, a robust endeavour has been made to show from the office order dated 18.02.1997 that the petitioner was engaged as PTW (4 hours) and the petitioner had joined on 24.02.1997. Thus, on 31.03.2010, the petitioner had completed 10 years of service to reap the benefit of memorandum dated 01.09.2008 or the memorandum dated 21.01.2009.
That apart, a communication dated 11.03.2011 (Annexure-5 to the writ petition), addressed to the Deputy General Manager, Electrical Division No. 1, has been pressed in the service to show that the DRW/contingent/casual/PTWs who are working on fixed wages for at least 8 hours have been catalogued in the proforma. In the said list, the names of the two petitioners namely, Mihir Chakraborty (the petitioner in WP(C) 251 of 2020) and Smt. Sabita Ghosh (the petitioner in WP(C)252 of 2020) have figured showing that they were working for 8 hours even though they were engaged as part time workers working for four hours on 24.02.1997.
Thereafter, Ms A Debbarma, learned counsel has relied on the communication dated 16.10.2012 (Annexure-7 to the writ petition) wherefrom this court can find the particulars of the remaining two writ petitioners, namely Smt. Sima Dey (the petitioner of WP(C) 254 of 2020) and Smt. Rina Deb (the petitioner of WP(C) 255 of 2020). It can be Page 8 of 13 gathered from the information sheet attached to the said communication that those petitioners have been working for 8 hours in the interest of the office [see column 14, page 30 of WP(C) 251/2020]. Even the petitioners by filing representation urged the respondents to regularize them for their service as DRW for completing 10 years of service w.e.f. 24.04.1999.
In response to the representation filed by the petitioners, by the communication dated 23.12.2019 (Annexure-10 to the writ petition) TSECL has admitted as follows:
Sl. Name Duty Remarks
No. hours
1 Smt. Sima Dey 4-hrs Currently working for 8
hours for interest of office
2 Smt. Rina Deb 3-hrs -DO-
3 Smt. Sabita Ghosh 4-hrs -DO-
4 Sri Mihir Kanti Chakraborty 4-hrs -DO-
According to Ms. Debbarma, learned counsel the said information has neither been accepted nor controverted by the respondents and as such, the petitioners are entitled to be declared as DRW for their working 8 hours a day from their date of engagement.
For purpose of appreciating the rival contention as advanced by the counsel, this court would like to tabulate certain information to have a glimpse whether the petitioners can be declared as DRW for working for 8 hours a day and whether they can be declared as DRWs for their completion of 10 years of service as PTW in terms of the memorandum dated 07.11.2012.
Sl. Name of petitioner with Date of engagement Remuneration received as
No. Writ Petition Number PTW
1 Sri Mihir Chakraborty 18.02.1997 as PTW for 4 Rs.2911/-
[petitioner of WP(C) hours
251/2020]
Page 9 of 13
2 Smt. Sabita Ghosh 18.02.1997 as PTW for 4 Rs.2911/-
[petitioner of WP(C) hours
252/2020]
3 Smt. Rina Deb 03.09.1992 as PTW for 3 Rs.2771/-
[petitioner of WP(C) hours
254/2020]
4 Smt. Sima Dey (petitioner 01.12.1998 as PTW for 4 Rs.2911/-
of WP(C) 255/2020] hours
All the petitioners having based on the aforesaid
communication have claimed that they have been working for 8 hours and as such, they are entitled to be declared as DRW from the very date of their engagements as PTW and since they have completed 10 years of service, they are entitled to be regularized as Group-D employee w.e.f. 01.07.2008 in terms of the memorandum dated 01.09.2008.
Surprisingly, the petitioners had also urged for the relief that they should be declared DRW in terms of the memorandum dated 07.11.2012 (Annexure-8 to the writ petition) for the reason that they were engaged before 31.03.2003 and completed of 10 years of service as PTW.
In view of the memorandum dated 07.11.2012, the petitioners shall be declared DRW w.e.f. 01.12.2012 as they were being paid their wages as PTW from the fund of the government. It is apparent in the face of the records that the status of PTWs has not been controverted by any one including the respondents. On the contrary, the respondents have acceded to their said status and their right to be declared as DRW in terms of the memorandum dated 07.11.2012.
As this court has referred Rubi Deb (supra) and as the petitioners have raised the similar claim, it is incumbent to determine, on Page 10 of 13 examination of the relevant records whether the petitioners can be treated as DRW.
True it is that from the documents, namely, the communication of the Deputy General Manager, Electrical Division No. 1 dated 11.03.2011 (Annexure 5 to WP(C) No. 251/2020) it emerges that the petitioners of WP(C) 251/2020 and WP(C) 252/2020 had been shown as PTW working for 8 hours by the Senior Manager, Electrical Sub- Division-1, TSECL, IGM Chowmuhani, Agartala. Similarly, in the communication dated 16.10.2012 (Annexure-7 to WP(C) 251/2020) the petitioners of WP(C) 254/2020 and WP(C) 255/2020 have been shown, in the information sheet attached to the said communication dated 16.10.2012, that those petitioners were engaged respectively on 01.10.1996 and 03.09.1992 and they have been working currently for 8 hours in the interest of the TSECL. The said information sheet has been prepared, as it appears, by the Deputy General Manager, Electrical Division-1, TSECL, Agartala. It is apparent from the reply, as filed by the respondents, that they would not accede to the request of the petitioners [PTW] working for 3 or 4 hours a day for regularization, As the petitioners were/are being paid their remuneration in terms of the revised pay as brought into effect w.e.f. 01.07.2011 by the memorandum dated 21.06.2011 (Annexure-1 to the reply filed by the respondent No.1 in WP(C) 251/2020), they cannot claim beyond their redesignation in terms Page 11 of 13 of the memorandum dated 21.06.2011 (Annexure-I to the reply filed by the respondents].
Having situated thus, this court can unhesitatingly declare that the petitioners are entitled to be declared as DRW w.e.f. 01.12.2012 in terms of the memorandum dated 07.11.2012 (Annexure-8 to the writ petition being WP(C) 251/2020). The respondents are, therefore, directed to issue the formal order declaring the petitioners as DRWs w.e.f. 01.12.2012.
However, the petitioners will not be entitled to financial benefit w.e.f. 01.12.2012 but they will be entitled to their financial benefit w.e.f. 20.03.2020 when they filed their respective writ petitions. The respondents are also directed to pay their arrears within a period of three months from the date when the copy of this order will be furnished to the respondent No.3 by the petitioners.
However, the said declaration/direction shall not come into effect till the respondent No.3 conducts and completes an inquiry to ascertain the fact whether the writ petitioners have completed 10 years of service as PTWs working 8 hours a day from the date of their engagement as reflected in the communications dated 11.03.2011 (Annexure-5 to WP(C) 251/2020). If it is found after inquiry that the petitioners discharged their duties 8 hours a day, even though they were engaged as PTW, they shall be declared DRW from the very date when they had completed 10 years of service by rendering duties for 8 hours a day as PTW. Page 12 of 13
In that event, the petitioners shall be considered for regularization under the memorandum dated 01.09.2008 (Annexure-3 to WP(C) 251/2020) and the memorandum dated 21.01.2009 (Annexure-4 to WP(C) 251/2020).
If the petitioners are covered by the memorandum dated 01.09.2008 their regularization will take effect from 01.07.2008 and if they are covered by the memorandum dated 21.01.2009, their regularization shall take effect from the following day of completion of 10 years of service as PTW working for 8 hours a day. [See Rubi Deb Vs. State of Tripura].
It is needless to say that if the petitioners are entitled to regularization in a post, borne in the Group-D, their declaration as DRW will turn inconsequential. Hence, no action will be called for.
The said inquiry shall be completed by the respondent No. 3 within two months from the date when the petitioners shall furnish a copy of this order and within one month from the date of receipt of the result of the inquiry, appropriate order shall be passed by the respondents No. 2 and 3 in terms of this order.
It is also made clear that in the event of their regularization from the date as prescribed in the memorandum dated 01.09.2008 and 21.01.2009, the petitioners will not be entitled to the financial benefit from the date of regularsiation but they will be entitled to the financial benefit from the date of filing of the writ petition considering the huge delay in Page 13 of 13 approaching this court. However, the regularization will take place from the prescribed date which shall be counted for pension and other service benefits in future by fixation of pay notionally.
Having observed thus, these writ petitions are allowed to the extent as indicated above.
There shall be no order as to costs.
A copy of this order be furnished to Mr. N Majumder, learned counsel appearing for the respondents No. 2,3,5 & 6 for transmitting the same to the respondents No. 2 and 3.
JUDGE lodh