Subendu Mata And ORS. v. The Hon'Ble Lt.Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA WPA/271/2021 I.A. No. CAN/1/2022 Subendu Mata and others ... Petitioners VS.

The Hon'ble Lieutenant Governor and others ... Respondents For the petitioners : Mr. Gopala Binnu Kumar For the respondents : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Hearing on : July 21 & 22, 2022 Judgment on : July 26, 2022 SABYASACHI BHATTACHARYYA, J.

1.

The petitioners have been working as Daily Rated Mazdoors (DRM) on and from the year 2006 between themselves, under the respondent No. 3, that is, the Zilla Parishad, North and Middle Andaman. They have been discharging different duties, including those of Computer Operator, Technical Assessment Electrical, Attender, Site Supervisor, Surveyor, Sweeper, Dairy Dispatcher and

Record Keeper etc. It is contended by the writ petitioners that they were discharging the duties and responsibilities of regular employees and, as such, are entitled to 1/30th of pay of the minimum of the relevant pay scale plus Dearness Allowances. In support of such submission, the petitioners rely on an Office Memorandum dated June 7, 1988 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), wherein it was, inter alia, stipulated that where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay of the minimum of the relevant pay scale plus Dearness Allowance for work of eight hours a day.

2.

The petitioners also made a representation to that effect before the Home Ministry, upon which the Home Ministry, vide letter dated May 12, 2021, wrote to the respondent authorities directing the latter to look into the representation. Such action having not been taken by the authorities, the petitioners have filed the present writ petition, seeking pay at the rates as indicated above as well as regularization. 3.

By placing reliance on the documents annexed to the writ petition, learned counsel for the petitioner argues that a General Body Meeting of the Zilla Parishad was held on July 5, 2018 under the chairmanship of the Adhyaksha, North and Middle Andaman, who is the Chief Executive of the Zilla Parishad. From the minutes thereof, as

annexed to the pleadings, it is reflected that forty-five Daily Rated Mazdoors were working under the Zilla Parishad and there was routine delay in disbursing wages to them. It was also recorded that without such Daily Rated Mazdoors, the Engineering Wing of the Zilla Parishad cannot be continued smoothly.

4.

By placing reliance on the provisions of the Andaman and Nicobar Islands (Panchayats) Regulation, 1994, it is contended by the petitioners that the respondent No. 3-Zilla Parishad is an autonomous body.

5.

Again, by placing reliance on Section 2(s) of the Industrial Disputes Act, 1947, it is argued that the petitioners fall within the definition of 'workman' as contemplated therein. As per Section 25B of the 1947 Act, where a workmen works for 240 days during a period of twelve calendar months, he is to get protection under Section 25F and 25G of the said Act. Without complying with such mandatory provisions, termination of the said workers is illegal, it is submitted. 6.

Since the petitioners were working for years together, discharging duties of regular employees, the respondent authorities cannot, without legal sanction, disengage them, it is argued. In support of the such proposition, learned counsel for the petitioners cites the following judgments:- (i) Rattan Singh vs. Union of India and another

1997 (11) SCC 396 (Para -2 and 3) (ii) Mohan Lal vs.

The Management of M/s Bharat Electronics Ltd.

1981 (3) SCC 225 (Para - 14 to 18) (iii) Ramesh Kumar vs. State of Haryana 2010 Supreme (Raj) 60 (Para 13) 7.

It is submitted that different sets of writ petitions had been filed by outsourced employees and Daily Rated employees, seeking implementation of a resolution dated February 15, 2016 passed by the Zilla Parishad, whereby the house unanimously resolved that the Daily Rated employees working in Zilla Parishad for long years should be regularized.

8.

An order was passed on June 15, 2017 in WP No. 180 of 2017 filed by the contract employees, directing the Zilla Parishad to implement its resolution dated February 15, 2016 subject to any approval or sanction to be obtained from the Andaman and Nicobar Administration or any other authority. Similar orders were passed in other matters also. Thereafter the Zilla Parishad appointed six outsourced employees and one Daily Rated Mazdoor as Multi-Tasking Staff on temporary basis, which was rescinded by the Administration vide order dated November 10, 2017, against which writ petitions were filed on several grounds including that under Section 151 of the 1994

Regulations, the executive powers of the Zilla Parishad lies with the Adhyaksha, hence the Adhyaksha has the responsibility of duly fulfilling the duties of the Zilla Parishad.

9.

The Zilla Parishad had filled up the post pursuant to an order dated July 24, 2017 passed in another set of writ petition, inter alia, in WP No. 228 of 2017.

10.

The said order was challenged in appeal but the Division Bench affirmed the same. Against the Appellate Court's order, the Administration filed a Special Leave Petition, which is pending before the Hon'ble Supreme Court, it is submitted.

11.

It is reiterated that the petitioners are entitled to 1/30th of pay of the minimum of the relevant pay scale plus Dearness Allowances. In support of such argument, learned counsel for the petitioners cites several judgments as follows:- (i) Writ petition (Civil) No. 59-60 and 563-70 of 1983 (Surinder Singh and another vs. The Engineer-in-Chief, CPWD and others) (ii) Civil Appeal No. 10956 of 2018 (Sabha Shankar Dube vs. Divisional Forest Officer and others) (iii) W.P. No. 185 of 2018 (Shri Gautam Halder and others vs. The Andaman and Nicobar Administration)

With W.P. No. 219 of 2018 (Shri Hemendra Biswas and others vs. The Andaman and Nicobar Administration) (iv) M.A. No. 022 of 2019 (The Andaman and Nicobar Administration and others vs. Shri Hemendra Biswas and others) With M.A. No. 023 of 2019 (The Andaman and Nicobar Administration and others vs. Shri Gautam Halder and others) (v) Special Leave Petition (Civil) No. 7183 of 2020 (The Andaman and Nicobar Administration and others vs Shri Gautam Halder and others) With Special Leave Petition (Civil) No. 7182 of 2020 (The Andaman and Nicobar Administration and others vs. Shri Hemendra Biswas and others) (vi) Review Petition (Civil) No. 29096 of 2020 in SLP No. 7183 of 2020 (The Andaman and Nicobar Administration and others vs Shri Gautam Halder and others) With

Review Petition (Civil) No. 147 of 2021 in SLP No. 7182 of 2020 (The Andaman and Nicobar Administration and others vs. Shri Hemendra Biswas and others) (vii) Judgment dated 13/12/2009 passed in W.P. No. 268 of 2018 (Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh and another vs. The Lieutenant Governor and others) 12.

The respondents, on the other hand, argue that the benefit given under the Office Memorandum dated June 7, 1988 is only available to the casual workers doing the same nature of work as regular employees.

13.

It is submitted that the Supreme Court observed in State of Punjab and others vs. Jagjit Singh and others, reported at (2017) 1 SCC 148, that what is relevant is the nature of duty being performed and not the duration of service and that the onus is on the employee to prove by leading evidence that the nature of service is regular. 14.

In the present case, no such proof has been given by the petitioners to show that their nature of service was equivalent to regular employees. On the contrary, it is submitted, the petitioners performed work on temporary, seasonal and need-based recruitments. The petitioners were not appointed against any contract or letter of appointment or pursuant to any regular advertisement but their

names were recorded merely in a muster roll which was issued in advance every month.

15.

Insofar as the minutes of the meeting dated July 05, 2018 is concerned, learned counsel for the respondents argues that the same is not of a binding nature but is being used by the petitioners for collecting bargaining with the Administration. 16.

It is argued that the Andaman and Nicobar Islands (Panchayat's Administration) Rules, 1997, read with the 1994 Regulations, indicate that the Zilla Parishad does not have any independent power to appoint any employee and the power of appointments is with the Administrator, namely the Lieutenant Governor of the Andaman and Nicobar Islands. Additionally, it is argued, the powers of the Zilla Parishad are restricted to matters specified under the Regulations. 17.

It is submitted that the Administrator has deep and pervasive control over the functioning and the Administration of the Zilla Parishad.

18.

Thus, it is contended that even if the minutes of meeting, as referred to above, have any relevance after four years, they have no legal strength and sanction in the eye of law. Thus, such minutes do not confer any legal right on the petitioners which can be alleged to have been infringed in the present case.

19.

It is further argued that the petitioners, if workmen under the 1947 Act, ought to have approached the competent Labour Court for resolution of the dispute.

20.

Upon a consideration of the arguments of the parties, the Office Memorandum dated June 7, 1988, bearing No. 49014/2/86 Estt.(C), acquires importance. It was stipulated in Clause IV of the said memo that where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowances for work of eight hours a day. It was also provided in the said Circular [in Clause (i) thereof] that a person on daily wages should not be recruited for work of regular nature. 21.

Clause (ii) of the Circular provides that recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent in nature or for work which is not of full time nature, for which regular posts cannot be created.

22.

Subsequently, the Circular dated October 11, 2000 issued from the Secretariat of the Andaman and Nicobar Administration directs all Heads of Departments/Offices of the Administration at Port Blair to strictly follow the guidelines dated June 7, 1988 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of

Personnel and Training, New Delhi, while recruiting casual workers on daily wages.

23.

The petitioners' representation is also annexed to the writ petition.

24.

The documents annexed to the writ petition reveal several orders of other departments of the Administration, complying with and giving effect to such memo.

25.

An obvious question which falls for consideration in the present case is whether the petitioners discharge duties similar to regular employees.

26.

The nature of job of the petitioners has, in fact, been disclosed in the writ petition itself.

27.

There is no specific denial, apart from bald denial and reference to the petitioner as casual labour, of the specific allegation that the petitioners have been working with the Zilla Parishad for many years. The capacities in which the petitioners have been working are various, such as, Computer Operator, Technical Assessment Electrical, Attender to Chief Executive Officer, Site Supervisor, Surveyor, Sweeper, Dairy Dispatcher and Record Keeper etc. It is evident from the nature of the jobs themselves that the work is of perennial nature and not seasonal as sought to be made out by the respondents.

28.

It is also seen from the minutes of the meeting of the Zilla Parishad dated July 5, 2018, which is an admitted document and annexed to an affidavit of the respondents as well, that the Daily Rated Mazdoors are indispensible and doing essential job. 29.

It was further stated that, since its inception, the Zilla Parishad is having a shortage of technical/regular staff not only in the Engineering Wing but also in Establishment Section/other sections and, in the state of affairs, the Zilla Parishad/Engineering Wing cannot be continued smoothly without engaging Daily Rated Mazdoors.

30.

It was also stated in the said minutes that the entire house emphasized that the many sanctioned posts of various categories are lying vacant since long and, to strengthen the Zilla Parishad, the Administration must take necessary steps to fill up all the vacant posts within two months.

31.

The house also emphasized that if the Administration is not able to accord necessary approval to engage all forty-five Daily Rated Mazdoors at that point of time working under the Zilla Parishad within two months from then, the Zilla Parishad Members would also call a strike against the Administration with the Daily Rated Mazdoors.

32.

The services of the Daily Rated Mazdoors, it was recorded in the minutes, are most important to run the Zilla Parishad smoothly; hence they should not be removed.

33.

It is noteworthy that the Adhyaksha of the Zilla Parishad, who is the Chief Executive within the contemplation of the 1994 Regulation, was present as a signatory to the said minutes. 34.

Hence, the argument advanced by the respondents on the basis of Jagjit Singh and others (supra), that is, the onus being on the employee to prove that the nature of service is regular, cannot be accepted since the petitioners have sufficiently discharged such onus from the aforementioned documents.

35.

Moreover, since the Adhyaksha was present in the meeting of 2018 and the Members were assured in respect of the reliefs to be given to the Daily Rated Mazdoors, the Zilla Parishad is barred by estoppel from resiling from the said position, as the Daily Rated Mazdoors rejoined work on the basis of such assurance. 36.

Inasmuch as the production of attendance register up to a particulars month of the 2021 is concerned, such selective production of the attendance records by the respondents is insufficient to disprove the fact that the petitioners have been continuously working for several years with the Zilla Parishad. In view of such position being

admitted in the resolution of the Zilla Parishad of the year 2018, such fact is substantiated sufficiently.

37.

Inasmuch as the 1994 Regulation is concerned, the same gives sufficient autonomy to the Zilla Parishad to function and engage workers for its functioning. The supervisory role of the Administrator cannot be cited by the Administration to justify autocratic control over the Zilla Parishad, which would defeat the purpose behind the Article 283 of the Constitution of India and the concept of Panchayati Raj which is a integral part of the Indian Constitution, more so since most of the citizens of India live in rural areas. 38.

It is not reflected from any of the provisions of the 1994 Regulation, which are the premise on which the 1997 Rules are to be read, that it confers control of the Administration on the respective Zilla Parishad to the basic level of giving appointment to their employees. Although posts are to sanctioned by the Administration, the Zilla Parishad has to decide first its own requirements. 39.

A comprehensive appreciation of the 1994 Regulation, in particular Section 151 thereof, indicates that the executive powers of the Zilla Parishad and responsibilities for due fulfillment of the duties imposed on the Zilla Parishad and for carrying out the resolutions of the Zilla Parishad is vested in the Adhyaksha. Hence, there is no reason why the resolution of 2018 should not be honoured and

implemented by the Adhyaksha of the respondent No. 3 of the Zilla Parishad.

40.

The Rules of 1997, which are stressed upon by the respondents, confer certain powers on the Administration. Such powers extend to several aspects including the delineation of functions of the Zilla Parishad. However, the day-to-day affairs of the Zilla Parishad cannot be deemed under its provisions to have been entrusted to the Administration, which interpretation would be counterproductive to the law and divest the Zilla Parishad entirely of its autonomy. 41.

In the present case, the petitioners have been assured, even by resolution of the Zilla Parishad, that they would be treated at par with Daily Rated Mazdoors discharging the functions of regular employees and would be getting associated benefits. That apart, even the concerned Ministry has directed the Administration to look after into the representation of the petitioners. Despite other departments having implemented the Office Memorandum dated June 7, 1988, for some unknown reason the Zilla Parishad, North and Middle Andaman (respondent No. 3) has failed to do so.

42.

The respondents argue that the resolution of 2018 is four years old, but the time which has elapsed in the meantime only goes on to exhibit the lackadaisical attitude of the Administration in failing to confer rights which the petitioners are entitled to as Daily Rated

Mazdoors discharging functions of the regular employees. The petitioners' Fundamental Right to Equality under Article 14 of the Constitution of India as well as the right to practise any profession, or to carry on any occupation, trade or business in any part of India, under Article 19 have been infringed.

43.

Although the scope of directing regularization by the court is limited, there cannot be any conceivable reason why the petitioner should be deprived of the rate of pay as enumerated in the Office Memorandum dated June 7, 1988.

44.

The several judgments cited by the petitioners only corroborate such legal position.

45.

Hence, WPA/271/2021 and CAN/1/2022 are disposed of by directing the respondents to ensure that wages are paid to the petitioners, commensurate with the rate as specified in the Office Memorandum dated June 7, 1988, that is, at the rate of 1/30th of the pay of the minimum of the relevant pay scale plus Dearness Allowance.

46.

Moreover, the respondent No. 3 shall also consider the possibility of regularizing the petitioners in their posts with the Zilla Parishad. The respondent No. 3 shall take immediate steps to implement the above directions at the earliest and shall move the Administrator, that is, the Deputy Commissioner, North and Middle

Andaman District at the earliest for necessary sanction, if any, for the said purpose.

47.

The Administrator (Deputy Commissioner) shall cooperate with the respondent No. 3 in all respects to implement the above directions at the earliest. It is further clarified that the respondent No. 3 shall not disengage or discontinue the services of the petitioners except on valid grounds and without giving sufficient notice to the petitioners. 48.

Urgent photostat certified copy of this order be supplied to the respective parties upon compliance of usual formalities. (SABYASACHI BHATTACHARYYA, J.)