All Himachal Barrier Computer Operators Union vs State of H.P. and Another

Deepak Gupta, J.—The Petitioner-Union represents the interests of a large number of persons working as Data Entry Operators in the Multi Purpose Excise and Taxation Barriers in the State of Himachal Pradesh.

The grievance of the Petitioners is that some of them have been working in this position for more than 18 years and the State of Himachal Pradesh has neither taken any steps to regularize their services nor framed a policy for regularization of their services. It has been prayed by the Petitioner-association that a writ be issued to the State directing it to frame a policy for regularization of daily wagers and other employees.

The stand of the State is that the Data Entry Operators are not employees of the State. According to the Respondents, forms are required to be filled in by the dealers and other individuals bringing in goods from outside the State of Himachal Pradesh and some people set up stalls to help these persons to fill in the forms. The State was not involved at all and the dealers/transporters/businessmen would make payment directly to the private persons engaged in filling up the forms. However, the stationery/form, in which such entry had to be made, was to be provided for by the Taxation and Excise Department and it used to charge Rs. 1/- per form.

A Society, called the H.P. Excise and Taxation Technical Services Agency, Shimla, was incorporated and registered under the Societies Registration Act, 1860, with the object of facilitating the general public and dealers carrying goods and crossing the multipurpose barriers established by the State Government. It was also decided to use the latest technology of computers and, therefore, computer friendly format was developed. The Society charged Rs. 5/-per form and paid Rs. 1/-as commission to the persons, who filled in the declaration forms. The work of filling in the forms was by and large given to the persons who were doing this work earlier also. These persons are now paid Rs. 2/-per form as commission for this work. The Petitioners, along with their rejoinder, filed documents to show that their names were sponsored by certain computer centers, NIIT, etc. and that they were appointed by the Assistant Excise and Taxation Officers. They have also placed on record certain documents to show that the work of weeding out the old record has also been given to the Petitioners, who have been directed to assist the Excise and Taxation Officers to weed out the old record.

The basic question which arises for decision is whether the relationship of employer and employee exists between the parties. In my opinion, the Petitioners have miserably failed to show that such a relationship exists. There are No. terms of service placed on record, which would show that salary has to be paid by the State. In fact, the Data Entry Operators are paid on entry basis, i.e. Rs. 2/-per form, as of today. No. material has been placed on record to show that any disciplinary authority vests in the State. Similarly, no material has been placed on record to show that the Data Entry Operators have to obtain leave before leaving the station. Thus, the Petitioners have failed to show that the State or the Excise and Taxation Officers have such of pervasive control over the Petitioners which would show that they are the employees of the State.

This Court in exercise of its jurisdiction cannot direct the State to frame a policy. Whether a policy is required to be formulated or not is for the State to decide. Therefore, the Plaintiffs are not entitled to the main relief prayed for. However, on perusal of the documents, I find that as per the averments made, the cost of the form has been increased to Rs. 10/-, but the Data Entry Operators are still being paid Rs. 2/-per form. The State in all its activities is expected to protect the rights of its citizens. If it utilizes the services of certain persons, even if they are not its employees, it must grant reasonable remuneration to them.

Even according to the State, H.P. Excise and Taxation Technical Services Agency was registered as a Society. Such a Society cannot become a profit making venture. As per the averments made in the reply, this Society was formed with the objective of facilitating the general public and the dealers carrying goods. The members of the general public, the transporters carrying the goods and some of the businessmen may not be well educated. They may not know how to properly fill the form and, therefore, there can be No. objection to the formation of the Agency. However, the State cannot now start utilizing the funds of this agency for purposes other than that of the agency itself. The State cannot start raising funds and income under the pretext of the society. This would be totally unconstitutional. Even according to the averments made in the sur-rejoinder, the form is being sold at Rs. 10/-per form and since the computer hardware, software, printers and stationery are provided by the Department. Rs. 2/-per form is being paid to the persons doing the data entry work. According to the Petitioner, the cost of the form has, in fact, been raised to Rs. 10/-, but they are still being paid only Rs. 2/-.

In view of what I have already held above, the amount being paid to the Data Entry Operators must be commensurate with the amount charged from the persons paying the cost of the form. The agency can deduct the cost of the hardware, consumables, electricity etc. provided by it and also may charge 15% as administrative expenses, but the remaining amount must be paid to the Data Entry Operators. Therefore, though the writ petition is dismissed, the State of Himachal Pradesh is directed to rework the amount payable to the Data Entry Operators per form in accordance with what has been stated above. The State, while making such calculations, shall associate the Petitioner-union through its General Secretary. Needful be done on or before 31st October, 2011.

With these observations, the writ petition is disposed of. No. costs.