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Judgment
Debangsu Basak, J
The petitioners have sought a direction upon the authorities to grant the benefit of 1/30th pay of the minimum of the relevant pay scale plus dearness allowances in terms of the Office Memorandum dated June 7, 1988 to all Daily Rated Employees working under the respondent no.5 on and from the date of their initial engagement.
Learned advocate appearing for the petitioner has submitted that, first petitioner is a Trade Union Organisation and in championing the causes of Daily Rated Workers in the Union Territory of Andaman and Nicobar Islands. The Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) by a Office Memorandum dated June 7, 1988 provided that the Daily Rated Workers who are discharging similar nature of duties and responsibilities at par with the regular employees should be paid 1/30th of the minimum of the relevant pay scale plus the dearness allowances. Such Office Memorandum dated June 7, 1988 was circulated by the respondent no.2 to all the heads of the departments/offices under the Andaman and Nicobar Administration. They were directed to follow the same with regard to casual workers on daily wages. Thereafter, the casual workers not receiving benefits under the Office Memoranda dated June 7, 1988 or the circular dated October 11, 2000, the petitioners raised an issue with regard thereto with the respondent no.3 by a letter dated January 24, 2011. The respondent no.3 by a letter dated February 4, 2011, communicated to all the heads of the offices under the Andaman and Nicobar Administration to act in terms of the Office Memorandum dated June 7, 1988. Despite such communication to the heads of the offices under the Andaman and Nicobar Administration, the members of the first petitioner were not receiving payments in terms of the Office Memorandum dated June 7, 1988. The first petitioner thereafter filed a conciliation proceeding before the conciliation officer. During the pendency of the conciliation proceedings by a writing dated August 18, 2011, the respondent no.5 requested the Joint Secretary (Public Works Department) Andaman and Nicobar Administration to obtain approval of the competent authority for implementation of the payment in terms of the Office Memorandum dated June 7, 1988. Moreover, during the pendency of the conciliation proceeding, the Labour Department referred the matter to the District Legal Services Authority in the National Lok Adalat which was registered pre-litigation case no. 156 of 2016. No settlement was arrived at and the same was reported by National Lok Adalat by its order dated April 9, 2016. Thereafter, the petitioners took up the matter with the respondent no.5 by a letter dated April 5, 2016. Once again conciliation proceeding were initiated. In the conciliation proceeding, on August 10, 2016, the respondent no.5 assured that a final decision would be taken within a month. Thereafter, by a Office Memorandum dated September 22, 2017, the respondent no. 3 passed an order in derogation with the Office Memorandum dated June 7, 1988. By the impugned Office Memorandum dated September 22, 2017, payment was directed to be made to Daily Rated Workers at the enhanced wages payable with effect from September 1, 2017. He has submitted that, the impugned Office Memorandum dated September 22, 2017 is contrary to the Office Memorandum dated June 7, 1988. Moreover, the authorities cannot make a distinction between casual worker engaged in respect of a sanctioned post and a casual worker engaged for work of a post which was not a sanctioned. He therefore seeks a direction that the authorities follow the Office Memorandum dated June 7, 1988 by paying the Daily Rated Casual Workers.
The respondent nos. 1, 2, 4 and 5 have contested the present writ petition by filing an affidavit. Learned advocate appearing for the respondent nos. 1, 2, 4 and 5 has submitted that, the petitioners are seeking a relief in terms of Office Memorandum dated June 7, 1988 when none of the Daily Rated Mazdoor presently working in Andaman Public Works Department were engaged on or before June 7, 1988. According to him the Office Memorandum dated June 7, 1988 cannot made applicable to Daily Rated Workers working under the Andaman Public Works Department engaged subsequent to June 7, 1988. Moreover, the Daily Rated Workers were engaged for attending casual and intermediate nature of work with effect from 2000. They were not engaged against any sanctioned post. Therefore, they cannot take the benefit of the Office Memorandum dated June 7, 1988.
The respondent no.3 has gone unrepresented at the hearing of the writ petition. The respondent no. 3 has not filed any affidavit dealing with the writ petition.
The Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) by the Office Memorandum bearing No. 49014/2/86 Estt.(C) dated June 7, 1988, has dealt with the policy with regard to the recruitment of casual worker and persons on daily wages. It has provided for the payment to the Daily Rated Casual Workers engaged by the authorities. It has, inter alia, provided that where the nature of work entrusted to casual workers and regular employees is 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 has also provided that persons on daily wages should not be recruited for work of regular nature. There is nothing placed on record to suggest that the respondent nos. 1, 2, 4 & 5 are not bound by the Office Memorandum dated June 7, 1988. They have also not claimed not to be bound by such Office Memorandum. Infact, the respondent no.2 circulated Office Memorandum dated June 7, 1988 to all the heads of the departments/offices under the Andaman and Nicobar Administration with a direction to comply with the same strictly by a writing dated October 11, 2000. Moreover, the respondent no.3 who is the Labour Commissioner of Andaman and Nicobar Administration by a writing dated February 4, 2011 communicated to all the heads and offices under the Andaman and Nicobar Administration to act strictly in terms of the Office Memorandum dated June 7, 1988. By a letter dated August 18, 2015, the respondent no. 5 being the Chief Engineer of the Andaman Public Works Department, wrote to the Andaman and Nicobar Administration for obtaining approval of the competent authority for implementing the 1/30th of pay to Daily Rated Workers under the respondent no.5. The Labour Department referred the matter to the District Legal Services Authority. The issue was taken up in the National Lok Adalat when by an order dated April 9, 2016, the National Lok Adalat recorded that no settlement could be arrived at in the pre-litigation case pertaining to 1/30th pay as claimed by the petitioner in terms of Office Memorandum dated June 7, 1988. Thereafter, the petitioners took up the matter with the respondent no.5 when conciliation proceedings were initiated. Ultimately, by the impugned Office Memorandum No. 289 dated September 22, 2017, the Labour Commissioner, being the respondent no. 3 herein, has provided that, the enhanced wages will be calculated with effect from September 1, 2017.
As noted above, the Office Memorandum dated June 7, 1988 is binding upon the respondents. The respondents have infact purported to act in terms of the Office Memorandum dated June 7, 1988 in its true letter and spirit. However, they have failed to implement the Office Memorandum dated June 7, 1988. There is substance in the contention of the petitioner that, the respondent no. 3 has misconstrued and misapplied the Office Memorandum dated June 7, 1988 while issuing the Office Memorandum No. 289 dated September 22, 2017. Office Memorandum dated June 7, 1988 requires the authorities to pay the Daily Rated Casual Workers at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day. The date of effect of such a direction would be June 7, 1988 irrespective of the date of appointment or the engagement of a Daily Rated Casual Worker. In the event, a Daily Rated Casual Worker is engaged let say on June 7, 1988, then, in terms of the Office Memorandum dated June 7, 1988, such Daily Rated Casual Worker will be entitled to 1/30th of the pay on the minimum of the relevant pay scale plus dearness allowance for the work of eight hours a day. If a Daily Rated Casual Worker is engaged on January 1, 2000, similarly, such person will be entitled to 1/30th of the pay of the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day prevailing as on January 1, 2000 for the corresponding post. Therefore, a Daily Rated Casual Worker is entitled to receive daily payment in terms of the Office Memorandum dated June 7, 1988 from June 7, 1988, at 1/30th of the prevailing pay at the minimum of the relevant pay scale plus dearness allowance for work done of eight hours a day, on the day such Daily Rated Casual Worker was engaged on and from June 7, 1988. The impugned Office Memorandum bearing No. 289 dated September 22, 2017, seeks to give effect to the Office Memorandum dated June 7, 1988 from September 1, 2017. That in my view, is an incorrect implementation of the Office Memorandum dated June 7, 1988.
In such circumstances, the Office Memorandum No. 289 dated September 22, 2017 is clarified to mean that, all Daily Rated Casual Workers engaged by Andaman and Nicobar Administration will be paid at the rate of 1/30th of the minimum pay of the relevant pay scale plus dearness allowance for work of eight hours a day, for the days of their engagement on and from June 7, 1988.
The contentions that, Daily Rated Casual Workers engaged against a sanctioned posts will be entitled to the benefits of the Office Memorandum dated June 7, 1988 only is also misplaced. It is a beneficial order. It is required to be construed liberally and in favour of the beneficiaries. Every Casual Worker engaged on a daily rate basis is entitled to receive payment commensurate with his work done. In the event, there is a sanctioned post, then, if a Daily Rated Casual Worker is engaged for discharging duties in respect of such sanctioned post, then, the calculation of the payment is easier in the sense that, such Daily Rated Casual Worker will receive 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day. When, a Daily Rated Casual Worker is not engaged against a sanctioned post, then, a problem of calculation of the payment to be received by such Daily Rated Casual Worker may arise. However, such problem is not insurmountable. The Administration while engaging a Daily Rated Casual worker to discharge any duties, is aware of the nature of duties required to be discharged and the corresponding pay for the post if it was sanctioned. The Administration therefore, must pay the Daily Rated Casual Worker by taking into account the minimum pay of such post even if such post was not sanctioned. The authorities cannot claim that since the post was not sanctioned, the Daily Rated Casual Worker will receive something less than what a Daily Rated Casual Worker would have received if the post was sanctioned. A Daily Rated Casual Worker cannot be placed at a disadvantageous position simply because the post was not sanctioned and that he was called upon to discharge duties for a post which was not sanctioned. The mere engagement of a Daily Rated Casual Worker for discharging duties by the Administration denotes the acceptance of the fact that, such work was required to be discharged. Once the Administration obtains the benefit of the work from a Daily Rated Casual Worker it cannot place such Daily Rated Casual Worker at a disadvantageous position by claiming that, the post was not sanctioned.
If the problem of a Daily Rated Casual Worker discharging duties of an unsanctioned post is considered from another perspective i.e. to say that, supposing the post of peon for one department is not sanctioned and the Daily Rated Casual Worker is called upon to discharge the duties of peon in respect of such unsanctioned post and on the same day, another Daily Rated Worker is engaged by the same department in respect of a post of similar nature but sanctioned, then, the Administration will be unlawfully discriminating between these two persons. In my view these two Daily Rated Casual Workers are similarly situated and circumstance and cannot be discriminated against by the Administration simply on the ground that, in case of one the post is sanctioned and in the case of the other the post remain unsanctioned. In both the situations, the Administration is deriving the advantage of the work and duties discharged by the Daily Rated Casual Worker. In both the situations, the Daily Rated Casual Worker is required to discharge the duties as assigned to them. In none of the two situations, can any of the Daily Rated Casual Worker claim that they will discharge lesser duties than that assigned to them on the ground that one of them will receive a lesser pay in relation to the other.
Workers are entitled to equal pay for equal work. On such a principle, an intelligible differentiation cannot be brought about between a Daily Rated Casual Worker engaged to do work against a sanctioned post and a worker engaged to do work against a post which is not sanctioned. The memorandum dated September 22, 2017 gives benefits to a section of Daily Rated Casual Workers. Quashing such memorandum in its entirety might lead to complications. Therefore, it would be appropriate to read the memorandum dated September 22, 2017 so as to conform with the Office Memorandum dated June 7, 1988 and the principle that, there must be equal pay for equal work.
In such circumstances, the impugned Office Memorandum dated September 22, 2017 is read to mean that it will apply to all Daily Rated Casual Workers engaged by the Administration irrespective of the department and irrespective of the fact that, the post against which they are discharging duties, are sanctioned or not. The impugned Office Memorandum dated September 22, 2017 is also read to mean that, a Daily Rated Casual Worker engaged by the Andaman and Nicobar Administration in any department, will be entitled to 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day on every day of their engagement on and from June 7, 1988.
WP No. 268 of 2018 is disposed of accordingly. No orders as to costs.