Bakhshish Singh vs The Punjab Financial Corporation

R.L. Anand, J.—By this judgment I dispose of as many as 6 civil writ petitions - No. 6571 of 2000 (Bakhshish Singh and others v. The Punjab Financial Corporation and others), 7470 of 1999 (Subhash Vaid and others v. The Punjab Financial Corporation), 646 of 1999 (Suresh Kumar and others v. The Punjab Financial Corporation), 19444 of 1998 (Bakhtaur Singh and others v. The Punjab Financial Corporation), 3033 of 2000 (Ram Kumar v. The Punjab Financial Corporation and another) and 4234 of 1999 (Ganga Parsad and others v. The Punjab Financial Corporation), as in my opinion common question of law and fact is involved in all the writ petitions and for the sake of facts, I am taking the same from C.W.P. No. 6571 of 2000 titled Bakhshish Singh and others v. The Punjab Financial Corporation and others. The petitioners in all the writ petitions filed under Articles 226 and 227 of the Constitution of India have made a prayer that a writ in the nature of certiorari may be issued quashing those orders of the Corporation vide which it has rejected the case of the petitioners to regularise their services from the date of their appointments. The petitioners further prayed that they should be granted regular pay scale on the basis of equal pay for equal work and some directions be also given to the respondents to take 8 hours duty from them and to grant them compensatory holidays etc.

The case set up by the petitioners is that the object of the Punjab Financial Corporation (hereinafter called the Corporation) is to grant financial assistance to the industrial units and the individuals for running the transport as well as the small scale industries and in case the industries became sick or any loanee does not return the loan or commit default, the corporation is competent to take the control of the industrial unit/fac- tory or any premises against whom the loan has been advanced and the industrial unit which is hypothecated to the Corporation, the Corporation take control thereof and put its own persons to guard the premises as Chowkidar so that there may not be any theft/waste/damage to the premises and then the Corporation makes the recovery of the loan by sale of the property. It is the common case of the petitioners that they are working as Chowkidar-cum-Guards on the various industrial units/factories situated at different places in the State of Punjab and that the said units have been taken control of by the Corporation by invoking the provisions of the State Financial Corporation Act. Some of the petitioners are working since 1989. Some got the job in 1991 or 94 or 96 or 1997. In short, the petitioners allege that they are working as Chowkidar-cum-Guards with the Corporation for a sufficient long period continuously on the consolidated salary Rs. 1,050/-, but no regular pay scale is being given to them. It is also the grouse of the petitioners that Manohar Lal and Ishwar have been appointed as Peon-cum-Chowkidar by the Corporation. Naresh has also been appointed as Chowkidar and all these persons are working in the head office. Manohar Lal and Ishwar are getting regular pay scale, while Naresh is not given the regular pay scale. The duties of Manohar Lal and Ishwar are similar as that of the petitioners and their duties are inter se changeable/transferable subject to the availability of the place. Their qualifications and nature of duty are the same. Therefore, they are also entitled to the benefit of regular pay scale. It is also pleaded by the petitioners that they have been put against permanent posts and the workload of these posts is continuously increasing. Therefore, it is unfair on the part of the Corporation to keep the petitioners temporarily on these posts for indefinite period. Further it is alleged that the petitioners are working against the posts for the last 5 to 10 years and, therefore, they are entitled to be regularised. It was further pleaded by the petitioners that the premises where they have been deputed do not have the electricity connections. There is no arrangement of toilet, bath-rooms etc. They remain present at the premises around the clock to guard them. There is no alternative/substitute to the petitioners for making the arrangement of their food, bath and such other necessities of life. The Corporation takes duty from them for more than 8 hours per day. They have not been provided with emergency light, torch light, batteries, lamps etc. whereas they are entitled to these benefits since, according to the petitioners, the respondent is an industry. Some of the petitioners also filed writ petitions which were disposed of by giving direction to the respondent to consider the representation of the petitioners. But their representation has been rejected by the Managing Director in an illegal manner. Hence they have filed the present writ petitions with the prayer that they are entitled for regularisation of their services; they are entitled to the regular pay scale on the ground of equal pay for equal work and further they are entitled to other benefits.

The stand of the Corporation is taken from CWP No. 6571 of 2000 in which certain preliminary objections were taken and it was inter alia pleaded that admittedly the petitioners are daily wage/ad hoc workers, therefore, they cannot be kept at par with the regular Chowkidars of the Corporation and that the writ of the petitioners is not legally maintainable in view of the judgments of the Hon''ble Supreme Court reported in 1997(1) RSJ 445 : 1998(2) RSJ 535. It was further pleaded by the respondent that the respondent- Corporation is engaged in the business of providing medium and long term loans to industrial undertakings. The loans are secured by keeping as security the properties of such loanees and their guarantors. In case of default in repayment of loan amount by the loanee, the Corporation takes over the property of such a loanee under the provisions of Sections 29 and 31 of the State Financial Corporation Act, 1951. To perform watch and ward duties in respect of the properties so acquired during the period they remain in the custody of the Corporation and Chowkidars are engaged on daily wages/ad hoc basis with a clear stipulation that their services are liable to be terminated with the disposal of the property taken over by way of sale or restoration of the same to the party concerned or otherwise in respect of which particular Chowkidar has been engaged. The wages paid to such Chowkidars by the Corporation are debited towards the accounts of the party concerned. There are no regular posts of Chowkidars for watch and ward duty with the respondent to absorb or accommodate on permanent basis the Chowkidars who are engaged on daily wage basis to perform watch and ward duties in respect of such properties and the requirement wholly depends upon the acquisition and disposal of such properties. The services of a Chowkidar are rendered as no longer required, the moment the property against which he has been engaged, is either sold or restored to the party concerned. Yet the Corporation keeping in view the ends of justice strictly ad-heres to the principles of "last come first go" while dispensing with the services of such Chowkidars. It was also pleaded by the respondent that there are no regular/permanent posts available with them to absorb/accommodate/adjust the daily wages/ad hoc Chowki-dars. In these circumstances, question of regularisation of such Chowkidars does not arise. The petitioners cannot be equated with the regularly appointed Chowkidars as nature and quality of work done by them can never be said to be the same. The Chowkidars who are working on regular basis with the Corporation were found fit in all the prescribed criteria of selection i.e. education, experience, physical fitness, age etc. On the contrary, the job of the petitioners is to live in some cases in the hypothecated/resumed premises and to prevent pilferage of acquired property. They are not supposed to fulfil any prescribed criteria of selection laid down for regular Chowkidars of the Corporation. They are also not supposed to stand at the gate for 8 hours shift etc. The sole intention of the Corporation in engaging the petitioners is to prevent thefts in the resumed premises by placing them as temporary ad hoc Chowkidars. In these circumstances, the work performed by them is in no way at par with or same in nature and quality with that of the regularly appointed Chowkidars. It was further pleaded that the petitioners cannot claim the benefit under the Factories Act, 1948 as the petitioners are discharging their duties in the premises that are shut down/closed and no production activity is taking place there. There is no electricity, water, running machines, production activity, work shifts regular/ad hoc workers, muster rolls etc. By denying each and every allegation of the petitioners the respondent-Corporation has prayed for the dismissal of the writ petition.

I have heard Mr. D.S. Pheruman and Mr. A.K. Chopra, Advocates, on behalf of the petitioners, Mr. P.S. Patwalia, Advocate on behalf of the Corporation and with their assistance have gone through the records of the case:

The principal point for determination is whether the petitioners are entitled to the declaration that they are entitled to be regularised in the scale of pay applicable to the post of Chowkidar on the plea of equal pay for equal work and whether they are entitled to other amenities as claimed in the writ petition. In order to decide this point of controversy, it will be appropriate for me to ascertain how the petitioners are appointed and against what job. From the stand of the Corpora-tion it is abundantly clear that the petitioners were employed to ensure that there should not be any theft or damage to the properties which have been secured by the Corporation while advancing the loans. The Corporation advances loans to various entrepreneurs in order to promote the industry in the State of Punjab. Unfortunately for the Corporation when a loanee becomes a defaulter, the Corporation is left with no other remedy but to resume the property with the aid of Sec-tion 29 or to file an application u/s 31 of the State Financial Corporation Act. The petitioners were engaged only to perform watch and ward duty. So much so, there is no proper mode of selection. Even the Corporation does not pay the salaries or wages to these employees from its own funds but the wages are debited to the accounts of industrial units. This aspect shall be abundantly clear from the letter of appointment in which it has been clearly mentioned that the petitioner would be termed as ad hoc Chowkidar for care taking and guarding the premises of a particular unit. It is not the intention of the Corporation that any of the petitioners is taken on the rolls of the Corporation. Rather, it is clearly stipulated in the letter of appointment that the petitioner will get a consolidated amount of Rs. 1,050/- and the tenure of the employment would be for a period of one month or till the date of the disposal of a particular unit which was taken over. Also it is clearly stipulated in the appointment letter that the petitioner is required to deside at the premises of the firm which has been taken over by the Corporation by invoking the provisions of Sections 29 or 31 of the said Act. Thus we cannot say that the initial appointment of the petitioners was regular, temporary on even ad hoc. It was virtually contractual for a limited period and this contractual employment was co-terminus so long a particular unit remains in the actual physical possession of the Corporation. There can be an exigency when the unit is returned to the proprietor of the factory, when the Corporation accepts any proposal or when it receives the loan which was advanced to an industrial unit. Thus it will be clear from the above about the mode of selection, nature of duties, so much so even the funds to meet the salary/wages of such employees are debited in the account of the industrial unit. The scheme with regard to the working of the ad hoc Chowkidars is clearly reflected in the order of the Managing Director where it has been stated as follows :-

"Section 29 of the SFCs Act, 151 empowers the Corporation to take into possession the mortgageding a loan, fails to repay the same as agreed, for the purpose of recovering period from taking possession of the assets to actual sale thereof, the Corporation is required to safeguard the acquired properties. For this purpose, it needs the services of purely stop-gap Chowkidars. Payment to such Chowkidars is made by debiting the same to the borrowers A/c. The wage paid to such Chowkidars are debitere posted. The Corporation does not pay the salaries of such watch and ward staff. The Corporation has in the past years acquired a large No. of properties and number of properties have been sold. The Corporation has no separate cadre in the sanctioned strength of the employees of the Corporation for those persons who are engaged to discharge the functions of watch and ward at the acquired units. The petitioners have stated in their legal notice that they are working as watchmen in branch offices of the Corporation at different places by posting against a permanent post on fixed pay. This contention is not correct. The petitioners are neither working as watchmen in Branch Offices of the Corporation nor they are posted against permanent posts. The petitioners are appointed purely on provisional basis with a specific purpose of taking care and guarding the premises taken into possession by the Corporation till these are disposed of. The petitioners have also stated that they are shifted from one place to another causing inconvenience in their family life. As the take over and subsequent sale of the mortgaged assets is a continuing process; when one property is sold, the Corporation, simply with an aim to facilitate these Chowkidars in earning their livelihood, in some case has been posting them in other units still in the possession of the Corporation; This is done with the consent of the concerned Chowkidars."

In the light of this stand with which I fully concur, I am of the opinion that the petitioners are not entitled to the benefit of regularisation of their services nor they are entitled to the benefit of any regular pay scale. More so, they are not governed by the rules and regulations of the Staff Regulations. Their mode of appointment is totally different from the Chowkidars who were regularly appointed on the establishment of the Corporation. So much so, even the petitioners did not go for medical test before joining the duties. With regard to the other work which the petitioners perform, the Corporation pays Rs. 200/- per month as additional allowance to Compensate this type of employees as honorarium. It was made clear in the appointment letters of the petitioners that their main job is to perform watch and ward duty at the properties as scope of theft can always be in the morning as well as in the night hours.

Faced with this difficultly the learned Counsel appearing on behalf of the petitioners submitted that the petitioners are working for the last several years and the Financial Corporation has the jobs. It takes possession of several industrial units by resuming them and uncertainty cannot be allowed to prevail. It is an ongoing process on the part of Corporation and the Corporation will go on advancing loans. Some defects are bound take place on the part of the loanees and the Corporation invariably takes the possession to protect its interest by taking the aid of Sections 29 and 31 of the State Financial Corporation Act. I am not at variance what has been stated by the learned Counsel for the petitioners but I have to see whether the relief which has been claimed by the petitioners can be granted to them or not. Similarly, that some of the petitioners are continuing as Chowkidars on ad hoc basis for the protection and guard of industrial units in different parts of the State is no ground to hold that they must be taken on the regular side or their services should be regularised. The terms of appointment of the petitioners are such that they cannot rub their shoulders with those Chowkidars who are on the regular establishment of the Corporation. The Corporation is already adopting the principles of natural justice. Whosoever is senior amongst the Chowkidars is being retained and the last man who joins the Corporation in the category of ad hoc Chowkidar goes first on the extinction of the job when it is no longer required by the Corporation.

It was then submitted by the learned Counsel for the petitioners, after drawing support from the appointment letters of some of the Chowkidars that they are in the job of the Corporation for the last more than 20 years; their services are continuous; they are performing the same duties as are being performed by the regular Chowkidars of the Corporation and there is no complaint against them. They have the requisite experience to perform the duties of Chowkidar and, therefore, by adopting the principles of equity and fair play, especially in a case of welfare State, directions should be given to the respondent-Corporation for the regu-larisation of services of the petitioners. The learned Counsel for the petitioners draw support from Ram Khilawan v. Punjab State Agricultural Marketing Board, Chandigarh 1995(2) SCT 793, Bhajan Singh and others v. The Punjab Small Industries and Export Corporation Ltd., Chandigarh and others 1994(1) RSJ 192 : 1994(1) SCT 181, Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, and State of Haryana v. Piara Singh 1992(3) SCT 201 : 1992(3) RSJ 235. In my opinion these judg- ments have no relevancy to the facts in issue. It is a case with different background. The petitioners were never appointed by any selection committee. They were not appointed against the regular posts of the Chowkidars. Of course, they were appointed by the Corporation with a different idea altogether. Their duty was to watch and ward and to preserve the properties of resumed industrial units. The salaries/emoluments of the petitioners are being credited in the accounts of the industrial units itself. It may be that earlier the Corporation was paying the emoluments of the petitioners from its own funds but it has to be remembered that the petitioners were never appointed against the post of the cadre of the Corporation as per Staff Regulations. They were picked up by way of convenience to perform the watch and ward duties and that is the reason that majority of the petitioners were given consolidated emoluments.

As I have stated above, the main grouse of the petitioners is that they should be regularised. In order to get this type of relief it is incumbent that there must be a regular post. The need for creation of the posts is a matter of executive policy. The High Court is not in a position to direct the respondent-Corporation to regularise the services of the petitioners when there is no regular post to that effect. This view was so adopted by the Hon''ble Supreme Court in State of U.P. and others v. U.P. Madhyamik Shiksha Parishad Shramik Sangh and another 1996(2) SCT 207 : 1996(1) SLR 303. Similar view was also adopted in State of Himachal Pradesh v. Nodha Ram and others 1996(1) SLR 648, wherein it was observed that when the respondents were engaged on daily wages on muster roll in Central Scheme and the project has been completed and closed due to non-availability of funds, the High Court was not justified in giving the direction to regularise the services of such persons because no vested right is created in temporary employment. In the present case also no vested right has been created in the petitioners so that they may claim regularisation of their services. Otherwise also, the appointment of the petitioners was not by a Selection Committee. They were appointed purely to fill an arrangement because the Corporation was eager to deploy some Chowkidars to perform watch and ward duty so that the units which have been resumed by the Corporation u/s 29 may not be damaged. The appointment letters of the petitioners clearly indicate that their appointments were purely on ad hoc and their services could be terminated at any time. In State of Haryana and others Vs. Piara Singh and others etc. etc., the Hon''ble Supreme Court has written a note of caution for the law courts before ordering regularisation of the services and it was held by the Hon''ble Supreme Court that Court must act with due We and caution while issuing such type of directions. When there is no regular post available with the Corporation, how any directions can be passed. In Ranbir Singh and another v. The State of Haryana and others 1998(2) SCT 189 : 1998(2) RSJ 535 , the Full Bench of this Court held that there cannot be a question of equal pay for equal work for daily wage workers who have no equation with a regular employee for the purpose of pay scale. The petitioners fall in a separate category. They cannot be treated at par with those Chowkidars who are on the regular services of the Corporation.

In view of my above opinion I hold that none of these writ petitions deserves success and all the writ petitions are hereby dismissed with no order as to costs.

Petitions dismissed.