Brajendra Baishya vs State Of Tripura And Ors

Heard Mr. P.K. Pal, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

The adverted narrative based on which the petitioner has claimed the relief is that he has been serving as the part-time worker for last 35 years but has not been regularized. Even now, the petitioner is having wages at Rs.4,400/- and such wages was last paid on 28.02.2019. It appears from the affidavit affirmed for purpose of this writ petition, that on 16.03.2020 the age of the petitioner was 77 years. It is really surprising how a person in the age of 77 years is allowed to perform the government duty and in this regard, there is no explanation in the reply.

True it is that from the order dated 23.09.2004 issued by the Executive Engineer, ISFM Division No.I, Agartala [Annexure-1 to the writ petition] it appears that the petitioner used to receive Rs.1,500/- during the period from 16.03.2004 to 15.09.2004 as he was working as the part-time worker under MTC, Echabil. No other documents except photo copies of the Bank Account where the said wages are deposited have been produced.

By means of this writ petition, the petitioner has urged this court to direct the respondents to release his wages with effect from 01.03.2019 and nothing else.

Mr. P.K. Pal, learned counsel appearing for the petitioner has urged this court that after realizing the service of the petitioner, the respondents have been withholding his wages and failed to take any action on his representation dated 17.06.2019 and the reminders.

The respondents by filing the reply have not denied that the petitioner has not been working during the period for which he has claimed the wages. But they have disclosed the material particulars in respect of the petitioner from the government records. In the memorandum under No.F.34(6)-FIN(G)/2012 dated 18.12.2012 [Annexure-R/1 to the reply filed by the respondents] the government of Tripura, Finance Department had released a list of part-time workers who had completed 10 years of service as on 01.12.2012. The name of the petitioner appears in Serial No.8 from where the engagement particulars are available. The particulars those are available therefrom are that the petitioner had been working as the part-time worker for four hours with effect from 12.06.1979 and he had the qualification of Class-IX passed. Below the said entry, the following note has been appended by the Finance Department :

"If the Date of Birth given in the proposal is correct, the worker will not come under purview of engagement as DRW since already attained retirement age."

According to the respondents, on completion of 60 years of service he would have retired on 31.03.2010 and as such Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has submitted that no benefit as provided by the memorandum dated 18.12.2012 can be extended to the petitioner as that benefit can only be granted with effect from 01.10.2012 by way of converting the engagement to Daily Rated Worker(DRW), Group-D. Since much before that date, the petitioner was supposed to be disengaged for attaining the maximum age of the government service i.e. 60 years. Mr. Debbarma, learned Addl. G.A. has at the same time submitted that by the notification under No.F.10(16)- FIN(G)/99 dated 04.07.2000, the age of retirement of such category of employee had been determined at 58 years. That stood amended subsequently to 60 years.

Be that as it may, in the reply, the respondents has adopted the general principle of age of retirement and they have stated that in view of the entry in notification dated 18.12.2012 which reflects the date of birth of the petitioner as 18.03.1950, his service automatically stood disengaged in the month of March, 2010 and no more wage was supposed to be released in his favour for the period from April, 2010 onwards.

Mr. Debbarma, learned Addl. G.A. has fairly taken us to the notification dated 04.07.2000 [Annexure-R/2 to the reply filed by the respondents] whereby the government has declared a special scheme for monthly rated workers, daily rated workers, Master Roll Workers etc. But unless someone is upgraded to DRW, benefit of the said scheme cannot be afforded to. The said scheme has come into effect with effect from 01.04.2000 which provides as follows :

"At present there are good number of monthly rated contingent workers/daily rated contingent workers etc. engaged by the Government. On account of financial constraints, the State Government has not been in a position to provide them with regular services. It is observed that such categories of workers on attainment of normal superannuation age are not eligible for any post-superannuation benefits. With a view to mitigate their post retirement hardship the Government has decided to provide some financial benefits to them in the form of Pension as per this scheme. It is also observed that this category of workers have very limited leave facilities. The Government feels that the existing leave admissible to such categories of workers, is not only inadequate but occasionally creates difficulties in the event they need leave of absence for genuine reasons. Therefore, taking a compassionate view of the problem faced by these workers, Government has decided to provide certain additional leave benefits to them as listed out in this scheme.

These benefits shall come into force from the 1st April, 2000.

The benefit shall be available for the following categories of workers engaged on or before 1st January, 1996 against the posts created and having up date continuation with the concurrence of Finance Department :

1) Monthly Rate Contingent Worker.

2) Daily Rate Contingent Worker.

3) Casual Worker/Labourer (whole time).

4) Master Roll Worker.

5) Cadet Nurse of Health & F.W. Deptt.

6) GDA/Sweeper.

7) Village Chowkidar.

8) Contract Group D employees.

9) Folk Artist (ICAT Department).

A. Paid Holidays-

i) One paid holiday (Sunday) in each week.

ii) Four National Holidays on 26th January, 15th August, 1st May and 2nd October in each calendar year.

iii) Any other holiday that may be specified as applicable to them by the State Government from time to time.

iv) Eight days' Casual Leave in a calendar year.

v) Twenty days' Extra-ordinary leave in a calendar year on medical ground.

vi) 120 days' Maternity Leave for female workers.

During such period she shall be paid wages at half the rate drawn immediately before her proceeding on leave provided that such leave shall not be admissible for more than 2(two) occasions during the entire service. Head of Office may sanction the leave on the basis of Medical Certificate issued by the concerned Hospital/P.H. Centre.

B. Age of superannuation and pension:

i) A worker shall retire from service at the age of 58(fifty eight) years.

ii) He/she shall be eligible for pension on completion of ten years qualifying service.

iii) Minimum pension shall be Rs.100/- per month and maximum pension shall be Rs.400/- per month.

iv) The amount of retiring pension per month shall be calculated at the rate of 25% of the average wages. The amount of pension shall be such proportion of retiring pension as his total qualifying service corresponds to 33(thirty three) years subject to a minimum of Rs.100/- per month.

Posts vacated by persons of these categories recruited to regular government posts, shall stand abolished.

The benefits, as contemplated above shall be personal to the existing workers and after the retirement/Death/termination/retrenchment/leaving of service of such workers, no person shall be engaged against their vacancies/place."

Since, the petitioner had continued as the part-time worker for more than 30 years as a whole the respondents are directed to consider his up-gradation to DRW on completion of 10 years from the date of engagement as a beneficial act and to provide some solace to the petitioner so that he can have the said paltry pension as the DRW. The said direction has been given to bring the petitioner under the special scheme as brought by the notification dated 04.07.2000 which has come into effect from 01.04.2000. The respondents shall take an immediate decision in this respect preferably within a period of three months from today, but by any rate before 30.09.2020. So far the working period of the petitioner is concerned, the concerned Executive Engineer shall make an inquiry to ascertain whether the petitioner's service had been realized during the period of his claim i.e. from 01.03.2019 onwards. If the petitioner had really worked during that period, the wages be paid on the basis of the existing rate. The appropriate action may be taken by the competent authority for disengaging the petitioner considering his age notionally. But wages that he had earned or are entitled to receive cannot be curtailed.

With this observations and direction, this writ petition stands allowed.

There shall be no order as to costs.