Kundan Singh vs State of Uttarakhand and others

Rajiv Sharma, ACJ.

Manoj Kumar Tiwari, J.

Mr. M.C. Pant, Advocate is appointed as Amicus Curiae to assist the Court.

We have taken cognizance of the letter dated 26.08.2018 written by Shri Kundan Singh. The petitioner has highlighted a very serious issue.

According to the averments made in the letter, the petitioner and others were appointed through the agency of Respondent No. 3 and though they are

discharging same or similar duties, which are being discharged by the regularly appointed counterparts in the Government departments but they are

paid a meager salary of Rs.8,000/- per month. It is difficult for any person to make both ends meet in a sum of Rs.8,000/-. Though the persons

appointed through outsourcing i.e. through the agency of UPNL have put in more than 10-15 years’ uninterrupted service, the State Government

till date has not come out with any policy to accord them regular status. The act of the respondents in neither enhancing their salary nor taking any

steps for their regularization amounts to unfair labour practice. It also amounts to exploitation. The poor persons have no choice but to accept

whatsoever is offered by the State. Ours is a socialistic and welfare State. The Court can take judicial notice of the fact that the persons with

qualification of P.Hd. appointed through outsourcing are getting a meager salary of Rs. 8,000/-, but a peon, who is appointed in a regular establishment

is getting not less than Rs.30,000-35,000/- salary per month.

The salary to the employees even though employed through UPNL is paid by the concerned department. The persons appointed through UPNL are

directed to enter into an agreement with UPNL. The conditions of service of persons appointed through UPNL are governed by the principal

employer including disciplinary proceedings. UPNL gets 2.5 per cent service charge. We have a serious doubt whether the UPNL till date is

registered under the Contract Labour (Regulation and Abolition) Act, 1970 along with the principal employers. Employment on contractual basis is

regulated under the Contract Labour (Regulation and Abolition) Act, 1970 and the Rules framed thereunder. Every employer is required to be

registered under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970. Every contractor is required to obtain license under Section

12 of the Contract Labour (Regulation and Abolition) Act, 1970 after completing all the codal formalities. The State Government is doing something

indirectly, which is not permissible directly. The deployment/employment of persons through UPNL is only a cloak to avoid regularization and payment

of regular salary to the employees.

The agreement entered into between the employer and the employed should be fair, transparent and not one sided. The employees are made to sign

on the dotted lines. “The beggars cannot be the choosers.†The agreements entered into between the employer and the employed should be

conscionable, failing which they would be hit by Articles 14 and 16 of the Constitution of India. It is permissible for the Court to lift the veil to see the

real face. [1986 (3) SCC 156; Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath Ganguly and another].

In the present case, we have no doubt whatsoever in our mind that the principal employer is the State Government and UPNL is only a cloak.

UPNL was created only to cater to the needs of the ex-servicemen because the ex-servicemen find it difficult to get employment after completing

their stint in the Army. We do not know how the State Government has started engaging employees through UPNL, which is only meant for

recruitment of ex-servicemen. The State Government, realizing that under the service jurisprudence it is not permissible, has issued notification dated

09.07.2016 restricting the employment through it of ex-servicemen only. It was only with a caveat that the persons already deployed were not be

disturbed.

Accordingly, the State Government is directed to apprise this Court on the following aspects:

(i)Â Â Whether there is any scheme in contemplation for regularizing the services of the persons employed through UPNL and other agencies.

(ii)Â Whether the persons engaged through UPNL are only paid fixed salary or they are paid Dearness Allowance also taking into consideration the

inflationary trends.

(iii) Whether the State Government has ever upgraded their honorarium/salary component from time to time as per the labour index.

(iv) The State Government is also directed to give exact number of persons employed/deployed through UPNL in various departments of the State in

a tabular form and what is the basic pay/salary structure of the persons appointed through UPNL vis-Ã -vis their regularly appointed counterparts in

the government department.

(v) The State Government is further directed to give the date of engagement of every employee/workman through UPNL in a tabular form.

(vi) The State Government and UPNL are directed to ensure that no displeasure is shown to any person or employee in highlighting the difficulties

faced by them.

List this case on 14.09.2018.

Let certified copy of this order be issued today itself.