Pankaj Nath And Ors vs State Of Tripura And Ors

[1] Petitioners claimed to be full-time Daily Rated Workers engaged by the Public Works Department(PWD) of the Government of Tripura for years. They seek regularization of their services in accordance with the scheme framed by the Government of Tripura. They also complain of non- payment of wages as well as at times payment of wages at the rates below the minimum wages prescribed by the State Government in terms of the payment of the Minimum Wages Act, 1948.

[2] Brief facts are as under :

According to the petitioners, petitioners No.1 and 3 to 6 were engaged as Guards at storeyard under Resource Sub-division, Batarashi, Dharmanagar, North Tripura, by the PWD in the year 2000. The petitioner No.2 was engaged similarly at the said place in the year 2003. Since then the petitioners have been discharging their duties continuously. According to the petitioners, as per the policy of the Government of Tripura for regularization of daily rated and casual workers, after completion of 10(ten) years of service the petitioners were also entitled to regularization. Despite representations they have not been regularized. Hence this petition.

[2] The petitioners have also raised an issue of being paid remuneration at the rates below the minimum wages prescribed by the competent authority under the Minimum Wages Act. They contend that in whatever manner the petitioners may be engaged, they cannot be paid at the rates below the minimum wages.

[3] The respondents have filed affidavit in which the stand taken is that the petitioners are neither Casual Workers nor Daily Rated contingent paid staff. They have been engaged through a contractor. The entire arrangement is thus contractual. In support of this stand, respondents have produced a copy of work order dated 6th November, 1998 issued by the PWD in favour of one Benu Lal Roy who had been given a contract for providing security staff at the said site. As per this work order, the workers engaged would be paid @ Rs.37.50 per day per worker. One of the conditions of the work order was that the contractor would observe all the provisions of the labour laws scrupulously.

[4] In the rejoinder the petitioners, they have disputed this theory of being engaged as contractual workers. They point out that after expiry of the contract period, they continued to discharge their duties directly for the department.

[5] Learned counsel for the petitioner submitted that the nature of work was perennial. The department required to secure the store house of the Public Works Department round the clock for which in rotation 6(six) workers were needed. The petitioners have been discharging such duties since several years. The respondents have not produced any documents to suggest that the contract of the contractor was renewed from time to time. In the alternative he contended that in any case the petitioners cannot be paid wages below the minimum wage prescribed. In this context, he relied on a decision of this Court in WP(C) No.1559/2017 in case of Sri Bijoy Biswas and Ors. Vs. The State of Tripura and Ors., decided on 28th September, 2018.

[6] On the other hand, learned Government Advocate submitted that the petitioners were engaged through a contractor. They, therefore, have no claim for regularization in terms of Government scheme. It was the duty of the contractor to ensure payment to the workers in tune with minimum wage prescribed. The Government had no role to play in this process. Petition may, therefore, be dismissed.

[7] Regarding the petitioner's prayer for regularization, as noted, the respondents have averred that the petitioners were engaged through a contractor. A copy of one such contract is produced at Annexure R/1. This work order issued in favour of the contractor does not cover the period during which the petitioners were engaged by the department. However, mere non-production of subsequent work orders would not dilute the reliability of the averments made by a responsible officer on oath. The petitioners have not produced any evidence of direct engagement. Had the petitioners continued to be engaged by the PWD Officers after the contract period of the contractor had expired, surely there would have been direct payments through vouchers or after obtaining payment receipts. The petitioners could have easily produced at least some documents of this kind. In fact, there are representations of the petitioners on record requesting for direct payment by-passing the contractor. Such representations were rejected as recently as in the year 2017 by the department. Very clearly thus, the petitioners' theory of the contractual arrangement having come to an end long back and the petitioners having been engaged by the department directly since years on daily rated/casual worker basis cannot be accepted. In that view of the matter, petitioners' primary claim for regularization in Government service must be rejected.

[8] However, this is not the end of the matter. The petitioners have been clamouring for fair wages. They have produced a copy of a notification dated 16th September, 2016 issued by the Labour Department of Government of Tripura fixing minimum wages for different categories of workers. According to them, they have not been paid wages as per such prescribed rates. They have also complained of non-payment of wages for certain months.

[9] In this context, 2(two) issues need to be cleared. Firstly, the State Government cannot take a stand that the minimum wages prescribed by the Labour Department from time to time are for private employers and do not apply to Government engagements. In plain terms, minimum wages are prescribed under a labour welfare legislature such as the Minimum Wages Act to ensure that no employer in specified industries and employment pays wages below a certain minimum rate prescribed. The prescription of minimum wage proceeds on the fair wages which a certain category of workman must receive from the employer. In a country like India where oftentimes the supply of labour and manpower exceeds its demand, the legislature recognizes a possibility of exploitive wage payment. Under the circumstances, even if contractually agreed between the employer and employee, since the employee is not in a position to bargain a fair deal for himself the status interjects and demands that the employer pays a wage which is not below a minimum prescribed amount.

[10] While in exercise of delegated powers, the State Government through its labour Department prescribes minimum wage rates from time to time for the private sector, surely the Government cannot even on the plain unveil of the Articles 14 and 21 of the Constitution contend that for the contractual engagements for Government work, payments below the minimum wage would be permissible. Since it is the Government department which has awarded the contract, it would be the duty of the departmental authorities to ensure that the petitioners received wages which are not below the minimum wage prescribed for similar category of workers.

[12] The second issue raised by the learned Government Advocate is that as per the work order, it is the duty of the contractor to ensure compliance of the all labour laws which would include payment as per prescribed minimum wage. The Government has no role to play in this respect. Of course, the primary duty for making payment would be that of the contractor, nevertheless the Government cannot wash its hands off when it comes to ensuring fair wages for the workers who are discharging duties for the Government department. Firstly, if the contractor has bargained for a rate which is below the minimum rate for the workers, the Government ought not to have awarded any such contract in favour of such a contractor. On the other hand, if the contractor is remunerated at the rate equivalent to their minimum wages for the manpower supply plus his reasonable profit, it would be the duty of the concerned departmental authorities to ensure that such payments do percolate in the hands of the workers. In either case, the Government cannot shy away from its responsibility to ensure that the workers are paid at least the minimum wages for the work done.

[13] The petitioners have not cited specific instances of payments in last several years to demonstrate that during which period and since when they are not paid in tune of the minimum wages. The question of delay and latches would also arise if one wants to scrutinize all the payments through the entire period of engagement of the petitioners. Availability of old records with the department as well as with the contractor would be another challenge.

[14] Under the circumstances, this petition is disposed of with the following directions:

The concerned Executive Engineer shall verify the payments made to the petitioners for the entire period starting from 3(three) years prior to filing of the petition till date with a special focus on the question whether the contractor had made such payments at the rate not below the minimum wages prescribed from time to time. To the extent where it is found that the wages went below the minimum prescribed, the Executive Engineer shall pay the difference directly to the workers. In such a situation, the question of recovering such amount from the contractor would depend on the mutual contractual agreement between the Government and the contractor with respect to which I make no observations at this stage leaving it open to the Government to seek recovery of such amounts from the concerned contractor in accordance with law to the extent permissible.

Pending application(s), if any, also stands disposed of.