Prem Chand and Others vs State and Another

P.D. Desai, C.J.—The Petitioners are employed as daily-rated workmen in the Himachal Pradesh Forest Printing Press at Kalaghat, Shilly Road, Solan (hereinafter referred to as "the Press"). The following table sets out the particulars of the date of the commencement of employment of each Petitioner and the nature of duties performed by him/her:

Sr. No. Name Nature of Datesince Approximate duties when working period of on daily wages employment _____________________________________________________________________ 1 2 3 4 5 ______________________________________________________________________ 1. Prem Chand Packer 13-4-1977 10 years (Petitioner No. 1). 2. Kashmir Singh Compositor 11-8-1979 7-1/2 years (Petitioner No. 4). 3. Ramesh Kumar Inker 22-8-1979 7-1/2 years (Petitioner No. 2). 4. Yashwant Singh -do- 17-4-1980 7 years (Petitioner No. 3). 5. Tej Singh Compositor 18-5-1980 -do- (Petitioner No. 5). 6. Miss Lalita Gupta Proof- 2-12-1981 5-1/2 years (Petitioner No. 6). Reader. 7. Mohan Lai Distributor 9-3-1984 3 years (Petitioner No. 7.)

The payment of daily wages to the Petitioners is being regulated according to the rates from time to time sanctioned by the competent authority (Deputy Commissioner, Solan). Beside the payment of daily wages as aforesaid, no other benefits are granted to the Petitioners, except a weekly holiday, although such benefits are admissible to the regular staff working against the permanent posts in the corresponding category. According to the Petitioners, their employment is being subjected to fictional or artificial breaks after every period of ninety days. The main grievance of the Petitioners herein is two-fold: first, that the Respondents are indulging in an unfair labour practice and are acting arbitrarily and unjustly by employing them as daily rated workmen for such a length of time by administering casual breaks with the object of depriving them of the status and privileges of regular workmen and, secondly, that they are being treated unfairly and unjustly in the matter of their emoluments and conditions of service as compared to the holders of regular posts of the corresponding categories and that thereby the principle of "equal pay for equal work" is being violated.

The petition is being assiduously contested and he defence is set out in the affidavit-in-reply dated August 11, 1986, filed by the Under Secretary (Forests) to the State Government.

On August 19, 1986, the Court made a detailed interim order directing the State Government to review the case of the Petitioners and to place on the record of the case a fresh decision arrived at in accordance with law and in light of the observations made in the said interim order on or before September 4, 1986. The Court observed also that unless the decision was accordingly recorded within the time limited, the Court would proceed to decide the case in accordance with law. The Court further directed that the practice of giving artificial or fictional breaks at the interval of ninety days or at any other regular interval (s) to the Petitioners and persons similarly situate and, indeed, to all the daily-wage employees in the Forest Department of the State Government be forthwith discontinued and such breaks, if any, administered in the past were ordered to be condoned. The Petitioners were directed to be paid the salary and allowances for all the days covered by such artificial or fictional breaks from the dates of their initial appointment and such payment was ordered to be made within a period of six weeks from the date of the said order. A copy of the said interim order is annexed hereto and be read as forming part of this judgment.

Civil Misc. Petition No. 3242 of 1986 was instituted on behalf of the Respondents on September 6/8, 1986, seeking extension of time by five months to implement the directions contained in the interim order. The said Civil Misc. Petition was listed for orders on October 29, 1986. The Court passed the following order, in the main matter, on the said day:

The Court''s peremptory order dated August 19, 1986, has still not been complied with. The request made in the Civil Misc. Petition No. 3242 of 1986 is manifestly unreasonable and it cannot be accepted. In fact, such a request gives an impression to the Court that the attempt on the part of the State Government is to circumvent the orders of this Court on one ground or the other. Under the circumstances, the State Government is directed to implement the orders of this Court peremptorily on or before November 14, 1986. The compliance report to be filed on or before November 15, 1986.

A Contempt Petition is stated to have been filed by the Petitioners alleging non-compliance of the Court''s order dated August 19, 1986. The said petition be also listed along with this case before the Division Bench on the next day of hearing so that the matter could be dealt with also in ''he contempt jurisdiction.

To be listed on November 17, 1986.

Yet another Civil Misc. Petition No. 3402 of 1986 was instituted on November 17, 1986, praying extension of time by two months to implement the directions contained in the interim order. The said Civil Misc. Petition was listed for orders on November 18, 1986, when the Court passed the following order:

The Court regrets to note that the observations made in the interim order dated October 29, 1986, passed in the main matter (CWP No. 512 of 1986) do not appear to have made any impact and that yet another application has been brought with a request for extension of time which must again be characterised as un-reasonable and unacceptable.

It appears to the Court that having regard to the exhaustive review of the case law on the subject and the findings and observations recorded and made in the detailed interim order passed on August 19, 1986, in the main matter, a reference to the Law Department is an exercise in futility. However, even if such a reference is considered necessary for any reason whatever, the. Court feels justified in entertaining the belief that the Law Department, which is manned by trained and experienced Judicial Officers drawn from the Higher Judicial Service/Judicial Service of the State, will not take more than 48 hours to clear the referance so as to enable the administrative department to take expeditious steps in the direction of the implementation of the interim order aforementioned.

Under the circumstances, in order to give one more opportunity to the State Government to implement the directions issued in the interim order dated August 19, 1986, time is extended till November 28, 1986.

One more Civil Misc. Petition, Civil Misc. Petition No. 3573 of 1986, was instituted on December 2, 1986, stating that the applicants (original Respondents) had filed a SLP in the Supreme Court of India on November 28, 1986 and that two month''s time may be allowed to obtain appropriate decision in the said Special Leave Petition. The following order was passed in the said Civil Misc. Petition on December 2, 1986:

This is an application instituted today praying that since the applicants (original Respondents in the writ petition) have filed a SLP in the Supreme Court of India on November 28,1986 against the interim order dated August 19, 1986 passed in the main matter, namely,. Civil Writ Petition No. 512 of 1986, Prem Chand and Ors. v. State of Himachal Pradesh and Anr. two months period may kindly be allowed to the Respondents to obtain fresh decision in the case of the Petitioners from the Hon''ble Supreme Court of India.''

The Orders from time to time passed in the main case and in the Civil Miscellaneous Applications are on the record. The interim order dated August 19, 1986, after an exhaustive review of the case law, directed the State Government, inter alia, to review the case and to take a fresh decision in accordance with law and in light of the observations made therein, in respect of the regularisation of services and the payment of lawful wages to the original Petitioners, on or before September 4, 1986. An application for extension of time (Civil Misc. Petition No. 3242 of 1986) was instituted on behalf of the Respondents on September 6, 1986, on the ground that more time was required to comply with the interim order since'' it has to be got done at Govt. level it is possible that it may take five months to arrive at the decision at Govt. level''. The prayer, therefore, was that in the interest of justice, five months period be allowed for taking fresh decision on the case in light of the observations made in the interim order above-mentioned. Before the application could be listed for orders and any orders could be passed there on, the original Petitioners instituted Contempt Petition (Civil) No. 74 of 1986 on October 16, 1986 alleging that no part of the directions issued in the interim order dated August 19, 1986 had been complied with and that there was thus a wilful disobedience on the part of the Respondents to the lawful orders passed by the Court and seeking appropriate reliefs. On October 29, 1986, orders were passed on Civil Misc. Petition No. 3242 of 1986-Civil Writ Petition No. 512 of 1986 (main case) and the State Government was directed to implement the interim order dated August 19, 1986 on or before November 14,1986. The Contempt Petition and the main case were directed to be listed together on November 17, 1986. On November 17, 1986, yet another application for extension of time (Civil Misc. Petition No. 3402 of 1986), was instituted on behalf of the Respondents. In para 4 of the said application, reference was made to certain correspondence exchanged between the Chief Conservator of Forests and the State Government in regard to the implementation of the interim order aforementioned and it was stated, inter alia, that the State Government had referred the case to Law Department ''for suitable advice'' and that ''it is not possible to get the opinion of Law Department, Himachal Pradesh, by 15-11-1986''. The prayer, therefore, was that minimum two months time to enable the State Government to take decision for the implementation of the directions issued in the interim order be allowed in the interest of justice. By an order made on November 18, 1986, time was extended till November 28, 1986. The main case and the Contempt Petition were adjourned to December 1, 1986 in view of the said order.

The present application has to be considered in light of the representations made in those applications and the orders passed thereon in light of those representations. Before we do so, however, we have thought it proper to draw the attention of the learned Advocate General to the decision in Advocate General of Bihar v. The High Court of Judicature at Patna AIR 1986 SC 1080 and, more particularly, to certain observations therein made in paras 3 to 6. We have made it clear that his attention is not being drawn to the ruling on account of any conduct on his part in regard to the case in hand but only with a view to enabling him to consider tendering such advice as he considers fit and proper to the Respondents in regard to the request made herein in light of the relevant observations therein made. Adjourned to December 9, 1986.

The foregoing narration of facts would show that neither the directions contained in the interim order made on August 19, 1986, have been implemented nor any relief obtained from the Supreme Court so far. The Court having given sufficient opportunity to the Respondents to implement those directions and having found that the opportunity has not been availed of despite the pendency of a Contempt Petition, the case is being decided today.

The detailed interim order made on August 19, 1986, contains all the relevant material facts and also deals with the pleas in defence against the legal background and for all intents and purposes, incorporates the decision on the question arising for determination in the present case. To repeat what has been stated in the said order would only be a futile exercise and lead to burdening the record.

For the reasons recorded in the said interim order, the Court allows the petition and directs the Respondents to pay to the Petitioners and to the other daily-rated workmen, if any, on the establishment of the Press who are similarly situate, the same salary and allowances as are paid to the regular and permanent employees of the corresponding categories with effect from the date each one of the Petitioners and such persons, if any, was respectively employed. The Petitioners and such persons, if any, will also be paid the salary and allowances for the fictional breaks given to them during the entire period of the employment of each one of them. The Respondents will comply with these directions and deposit in the Registry of this Court the arrears becoming due and payable to each of them on or before April 30, 1987. The future salary and allowances will be paid accordingly for the period commencing from April 1, 1987. The Respondents will also deposit in the Registry of this Court within the same time-limit a sum of Rs. 500/- which is assessed as costs of this petition. The fictional or artificial breaks, if any, will be forthwith discontinued.

The Court places on record its sense of regret that the Petitioners are being employed on daily-wage basis without their services being regularised for such length of time. The fact that the Press is not a temporary establishment and that the employment has continued for so long is indicative that there is need for additional permanent posts. It is not at all desirable that any management and, more particularly, the State Government, should continue to employ persons on casual basis under such fact-situation. It would be legitimate to hope that in conformity with the modern concept of justice and fair play and with its avowed commitment to the constitutional mandate of socio-economic justice, the State Government will take appropriate action in the direction of regularising the services of the Petitioners and also of all those daily-rated workmen who have been in continuous employment for more than six months.

Before parting with the case, the Court would like to observe that the question of the jurisdiction of this Court to deal with and decide the case on merits has been examined in light of the provisions of Section 15, Sub-section (1) of the Administrative Tribunals Act, 1985. In view of the fact that the Petitioners are daily-rated employees, who are not holding appointment to any civil service of the State or to any civil posts under the State, the bar of jurisdiction does not come in the way and this Court is competent to adjudicate upon the dispute as to wages herein raised. This legal position has been examined by this Court in its order rendered today in Civil Writ Petition No. 559 of 1984 Jagdev Singh v. State and Ors. and in light of the said legal position the Court has dealt with and decided the case.

The Court also would like to place on the record that the disposal of the writ petition in terms aforesaid does not affect the pendency of the Contempt Petition which will be decided in due course in accordance with law.

Rule made absolute accordingly in terms aforesaid.

Dasti copy on usual terms.

Petition allowed.

ORDER OF AUGUST 19, 1986

The affidavit-in-reply filed in the present case makes a curious reading. It is strange to find the State Government, which is committed to the goal of a Welfare State, coming forward with assertions of the nature therein made in defence to claims advanced by the Petitioners which, prima-facie, appear to be just, legitimate and lawful. The posture adopted in the affidavit betrays a total lack of commitment to the Constitutional philosophy of socio-economic justice enshrined in the Preamble of the Constitution as well as in the Directive Principles of State Policy enunciated in Part IV thereof and also a blissful ignorance of the principles of equality and nationality embodied in Articles 14 and 16 of the Constitution. It also conveniently omits to take note of the law laid down by the Supreme Court in a series of cases and of the decisions rendered and orders made by this Court in numerous cases in which the State was a party and which are presumed to be within its knowledge. One could have contemplated a die-hard private employer coming forward with such a plea in defence but not the State, which has always to function as a model and as an enlightened employer. Such defences ill-come from the mouth of the State and the Court legitimately expects that it will not have to countenance a defence of this nature in any similar case in future. The responsibility really lies on the shoulders of those whose duty it is to advise the State in legal matters to ensure that no defence is taken which is not in consonance with, the Constitutional provisions as well as with the law declared by this Court and by the highest Court in the Country.

In Rattan Lal and Others Vs. State of Haryana and Others, the policy of giving ad hoc appointments for defined periods and renewing them after a fictional break year after year was deprecated as "pernicious" and as leading to a breach of Articles 14 and 16 of the Constitution since it un-necessarily subjected the employees "to an arbitrary ''hiring and firing'' "policy". It was observed that such a situation could not be permitted to last any longer. The State was, therefore, directed to take immediate steps to fill up the vacancies in a regular manner in accordance with law and to allow the existing ad hoc teachers to continue to hold the posts till regular appointments took place. A further direction was issued to consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to the posts in the case of those ad hoc teachers who had been victims of such system and also to consider the regularisation of those who had under the extant rules become entitled to such benefit. The State was asked to pay to them the salary and allowances for the period of Summer Vacation (the period of fictional breaks) along with other benefits such as maternity or medical leave etc., as long as they held office under the Court''s order.

In L. Robert D'' Souza v. The Executive Engineer, them Railway and Anr. AIR 1982 SC 854, the Supreme Court pronounced way back in 1982 in the context of casual labour employed in the construction projects of the railways that it was "highly unethical, contrary to the constitutional philosophy of socio-economic justice" to continue to treat such workmen serving for 10,20 and 30 years at a stretch without break as daily-rated workmen and observed that it was high time that the railway authorities remedied "the utterly unfair" situation "wholly denying socio-economic justice" and brought its employment policy "in conformity with the modern concept of justice and fair play to the lowest and the lowliest".

In Dhirendra Chamoli and Another Vs. State of U.P., the question was whether a number of persons, who were engaged as casual workers on daily wage basis and who were doing the same work as was being performed by the regular employees, were entitled to the same salary and allowances as were being paid to those regular employees. The plea of the casual workmen to that effect, which was based on the principle of "equal pay for equal work", was being resisted by the Central Government on the ground that since they were employed in temporary organizations located at different places in the country and that since there were no sanctioned posts to which regular appointments could be made, those casual employees could not claim to receive the same salary and perquisites as regular employees. However, the fact that the casual workmen were performing the same duties as were being performed by the regular employees was not in dispute. Against the aforesaid factual background, the Supreme. Court made the following observations:

It is peculiar on the part of the Central Government to urge that these persons took up employment with the Nehru Yuvak Kendras knowing fully well that they will be paid only daily wages and therefore they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familier argument with the exploiting class and |a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value.

The writ petitions, therefore, were allowed and the casual workmen were directed to be paid with retrospective effect the same salary as was being received by the regular employees and they were also held entitled to the benefit of the same conditions of service. But this is not all. The Supreme Court proceeded to make the following further observations:

But we hope and trust that posts will be sanctioned by the Central Government in the different Nehru Yuvak Kendras, so that these persons can be regularised. It is not at all desirable that any management and particularly the Central Government should continue to employ persons on casual basis in organisations which have been in existence for over 12 years.

In Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, the casual workmen employed on daily wage basis in the Central Public Works Department for several years claimed that they be paid the same wages as permanent employees engaged to do identical work. The plea was resisted on the same grounds which were advanced in Dhirendra Chamoli case and also on the further ground that the doctrine of "equal pay for equal work" was a mere abstract doctrine which could not be enforced in the court of law. The argument was repelled in the following terms and the relief as prayed was granted:

The Central Government like all organs of the State is committed to the Directive Principles of State Policy and Article 39 enshrines the principle of equal pay for equal work....The Central Government, the State Governments and likewise, all public sector undertakings, are expected to function likemodel and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a Court of law should ill come from the mouths of the State and State Undertakings. We allow both the writ petitions and direct the Respondents, as in the Nehru Yuvak Kendras case, to pay to the Petitioners and all other daily rated employees, the same salary and allowances as are paid to regular and permanent employees with effect from the date when they were respectively employed. The Respondents will pay to each of the Petitioners a sum of Rs. 1,000/- towards their costs. We also record our regret that many employees are kept in service on a temporary daily wage basis without their services being regularised. We hope that the Government will take appropriate action to regularise the services of all those who have been in continuous employment for more than six months.

In the interim final orders passed by this Court in several cases also, findings have been recorded and observations have been made in similar terms. There is no need to refer to them since the ground is now covered by the law declared by the Supreme Court in the aforesaid terms in the cases above-mentioned and also because the State Government has been a party in many of those cases and knows that similar is the law declared by this Court as enforceable in this State.

Apart from the foregoing, the matter requires examination from another angle. The Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") is in force in the State of Himachal Pradesh. Section 2(j) of the Act defines the word "industry" and, prima-facie, the Himachal Pradesh Government Forest Printing Press is "industry" within the meaning of the said definition. The word "employer" has been defined in Section 2(g) of the Act to mean in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department. The expression "unfair labour practice" is defined in Section 2(ra) of the Act to mean "any of the practices specified in the Fifth Schedule". Item-10 of the Fifth Schedule specifies the following as an unfair labour practice on the part of the employer:

To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.

Chapter V-C of the Act contains two sections which prohibit and prescribe penalty for committing unfair labour practices. Section 25-T occurring in the said Chapter inter-alia enacts that no employer shall commit any unfair labour practice. Section 25-U provides that any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. It is thus apparent that the employment of workmen in a casual or temporary capacity for years with the object of depriving them of the status and privileges of permanent workmen is an "unfair labour practice" entailing. prosecution of the employer, that is, the head of the department, where no different authority is prescribed.

The stand taken up in the affidavit-in-reply on behalf of the Respondents needs examination against the aforesaid background. It is admitted that the Petitioners have been working on daily wages for different periods ranging between nine and two years "intermittently", that is to say, with fictional or artificial breaks given at the interval of 90 days. All but one of them were initially so employed during the period between 1977 and 1984. The specific allegation in the petition that the duties performed by the Petitioners are "the same and absolutely similar" to those which are performed by regular employees is nowhere denied and rightly so. The various reliefs claimed in the petition are, however, resisted on the basis of the following pleas:

The contention of the Petitioners that they are working from 2 to 9 years continuously is incorrect. Break in engagement after every 90 days period of engagement has been given to the Petitioners who are daily wages staff, in consonance with the instructions of the Government (Annexure-R-I). The Petitioners are being paid daily wages at the rates as sanctioned by the competent authority (D.C. Solan) from time to time. Since the Petitioners are not regular employees, their contention for grant of perks admissible to regular employees of their corresponding category and other privileges is not maintainable. The Petitioners who have been engaged on clear terms of" daily wages basis have evidently no justifiable cause to claim emoluments admissible to regular staff working against permanent posts of corresponding category in the Himachal Pradesh Forest Department, Printing Press, Kalaghat. The comparison of emoluments of Regular employees of the Press, viz-a-viz the daily waged staff of corresponding job drawn by the Petitioners is fallacious as these two sets of workers have different lawfully constituted rates of wages and other perks. As for the plea of engagement of daily waged workers without creating regular posts for their absorption the Petitioners are themselves responsible as they were always "at liberty to seek regular job elsewhere in the open market but chose to work on daily wages basis with the Respondents at their own volition. There is no justifiable cause with the Petitioners to claim wages at par with the regular employees of the corresponding category as these Petitioners have been engaged on daily wages and have been and are being rightly paid wages at the rates sanctioned by the Deputy Commissioner, Solan, for such categories of daily waged staff from time to time. No rightful perks and benefits admissible to the daily wages staff has ever been denied to the Petitioners and the allusions drawn in this para of the petition is an unwitting sally of the Petitioner into the realm of romanticism and a dangerous simplification of the solution of problem of daily waged staff, the problem being not an isolated spot and self contained to their case. The principle of equal pay for equal work as cited by the Petitioners is not relevant as the Petitioners have been and are being paid daily wages of their respective jobs as has been fixed by the competent authority (D.C. Solan) under the relevant law. No exploitation of the Petitioners have been done as regards to the payment of wages admissible to daily waged workers.

Every submission made in the extracted portions of the affidavit, which constitutes the bastion of resistence to the claims advanced in the petition, stands rejected by the decisions of the Supreme Court which have been cited above. In light of the well settled legal position, the Respondents owe a duty to themselves and to their employees like the Petitioners to review the case in all earnestness and to accept such of their demands as are legitimate and well-founded. It would be gracious on their part so to do for, in the ultimate analysis, the Court is not powerless and would grant just reliefs admissible to the employees in accordance with law.

For the foregoing reasons, it appears to be expedient in the interest of justice to direct the State Government to review the case and to place on the record of the case a fresh decision arrived at in accordance with law and in light of the observations made hereinabove on or before September 4, 1986. Unless the decision is so recorded within the time aforementioned, the Court will proceed to decide the case in accordance with law. Meanwhile, however; the Court directs that the practice of giving artificial or fictional breaks at the interval of 90 days or at any other regular interval (s) to the Petitioners and persons similarly situate and, indeed, to all the daily-wage employees in the Forest Department of the State Government, shall be forthwith discontinued and such breaks, if any, administered in the past shall be condoned. The Petitioners will be paid the salary and allowances, if any, for all the days covered by such artificial or fictional breaks from the dates of their initial appointment and such payment shall be made within six weeks from today.

To be listed on September 8, 1986.

Dasti copy.