Satyendra Sarkar And Ors. vs State Of Tripura And Ors.

All these writ petitions being WP(C) No. 1117 of 2016 [Sri Satyendra Sarkar Vs. State of Tripura and Ors.], WP(C) No.1118 of 2016 [Smt. Milan Dutta (Paul) Vs. State of Tripura and Ors.], WP(C) No.1119 of 2016 [Smt. Sabita Pal Vs. State of Tripura & Ors.] and WP(C) No.1121 of of 2016 [Sri Bikash Singha Vs. State of Tripura & Ors.] are consolidated for disposal by a common judgment in as much as a common ground of challenge against the State action has been projected in these writ petitions. Even though these writ petitions are clustered but there are some significant variations in the array of facts for which brief note on each of the writ petitions would be recorded before evaluation of the claims and counter claims by the petitioners and the respondents is made.

WP(C) No. 1117 OF 2016

2) The petitioner namely Sri Satyendra Sarkar has claimed that he was appointed as the contingent worker by the letter dated 18.06.1997 issued by the S.D.O. (Electrical), Transmission Sub­Division. According to him, he was engaged as the contingent/casual worker from 09.06.1997. He used to draw a daily wage at Rs.31.50.

By the letter dated 24.07.1997 (Annexure­P/2 to the writ petition) the S.D.O. (Electrical), Transmission Sub­Division had requested the Executive Engineer, Transmission Division, Agartala to pay the petitioner and 3(three) others named in the said letter their wages treating them as D.R.W.

The petitioner has further contended that the letter dated 30.01.2008 ( Annexure­P/3 to the writ petition) confirms his appointment as D.R.W. on 01.08.1997. Thus, the petitioner having completed the 10(ten) years of service on 31.08.2008 is entitled to be regularized in terms of the Memorandum No.10(2)FIN(G)/2008(Part) dated 01.09.2008 (Annexure­P/4 to the writ petition). The petitioner has further averred that even he is covered by the subsequent Memorandum No.10(2)­FIN(G)/2008(Part) dated 21.01.2009, issued by the Joint Secretary to the Government of Tripura, Department of Finance (Annexure­P/5 to the writ petition). The petitioner has also indicated to a typographical mistake that has taken place in the letter dated 08.01.2008 where his name has been wrongly written as Satyendra Deb in lieu of Satyendra Sarkar. He had approached the authorities for granting him the said benefit of regularization on completion of 10(ten) years of service but that did not bring any positive yeild. As a result he has approached this Court for direction on the Corporation­respondents to give him the benefit of regularization.

Per contra, the Corporation­respondents by filing their reply have asserted that the petitioner was a Part Time Worker (P.T.W.) working for 4(four) hours and as such he is not covered by those memoranda which embody the policy of the Government for regularization on completion of 10(ten) years of service.

In support of this contention the Corporation­ respondents have produced a copy of the acquittance roll dated 31.03.2003 where the petitioner has been shown as P.T.W. for 4(four) hours receiving a sum of Rs.713/­ (Annexure­R/1 to their reply).

WP(C) NO. 1118 OF 2016

The petitioner in this writ petition, namely Smt. Milan Dutta (Paul) has claimed that she was engaged as Daily Rated Worker (DRW 'in short') from 01.12.1990 and she has been discharging the duties for 8(eight) hours on every working day. But she was being paid only for 4(four) hours in the office of Sub Divisional Officer (Electrical) Khowai as there was no peon and the petitioner was assigned with the said duty. She has been distributing the notice and official correspondence.

By the letter dated 24.11.2007 (Annexure­P/1 to the writ petition) the Senior Manager, Electrical Sub Division, Khowai, Tripura requested the Deputy General Manager, Electrical Division No. X that the petitioner and 3(three) others had been rendering duties from 10.00 A.M to 5.00 P.M and their wages therefore should be enhanced keeping in view of their duty hours. The name of the petitioner has appeared in the serial No.3 of that letter dated 24.11.2007. The petitioner has asserted further that she used to sign the attendance roll twice daily once in the morning and then in the afternoon.

The Chief Engineer (Electrical), Department of Power by the Memorandum dated 23.08.1997 (Annexure/P­2 to the writ petition) published a list of the contingent workers working under the Power Department. In the said memorandum the petitioner's name figures at the serial No. 274. Her date of engagement has been shown there as 01.12.1990 and, therefore, the petitioner is entitled to be regularized on completion of her 10(ten) years of service as a contingent worker. In the letter dated 20.09.2010 a reference was made to the memorandum dated 23.08.1997. Even in the communication dated 18.08.2007 (Annexure­ P/3 to the writ petition) the name of the petitioner has appeared at serial No.2 showing her date of engagement as the contingent worker as on 01.12.1990. By virtue of the said memorandum dated 01.09.2008 and 21.01.2009, the petitioner is entitled to be regularized w.e.f. 01.07.2008 on her completion of 10(ten) years of service in the said capacity. But that has not happened. Such denial of regularization has pushed the petitioner approach this Court. Before that, the petitioner had approached the competent authorities by filing the representation for her regularization. The petitioner has further claimed that apart from the regularization, she is entitled to get the wage for her full time service since 01.12.1990 with interest @ 12 % per annum on the arrear of wages.

For repelling such claim, the Corporation­respondents have stated in their reply that the petitioner is considered as P.T.W. for 4(four) hours and as such she is not entitled to get regularization. The petitioner herself has stated that she was paid for 4(four) hours only.

WP(C) NO.1119 OF 2016

The petitioner namely Smt. Sabita Paul has averred in the writ petition that she was initially engaged as casual worker in Dhalabil I.B. and it would be apparent from the letter dated 17.06.1997 (Annexure­ P/1 to the writ petition) that she was engaged as the casual worker w.e.f. 23.05.1997. In the said letter, the petitioner's name figures at serial No.3 and the petitioner status has been shown as the casual worker on full time basis.

By the letter dated 24.07.1997 (Annexure­P/2 to the writ petition), the SDO (Electrical), Transmission Sub­Division, Dhalabil, Khowai had requested the Executive Engineer, Transmission Division, Agartala to pay the petitioner and 3(three) others named in the said letter by treating them as D.R.W. Even though the petitioner was full time casual worker but erroneously, as it might be, in the said letter against her name it has been shown that she is a Part Time Worker serving 4(four) hours a day.

In the course of time, onto formation of Tripura State Electricity Corporation Limited, like the other petitioners in this batch of the writ petitions her service was also placed under the control of the Corporation as a consequence of the new arrangement. The petitioner has been serving under the control of the Corporation. Though the petitioner has been shown as the P.T.W. but she has been discharging the duty for 8(eight) hours daily. Thus the petitioner is entitled to regularization in terms of the said memorandum dated 01.09.2008 w.e.f. from 01.07.2008 as the petitioner had completed 10(ten) years of service as D.R.W. on that day. Even the petitioner is also covered by the memorandum dated 21.01.2009 as she has completed 10(ten) years of service.

Based on the letter dated 27.01.2011 the petitioner has claimed that it is apparent that she was working on a full time basis. From 23.05.1997, the petitioner has been rendering 8(eight) hours duty but she has been paid wages on 4(four) hourly basis. Thus, she is also entitled to get the full wage for discharging service for 8(eight) hours w.e.f. 23.05.1997 with interest on the arrear of wages. The petitioner had filed a detailed representation to the Chairman­cum­Managing Director, T.S.E.C.L. and to the other authorities for her regularization in a Group - D post. The petitioner has substantiated her claim for regularization by placing the factual matrix of her engagement and continuance with reference to the policy decision of the Government of Tripura which has been adopted by the said Corporation. There is no impediment to regularize the petitioner's service. Despite this, the petitioner has been refused regularization. Such refusal has prompted the petitioner approach this Court.

The respondent­Corporation by filing the reply has contended that the petitioner's engagement as the part­time worker for 4(four) hours even is without concurrence from the Finance Department. Henceforth the reply, signed by the petitioner has been produced to demonstrate that the petitioner was getting wages only for 4(four) hours. A Part time worker cannot claim regularization under the memorandum dated 01.09.2008 or 21.01.2009. Hence there is no substance in the writ petition, according to the respondents.

WP(C) NO. 1121 of 2016

The petitioner namely Bikash Singha has averred in the writ petition that he was engaged as the contingent worker on 29.10.2001. On 30.08.2010, the Deputy General Manager of the Corporation published a list of D.R.W.s/Contingent employees working under T.S.E.C.L. and in the said list the name of the petitioner has appeared demonstrating his date of engagement on 29.10.2001 in the category of Group­C. By the memorandum dated 01.09.2008 (Annexure/P­2 to the writ petition), the State has declared there policy for regularisation of the contingent workers who had completed 10(ten) years of service as on 31.03.2008. Apparent it is, the petitioner did not complete 10(ten) years of service on 31.03.2008 as he himself has stated that he was engaged on 29.10.2001. However, the petitioner has contended further that by virtue of the memorandum dated 21.01.2009 (Annexure­P/3 to the writ petition) he is entitled to get regularization from the next day of completion of 10(ten) years of service.

By the order dated 27.12.2010 as many as 135 DRWs/contingent workers were regularized in various posts like Meter Reader cum Bill Clerk in the pay scale of Rs.5,310/­ -­ 24,000/­ [Pay Band­2] with Grade Pay of Rs.1800/­ plus other admissible allowances. By the said order dated 27.12.2010 ( Annexure/P­4 to the writ petition) one Tarakeswar Chakraborty has been regularized. The petitioner and Tarakeswer Chakraborty were working in the same capacity with same status but while regularizing Tarakeswer Chakraborty, the petitioner has been left out. Being aggrieved, the petitioner submitted representation for remedy but nothing positive has yielded. Hence, the petitioner has approached this Court.

The Corporation­respondents have filed their reply and stated that the petitioner joined as a Part Time Worker and hence the petitioner is not entitled to regularization in terms of the memorandum dated 21.01.2009. As Tarakeswer Chakraborty was a full time casual worker his case was differently considered and finally he was regularized.

In this case also, the respondents have produced the wage roll of the contingent workers including the petitioner. It is shown therefrom that the petitioner was getting a sum of Rs.1,434/­ whereas said Tarakeswer Chakraborty was getting Rs 3,030/­ per month. Thus, the respondents have claimed that the petitioner is a Part Time Worker and hence he is not entitled to get regularization in terms of the State policy.

From the survey of documents filed by the petitioners and the respondents, it appears that the basis of refusing the regularization is on whether the petitioners were full time contingent workers or they are discharging their assignments as Part Time Workers. There are several letters and correspondences from the respondents who do for all purposes control the services of the petitioners and those letters and correspondences show further that the petitioners were/are full time contingent workers meaning they were working for 8(eight) hours but if the documents such as the wage rolls/acquittance rolls are given the due weightage, it would appear that the petitioners were being paid as the Part Time Worker (PTWs). If the petitioners were really the Part Time Workers, they can not be covered by the memorandum dated 01.09.2008 [Annexure/P­2 to the WP(C) No.1121 of 2016] and the memorandum dated 21.01.2009 [Annexure/P­3 to the WP(C) No.1121 of 2016]. But they are definitely entitled to be considered as DRWs. But the documents as procured and produced by the petitioners cannot simply be ignored. But it is really surprising that the petitioners did not claim wage for full time duty. So far they kept silence. Now they have claimed for their full time wage. There is no harm in that. But this court is unable to decide whether the petitioners were really full time contingent/casual workers or not.

This Court in Rubi Deb Vs. The State of Tripura & Ors. [judgment and order dated 28.06.2016 delivered in WP(C) No. 131 of 2015] had an occasion to observe in similar circumstances as follows:

"Having held so, this court is of the view that the respondents did not Act fairly while considering the cases of the petitioners. The petitioner in the writ petition, being W.P(C) No.131/2015, Smti. Rubi Deb, even if is considered AS the Part Time Worker like the petitioner in the writ petition, being W.P.(C) No.464/2015, Smti. Biva thapa; on consideration of their working hours, both of them Are entitled to be treated AS the Full Time Worker, which is the engagement comparable with the daily rated Workers And in All respects, they Are Full time Contingent Workers. As such, both the petitioners Are entitled to be considered for regularisation under the scheme AS Stated Above. The respondents, particularly the respondents No.2 And 3 Are directed to take All required steps to regularize the petitioners with effect from 01.07.2008 AS both the petitioners have completed 10(ten) years of service in the required category in terms of the memorandum dated 01.09.2008 (Annexure­P/3 to the writ petition, being W.P.(C) 131 OF 2015). The entire exercise shall be completed within A partiod of 3(three) months from the date when A copy of this judgment And order shall be placed to the respondents by the petitioner. Hence the writ petitions Are Allowed to the extent AS indicated."

But in these writ petitions, the respondents have produced that the petitioners were paid for 4(four) hours service and as such they were, in true sense, Part Time Workers. As the fact in this regard is visited by serious disputes it would difficult on the part of the Court to come to a definite finding as regard whether the petitioners are full time or Part Time Workers under its jurisdiction conferred by Article 226 of the constitution.

Thus the Corporation­respondents are directed to conduct an inquiry by a senior Administrative Officer to find out whether the petitioners served 8(eight) hours a day as the contingent workers in the Group­C and Group­D categories as claimed by them. If the petitioners, even if they were not paid their wages for full time service, are found to have discharged their duties for 8(eight) hours a day, they shall be treated as the full time contingent workers and they shall be regularized in terms of the memorandum dated 01.09.2008 or 21.01.2009 on completion of their 10(ten) years of service.

The petitioners shall be entitled to get the full pay and allowances from the next date of the completion of 10(ten) years of service in terms of those memoranda. The Corporation­respondents shall complete this inquiry based on the records produced with the writ petitions and the other records maintained by the officers under whom the petitioners were/are working. If after inquiry it is found that the petitioners discharged duties on full time basis, their regularization shall be made as above. The inquiry has to be completed within a period of 3(three) months from the day when the petitioners shall serve a copy of this order to the Corporation­respondents. On completion of the inquiry if the petitioners are found to have served the Power Department and the Corporation 8(eight) hours a day as claimed they shall be regularized within the next 3(three) months positively. However, in the event the petitioners are found to be Part Time Workers, their service shall be converted as DRWs in terms of the Government policy within the said stipulated period.

These writ petitions, namely WP(C) No.1117 of 2016, WP(C) No.1118 of 2016, WP(C) No.1119 of 2016 & WP(C) No.1121 of 2016 are allowed in terms of the above. However, there shall be no order as to cost.