Prem Chandra vs Dr. Ravindra Kumar Tomer, ...
2023 Latest Caselaw 25113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:59676
 
Court No. - 4
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 1921 of 2023
 

 
Applicant :- Prem Chandra
 
Opposite Party :- Dr. Ravindra Kumar Tomer, Director, Horticulture And Food Processing, Lko. And Another
 
Counsel for Applicant :- Vijay Kumar,Raj Kumar Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard.

2. This Court has passed order dated 25.8.2023 which reads as under :

"1. Heard Sri Raj Kumar Singh, learned counsel for the applicant/ petitioner and Sri Mohit Jauhari, learned Standing Counsel for the respondents.

2. Sri Raj Kumar Singh has stated that the order of the writ court dated 28.04.2023 has not been complied with till date and the respondents are not paying minimum of pay scale to the petitioner as is being paid to the similarly situated employees performing the same work in the respondent department. For the convenience, order of the writ court dated 28.04.2023 passed in Writ-A No.25213 of 2019 is being reproduced herein below:-

"1. Heard learned counsel for petitioner and learned Standing Counsel for State-respondents.

2. The petitioner has approached this Court challenging order dated 15.7.2019 passed by respondent no.2-Director, Horticulture and Food Processing, Lucknow whereby his representation for minimum of pay scale is rejected.

3. Facts of the case, as claimed by petitioner, are that petitioner was engaged as a daily wager on Class-IV post (Mali) in the year 2013 in the office of Scientist, State Tissue Culture Lab, Sector-G, Aliganj, Lucknow, where he was being paid daily wages only. He claims that other similarly situated daily wage employees, who have completed more than five years of service, are being paid minimum of pay scale while the same is denied to him.

4. Learned counsel for petitioner submits that impugned order is passed on false and incorrect facts. Submissions made by petitioner are either not considered in the impugned order or are rejected by concocting incorrect facts.

5. On the other hand, learned Standing Counsel strongly opposing the petition, submits that since petitioner is working as a daily wager through a service provider agency, hence, he is not entitled for minimum of pay scale. He further submits that impugned order is passed in accordance with law.

6. It is not in dispute that aforesaid Lab is run by department of Horticulture and Food Processing and is part of the same. It is the officers and employees of Horticulture and Food Processing department of State of U.P., who are working and running the said Lab. While rejecting the representation, it is noted that petitioner in the year 2013 had worked for 2 months, in 2014 again for 2 months, in 2016 for 5 months, in 2017 for 4 months, in 2018 for 2 months and since September, 2018, he has been working through a service provider agency.

7. In counter affidavit dated 5.12.2019 also said facts are reiterated. However, a detailed supplementary counter affidavit was filed on 8.2.2023 and along with the same working chart of petitioner from September, 2013 onwards is enclosed as Annexure-SCA-9. The said chart shows that since the year 2013 till date, working of petitioner only on muster-roll is considered while rejecting his representation. His entire working admittedly through a service provider is not considered. The same shows that petitioner started working since September, 2013 and worked for all four months of the year 2013 and thereafter in 2014, he worked for 8 months, in 2015 for 7 months, in 2016 for 11 months, in 2017 for 10 months, in 2018 for 7 months, in 2019 for 12 months and in 2020, he was continuously working till the time chart was prepared.

8. Thus, from the aforesaid chart, it is clear that impugned order is passed by referring to wrong and incorrect facts. The Director, Horticulture and Food Processing is a senior officer. It is not expected that he would refer to incorrect and incomplete facts while considering the case of a person under the orders of this Court. He is cautioned not to conduct proceedings in such manner in future.

9. The aforesaid facts clearly show that petitioner is now working for last around ten years with respondent department.

10. The petitioner claims that persons, who are working as daily wager for more than five years, are paid minimum of pay scale under the orders of this Court. For the said purpose, learned counsel for petitioner relies upon a communication dated 4.11.2004 made by Joint Director/Incharge Officer, Rajkiya Utak Sambardhan Proyogshala, Aliganj, Lucknow to Director, Horticulture and Food Processing, Lucknow. In the said communication, Joint Director/Incharge Officer has specifically stated that such daily wage employees in the department, who have completed five years or more service, are getting minimum of pay scale of Rs.3050-4590 under the orders of High Court. Sri Pankaj Srivastava, Daily Wager is getting minimum of aforesaid pay scale. Thus, he has recommended that other similarly situated Class-IV employees should also be granted minimum of said pay scale. The said document is filed as Annexure-4 to the writ petition. The said letter dated 4.11.2004 is admitted in Para-16 of the counter affidavit, but the same is explained by saying that on the aforesaid letter dated 4.11.2004, no decision has been taken at State level.

11. The same cannot be a ground for refusing benefit of minimum of pay scale to petitioner, which is already being extended by respondent department to other similarly situated persons. In fact, said submission of petitioner though is noted in impugned order, but is nowhere considered and decided.

12. The law with regard to payment of minimum of pay scale is settled by the Supreme Court in State of Punjab and others vs. Jagjit Singh and others (2017) 1 SCC 148. Paragraphs 56 to 61 of the said judgment read as follows:

"56. We shall now deal with the claim of temporary employees before this Court.

57. There is no room for any doubt that the principle of "equal pay for equal work" has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarised by us in para 42 hereinabove. The principle of "equal pay for equal work" has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again.

58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:

"7. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."

(emphasis supplied)

India is a signatory to the above Covenant having ratified the same on 10-4-1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee-whether engaged on regular or temporary basis.

60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.

61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post."

13. The Supreme Court after considering all the earlier law settled on the issue has again reiterated that principle of 'equal pay for equal work', which has emerged by interpretation of different provision of the Constitution and expounded through a large number of judgments of Supreme Court, continues to be the law declared by Supreme Court. The same is binding upon all. The same is extended to temporary employees including work charge, daily wage, casual, adhoc, contractual etc. Thus, it held that they are entitled to draw wages on minimum of pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.

14. In the aforesaid circumstances, petitioner, who is continuously working since 2013 except for artificial breaks, is also entitled for payment of minimum of pay scale, that is being given to regular employees providing same work in respondent department.

15. The respondents again try to hide behind the argument that they have not engaged any Class-IV employee in the Laboratory. The Laboratory itself is part of Horticulture and Food Processing department. It is not in dispute that regular Class-IV employees are working in Horticulture department. It is also not in dispute that in absence of petitioner, other Class-IV employees of the department would be bound to perform duties that are being performed by petitioner. Therefore, petitioner is entitled to minimum of pay scale that any Class-IV regularly appointed employee would be entitled to, in case petitioner is not available for performing his duties.

16. Submission of respondent-State that petitioner is engaged through a service provider agency, therefore, he is not entitled for minimum of pay scale also does not have any force as in Para-60 of the aforesaid judgment, Supreme Court has held that the said benefit is available to all temporary employees whatever their nomenclature may be.

17. Merely by engaging daily wage employees through a service provider agency, State Government cannot shy-away from its responsibility of providing minimum of pay scale which it is bound to pay in accordance with law.

18. Hence, impugned order dated 15.7.2019 cannot stand and is set aside. Respondents are directed to pay minimum of pay scale to petitioner as is being paid to similarly situated employees performing the same work in respondent department forthwith without any delay.

19. Accordingly, writ petition stands allowed."

3. Sri Raj Kumar Singh has further submitted that in some cases where the contempt application has been filed, payment has been made to the similarly placed employees.

4. Sri Mohit Jauhari, learned Standing Counsel has drawn attention of this Court towards the application for deferment filed on 9/16.8.2023 showing the Annexure No.DA-1, which is a copy of the order dated 21.07.2023 passed by this Court in intra-court appeal bearing Special Appeal Defective No.492 of 2023, whereby the objection on delay has been called from the respondents.

5. On being confronted Sri Mohit Jauhari as to whether the delay has been condoned or as to whether the appeal has been admitted, he has fairly admitted that till date, the appeal has not been admitted.

6. Therefore, it is clear that neither the appeal has been admitted nor any interim order has been granted.

7. It is a trite law that mere pendency of any special appeal, more particularly defective appeal, may not protect the authorities, if they have flouted the direction of the writ court.

8. Having considered the aforesaid fact, list this case on 18.09.2023.

9. On or before 18.09.2023, learned Standing Counsel shall either file copy of interim order/ final order, if any, being passed in the special appeal or affidavit of compliance, failing which both the opposite parties, namely, Dr. Ravindra Kumar Tomer, Director, Horticulture and Food Processing, 2- Sapru Marg, Lucknow and Dr. Rajeev Kumar Verma, Deputy Director, Horticulture and Food Processing, Uttar Pradesh, Aliganj, Lucknow shall appear in person. In case the order of the writ court is not complied with in its letter and spirit, charges may be framed against them on the next date."

3. Sri Mohit Jauhari has stated that the affidavit of compliance has been prepared and the same may likely to be filed within 24 hours. However, he has shown the copy of order dated 15.9.2023 passed by the Scientist Office, Government Tissue Conservation Laboratory, Aliganj, Lucknow indicating therein that in compliance of the order of the writ court the petitioner Sri Prem Chandra has been allowed to make payment of minimum of pay scale subject to the final outcome of the pending Defective Special Appeal No. 492 of 2023, copy of the order dated 15.9.2023 is taken on record.

4. In the wake of the aforesaid development nothing remains to be adjudicated in this contempt petition.

5. Accordingly, the contempt petition is dismissed.

6. Notices discharged.

7. However, Sri Mohit Jauhari shall file affidavit of compliance within a period of 24 hours and the same shall be kept on record.

.

[Rajesh Singh Chauhan, J.]

Order Date :- 18.9.2023

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