Janapareddy Surya Narayana vs The Muncipal Administration And ...
2021 Latest Caselaw 1827 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION NO.25434 OF 2020

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, questioning the proceedings

RC.No.16394/P.O (Balyam) dated 19.06.2017 as illegal, arbitrary

and violative of Articles 14, 16, 21 & 39(d) of the Constitution of

India and consequently set-aside the same and direct the

respondents to regularise the services of the petitioners in terms of

judgment of the Apex Court in Amarkant Rai v. State of Bihar1,

as the petitioners fall within the exception carved out by the Apex

Court in Secretary, State of Karnataka and Ors. v. Uma Devi

and Ors2 and to pay all consequential benefits.

The petitioners case in nutshell is that, the petitioners were

appointed as Balwadi Teachers, working under Greater

Visakhapatnam Municipal Corporation in their respective posts.

The main duties of the petitioners are to promote adult education

and non-formal education (drop outs) and educate 3 to 5 years

children, particularly in slum areas according allotted areas to

individual petitioners/ balyam teachers/supervisors respectively.

The respondent authorities are using the petitioners services as

and when necessary for election, census, enumeration of ration

cards, verification of eligible persons to extend welfare scheme

benefits to individual and not particular prescribed duties apart

2015 (8) SCC 265

(2006) 4 SCC 1 MSM,J WP.No.25434 of 2020

from their regular duty as balyam teacher/supervisors. It is the

case that the respondents never paid any additional remuneration

for allotting other than actual duties. The petitioners never

hesitated to do works allotted by the respondents only with a hope

to get their permanent employment.

It is the specific contention of the petitioners that, according

to Article 39(d) of the Constitution of India, Equal pay for equal

work shall be extended to temporary employees (differently

described as work charged, daily wage, casual, ad-hoc,

contractual) and they can claim wages on par with minimum pay

scale being paid to regularly engaged government employees and

by applying the principle of equal pay for equal work, the same

benefit shall be extended to temporary employees in view of the

principle laid down by the Apex Court in State of Punjab v. Jagjit

Singh and others (referred supra).

It is contended that the petitioners were initially appointed

as Balwadi Teachers and sewing teachers on monthly

remuneration of Rs.375/-. Subsequently the remuneration was

enhanced to Rs.1300/- per month. The petitioners with lot of hope

to get permanent employment after some period in the corporation,

they have joined for low monthly payment but years passing, they

did not get any assurance from the corporation. The petitioners

joined the service when they were young and energetic and all the

petitioners worked in the corporation with a hope that their

services would be regularized by absorbing as permanent

employees by the corporation authorities. It is submitted that the MSM,J WP.No.25434 of 2020

petitioners' services were not regularized till date and the action of

the respondents in discriminating the petitioners' amounts to

violation of Articles 14, 16, 21 and 39(d) of the Constitution of

India.

It is submitted that, respondents issued G.O.Ms.No.542

dated 31.08.2009 sanctioning minimum time scale to 310

employees working in different categories i.e. NMR/contract

workers of merged village/part time sweepers/bill

collector/safaiwalas/care takers/communities health volunteers/

ANMs, ignoring services of the petitioners herein.

It is submitted that the petitioners are appointed by the

respondents and utilizing the services of the petitioners for all

purposes continuously since long time without any further

enhancement in remuneration. Similarly, community health

volunteers appointed who stand on similar footing and on par with

the petitioners have been included in G.O.Ms.No.542 and granted

minimum time scales. It is submitted that, non-inclusion and

ignoring the names and services of the petitioners in

G.O.Ms.No.542 is nothing but discriminating the petitioners, in

violation of Articles 14, 16, 21 and 39(d) of the Constitution of

India.

The Government issued G.O.Rt No.333 dated 07.03.2011,

enhancing the remuneration of the contract/outsourcing

employees working in municipalities and municipal corporation to

Rs.6,700/- and that the Municipal Standing Committee had MSM,J WP.No.25434 of 2020

approved by way of Resolution No.547/2011 dated 09.11.2011 as

per G.O.Rt No.333 dated 07.03.2011, Balyam Teachers should be

paid maximum of Rs.6,700/- and Ayas should be paid Rs.2,000/-.

Despite the petitioners discharging their duties as Balyam

Teachers/Balyam Supervisors, the Municipal Corporation did not

regularize their services and finally, denied to extend the regular

time scale to these petitioners, inspite of their representations and

issued proceedings RC.No.16394/P.O (Balyam) dated 19.06.2017

contrary to the law declared by the Apex Court and also failed to

extend the time scale in terms of the principles laid down by the

Apex Court in State of Punjab v. Jagjit Singh and others

(referred supra), thereby, the proceedings are illegal, contrary to

law and violative of Articles 14, 16, 21 and 39(d) of the

Constitution of India and requested to grant the relief as stated

supra.

The Respondent Nos. 2 & 3 filed counter affidavit, while

denying material allegations, inter alia, contending that,

regularization of services of these petitioners and to grant

consequential benefits to the petitioners is not permissible under

law, as they are not entitled for regularization and that they are

not engaged by the respondent/municipal corporation at any point

of time, as such, question of regularization of their services, as

claimed by the petitioners does not arise. On this ground alone,

the petition is liable to be dismissed.

MSM,J WP.No.25434 of 2020

Respondent Nos. 2 & 3 further contended that, as per the

records available with the municipal corporation, the petitioners

were employed as Balwadi teachers, sewing teachers, adult

education and NFE (Non Formal Education) on outsourcing basis

and they were being paid their remuneration in order to upgrade

the children in slum and urban areas with the financial assistance

of ODA (under Visakha slum improvement project on the

recommendations of the neighbourhood committee on honorarium

basis, so as to have an effective cleanliness and hygiene

atmosphere in the Balwadi centers and the financial assistance

towards honorarium of the petitioners has been released through

self help groups and the petitioners were never engaged by the

corporation neither as NMRs nor on daily wage and they are

working on outsourcing basis by paying honorarium/

remuneration through third party agency, as such the petitioners

are not entitled to claim regularization in service.

It is submitted that, originally honorarium was being paid to

the petitioners at Rs.375/- and it was enhanced from Rs.375/- to

Rs.1300/- per month and the same was continued till 2011.

Subsequently, the honorarium was fixed at Rs.3,700/ with effect

from 01.04.2012 as the petitioners were working only for three

hours from 09:00 a.m to 12:00 noon and subsequently the

respondent corporation passed Resolution No.431/2016 dated

26.03.2016 enhancing the honorarium from Rs.3,700/ to

Rs.6,700/- while extending their agreement period from

01.04.2016 to 31.03.2017 as their outsourcing period came to be MSM,J WP.No.25434 of 2020

concluded by 31.03.2016. Accordingly the petitioners were being

paid their honorarium at Rs.7,000/- per month as per Council

Resolution No.1284/2018 dated 14.07.2018 till date.

While the things stood thus, the writ petitioners filed

W.P.No.10374 of 2013 before this Court seeking a direction to

sanction minimum time scale as per G.O.Ms.No.542 dated

31.08.2009 and sought to consider their representation dated

09.01.2013. This Court disposed of the writ petition directing the

respondent/corporation to dispose of the representation dated

09.01.2013 within a period of ten weeks, if not already disposed of.

Pursuant to the order passed by this Court in W.P.No.10374 of

2013 dated 17.04.2013 the respondent/Corporation disposed of

the representation dated 09.01.2013 through proceedings dated

19.06.2017 informing that the respondent/corporation has

considered their request for enhancement of honorarium at

Rs.6,700/- under Resolution No.431/20169 dated 26.03.2016 and

the petitioners have been receiving the same. The petitioners filed

C.C.No.1812 of 2017 alleging that the orders passed by this Court

in W.P.No.10374 of 2014 dated 17.04.2017 has not been complied

with, and the contempt case is pending for consideration.

It is submitted that, suppressing the above said facts, the

petitioners filed the writ petition seeking regularization of their

alleged service though the petitioners are not entitled for

regularization as they were not engaged by respondent corporation

on outsourcing basis through the third party agency i.e.

Mahavisakhi Mahila Samkshema Sangham on outsourcing basis, MSM,J WP.No.25434 of 2020

as such question of regularizing their services does not arise as

they were not engaged by the respondent/corporation and they are

working on outsourcing basis through the third party agencies and

they were being paid their remuneration on honorarium basis only.

Thereby, the alleged relationship of employee and employer is not

existing between the petitioner and Respondent Nos. 2 & 3 and

consequently they are not entitled either for extension of minimum

time scale or regularization of their services in the

respondent/corporation and requested to dismiss the writ petition.

During hearing, Sri P. Lakshmana Rao, learned counsel for

the petitioners would vehemently contend that the services of these

petitioners were engaged on temporary basis. But, the respondents

did not enhance the remuneration payable to these petitioners

from time to time. However, refused to extend the regular time pay

scale payable to the similarly situated persons and also refused to

regularise their services in terms of G.O.Ms.No.212 Finance &

Planning (FW.PC.III) Department, dated 22-04-1994 (for short

'G.O.Ms.No.212 dated 22.04.1994'). Learned counsel for the

petitioner contended that, the action of the respondents is illegal,

arbitrary and contrary to the principles laid down by the Apex

Court in State of Punjab v. Jagjit Singh and others (referred

supra), Amarkant Rai v. State of Bihar (referred supra) and

G.O.Ms.No.212 dated 22.04.1994 issued by the State Government

and requested to issue a direction as claimed in the writ petition.

Whereas, Sri S. Lakshminarayana Reddy, learned Standing

Counsel for Greater Visakhapatnam Municipal Corporation MSM,J WP.No.25434 of 2020

contended that, when G.O.Ms.No.542 dated 31.08.2009 has no

application, since the services of the petitioners are engaged on

outsourcing basis from Mahavisakhi Mahila Samkshema

Sangham, but not on contract basis or temporary or any other

basis, therefore, the petitioners contention that their services are

engaged on temporary basis is false and G.O.Ms.No.542 dated

31.08.2009 is applicable only to the categories of employees

engaged on temporary basis i.e. NMR/contract workers of merged

village/part-time sweepers/ bill collector/safaiwalas/ care

takers/communities health volunteers/ ANMs, but not applicable

to these petitioners whose services are engaged on outsourcing

basis, thereby, the writ petition is liable to be dismissed and

requested to dismiss the writ petition.

In view of rival contentions, the points needs to be answered

by this Court are:

1. Whether the services of these petitioners were engaged on outsourcing basis. If not, by any other mode. If so, whether the petitioners are entitled to claim benefit of equal pay for equal work, as laid down by the Apex Court in State of Punjab v. Jagjit Singh and others (referred supra) and regularization of their services in view of the judgment of the Apex Court in Amarkant Rai v. State of Bihar (referred supra)?

2. If, Point No.1 is answered in affirmative, whether proceedings impugned in the writ petition are liable to be set-aside, declaring the same as illegal, arbitrary and violative of Articles 14, 16, 21 and 39(d) of the Constitution of India?

MSM,J WP.No.25434 of 2020

P O I N T Nos.1 & 2:

In view of the issue involved in both the points, I find it

expedient to decide both the points by common discussion.

The main contention of the petitioners from the beginning is

that, the services of these petitioners are engaged by Respondent

Nos. 2 & 3 on different dates and they are discharging their duties.

But, the petitioners did not specify the nature of engagement of

their services in the corporation, more particularly, as to whether it

is on temporary basis, daily wage, casual, ad-hoc, contractual

basis or outsourcing basis. In the absence of any details regarding

engagement of the petitioners' services, it is difficult for this Court

to decide the issue involved in this matter. However, the petitioners

placed on record the proceedings in RC.No.16394/P.O (Balyam)

dated 19.06.2017, whereunder it is specifically mentioned that, in

terms of judgment of the High Court, the respondents passed

Resolution No.547/2011 dated 09.11.2011, enhancing the duty

time to eight hours instead of three hours from 31.03.2016, while

agreeing to pay Rs.6,700/-. The same is questioned before this

Court. However, the proceedings are silent as to the nature of

engagement of the services of these petitioners. Even in

W.P.No.10374 of 2013 filed before this Court, it was disposed of by

this Court with a direction to dispose of the representation dated

09.01.2013. As a consequence of this direction, the proceedings

impugned in this writ petition are issued.

MSM,J WP.No.25434 of 2020

The petitioners, except filing copy of the orders in various

writ petitions and miscellaneous petitions, no material is placed on

record to prove their contention that their services are engaged on

temporary basis, daily wage, casual, ad-hoc, contractual basis or

outsourcing basis. But simply, narrated the facts without

disclosing the nature of engagement of their services in the writ

affidavit. Whereas, Respondent Nos. 2 & 3 specifically contended

that the services of these petitioners were engaged on outsourcing

basis through third party agency i.e. Mahavisakhi Mahila

Samkshema Sangham on outsourcing basis, as such the services

of these petitioners cannot be regularized.

When the petitioners approached this Court contending that

their services were engaged by the corporation, it is for the

petitioners to disclose the nature of their appointment or engaging

their services of these petitioners as to whether it is on temporary

basis, daily wage, casual, ad-hoc, contractual basis or outsourcing

basis etc. But, for reasons best known to the petitioners, the

petitioners did not disclose the same.

The respondents placed on record the resolution passed by

Respondent Nos. 2 & 3 in proceedings RC.No.16394/P.O (Balyam)

dated 26.03.2016. According to resolution of municipal

corporation, they agreed to continue the outsourcing services of

these petitioners from 01.04.2016 to 31.03.2017 while fixing their

working hours from 9:00 a.m to 12:00 noon at GVMC Balyam

Vidya Kendras and from 12:00 noon to 5:00 p.m at the wards of

U.S.D Project Divisions, thereby ordered to work for total eight MSM,J WP.No.25434 of 2020

hours for a total remuneration of Rs.6,700/- for the said Balyam

Teacher/Supervisor to be paid by the third party agency.

Thus, it is evident from proceedings RC.No.16394/P.O

(Balyam) dated 26.03.2016, the corporation agreed to continue

engagement of these petitioners on outsourcing basis for another

year from 01.04.2016 to 31.03.2017 on payment of Rs.6,700/ per

month, and sanctioned an amount of Rs.81,99,192/- for the year

2016-2017. Therefore, the same is not questioned before this

Court, except the letter addressed by the respondent. From this

letter, it is evident that the petitioners' services are engaged on

outsourcing basis. Though Respondent Nos. 2 & 3 contended that

the services of these petitioners are engaged on outsourcing basis,

the petitioners did not file any rejoinder, denying or refuting the

said contention. In the absence of any rejoinder or reply to the

counter affidavit, denying the engagement of services of these

petitioners on outsourcing basis, this Court has no option except

to accept the contentions of the respondents that the services of

these petitioners are engaged on outsourcing basis through

Mahavisakhi Mahila Samkshema Sangham, as contended in the

counter affidavit, since it is not rebutted. Therefore, based on the

material on record, more particularly, resolution passed in

RC.No.16394/P.O (Balyam) dated 19.06.2017, the services of these

petitioners are engaged only on outsourcing basis, but not on

temporary basis, daily wage, casual, ad-hoc, contractual basis or

outsourcing basis. Accordingly the point is answered.

MSM,J WP.No.25434 of 2020

When the petitioners approached the Court seeking a

discretionary relief under Article 226 of the Constitution of India,

they must approach the Court with clean hands disclosing all

facts. When the petitioners approached the Court claiming relief of

regularization of services, and for extension of regular minimum

time scale, it is for the petitioners to disclose each and every detail,

more particularly nature of engagement of their services i.e.

whether they were appointed on temporary basis, daily wage,

casual, ad-hoc, contractual basis or outsourcing basis and

produce necessary documentary proof in support of their

contention, as the relief claimed under Article 226 of the

Constitution of India is purely discretionary and equitable. But, for

the reasons best known to the petitioners, the petitioners did not

disclose the details of the nature of engagement of their services

and no documentary proof is filed in support of the contentions of

these petitioners, since the initial burden is upon the petitioners to

establish the nature of their engagement of services in the

municipal corporation. Conveniently, the petitioners avoided to

disclose the nature engagement of their services for the reasons

best known to them. Thus, the petitioners also did not disclose the

orders passed by the Court in W.P.No.10374 of 2014 and

C.C.No.1812 of 2017 pending before this Court, thereby

suppressed a material fact which disentitled these petitioners to

claim discretionary and equitable relief under Article 226 of the

Constitution of India.

MSM,J WP.No.25434 of 2020

As discussed above, the petitioners did not approach this

Court with clean hands, but suppressed material fact i.e. nature of

engagement of their services by the respondent/corporation.

Therefore, the claim of these petitioners that they were appointed

in the corporation initially on payment of Rs.175/- and later

enhanced from time to time is hereby rejected, while holding that

the services of these petitioners are engaged on outsourcing basis

through Mahavisakhi Mahila Samkshema Sangham.

One of the contentions of these petitioners is that, when the

services of these petitioners are engaged by the respondents, they

are entitled to the benefit of G.O.Ms.No.212 dated 22.04.1994 for

regularization of their services.

No doubt, if the services of these petitioners are engaged on

temporary basis, daily wage, casual, ad-hoc, contractual basis, as

mentioned in G.O.Ms.No.212 dated 22.04.1994, the petitioners are

entitled to claim benefit under G.O.Ms.No.212 dated 22.04.1994.

A copy of G.O.Ms.No.212 dated 22.04.1994 is also placed on

record. According to G.O.Ms.No.212 dated 22.04.1994, the

Government on a careful examination of the whole issue and in

supersession of all previous orders on the subject, it had

formulated a scheme for regularization of services, as per which,

persons appointed on daily wage/NMR or on consolidated pay and

were continuing on the date of commencement of the Act should be

regularized in service, if they had worked continuously for a

minimum period of five years and were continuing on 25.11.1993,

subject to fulfilment of the following conditions:

MSM,J WP.No.25434 of 2020

1) The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularized.

2) They should be within the age limits as on the date of appointment as NMR/Daily wage employee.

3) The rule of reservation wherever applicable will be followed and back-log will be set-off against future vacancies.

4) Sponsoring of candidates from Employment Exchange is relaxed.

5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee.

6) In the case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of workcharged establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade Service.

The benefit of G.O.Ms.No.212 dated 22.04.1994 can be

extended only to the persons appointed on daily wage/NMR or

persons appointed on consolidated pay etc., if they had worked

continuously for a minimum period of five years and were

continuing on 25.11.1993. But, in the present case, the

petitioners' services were not engaged on daily wage basis or NMR

or on consolidated pay. But, their services were engaged on

outsourcing basis through an agency known as Mahavisakhi

Mahila Samkshema Sangham. Hence, the petitioners are

disentitled to claim the benefit of G.O.Ms.No.212 dated 22.04.1994

for regularization of their services, since, it is not their claim that

their services were engaged either as daily wage or as NMR or on

consolidated pay and worked continuously for a period of five years MSM,J WP.No.25434 of 2020

as on 25.11.1993 while in service as on date of the G.O.Ms.No.212

dated 22.04.1994 came into force.

The major contention of the petitioners is that, the

petitioners are entitled for regularization of their services and in

support of their contention, learned counsel for the petitioners

relied on judgment of the Apex Court in Amarkant Rai v. State of

Bihar (referred supra), wherein the Apex Court while dealing with

the case of regularization of a clerk engaged on daily wage basis

was considered, noted the principle laid down in Secretary, State

of Karnataka and Ors. v. Uma Devi and Ors (referred supra),

State of Karnataka v. M.L. Kesari3 and Nihal Singh v. State of

Punjab4 concluded that the appellant who was temporarily

appointed in Class IV post of night guard by Principal of College

who was not competent authority to make such appointment,

serving on said post for 29 years on daily-wage basis, appointment

of appellant was out of necessity and concern for college and duly

intimated to University in 1988. No issue was raised by the

University pertaining to appointment of appellant as ultra vires of

the Bihar State Universities Act, 1976. The Supreme Court held

that appointment of appellant cannot be termed as illegal, but was

only irregular. Besides, as per sanctioned staffing pattern, there

were two vacant posts of Class IV employees in college and the

appellant was appointed against them. Moreover, in terms of

Resolution No.989 dated 10.05.1991 issued by Government,

employees working up to 10.05.1986 were to be adjusted against

(2010) 9 SCC 247

(2013) 14 SCC 65 MSM,J WP.No.25434 of 2020

vacancies arising in future. Thus, though appellant was appointed

in 1983 temporarily against unsanctioned post, but he was entitled

to regularization pursuant to said resolution. Case of appellant fell

in exception carved out in Umadevi case (referred supra)wherein it

was held that though appointments made against temporary or

adhoc posts were not to be regularized, but irregular appointments

of duly qualified persons in duly sanctioned post who had worked

for 10 years or more could be considered on merit and as one-time

measure could be regularized. Hence held, considering that

appellant was duly qualified for post and had unblemished record

for over two decades, his services directed to be regularised w.e.f

03.01.2002 or date on which post became vacant whichever was

later but without monetary benefit.

The facts of the present case are distinguishable from the

facts of Amarkant Rai v. State of Bihar (referred supra), an

employee was appointed temporarily and it is an irregular

appointment. But, here in this case, these petitioners were engaged

on outsourcing basis through an agency known as Mahavisakhi

Mahila Samkshema Sangham. Therefore, the principle laid down

in Amarkant Rai v. State of Bihar (referred supra) has no

application to the outsourcing services of employees.

Curiously, learned counsel for the petitioner also further

drawn attention of this Court to the judgment of the learned single

Judge in G. Srinivasa Chary v. The State of Telangana5. In the

said judgment, the learned single Judge went to the extent of

W.P.No.47675 of 2018 dated 07.08.2020 MSM,J WP.No.25434 of 2020

making serious observations about engaging the services of the

employees on outsourcing basis and noted the principle laid down

in Hussainbhai v. Alath Factory Thezhilali Union6, where the

Court laid down the test to decide the relationship of employee and

employer and Court held that mere contracts are not decisive and

the complex of considerations relevant to the relationship is

different; and that where a worker or group of workers labours to

produce goods or services and these goods or services are for the

business of another, that other is, in fact, the employer. He has

economic control over the workers' subsistence, skill, and

continued employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of intermediate

contractors with whom alone the workers have immediate or direct

relationship ex contractu is of no consequence when, on lifting the

veil or looking at the conspectus of factors governing employment,

we discern, though draped in different perfect paper arrangement,

that the real employer is the Management, not the immediate

contractor. The Court explained:

"mere contracts are not decisive and the complex of considerations relevant to the relationship is different. Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the Rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine-spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner.

5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or

1978 AIR 1410 MSM,J WP.No.25434 of 2020

services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.

6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."

( emphasis supplied)

Based on the test laid down by the Apex Court in the

judgment referred supra, the learned single Judge of Telangana

High Court concluded that there is relationship of employee and

employer between the department and the outsourced employee,

ignoring the intermediary contractor or outsourcing agency. But, at

this stage, it is relevant to refer certain principles laid down by the

Apex Court to determine the relationship of employee and

employer.

The determination of whether an individual is an employee

or independent contractor depends upon whether or not a

"employer-employee" relationship exists between the payer and the

payee. Normally an employee is subject to the direct supervision of MSM,J WP.No.25434 of 2020

their employer who controls the manner in which tasks are

performed. An independent contractor works independently to

achieve a specified result.

There are a number of considerations when evaluating

whether an individual is an employee or an independent contractor

for income tax purposes, and the courts over the years have

developed key tests to assist in determining this. Four of the most

significant tests are:

1. Control test

This test deals with the ability of the company or institution to

control the actions of the individual. The distinction to be made is

whether a contract between the individual and the University is a

contract for service or a contract of service. Revenue Canada's IT

525 states that:

"A contract of service generally exists if the [University] has the right to control the amount, the nature, and the management of the work to be done and the manner of doing it. A contract for services exists when a person is engaged to achieve a defined objective and is given all the freedom required to attain the desired result."

In addition to this is the ability, where possible, of the

contractor to control the place of work and the ability to delegate

items to others.

The University specifies the courses (and curriculum) to be

taught, as well as the times and locations of these courses. In

addition to this degree of control is the integration of the courses

into the business of the University, and the requirement to co-

MSM,J WP.No.25434 of 2020

ordinate all efforts toward the objective of education, according to

the standards and policies established for the institution. These

factors preclude entering an independent contractor relationship.

2. Economic reality test

This test deals with the economic practices of the individual. If the

individual has ultimate responsibility for the profit or loss of the

contract, then this test would indicate a self-employed situation.

Where there is financial risk, opportunity to profit or possibility of

loss and responsibility for costs, it is inferred that the taxpayer is

an independent contractor. On the other hand, where these

elements do not exist, there is an inference of employment. The

extent to which the individual uses the property of the employer

(i.e. classroom, learning resource materials, audio-visual

equipment, tools, etc.) in the course of the contract is also

considered.

3. Specific results test

This test deals with the nature of the service provided. If an

individual is contracted to achieve a certain objective or result,

then the service provided would indicate that the individual is an

independent contractor. If, however, the contract is for personal

services with no specific objective, the contract would resemble one

for employment. In other words, this test looks to whether the

alleged employee is required to make their services available on an

ongoing basis or whether services are made available to achieve a

specified result.

MSM,J WP.No.25434 of 2020

4. Integration test

This test deals with the individual's degree of involvement in the

organization. This test presupposes that if the services provided by

an individual are integral to the organization, then their

involvement is one of employee. If the services can be viewed as

part of a separate business of the individual who provides the

services, the individual may then be viewed as an independent

contractor. The courts have tended to downplay this test, however,

on the basis that businesses can be mutually dependent on each

other without a "master-servant" relationship.

If, these tests are applied to the present facts of the case,

though the respondent herein is a principal employer, the

outsourcing system is totally different from contract of

employment. If the contract of employment is directly between the

employee and employer, there is direct relationship of employee

and employer. But, here, due to intervention of an intermediary,

the respondents have no control over them and the agency may

deploy anyone of the persons who are on the rolls to do certain

work. Hence, the principle applicable to contract employment

cannot be applied to the outsourced employees. But, the learned

single Judge of Telangana High Court observed that the

respondents cannot avoid recruitment to the post in question to

engage persons like the petitioners through intermediaries/

contractors thorough the system of "outsourcing", pay them paltry

wages, and deny them regularisation of services basing on the

decision in Uma Devi case (referred supra) entitles them to deny MSM,J WP.No.25434 of 2020

relief of regularisation. They cannot take advantage of their own

wrong. Engagement of the persons like the petitioners through

outsourcing agencies/ intermediates violates the law laid down in

Uma Devi case (referred supra). Based on such serious

observations, the learned Single Judge of Telangana High Court

concluded that, engaging services of an employee on outsourcing

basis is a camouflage and such employees are also entitled for

regularization. But, it is difficult for me to accept this principle in

view of the law laid down by the Apex Court in view of the

judgment in Amarkant Rai v. State of Bihar (referred supra).

Hence, in view of the principle laid down in Amarkant Rai v.

State of Bihar (referred supra), I am unable to agree with the

decision of the learned single Judge of Telangana High Court in G.

Srinivasa Chary v. The State of Telangana (referred supra),

though it has got persuasive value.

In Gade Basaveswara Rao and others v. Government of

Andhra Pradesh7, similar question came up for consideration

before High Court of Andhra Pradesh, but the learned single Judge

did not lay down any law. Therefore, considering the facts and

circumstances of the case and the law declared by the Apex Court

and the judgment referred above, the employees engaged on

outsourcing basis i.e. through an intermediary i.e. Mahavisakhi

Mahila Samkshema Sangham are not entitled to claim

regularization.

W.P Nos.18988 of 2014 and batch dated 14-09-2016 MSM,J WP.No.25434 of 2020

The bone of contention of the petitioner is that, in view of

G.O.Ms.No.212 dated 22.04.1994, the contract employees are

entitled for regularization of their services, subject to satisfying the

conditions mentioned in G.O.Ms.No.212 dated 22.04.1994, which I

extracted in the earlier paragraphs. The employees whose services

are engaged on outsourcing basis are not included in

G.O.Ms.No.212 dated 22.04.1994, but only daily wage/NMRs/

employees engaged on consolidated pay were included in the G.O,

as on the date of enactment of the Act. Consequently,

G.O.Ms.No.212 dated 22.04.1994 has no application to the

outsourcing employees.

In view of my foregoing discussion, I find that these

petitioners are not entitled to claim regularization, being the

employees engaged by Respondent Nos. 2 & 3/Municipal

Corporation for discharging their duties on outsourcing basis

through Mahavisakhi Mahila Samkshema Sangham.

Turning to the other contention regarding payment of time

scale, the petitioners relied on the impugned memo issued to this

petitioners which is now challenged in RC.No.16394/P.O (Balyam)

dated 19.06.2017. According to this memo, the petitioners have to

discharge their duties for eight hours in a day, like a regular

employee. When the petitioners are discharging services on par

with regular employees, on payment of enhanced meagre amount

of Rs.6,700/-, the petitioners are entitled to claim minimum time

scale to pay in terms of the judgment of the Apex Court in State of

Punjab v. Jagjit Singh and others (referred supra), where the Apex MSM,J WP.No.25434 of 2020

Court held that, 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

summarized in paragraph 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 summarized, in paragraph 44 hereinabove.

The above legal position which has been repeatedly declared, is

being reiterated, yet again. 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 discharging responsibilities. Certainly not, in a

welfare state. Such an action besides being demeaning, strikes at

the very foundation of human dignity. Any one, 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 dependents 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, MSM,J WP.No.25434 of 2020

suppressive and coercive, as it compels involuntary subjugation.

Rest, leisure and reasonable limitation of working hours and

periodic holidays with pay, as well as remuneration for public

holidays." 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. 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

determination is, whether the concerned employees (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'. However, insofar as the instant aspect of the matter is

concerned, it is not difficult to record the factual position. 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 concerned temporary MSM,J WP.No.25434 of 2020

employees 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. There can be no doubt, that the

principle of 'equal pay for equal work' would be applicable to all the

concerned temporary employees, so as to vest in them the right to

claim wages, at par with the minimum of the pay-scale of regularly

engaged Government employees, holding the same post."

In view of the principle laid down by the Apex Court in the

above judgment, when the petitioners are working though on

outsourcing basis, on payment of meagre salary while discharging

duties on par with regular employees, they are entitled for

minimum scale in terms of judgment and in consonance with

Article 39(d) of the Constitution of India. Non-payment of salary on

par with the regular employees extending minimum time scale of

pay to the petitioners amounts to arbitrary exercise of power and

that the petitioners are solely living on the income they earn from MSM,J WP.No.25434 of 2020

the employment. It is not sufficient for an ordinary living person to

live with dignity of life. Therefore, extracting services for eight

hours as per the impugned memo, on payment of Rs.6,700/- per

month, besides engaging their services for different purposes as

averred in the affidavit is nothing but exploitation of the situation,

as the petitioners are unemployees who are discharging their

duties with fond hope that their services will be regularized,

amounting to violation of right to life guaranteed under Article 21

of the Constitution of India, as the petitioners are expected to live

with dignity and not as animal existence, life does not mean

animal existence. Thus, the respondents violated fundamental

right guaranteed under Article 21 of the Constitution of India.

One of the contentions of the petitioners before this Court is

that, though it is a fundamental duty under Article 13(1)(b) of the

Constitution of India and not enforceable in a Court of Law, still, it

is the obligation of the State to give effect to such an article under

the Constitution of India. A similar question came up before the

Apex Court in Nehru Yuvak Kendras8 and the Apex Court

concluded that, 'Doctrine of Equal Pay for Equal Work' was a mere

abstract doctrine and that it was not capable of being enforced in a

Court of Law. He referred us to the observations of this Court

in Kishori Mohanlal Bakshi v. Union of India9. But, this view

was not accepted by the Apex Court in Suminder Singh and

another v. Engineer-in-Chief, C.P.W.D10, where the Apex Court

held that it was a peculiar attitude to take on the part of the

8 1986 SCC (L&S) 187

A.I.R. 1962 S.C. 1139

AIR 1986 SC 584 MSM,J WP.No.25434 of 2020

Central Government to say that they would pay only daily wages

and not the same wages as other similarly employed employees,

though all of them did identical work. The court said that, this

argument lies ill in the mouth of the Central Government for it is

an all too familiar 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.

In view of the judgment of the Apex Court referred supra,

State is not expected to raise such contention while avoiding it's

fundamental duty i.e. payment of equal pay for equal work.

Similar case came up before the Apex Court in State of

Punjab v. Jagjit Singh and others (referred supra), wherein the

Apex Court described such practice of avoidance to pay equal pay

for equal work as an exploitative enslavement and called the

various fallacious terms used by employers to classify and

discriminate their employees as 'artificial parameters to deny fruits

of labour'. Such classifications resulting in disparity and denial of

the principle of "equal pay for equal work" is nothing short of

"oppressive, suppressive and coercive" conduct by employers

which is antithetical to the ideal of a Welfare State.

The Apex Court further observed that, "An employee engaged

for the same work cannot be paid less than another who performs MSM,J WP.No.25434 of 2020

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" and classified such act as

involuntary subjugation to the will of the employer. "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," the

Supreme Court emphasized with the condition of a helpless

employee. The Supreme Court also referred to Article 7 of the

International Covenant on Economic, Social and Cultural Rights of

1966, observed that "any act of paying less wages, as compared to

others similarly situated, constitutes an act of exploitative

enslavement, emerging out of a domineering position.

It is appropriate to deal with the issue of payment of 'equal

pay for equal work' in constitutional perspective, in view of the

argument of the learned counsel for the petitioners and

respondents. The legal principle of "equal pay for equal work" is

contained in Article 39(d), part IV of the Constitution of India. It

states that the State should direct its policy towards securing the

objective that there is an equal remuneration for both men and

women. It indicates that where the work is same, all the

circumstances and considerations are similar then the people

holding identical posts or ranks shall not be treated in a different

way on the basis of the gender.

MSM,J WP.No.25434 of 2020

In Randhir Singh v Union of India11, it was held by

Supreme Court that though this doctrine is mentioned under Part

IV of the Constitution and it does not have a status of a

Fundamental Right, but it is certainly regarded as a constitutional

goal. Therefore, it can be enforced through the remedies provided

under the Article 32 of the Constitution. The Apex Court in

Deb Narayan Shyam v. State of West Bengal12 has also held that

this principle can only be invoked if there is a similarity in the

nature of the job and it carries the same qualification otherwise it

cannot be said to qualify the doctrine. This Article aims to

establish equality between men and women and to ensure that

there is equal status of individuals in India. This doctrine seeks to

balance the rights of individuals and try to promote respect, equity

and respect. The Preamble of the Constitution seeks to achieve and

provide social, economic and political justice to all the citizens of

the country. Article 14 guarantees equality within the Indian

Territory and Article 15 prohibits discrimination on the grounds of

sex, religion, caste etc. Hence the Constitution treats each and

every citizen equal and further provides them with equal right. The

same principle was also laid down in Dharwad District P.W.D.

Literate Daily Wage Employees Association and others v. State

of Karnataka and another13.

The International Covenant on Economic, Social and

Cultural Rights reiterates the equal right of men and women to the

enjoyment of all human rights mentions that the State Parties to

(1982) LLJ 344

(2005) 2 SCC 286

(1991) II LLJ 328 (SC) MSM,J WP.No.25434 of 2020

the Covenant shall provide basic rights to the people with respect

to the equal remuneration for equal work and women shall not be

treated inferior to men. The same has been provided by the

European Social Charter under Article 4(9).

As on date, the unemployment in the State reached peak

levels and in the forced circumstances, the educated youth are

accepting the employment either on outsourcing basis and

contract basis or on any other basis for meagre salary for their

survival. But, the State Government is taking advantage of the

unemployment of the youth and failed to provide employment and

avoiding to pay minimum pay scales to the State. Thus, the State

is taking advantage of it's own failure by inventing different modes

of selection of employment and disowning its duty to generate

employment and pay equal pay for equal work. Such act of the

State is contrary to the International Covenant on Economic,

Social and Cultural Rights of 1966, besides disowning it's

responsibility under Article 39(d) of the Constitution of India.

In any view of the matter, whether it is taken in international

perspective or constitutional perspective, the State is under

obligation to pay equal pay for equal work to the persons who are

similarly situated. But, time and again, the Government by is

adopting several modes to avoid payment of equal pay for equal

work and outsourcing system is one such invention to avoid

payment to the employees engaged on outsourcing basis though

they are discharging their duties on par with regular employees

and sometimes working more than the regular employees. The MSM,J WP.No.25434 of 2020

State, instead of generating employment and providing

employment to the qualified youth, is adopting oppressive methods

to get the work done for minimum payment, while making the

employees and their family members to starve, for the reason that,

hardly it is difficult to maintain their family with the meagre

amount paid to the outsourcing employees while insisting to work

for eight hours or more and in those circumstances, failure to

extend the benefit of equal pay for equal work is nothing but

failure of the State to discharge it's fundamental duty enshrined

under Article 39(d), part IV of the Constitution of India.

In view of the law laid down by the Apex Court in State of

Punjab v. Jagjit Singh and others14 and other judgments,

including law declared by the Apex Court in constitutional

perspective and international perspective, more particularly, with

reference to employees rights, failure of the respondents to pay

equal pay for equal work would constitute violation of fundamental

right under Articles 14 and 21 of the Constitution of India, and

International Covenants referred supra.

One of the contentions of these petitioners is that, issuing

notification without informing these petitioners is illegal and

contrary to G.O.Ms.No.542 dated 31.08.2009 on the letter

addressed by Commissioner, Greater Visakhapatnam Municipal

Corporation, for regularization of certain NMR/contract workers of

merged village/part time sweepers/bill collector/safaiwalas/care

takers/communities health volunteers/ ANMs working in Greater

AIR 2016 SCC 5176 MSM,J WP.No.25434 of 2020

Visakhapatnam Municipal Corporation. The proposal was accepted

and permitted to regularize the services of those employees

extending minimum time scale of pay.

No doubt, the respondents denied regularization of these

petitioners and engaged their services on payment of meagre

amount of salary. When part time workers or NMRs are

regularized, they are entitled to get minimum time scale of pay

prescribed for the post they are discharging their duties for limited

office hours, whereas, these petitioners are discharging their duties

for eight hours as per the proceedings impugned in the writ

petition. When these petitioners are discharging their duties for

eight hours, they are entitled to get equal pay in terms of Article

39(d) of the Constitution of India, otherwise, it amounts to

discrimination, which is prohibited under Article 14 of the

Constitution of India.

When the act of the State is arbitrary and exploiting the

situation of unemployment by paying meagre amount as salary,

engaging the services of these petitioners on outsourcing basis,

such act can be described as discriminatory and arbitrary and the

Court can exercise power under Article 226 of the Constitution of

India and declare such action as discriminative and arbitrary.

Therefore, by following the principle laid down by the Apex Court

in State of Punjab v. Jagjit Singh and others (referred supra), I

find that it is a fit case to issue a direction to the respondents to

extend minimum time scale of pay to the petitioners who are

discharging their duties for eight hours in a day on par with MSM,J WP.No.25434 of 2020

regular employees of the same cadre. Accordingly, the point is

decided partly in favour of the petitioners.

One of the contentions of the petitioners is that, the memo

impugned is illegal and arbitrary.

As discussed above, the petitioners are entitled for minimum

time scale of pay and they are bound to serve during regular office

hours of an employee on par with regular employees of the same

cadre. Therefore, the petitioners are estopped to raise such

contention while claiming minimum time scale of pay based on

their office hours and they cannot approbate and reprobate.

Therefore, RC.No.16394/P.O (Balyam) dated 19.06.2017 cannot be

declared as illegal and arbitrary and not liable to be set-aside,

when a direction is issued to extend minimum time scale of pay to

these petitioners of same cadre of regular employees.

In view of my foregoing discussion, writ petition is allowed-

in-part, while directing the respondent/Municipal Corporation to

extend minimum time scale on par with regular employees of the

same cadre, while declining to direct the respondents to regularise

the services of these petitioners and to set-aside the impugned

proceedings RC.No.16394/P.O (Balyam) dated 19.06.2017.

Consequently, miscellaneous applications pending if any,

shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:16.04.2021

SP