Amol Vitthal Ohale vs The State Of Maharashtra And Ors
2021 Latest Caselaw 1936 Bom

                                                       930-931-WPST-94001-98003-2020.DOC
           Digitally signed
Jitendra   by Jitendra S.
S.         Nijasure
           Date: 2021.02.04
Nijasure   11:38:51 +0530



                jsn

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                              WRIT PETITION (ST.) NO.94001 OF 2020
                 Amol Vitthal Ohale                                      ... Petitioner
                      V/s.
                 The State of Maharashtra & Ors.                     ...Respondents

                                             WITH
                            WRIT PETITION (ST.) NO.98003 OF 2020
                 Naushad Ismail Pathan                          ... Petitioner
                      V/s.
                 The State of Maharashtra & Ors.             ...Respondents


                 Mr. Pramod A. Kulkarni with Akshay S. Tilve for the Petitioners.
                 Mr. S.S. Panchpor, AGP for State in WP St. No.94001 of 2020.
                 Mr. R.P. Kadam, AGP for State in WPST No.98003 of 2020.
                 Mr. Anand Kulkarni, for Respondent No.5.

                                      CORAM:            K.K.TATED AND
                                                        R.I. CHAGLA, JJ.

DATE : 29TH JANUARY, 2021.

O R A L O R D E R (Per R.I. Chagla, J.)

1. Rule. Rule made returnable forthwith. Heard by consent of

parties.

2. These Writ Petitions are filed under Article 226 of the

Constitution of India for identical relief. Hence they are being

disposed of by this common order.

3. The Petitioners have by these Writ Petitions sought a

direction against Respondent No.5 to pay wages to the Petitioners

at the minimum of the pay scale (at the lowest grade in the regular

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pay scale) extended to the regular employees holding the same

post.

4. The Petitioners are working as ambulance drivers on

contractual basis, the contract being given by Respondent No.5. It

is specifically stated in the Petition that the Petitioners have

restricted their relief to the extent of equal work, equal pay and on

parity with the regular drivers in class III category.

5. Mr. Pramod Kulkarni, learned Counsel appearing for the

Petitioners in both the Petitions has submitted that the issue

involved in these Petitions is covered by the view taken by this

Court (Nagpur Bench) in its judgment dated 20th November, 2019

in the case of Dhiraj S/o. Sudhakarrao Wankhede & Ors. Vs. The

Zilla Parishad, Chandrapur & Ors.1.

6. Mr. Anand Kulkarni, learned Counsel for Respondent No.5 -

Zilla Parishad has placed reliance upon the Affidavits in Reply filed

in the two Petitions. He has submitted that the Petitioners are

employees of S. P. Security Services Pvt. Ltd. and the present

Petitions are not maintainable against Respondent No.5 who had

awarded contract to S. P. Security Services Pvt. Ltd. and despite

930-931-WPST-94001-98003-2020.DOC

which the Petitioners have not made S. P. Securities Pvt. Ltd. as

party Respondents in both the Petitions.

7. He has submitted that the officer of Respondent No.5 -

Solapur Zilla Parishad had published an advertisement inviting e-

tenders for supply of 76 drivers in Primary Health Centres in

Solapur District which are under the control and supervision of

Zilla Parishad, Solapur. As S.P. Security Services Pvt. Ltd. was the

lowest and successful bidder, Respondent No.5 by its order dated

29th October, 2016 awarded the contract to them for supplying 76

drivers in Primary Health Centres in Solapur District for the period

from 1st November, 2016 to 31st October, 2017 and later on the

period was extended by order dated 26th March, 2018. He has

submitted that Respondent No.5 is neither the appointing authority

of the Petitioners nor have they paid any salaries to the Petitioners

and therefore, there is no employer and employee relationship

between the Petitioners and Respondent No.5. Hence it is

submitted that the decision of this Court in Dhiraj Wankhede

(Supra) relied upon by the Petitioners is not applicable to the

Petitioners. He has further submitted that the representations

have been made by the Petitioners in both Petitions dated 1st

July, 2020 to the Respondent No.5 seeking the same relief as

prayed for in the Petitions and which representations are still

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pending before Respondent No.5 and accordingly the Petitions be

dismissed as not maintainable.

8. Having considered the submissions it would be necessary

to consider whether the decision of this Court in Dhiraj Wankhede

(Surpa) is applicable to the Petitioners in the present Petitions.

9. In identical Petitions viz. Nagendrayya P. Hiremath & Ors.

Vs. The State of Maharashtra2 with companion Petitions which

also concerned the Petitioners who were ambulance drivers in the

establishment of Respondent No.5 - Zilla Parishad, Solapur on

contractual basis, the Division Bench of this Court (Coram :- K.K.

Tated & N.R. Borkar, JJ.) by order dated 8th December, 2020 in

paragraph 5 and 6 held as under:-

5. This Court, in the judgment relied on behalf of the petitioners, in the matter of Dhiraj S. Wankhede (Supra) has held:-

'9. The other relief claimed by the petitioners is about pay parity with the regular drivers in Class-III category. In this regard the law has been settled by the Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. reported in (2017) 1 SCC 148.

10. The Hon'ble Supreme Court has held that no artificial parameters can be devised to deny the fruits of labour when an employee performs the same work as another employee. The Hon'ble Apex Court has further held that no

2 Writ Petition (St.) No.92250 of 2020.

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artificial distinction can be made between such two employees, whereby one is given higher salary and another is paid lower salary. Relevant observations of the Hon'ble Apex Court appearing in paragraph no.58 of the judgment are reproduced as below:-

"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 dependents would suffer immensely, if he does not accept the lesser wage. Any act or 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."

11. It is clear that the Hon'ble Supreme Court has held that when one employee discharges / performs same work as another employee, there cannot be any distinction between the two employees so far as the application of the pay scale to both of them is concerned. The Hon'ble Apex Court has further held that all the temporary employees who are performing similar work as the regular employees 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. This relief would also have to be granted to all the petitioners as there is no dispute that their work is similar to the work of the regular drivers."

6. The fact that the petitioners in above referred judgment were contractual employees is not disputed. We are, therefore, of the opinion that the issue involved in all these petitions is covered by view taken by this Court in its judgment dated 20.11.2019 in above referred writ petition. Accordingly, the following order is passed.

(a) Writ Petition is disposed of.

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(b) The Petitioners be paid wages at the minimum of the pay scale at the lowest grade, in the regular pay scale extended to the regular employees holding the same post with effect from the date of the petition.

(c) The respondent No.5 is directed to comply with this order within six months from today.

10. The Division Bench in Nagendrayya P. Hiremath & Ors.

(Supra) by holding that the issue involved therein was covered by

the view taken by this Court (Nagpur Bench) in Dhiraj S.

Wankhede (Supra) granted the relief sought for and allowed these

Petitions. Considering the view taken therein and the issue herein

having been decided, the relief sought for herein would also be

required to be granted. Further, an identical stand had been taken

by the Respondent No.5 - Zilla Parishad, Solapur in Nagendrayya

P. Hiremath & Ors. (Supra) viz that the Petitioners are employees

of S.P. Security Pvt. Ltd. to whom the contract to provide the

drivers was awarded and that the Petitioners were neither

appointed by the Respondent No.5 nor was there any relationship

of employer and employee between Respondent No.5. It had also

been contended therein that the Petitioners had made

representations dated 1st July, 2020 to the Respondent No.5 for

the same relief as sought in the Petitions and which

representations were pending. We are surprised to note that

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despite these very submissions raised therein, the same

submissions have been made in the present Petitions.

11. Since, this Court has in the identical Petitions in

Nagendrayya P. Hiremath & Ors. (Supra) already held that the

Petitioners are entitled to be paid wages at minimum of the pay

scale (at the lowest grade, in the regular pay scale) extended to

the regular employees holding the same post, the Petitioners

herein would also be entitled to be granted the relief.

12. Accordingly, we pass the following order:-

(a) The Petitioners shall be paid wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale) extended to the regular employees holding the same post with effect from the date of the Petitions.

(b) The respondent No.5 is directed to comply with this order within six months from today.

(c) Rule made returnable in the above terms.

      (d)    No order as to costs.




             ( R. I. CHAGLA J. )                   ( K.K. TATED, J. )