Shib Narayan Routh vs Director General
2021 Latest Caselaw 4543 Cal

07.09.2021 SL No.11 Court No.16 (gc) WPST 23 of 2021

Shib Narayan Routh Vs.

Director General, West Bengal Fire Service & Ors.

(Via Video Conference)

Mr. Swapan Kr. Nandi, Mr. Sibnarayan Chattopadhyay, ...for the Petitioner.

Mr. Kishore Dutta, Ld. A.G., Mr. Anirban Ray, Ld. G.P., Mrs. Kakali Samajpaty, Mr. Sayan Ganguly, ....for the State.

The writ petitioner is a Sweeper engaged on a daily

rated basis since 5th June, 1993. He applied for

regularization. His prayer was rejected by the Labour

Department in its communication dated 7th April, 2004 on

the ground that his appointment is irregular. The Petitioner

approached the Tribunal challenging the said order and in

the said proceeding he has prayed for absorption. The

impugned order under challenge before the Tribunal dated

7th April, 2004 was passed in connection with an order

passed in an earlier proceeding initiated in the year 2001 in

which the writ petitioner claimed absorption in the post of

Sweeper under Uttarpara Fire Station. The Tribunal

rejected the prayer on the ground that when the petitioner

failed to produce any initial appointment letter and in

absence of any satisfactory document regarding existence of

any sanctioned post against which the writ petitioner was

engaged and when the Circular dated 13th March, 1996 is

staring at the face, the prayer for the writ petitioner could

not be allowed. The Tribunal read the word "irregular" in

the impugned order dated 7th April, 2004 as "illegal". This

order is under challenge before us.

At the outset, we must say that the Tribunal has put

the onus on the writ petitioner as Sweeper without requiring

the authorities to discharge their initial onus of showing the

manner of his engagement and since when he was engaged.

It was within the special knowledge of the employer and,

accordingly, direction ought to have been given to the

employer to produce all the relevant documents to show on

what basis he was engaged since 5th June, 1993. In the

impugned order dated 7th April, 2004, the Labour

Department has categorically stated that the writ petitioner

was engaged as Sweeper at Uttarpara Fire Station on daily

rated basis since 5th June, 1993. In order to avoid any

confusion, the relevant portion of the impugned order dated

7th April, 2004 issued by the Officer-on-Special Duty & Ex.

officio Deputy Secretary, Labour Department, Government of

West Bengal is reproduced hereinbelow:-

"It is observed that in terms of Labour Deptt's aforesaid Memo. No.100-Emp., dated 13-03-96, the Casual Worker's who were engaged prior to 31-12-91 with the prior approval of the Labour Deptt. and the Finance Deptt. And who fulfilled the terms and conditions laid down in the Labour Deptt's Memo. No.1700-Emp., dated 3-8-79, read with Memo No.1650- Emp., dated 28-08-80, are eligible for consideration of absorption against regular vacancies and that those

Casual Workers who were engaged after 31-12-91 are not entitled to such absorption.

It appears that the petitioner, Shri Shib Narayan Routh was engaged after 31-12-91 as Casual Worker in Uttarpara Fire Services without prior approval of the Labour Department and the Finance Department as required in terms of Para 5 of the Labour Deptt's Circular No.100-Emp., dated 13-3-96, this engagement as Daily-rated Sweeper is, therefore, irregular."

The authorities did not appear before the Tribunal. In

absence of any pleadings before the Tribunal it was

incumbent upon the Tribunal to accept the pleadings and to

decide the onus on the well-established principle that any

person having special knowledge of fact is required to prove

the fact. A Sweeper cannot be asked to produce any initial

letter of appointment to substantiate his claim. The very

fact that he was engaged on a daily rated basis since 5th

June, 1993 and was not considered for absorption under

any scheme clearly militates against the principle of social

justice enshrined in our Constitution. There is a complete

failure to achieve the constitutional object as continuation of

such person to function as a Sweeper on a daily rated basis

for time immemorial at a meagre pay is like treating the

petitioner as a bonded labour. The Labour Department did

not consider the appointment as illegal but irregular. It is

true that the Labour Department has stated in the

impugned communication dated 7th April, 2004 that the

Casual Workers who were engaged prior to 31st December,

1991 with the prior approval of the Labour Department and

the Finance Department and who fulfilled the terms and

conditions laid down in the Labour Department's Memo.

No.1700-Emp., dated 3rd August, 1979, read with Memo

No.1650-Emp., dated 28th August, 1980 are eligible for

consideration of absorption against regular vacancies and

that those Casual Workers who were engaged after 31st

December, 1991 are not entitled to such absorption. The

said impugned order was issued prior to Secretary, State

of Karnataka & Ors. Vs. Uma Devi (3) & Ors. reported at

(2006) 4 SCC 1. Uma Devi (3) (supra) was considered by us

along with other decisions in WPCT 62 of 2020 (Union of

India & Ors. Vs. Subrata Mondal & Anr.) dated 20th July,

2021 and WPST 180 of 2019 (Abdul Azad Vs. State of

West Bengal & Ors.) dated 31st August, 2021.

The said decisions have also taken into consideration

State of Karnataka & Ors. Vs. M.L. Kesari & Ors.

reported at (2010) 9 SCC 247 where Paragraph 53 of Uma

Devi (3) (supra) was considered in Paragraph 8 of the said

judgment. The Government was not unmindful of the fact

that the daily rated workers need to be absorbed under a

scheme pursuant to the direction passed in Uma Devi (3)

(supra), in fact, the petitioner continued to work since 1993

till today without any Court order and in the facts and

circumstances of the case, we feel that Paragraph 8 of M.L.

Kesari (supra) would be applicable in the instant case. The

Labour Department never considered his appointment to be

illegal. In any event, having regard to the nature of

employment and the scheme framed by the Government on

25th February, 2016 which clearly states in Paragraph 3 that

on careful consideration, the Governor has been pleased,

inter alia, to revise the benefits to the all

contractual/casual/daily rated workers by way of

engagement up to the age of 60 years and for that the

scheme was framed. We do not find any reason as to why

such scheme could not be made applicable to the present

petitioner. The Government is expected to act as model

employer and not to exploit the labour force. The State

should make all endeavour to act fairly and ensure the

welfare of its labour force.

The learned Government Pleader in support of the

order of the learned Tribunal has produced before us a

Memorandum No.3727-F dated 20th May, 2009,

Memorandum No.8662-F dated 7th September, 2009 and

Memorandum No.7284-F(P2)/FA/O/2M-1 dated 27th

November, 2017 along with the payments made to the

petitioner from Contingency Bill to argue that his

employment should be treated as a Part-time Sweeper and

the remuneration has been fixed initially in 2009 and

thereafter in 2017 which are to be paid from the

Contingency fund.

The Memo dated 20th May, 2009 was issued fixing the

pay of contingent staff. The pay of the part time contingent

staff was subsequently clarified by issuance of the Memo

dated 7th September, 2009 whereby the fixed pay not

exceeding Rs.2000/- was sub-divided into four sub-

categories depending on the hours of work. The fixed pay of

Rs.2000/- of such contingent staff as per Memo dated 20th

May, 2009 was enhanced to Rs.3000/- per month vide

Memo dated 27th November, 2017.

The Labour Department order dated 7th April, 2004

does not state that the appointment of the petitioner was as

a contingent staff. No document was produced by the State

either before the Tribunal or before us to show that the

petitioner was appointed as contingent staff. In the absence

of any document to show that the petitioner was appointed

as a contingent staff, the aforesaid Memoranda dated 20th

May, 2009, 7th September, 2009 and 27th November, 2017

cannot be applied to the petitioner. The applicability of the

aforesaid Memoranda depends upon the nature of

appointment as contingent staff which the State has failed to

substantiate in the instant case. The petitioner is working

since 1993 and the State in course of hearing of the writ

petition has produced a document of February-March, 2017

to show that the petitioner was paid from Contingency Bill in

support of their plea that the petitioner is a contingent staff.

Merely because of the fact that the employer has paid the

petitioner from the Contingency Fund does not indicate that

the employment of the petitioner was that of a contingent

staff. The nature and category of appointment of an

employee is to be determined from the terms and conditions

incorporated in his appointment letter and not otherwise.

We are unable to treat the employment of the

petitioner on a contingency basis as that completely belies

the stand taken by the Labour Department on 7th April,

2004. The order of the Labour Department did not specify

that the payment was made out of the Contingency fund.

Moreover, it is lamentable that the State has adopted such

plea for the first time in this writ petition in respect of a

Sweeper who admittedly worked on a daily rated basis since

5th June, 1993. We feel that the plea of engagement of the

petitioner as a Part-time Sweeper and to be paid out of the

Contingency fund only reflects an insensitive and painful

stand on the part of the State to resist a bona fide claim of

the writ petitioner.

The petitioner was engaged as a daily rated worker as

evident from the order of the Labour Department dated 7th

April, 2004. In the absence of any document contradicting

such status of the employee, this Court is of the view that

the Memo dated 25th February, 2016 is applicable to the

case of the petitioner.

In view thereof, the writ petition, being WPST 23 of

2021, succeeds and, accordingly, disposed of.

The respondent authorities are directed to act on the

basis of the Memorandum dated 25th February, 2016 and

engage the writ petitioner as a daily rated worker till he

attains the age of 60 years. The entire process has to be

completed within four weeks from date.

The order of the learned Tribunal is set aside.

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

(Hiranmay Bhattacharyya, J.) (Soumen Sen, J.)