Rajendra Arvindbhai Patel vs State Of Gujarat
2022 Latest Caselaw 3934 Guj

    C/SCA/4418/2019                                  CAV JUDGMENT DATED: 04/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 4418 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAJENDRA ARVINDBHAI PATEL & 4 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR KR KOSHTI(1092) for the Petitioner(s) No. 1,2,3,4,5 MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER for the

LAW OFFICER BRANCH(420) for the Respondent(s) No. 2 MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 04/04/2022 CAV JUDGMENT

1 The petitioners who were Class-IV employees were working as

sweepers for over ten to sixteen years as part time sweepers in different

Courts in Panchmahal District. Aggrieved by the respondent No.2, action

in terminating the services of the petitioners with effect from 01.02.2019,

the petitioners have approached this Court.

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2 Mr.K.R.Koshti, learned counsel for the petitioners would submit

that the petitioners had been working under the respondent No.2 as

Sweepers for over ten to sixteen years. Orders were passed to revise the

pay of the petitioners from time to time and they were receiving Rs.7,100

per month. The case of the petitioners is that they were appointed on

sanctioned posts after following the due procedure and therefore the

action of the respondent No.2 in terminating the services and then

outsourcing the work carried out by the petitioners to one M.R.Security

and Man Power Services is bad. The action of the respondents is

unreasonable. The petitioners' initial appointment was legal, the

petitioners are serving since long time and have so continued without

taking shelter of any Court order and were working on sanctioned posts.

Mr.Koshti, learned advocate, relied extensively on various observartions

of the order dated 21.12.2018 passed in Special Civil Application

No.7462 of 2012 and allied matters which was confirmed by the Division

Bench in Letters Patent Appeal No.1155 of 2019 and allied appeals.

3 Ms.Trusha Patel, learned counsel appearing for the respondents

would submit that the petitioners were appointed purely on temporary and

adhoc basis without following the due procedure. Their appointment was

made looking to the work exigency and being appointed on purely

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temporary basis no right accrues to the petitioners to be continued in

service. She would submit that several complaints were received

regarding non maintenance of standard of cleanliness with regard to the

Class-IV employees by the respondents and therefore the State

Government had decided in principle to outsource the services like

Hamal, Sweepers etc., and in accordance with this the High Court on its

administrative side had given permission and the District Court therefore

had entered into an agreement in shape of a contract with an agency

namely M.R.Securities and thereby outsource the services so performed

by the petitioners for one year.

4 Considering the submissions made by the learned counsels for the

respective parties, since reliance is placed by learned counsel for the

petitioners on a decision rendered by this Court on 21.12.2018 in Special

Civil Application No. 7462 of 2012 and allied petitions, the same be

considered. Several petitioners had approached the Court seeking a writ

of mandamus that the services of the petitioners be not terminated

pursuant to the resolution of the Government which had decided to

outsource the services of part timers with a view to reduce the prospective

huge financial burden arising out of regularizing such part time

employees. The Court in view of the grievances raised summarized the

issues for consideration before the Court. Para 9 of the decision reads as

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under:

"9. In view of the aforementioned grievance raised in these writ petitions, the issue emerging for consideration by this Court can be summarized as under:

i) Once temporary appointments continued for long, can services of these employees be terminated and be replaced by other temporary employees by way of outsourcing the jon/contract labour to a private agency / contractor in the face of the goal of socio-economic justice as promised in the Preamble of the Constitution read with the Directive Principles of Policy and the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India.

ii) Whether the petitioners can be regularized in view of the guidelines laid down in the case of State of Karnataka vs. Uma Devi?

iii) Whether the petitioners are entitled to minimum- wages or principles of 'equal pay for equal work' is applicable in their case?"

4.1 One of the issues that was under consideration was whether once

temporary appointments were continued for long, can the services of

these employees be terminated and be replaced by other temporary

employees by way of outsourcing the job contract to a private agency.

After several contentions were raised by the respective parties, and

having considered the decisions relied upon by them, the Court observed

that the law would not permit such exploitation at the hands of a private

employer. The Court observed that the work in which the petitioners were

engaged being the work of perennial nature, outsourcing the same is

judicially an unfair labour practice. Particularly when there were existing

sanctioned posts and it was not an illegal appointment but at best an

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irregular appointment. Extensive observations of the Court are

reproduced as under:

"13. This Court has considered the submissions made by both the sides and gone through the decisions relied upon by the learned counsels. The endeavor of the State Government in shifting to the policy of outsourcing appears to be an effort to reduce the expenditure. However, the cost at which the State will be saving this money seems to be too heavy. The country like India where due to high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law, however, does not permit such exploitation even at the hands of private employer. Can the State Government which is wedded to Constitutional philosophy of implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organization or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers ? The answer has to be in the negative. This Court is conscious that ipso-facto, minimum wage prescribed for the private employers would not govern the Government employees.

14. In the case of Gujarat Electricity Board, Thermal Power Station, Ukai,Gujarat vs. Hind Mazdoor Sabha (supra), it has been held that:

"The only ostensible purpose in engaging the contract labour instead of the direct employees is the monetary advantage by reducing expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. The economic growth is not to be measured only terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development. The attitude adopted by the undertakings is inconsistent with the need to reduce unemployment and the Government policy declared from time to time, to give jobs to the unemployed. This is apart from the mandate of Directive Principles contained in Articles 38,39, 41,42, 43 and 47 of our Constitution...."

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15. Thus, the work for which the petitioners have been engaged, being work for perennial nature, outsourcing the same is judicially established to be an unfair labour practice, besides being an unsound and unreasonable policy and hence, the decision of the Government as contained in Government Resolutions dated 10.2.2006 and 25.4.2012 to outsource the same with the consequential termination of the service of the petitioners, requires to be considered seriously.

16. In the case of Ravendra Singh and others vs. State of U.P. and Another (supra), the issue involved was "whether appointment on Class IVposts, governed by statutory rules, can validly be prohibited by Government Order? The Government Order dated 8.9.2010 provided that on Class IV posts, no appointment shall be made and the work shall be got done through "outsourcing".

17. In the aforementioned facts and circumstances of the case, the High Court of Allahabad held that:

"para 2 of the Government Order dated 8.9.2010 is patently illegal, arbitrary and ultra vires of the statues, i.e. Act, 1861 read with Rules, 2009, as also violative of Article 14, 16 and 19 of the Constitution, and, is accordingly struck down."

18. In the case of Secretary, State of Karnataka vs. Uma Devi and others (supra),it has been held that regularization/absorption in service is possible, if the following conditions are fulfilled:

(1) Initial appointment of the employee should be legal i.e. in the manner consistent and compatible with the constitutional scheme as contained in Article 14 and 16 of the Constitution of India;

(2) Employee has put in 10 years or more of service; (3) Employee has continued in service without taking shelter of any court order; and (4) There exists a sanctioned post;

19. It may be pointed out here that consequent on the aforesaid decision of the Hon'ble Supreme Court, the respondent State Government passed Government Resolution dated 1.5.2007 as amended by Resolution dated 16.5.2008, providing for "One Time" regularization of all part-time/ad hoc/temporary employees who had put in 10 years or more service.

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20. In the present case, the petitioners were fulfilling the requisite conditions as stated in para-53 of the aforementioned decision for being regularized or absorbed in service. All the petitioners, in this group of petitions, who have put in ten or more years of service, whether in the Sale Tax Department or the Health and Family Welfare Department, are entitled to One-time Regularization, in terms of para 53 of Uma Devi (supra). It appears that rather than implementing the decision of the Hon'ble Apex Court, the respondents have adopted this method of get rid of employees by passing the impugned resolution.

21. Learned Government pleader has laid emphasis on the point that the appointments of the petitioners were on non-sanctioned posts and were in violation of the conditions of appointments.

22. In the case of Nihal Singh and others vs. State of Punjab and others(supra), the first part of the argument that in the absence of sanctioned post, the State cannot be compelled to absorb the persons like the petitioners herein into the services of the State has been answered in this judgment. The Hon'ble Supreme Court in para-32 of this judgment has observed as under:

"32....we can only say that posts are to be created by the State depending upon the need to employ people having regard to various functions the State undertakes to discharge:

"Every sovereign government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration."

23. Thus, if the State Government fails to create posts, the employees working for years on such posts without sanctioning cannot be made to suffer for the inaction of the Government.

Sanction would have to be presumed in such cases so that the employees do not suffer for the wrong of the Government. The State Government cannot be allowed to argue that there was no sanction at all for the part-timers who are working in the various departments of the Government for ten or more years. The petitioners in this group of petitions are eligible for One-time regularization under Uma Devi (supra).

24. Learned Government Pleader has further argued that Civil

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Application No. 1014 of 2009 in Letters Patent Appeal No. 107 of 2009, the Court ordered that the petitioners will not claim parity of wages and regularization in service.

25. It could be seen that this Court vide order dated 16.12.2009, while granting mandatory reinstatement, by way of interim relief, in favour of the petitioners, who were terminated because of outsourcing, observed that it is a settled law that employer cannot replace an ad hoc employee by another ad hoc employee, as laid down by the Hon'ble Supreme Court in the case of Uma Devi (supra). By Oral Judgment dated 7.7.2017, the Division Bench of this Court disposed of the Letters Patent Appeal No. 107 of 2007 in Special Civil Application No. 5285 of 2008 with following directions:

"8. Looking to the prayer in the present appeal and in view of the fact that the appellants/petitioners have continued in service for sufficiently long period of time after passing of the interim order in the year 2009, interest of justice, it would be served if directions to be issued to the respondent authorities to continue the appellants in service.

9. In view of the fact that the petitioners-appellants have been protected, the respondents are directed to see that if the work in question for which they have employed is continued, such work which the appellants carry out shall not be outsourced nor the appellants will be replaced by any ad hoc employees till the appellants reach the age of superannuation prescribed for Class IV employees. The appeal is disposed of accordingly."

26. Hon'ble Supreme Court in the case of Uma Devi (supra) and in a catena of decisions rendered prior to Uma Devi (supra) has consistently held that ad hoc employees cannot be replaced by another set of ad hoc employees. The scheme of the State Government while outsourcing the job of the petitioners through contractors is nothing but replacement of the petitioners by another set of ad hoc employees which cannot be permitted.

27. It could be seen that except few petitioners in couple of petitions, in the group of petitions, majority of the petitioners were in service when they approached this Court by way of filing writ petitions challenging the legality and validity of the Government decision to outsource the job in which they were engaged. The

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petitioners were continued in service with less than minimum wages and subjected to exploitation for all these years. Further, in defiance of the oral judgment dated 11.12.2014 the authorities are not paying the revised rate of minimum wages to the petitioners. They are still being paid wages at Rs. 220/- per day with special allowance of working for more than 4 hours a day, and at the rate of Rs.110 per day plus special allowance if working for less than 4 hours a day.

28. In regard to the application of the principle of "equal pay for equal work" to temporary employees, including daily-wage employees, ad hoc employees, employees appointed on casual basis, contractual employees and the like, the Hon'ble Supreme Court in the case of State of Punjab vs. Jagjit Singh reported in (2017)1 SCC 148, after traversing the legal parameters with reference to the application of the principle of "equal pay for equal work", held that there can be no doubt that the principle of equal pay for equal work would be applicable to all the temporary employees, 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. In para -54, 55, 57 and 58, the Hon'ble Supreme Court has held as under:

"54. 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 by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as workcharge, daily-wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again

55. 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

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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. 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, suppressive and coercive, as it compels involuntary subjugation.

57. 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 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' summarized by us in paragraph 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 concerned temporary 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

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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 summarized by us in paragraph 42 hereinabove. 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.

58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, 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." 29. While disputing the proposition of equal pay for equal work, learned Government Pleader has laid emphasis on the point that the relief granted in the aforementioned decision in the case of State of Punjab vs. Jagjit Singh (supra), is not prayed for in the present petitions preferred by the petitioners. 30. It could be seen that the petitioners have approached this Court in the year 2012. The law for the casual labourers, ad hoc employees, parttime employees and outsourcing class IV post has developed with the passage of time. Finally, the Apex Court has put to rest the grievance of the aforementioned class of employees. The Apex Court seems to have taken into consideration the law laid down by various courts, and finally reached to a conclusion that all the concerned temporary 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. As this judgment has been delivered in the year 2016, while the petitioners have approached this Court in the year 2012, it was not in their knowledge to have pleaded for the law laid down in the aforementioned judgment. This Court is of the considered opinion that the law laid down by the Apex Court in the aforementioned judgment is fully applicable to the facts of the present case as most of the petitioners have come

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into service through regular selection mode and have put in more than 15/20 years of service. Even otherwise, the arguments raised by the learned Government Pleader cannot be stretched further as it is always the discretion of the Court to mold the relief depending upon the facts and circumstances of the case. The reliefs claimed in clause (F) seeking regularization is nothing but parity with regularly selected IV employees. As this Court is convinced with the judgment given by the Apex Court in the case of State of Punjab vs. Jagjit Singh (supra), the relief prayed for by the petitioners can be modified accordingly."

31. Otherwise also, mode of recruitment remains meaningless once the petitioners have put in more than 15/20 years of service. What could be qualification and mode of requirement for Class IV post is a debatable point. All the petitioners were performing the job of class IV employees and discharging and performing the same functions which are being performed by regularly recruited class IV employees. Still further, all the petitioners seems to be fulfilling the requisite qualification. Once their method of recruitment is same and are performing the same duties which permanent employees on the same post are performing, the petitioners cannot be discriminated at the time of payment of wages.

32. As mentioned above, some of the petitioners are out of service after coming into force the Resolution of the State Government dated 31.5.2012. These petitioners were working along with their other counter part prior to 31.5.2012. Since number of Class IV employees of the State got affected because of the Resolution dated 31.5.2012, all the affected persons could not obtain the stay from the courts against their termination. There is no denning fact that all these petitioners are affected by the Resolutions of the State Government dated 25.4.2012 and 31.5.2012. They are to be treated at par with the employees who were lucky to get the stay against their termination from the courts. Accordingly, the relief granted by this Court in this judgment shall be extended to all the employees who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of these resolutions."

4.2 Perusal of the decision of the co-ordinate Bench of this Court

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would indicate that the Court considering the decision in the case of State

of Karnataka vs. Uma Devi, reported in 2016 (4) SCC 1, opined that

when the work was of perennial nature it was not open for the State as a

model employer to outsource the services despite the work otherwise

being done through the petitioners. The action of the respondent No.2 in

the present case of outsourcing the services to an agency when the

petitioners were working for over ten to sixteen years is therefore

contrary to the spirit of the law laid down by various decisions and

discussed by the Co-ordinate Bench of this Court as referred to in the

paragraphs hereinabove.

5 Ms.Trusha Patel, learned advocate for the respondent would

extensively rely on paragraph 13 of the Division Bench where the

decision of the Co-ordinate Bench was under challenge and submit that

the decision of the learned Single Judge was limited and the acceptance

of the prayer of regularization being denied was confirmed. If that was

the reason then it cannot be claimed by the petitioners that their services

be regularized.

6 Considering this submission, particularly when the Co-ordinate

Bench of this Court had deprecated the action of the State in outsourcing

the services, the consequential termination of the services of the

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petitioners is required to be quashed and set aside. The fact that work

exists is borne out from the stand of the respondents that such work

which the petitioners were carrying on has been now outsourced to an

agency. The Court in the case referred to hereinabove has held such an

action to be an unfair labour practice.

7 Based on the observations and findings of the Co-ordinate Bench,

the decision of which has been extensively reproduced hereinabove, the

termination of the petitioners is set aside. The respondent No.2 is

directed to reinstate the petitioners on their posts as they were engaged

prior to their termination on similar basis as Hamals / Sweepers. The

reinstatement of the petitioners shall be done within a period of ten weeks

from the date of receipt of copy of this order. On the petitioners being

reinstated, their cases shall be considered for extending the benefits of the

resolution dated 16.07.2019 for being granted the minimum of the

payscale in accordance with the decision in the case of State of Punjab

vs. Jagjit Singh reported in 2017 (1) SCC 148. As far as the prayer of

regularization is concerned, the same is not entertained.

The petition is partly allowed to the aforesaid extent with no orders

as to costs.

(BIREN VAISHNAV, J) Bimal

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FURTHER ORDER

After the pronouncement of CAV Judgement, Ms.Trusha

Patel, learned counsel for the respondent, District Court, prays for stay of

the operation of the judgement to which Mr.Koshti, learned advocate for

the petitioner, vehemently opposed.

However, the operation of the judgement is stayed till 27.06.2022.

(BIREN VAISHNAV, J) Bimal