Quashed

Suresh Balmiki v. State of U.P. through Prin. Secy. Social Welfare Lko. and Ors.

Allahabad HC25 Jan 2024WRIA/1503/2013

Case brief

AI extract

What is this about?

This petition challenged the rejection of the petitioner's representation for re-engagement as a sweeper. The court quashed the order rejecting the petitioner, holding that denying employment due to non-attendance caused by the employer's failure to pay wages for over a year was illegal and violated Article 23 of the Constitution.

What did the court decide?

The impugned order dated 01.05.2013 is quashed. The Principal is directed to consider the petitioner's case for re-engagement within one month.

Suresh Balmiki Vs State of U.P. through Prin. Secy… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:7541

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Court No. - 25

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Case :- WRIT - A No. - 1503 of 2013

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Petitioner :- Suresh Balmiki

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Respondent :- State Of U.P. Through Prin. Secy. Social Welfare Lko. And Ors. Counsel for Petitioner :- Anjani Nath Khare,Shiv Pal Singh Counsel for Respondent :- C.S.C.

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Hon'ble J.J. Munir,J.

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Heard Mr. Shiv Pal Singh, learned Counsel for the petitioner and Mr. Sandeep Chandra, learned Standing Counsel appearing on behalf of the State.

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This writ petition is directed against the order dated 01.05.2013, whereby the petitioner's representation, permitting him to discharge his duties as a Sweeper in the Rajkiya Ashram Paddhati Vidyalya (Babhni), Risia, District Bahraich, has been rejected by the Principal of the said Institution. This order, which is now impugned in the present writ petition, came to be passed in the background of facts hereinafter detailed.

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According to the petitioner, he was employed as a daily-wager by the Rajkiya Ashram Paddhati Vidyalya (Babhni), Risia, District Bahraich (hereinafter referred to as 'the Institution') on 29.12.2008 on a monthly wage of Rs. 500/-. On the 15th of February, 2010, the District Social Welfare Officer, Bahraich addressed a letter of the said date to the Executive Officer, Nagar Panchayat, Risia, District Bahraich, directing that the Institution was in need of a Sweeper on daily-wages, and that, therefore, the Nagar Panchayat may detail a capable Sweeper in their Establishment to the Institution. The Executive Officer, Nagar Panchayat wrote to the Chairman, recommending the petitioner's name, as an experienced and a very capable person, and, that is how the petitioner was appointed, as he says, on the post of a 'Sweeper' in the Institution. The petitioner says that he demanded enhancement of his wages in the year 2010. The Executive Officer, Nagar Panchayat sent a letter to the Principal of the Institution saying that the petitioner is working on a wage of Rs. 100/- per day and it would be paid to him in cash or in account. At the same time, the Principal

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of the Institution also sent a letter to the District Social Welfare Officer, Bahraich inquiring about the minimum wages to be paid to a Sweeper. On 21.04.2012, the District Social Welfare Officer, Bahraich answered the Principal's letter along with a copy of the Government order dated 26.11.2010, informing him that the minimum wage payable for a Group-D employee was Rs. 120/- per day, and, it was applicable w.e.f. 25.08.2010.

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It is the petitioner's case that though he has been continuously working since 29.12.2008, but his wages have not been paid since 20.08.2011. The petitioner, therefore, moved an application to the Principal of the Institution on 19.10.2012, asking for the payment of his wages from 20.08.2011 to 19.10.2012. He also moved an application requesting that his attendance be marked because the Clerk concerned had denied him to access the attendance register. The Principal of the Institution did not pay heed to the petitioner's grievance, leading to further correspondence.

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An application was made by the petitioner to the District Magistrate, Bahraich on 01.01.2013 during Tehsil Diwas asking for the said officer's intervention in the matter. None of these efforts led to any result. The petitioner sought information regarding the disposition of his application under the Right to Information Act, 2005 from the District Magistrate, Bahraich and also from the other opposite parties. This action of the petitioner's, he says, irked the District Magistrate as well as the District Social Welfare Officer. They did not take any step themselves. The Principal of the Institution sent a letter to the petitioner dated 21.02.2013, where he did not answer the information that the petitioner had sought, but warned him that the Institution would fill up the post of Sweeper by another suitable person. The petitioner went to the Institution to do his duties on 21.02.2013, but, the Principal and the staff, in particular, one Shailendra, a Clerk in the Institution, did not permit the petitioner to discharge his duties. The petitioner was also threatened and asked to leave the Institution.

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Citing the good work that he had done and his meritorious service, the petitioner moved the present writ petition, praying that a mandamus be issued to respondent no. 5 to take work from the petitioner that he has been performing

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since 29.12.2008 continuously. A further mandamus was sought in terms that the Principal be directed to pay wages according to the Government Order dated 26.11.2010 carried in Annexure No. 6 to the writ petition.

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When this writ petition came up before this Court on 15.03.2013, the following order was passed:

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"Heard learned counsel for parties and perused the record.

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Learned State counsel prays for and is granted six weeks' time to file counter affidavit. Two weeks' thereafter is granted to petitioner for rejoinder affidavit.

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After hearing learned counsel for parties, in the interest of justice, as an interim measure, it is provided that petitioner is permitted to move fresh representation to O.P. No. 5/Principal, Rajkiya Ashram Paddhati Vidyalaya (Babhni), Risia, Bahraich within two weeks from today in respect to his grievances which he has raised in the present writ petition annexing all relevant documents and materials in support of his case and after receiving the same, O.P. No. 5 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of four weeks thereafter.

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List after eight weeks."

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In compliance with the said order, the petitioner moved a representation dated 23.03.2013 before the Principal of the Institution along with a copy of the order passed by this Court. Now, the Principal of the Institution, after considering the said representation, passed the order impugned dated 01.05.2013, which has been challenged pending this writ petition through amendment. The relevant part of the order impugned, rejecting the petitioner's representation, is quoted in extenso:

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" मम०उचचनयमयमलयककआदकशददनमनक 15.3.2013 ककअननपमलनममयमचचकमपतयमवकदनकम

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समयकपरचकणदकयमगयमजजसममयहपमयमगयमहहदकयमचचककरमजककयआशमपददत दवदमलय (बभनच) ररजसयमबहरमइचममसवचपरकमकमयरकरनकहकतनदहदनकपमररशदमकककरपमम अजधशमसचअजधकमरचनगरपनचमयतररजसयमबहरमइच / अधयकनगरपनचमयतररजसयमबहरमइचकक पतददनमनक 23. 2.2010 ककसनदभरममकमयरपररखमगयमथमयमचचदमरमददनमनक 19.10.2012 तकसनसथमममसवचपरकमकमयरदकयमगयमतथम 20.10.2012 सकयमचचदबनमदकसचससचनमकक सनसथमसकपलमदयतचलरहमहह।यमचचदमरमदबनमदकसचससचनमककसनसथमसकपलमदयतरहनककक समबनधममपधमनमचमयररमजककयआशमपददतदवदमलय ( बभनच), ररजसयमबहरमइचककपतददनमनक 21.3.2013 एवनजजलमसममजकलयमणअजधकमरचबहरमइचककपतददनमनक 2.3.20.13 यमचचकक जलजखतरपसकभचससदचतदकयमगयमपरनतनयमचचसनसथमममसवचपरकककमयरहकतनउपससथतनहह हहआ।

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रमजककयआशमपददतदवदमलय (बभनच), ररजसयमबहरमइचममबजटककअभमवममयमचचशच | सनरकशबमलमचदकदमरमदकयकगयकसवचपरकक पदकमकमयमरवजधददनमनक 20.8.2011 सक

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19.10.2012 ककबकमयमपमररशदमकर0 48,800 / कमभनगतमननहहहकसकमहह।उकधनरमदश ककभनगतमनहकतनपतसनखयम 20 ददनमनक 10.4.2013 दमरमदनदकशक, सममजकलयमण, उतरपदकश, लखनऊसकबजटककममनगककगयचहह, बजटपमपहकनकपरयमचचककदहदनकपमररशदमकककबकमयक धनरमदशकमभनगतमनकककमयरवमहचकरदचजमयकगच। यमचचशचसनरकशबमलमचदकसनसथमसक 20.10.2012 सकदबनमदकसचससचनमसकसनसथमसकपलमदयत चलरहकहहइससकपररलदकतहकतमहहदकयमचचअननशमसनहचन एवनलमपरवमहपकमरकमवयदकहह इसककदमरमदकयकगयकककतयसकसनसथमककसमफसफमईकमकमयरबमजधतहहआहहऐसकससथदतममयमचच सकभदवषयममसवचपरकमकमयरजलयकजमनककमककईऔदचतयनहहबनतमहह।"

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Upon hearing learned Counsel for the petitioner, the learned Standing Counsel appearing on behalf of the State and perusing the order impugned, what this Court finds is that the petitioner has been declined a re-engagement on ground that since 20.10.2012, the petitioner was absenting from duty. The order acknowledges the fact that the services of the petitioner were provided by the Nagar Panchyat, Risiya, District Bahraich and says that the petitioner was working as a daily-wager. The fact that the petitioner was a daily-wager is admitted to the learned Counsel for the petitioner. What is noticeable is that the order impugned acknowledges the fact that the petitioner was not being paid wages from 20.08.2011 to 19.10.2012, that is to say, until a day before he absented. This Court takes it for a fact that the petitioner did absent himself from duty. But, the question is that did the petitioner, who, though a daily-wager, absent for a valid cause, where he could be declined re-engagement or his conduct adjudged blameworthy?

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There is no quarrel that the Institution were in requirement of the services of a Sweeper, and for that purpose, had drafted the services of the petitioner, approaching the District Social Welfare Officer for the purpose. The District Social Welfare Officer had, in turn, directed the Nagar Panchayat, who had provided the petitioner out of their own workforce, on whatever terms, the petitioner was serving the Nagar Panchayat. Therefore, the petitioner had, nothing more but some kind of a legitimate expectation to be in the engagement of the Institution as a Sweeper, until such time on the said post, a regular person was engaged. If not even that, the petitioner certainly had a legitimate expectation to continue as a daily-wager until some legitimate determinative event. Here, what has happened is that the petitioner was declined permission to

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join or function after almost an year of being asked to perform his duties as a Sweeper without payment of any remuneration. The said fact is admitted and well acknowledged in the impugned order, and, the only justification offered is lack of available budget to pay the petitioner's wages.

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The payment of salary or wages of any employee, particularly, a low paid Class-IV employee, and more than that, a daily-wager on account of absence of budget or funds is absolutely illegal, and, not a defence. The impugned order has blamed the petitioner's conduct in absenting from duties as the reason to decline his prayer to re-engage him. We think that it is entirely unjustified on the Principlal's part, to deny re-engagement to the petitioner for a fault that is entirely the Establishment's. A Class-IV employee, more than anybody else, requires regular payment of his wages to make his ends meet. To expect him to discharge his duties, without payment of his wages for a period over an year, is virtually to take work from him for that period of time as Begar , which is prohibited under Article 23 of the Constitution.

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The payment, in this case, was made on 12.07.2013 in lump sum, a fact that figures in the counter affidavit. It is no substitute for the regular payment of wages. After all, a Class-IV employee cannot live on credit for a year, given the fact that he was, during the relevant period of time, discharging his duties with the Institution and not working elsewhere.

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Therefore, the very edifice of the impugned order, blaming the petitioner for absenteeism is flawed because it was a situation that was thrust upon the petitioner by not paying him a rupee over a period upwards of one year, citing official business and lack of budget sanctions. That is all irrelevant.

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In the considered opinion of this Court the impugned order is manifestly illegal, proceeds on flawed premises and irrelevant considerations.

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This petition, accordingly, succeeds and is allowed. The impugned order dated 01.05.2013 is hereby quashed . The Principal of the Institution is ordered to consider the petitioner's case for re-engagement, bearing in mind the guidance

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and directions in this judgment, withing one month of receipt of a copy of this order, in accordance with law. For the purpose, the petitioner will appear before the Principal of the Institution on 08.02.2024 in his office at 11:00 a.m.

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There shall be no order as to costs.

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Let this order be communicated to the Principal, Rajkiya Ashram Paddhati Vidyalaya (Babhni), Risia, District Bahraich through the Civil Judge (Senior Division), Bahraich by the Senior Registrar by Monday i.e. 29.01.2024.

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Order Date :- 25.1.2024 Deepak

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Digitally signed by :- DEEPAK KUMAR PANDEY High Court of Judicature at Allahabad, Lucknow Bench

Suresh Balmiki v. State of U.P. through Prin. Secy. Social Welfare Lko. and Ors.

Case brief

What is this about?

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Suresh Balmiki v. State of U.P. through Prin. Secy. Social Welfare Lko. and Ors.

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