Disposed

Anand Kumar v. State of U.P. Thru. Addl. Chief Secy. Horticulture U.P. Lko. and 3 Others

Allahabad HC1 Aug 2024WRIA/5993/2024

Case brief

AI extract

What is this about?

A daily wager terminated after seeking minimum pay scale under a 2023 Government Order sought relief in a writ petition. The court noted the Government Order was cancelled by the State in compliance with its earlier order, appreciated the initiative, and expected the authority to allow the petitioner to resume work and pay wages per Apex Court dictum. Case listed for further hearing.

What the court decided

AI extract

Anand Kumar vs State of U.P. Thru. Addl… — Labour and Industrial Disputes | Allahabad HC (2024)

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Court No. - 4

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Case :- WRIT - A No. - 5993 of 2024

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Petitioner :- Anand Kumar Respondent :- State Of U.P. Thru. Addl. Chief Secy. Horticulture U.P. Lko. And 3 Others Counsel for Petitioner :- Mohd. Ateeq Khan Counsel for Respondent :- C.S.C.

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard.

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2. This Court has passed the order dated 09.08.2024, which reads as under:-

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"Heard.

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This Court has passed order dated 1.8.2024 which reads as under :

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"1. Heard Mohd. Ateeq Khan, learned counsel for the petitioner and Ms. Jyotsna Pal, learned C.S.C.-IV for the State respondents.

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2. Learned counsel for the petitioner has requested that he may be permitted to file an application for deleting the opposite party no. 4 and implead proper opposite party.

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3. Learned counsel for the petitioner may file said application within a week.

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4. Learned counsel for the petitioner has stated that the petitioner is serving as 'Daily Wager' on Class-III post since 2015. He filed one claim petition bearing Claim Petition No. 964 of 2019 before the State Public Service Tribunal, Indira Bhawan, Lucknow wherein positive direction was passed on 10.6.2019 and the competent authority has preferred letter to the Government to make compliance of the aforesaid order. In the meantime one Government Order dated 9.2.2023 has been issued by the Department of Horticulture addressing to the Director, Horticulture and Food Processing, Lucknow to take appropriate action against those employees who are daily wagers and have claimed for their service benefits by filing petitions. Pursuant to such Government Order the services of the petitioner has been terminated by oral order. However, in some districts in compliance of the aforesaid order the termination orders have been issued against similarly placed employees and this Court interfered in those matters.

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5. The matter requires consideration.

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6. List on 9.8.2024 as fresh to enable Ms. Jyotsna Pal, learned C.S.C.-IV to seek complete written instructions in the matter.

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7. This matter may be taken up immediately after fresh cases."

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Sri R.P.S. Chauhan, learned Addl. C.S.C. has stated that he has received complete instructions in the matter from Director, Horticulture and Food Processing, U.P., Lucknow along with some orders of the Court and correspondences, same are taken on record.

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Though the very fact that the petitioner is serving as 'Daily Wager' has not been disputed in such instructions but it has been indicated that the petitioner is an outsourced employee since 2015 and he discharged up to 20.3.2024 as a daily wager subject to the availability of the work. However, in the aforesaid instructions it has not been indicated categorically as to whether there is any break-in-service of the petitioner, therefore, it may safely be presumed that the petitoner has discharged his duties w.e.f. August, 2015 till March, 2024 as a daily wager.

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Annexure no. 1 is a Government Order dated 9.2.2023 issued by one Sri Anand Kumar Rai, Joint Secretary of the Horticulture Department addressing to the Director, Horticulture & Food Processing indicating therein that the contingent labourers are not appointed as per the Rules as there is no such post, therefore, they are not entitled for any wages. In para 3 of the aforesaid Government Order it has been categorically indicated that those daily rated employees who are demanding minimum of pay scale may not be allowed to work and their services may be dispensed with. Daily rated employees are paid the wages as per the policy of the Government. In the aforesaid Government Order it has been indicated in para no. 3 that after discharging some duties those daily wagers approach the Court for minimum of pay scale etc. and in compliance of the order of the constitutional courts they are paid minimum of pay scale which is against the Rules. Therefore, it has been directed with the consultation of the Finance Department that those matters be decided at the earliest.

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After issuing the Government Order dated 9.2.2023 the authority concerned has not allowed the petitioner to discharge his duties w.e.f. 1.5.2024.

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The aforesaid order is not only illegal, arbitrary, discriminatory and uncalled for but the same is contemptuous in nature wherein it has been directed that those employees who are approaching the Court of law for getting minimum of pay scale be not allowed to work any longer and their services be dispensed with and if those employees are getting minimum of pay scale in compliance of the order of any constitutional court that payment would be against the Rules.

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When the Apex Court in re: Sabha Shanker Dube vs. Divisional Forest Officer and others reported in [2019 (160) FLR 90] has settled the controversy then issuing the Government Order dated 9.2.2023 (supra) is an attempt to frustrate the direction being issued by the Apex Court which is not permissible under the law inasmuch as the Government Order may not dilute the order of the Apex Court. The aforesaid view of the Apex Court is being followed by this Court consistently. Therefore, the Additional Chief Secretary, Horticulture, Civil Secretariat, U.P., Lucknow is directed to file his personal affidavit within a period of two weeks.

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List on 29.8.2024.

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If the personal affidavit of the Additional Chief Secretary, Horticulture,

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U.P., Lucknow is not filed by the next date he shall appear in person on the next date to assist the Court."

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3. In compliance of the aforesaid order, Sri Sandeep Sharma, learned Standing Counsel has filed the personal affidavit of Sri B.L. Meena, Principal Secretary, Department of Horticulture, U.P. Government, Lucknow, the same is taken on record.

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4. Sri Sharma has drawn attention of this Court towards para-6 of the aforesaid affidavit enclosing therewith the copy of letter dated 22.08.2024 whereby the Government Order dated 09.02.2023 has been cancelled. Para-6 of the affidavit of compliance reads as under:-

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"6. That the deponent most humbly and respectfully submits that in compliance of the Hon'ble Court's aforesaid order dated 09.08.2024 with the approval of the competent level, the government vide letter No.241/Writ/58-2024-1841199 dated 22.08.2024 has cancelled the Government Order No.2273 (1)/58-2022 dated 09.02.2023. Copy of the letter dated 22.08.2024 is annexed as Annexure No.A-1 to the affidavit of compliance."

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5. Sri Sharma has also produced a copy of one order dated 22.08.2024 issued by the Under Secretary, Department of Horticulture and Food Processing, Government of U.P., Lucknow indicating therein that after taking prior approval from the Competent Authority the Government Order dated 09.02.2023 has been cancelled.

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6. So far as the submission of learned counsel for the petitioner that the petitioner has not been allowed to discharge his duties with effect from 01.05.2024, on that Sri Sharma has informed that the petitioner has not been allowed to discharge his duties with effect from 01.04.2024, however, no specific reason has been indicated in the aforesaid affidavit though in para-8 it has been categorically indicated that the petitioner has discharged his duties with effect from August, 2015 to March, 2024 indicating the Company/ Outsourcing (source/mode of payment and working place). In the aforesaid para, it has been indicated that the petitioner has worked on daily rate basis as daily labour and the wages at the rate prescribed by the labour department has been paid to him on the basis of his working days.

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7. Since the Government Order dated 09.02.2023 was absolutely uncalled for besides the illegal, arbitrary and discriminatory, therefore, the Competent Authority/ Authorities has/ have rightly cancelled the aforesaid Government Order and the aforesaid initiative of the Competent Authority is being appreciated.

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8. At the same time, it is expected from the Competent Authority to consider the fact that if any daily rated employee is permitted to discharge his duties regularly for couple of years then there is no need to say that his/ their work is required and in that case those employees may be paid minimum scale of pay which is admissible to other similarly placed employees.

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9. It is true that so far as the other aspect e.g. regularization of services are concerned, there is specific rule or the government orders to govern such aspect, therefore, no court can say that without following due procedure of law the services of any employee be regularized but this may be directed to the Competent Authority to make payment of minimum of the pay scale in terms of the dictums of Apex Court. The Apex court in the case in re: Sabha Shanker Dubey (supra) has considered all relevant judgments relating to the issue in question and directed the Competent Authorities to make payment of minimum of the pay-scale to the daily rated employees so that they and their family could live properly. Though the amount of minimum of the pay-scale is meager amount but the aforesaid amount would make the employee and his family able to live fulfilling the minimum requirements of livelihood.

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10. This is a Welfare State and one of the aim and object of the Welfare State would be to provide at least minimum amount to the employee so that he and his family could fulfill his/ their bare minimum needs of livelihood.

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11. Learned Standing Counsel has requested that this case may be adjourned for today so that the concern of the Court could be intimated to the Competent Authority and if any appropriate decision is taken by the Competent Authority the same may be apprised to the Court by the next date of listing.

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12. Therefore, it is expected that if the petitioner has been disengaged only for the reason that he was demanding his minimum scale of pay and the Government Order dated 09.02.2023 was permitting the authorities to pass appropriate order against the daily rated employees then after cancelling the aforesaid Government Order any appropriate decision may be taken.

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13. It is needless to say that if the work for which the petitioner was engaged in the month of August, 2015 and for that work he discharged his duties upto the month of March, 2024, he may be permitted to discharge the duties and he may be paid his wages.

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14. List this case on 25.09.2024 within top ten cases.

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15. In the meantime, learned counsel for the petitioner may file supplementary affidavit or may file reply to the affidavit of compliance and the learned Standing Counsel may also file affidavit apprising the further development.

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16. On that date, this matter may be taken up after lunch.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 29.8.2024 Suresh/

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Digitally signed by :- SURESH CHANDRA High Court of Judicature at Allahabad, Lucknow Bench

Anand Kumar v. State of U.P. Thru. Addl. Chief Secy. Horticulture U.P. Lko. and 3 Others

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Anand Kumar v. State of U.P. Thru. Addl. Chief Secy. Horticulture U.P. Lko. and 3 Others

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