Dismissed

Hussain Peera, v. The Executive Engineer

Andhra Pradesh HC11 Jul 2022WP/6617/2020

Case brief

AI extract

What is this about?

Writ petitioner challenged the dismissal of an execution petition seeking wages as an arbitrary violation of Article 14. The High Court, following precedents, held that since wages are paid by the contractor and the petitioner works under them, there is no obligation for the corporation to undertake the laborer as an employee or granRegularization and equal pay.

What did the court decide?

The writ petition seeking regularization and equal pay against the corporation is dismissed as the petitioner works under a contractor who pays wages.

Hussain Peera, Vs The Executive… — Contract and Commercial Disputes | Andhra Pradesh HC (2022)

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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.6617 of 2020

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ORDER :

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This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:

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“…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the order dated 04.09.2019 in E.P.No.6 of 2016 in I.D.No.143 of 1996 on the file of 4^th respondent Court as arbitrary, illegal, unlawful, unfair, iniquitous and unconstitutional besides violative of Articles 14 and 21 of the Constitution of India and consequently direct the respondents to pay the wages of Mazdoor as claimed in E.P and pass such other orders”.

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Heard Mr. Pitchaiah, learned counsel for the petitioner and

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Mr. P. Durga Prasad, learned Standing Counsel for the respondents 1 to 3.

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The brief facts of the case are that the petitioner joined as Man Mazdoor from 01.02.1987 to 31.03.1989 in the Civil Engineering Wing in the respondent Corporation at Giddaluru and his services were terminated on 31.03.1989. Therefore the petitioner filed I.D.No.143 of 1996 before the 4^th respondent and after full fledged trial an Award dated 15.10.2001 holding that the termination of petitioner is illegal and arbitrary and directed the respondents 1 to 3 to reinstate the petitioner with continuity of service but without back wages. Aggrieved by the said Award the respondents 1 to 3 filed W.P.No.6705 of 2003 before this Court and the same was dismissed on 19.12.2017. Therefore, the Award became final and is binding on the respondents 1 to 3. Meantime the petitioner filed E.P.No.6 of 2016 before the 4^th respondent for

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recovery of wages due post award from August, 2002 to December, 2015 by way of attachment of movables of respondents 1 to 3 and the same was dismissed by the 4^th respondent dated 04.09.2019. Assailing the same, the present writ petition came to be filed.

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The respondents 1 to 3 filed counter by denying the all material averments made in the writ affidavit and mainly contended that the Corporation has taken a policy decision for absorption of eligible candidates for appointment to the posts of Driver and Conductor from among the persons engaged in Civil Engineering Department through the Contractors and the persons who have worked for more than 240 days as on 22.08.1991 and who were continued to work with the Contractor shall only be considered for appointment and issued a circular to that effect and conducted interviews on 26.03.1993. The petitioner is not having requisite qualification for the post of Driver or Conductor and also not on rolls as on 22.08.1991, the case of the petitioner was not considered. Therefore the petitioner filed I.D.No.143 of 1996 before the 4^th respondent after lapse of eight years from the date of disengagement from service and the 4^th respondent passed an Award dated 15.10.2001 directing the respondent corporation to reinstate the petitioner with continuity of service, but without back wages. As per orders in E.P.No.6 of 2016 in I.D.No.143 of 1996 the petitioner was reinstated into service with effect from 22.01.2018 and his service was being utilized as Man Mazdoor through Contractor. Since the petitioner is working under the contractor and the wages are being paid to the petitioner by contractor, he is not entitled to seek regular time scale. Hence, requested to dismiss the writ petition.

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Learned counsel for the respondents placed reliance on the decision of this Court in Kodali Raju and Others Vs. The APSRTC,

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rep., by its Chairman and Managing Director, Hyderabad and

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Others¹ wherein it was held as follows:

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“ For all the above reasons, the respondents are directed to regularize services of the petitioners from the date when they have completed 10 years of service. However, they shall be put on timescale from 01.09.2010 with notional increments from the date of regularization. If there is any revision of timescales, the same shall also be extended notionally. Further, it is made clear that the petitioners are not entitled for any arrears of increments and revised pay scales etc., “

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Further in the case of “State of Punjab and Others Vs.

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Jagjit Singh and Others² ” wherein it was held as follows:

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“ 10. …..When the services of the respondent had not been regularized, his appointment was on temporary basis on consolidated pay and he had not undergone the process of regular recruitment, direction to give regular pay-scale could not be given that too without examining the relevant factors to apply the principles of “equal pay for equal work”. It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing them with the regularly recruited Junior Assistants. ., “

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Following the decisions cited supra, this Court finds that the petitioner is working under the contractor and the wages are being paid to the petitioner by the contractor, as such there is no provision to undertake the labour as employee in the respondent corporation. Having traversed the legal parameters with reference to the application of principle of “equal pay for equal work” in relation to temporary employees i.e daily wage employees, ad-hoc appointees, employees appointed on casual basis etc., the sole factor that requires for determination would be whether the petitioner is

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1 2011(1) ALD 234

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2 2016(0) AIR (SC) 5176

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rendering similar duties and responsibilities, as he being discharged by regular employees, holding the same posts. This exercise would require the application of the parameters of the principle of ‘equal pay for equal work’. 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.

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