Nagar Palika Shramik Sangh v. the Port Blair Municipal Council and Others

Calcutta HC9 Feb 2024WPA/980/2023

Case brief

AI extract

What is this about?

Keywords: equal pay/parity; daily-rated workers; Muster Roll; DRMs; Port Blair Municipal Council; Andaman and Nicobar Administration; Office Memorandum No. 289 dated 22.09.2017; Office Order dated 18.07.2023; circular dated 10.08.2023; pick-and-choose policy; arbitrariness; presumption of unreasonableness; writ maintainability; Article 226; Trade Union Act, 1920; Division Bench order dated 19.12.2022; 4-week compliance direction; Awadhesh Singh distinguished.

What did the court decide?

WPA/979/2023 and WPA/980/2023 allowed and disposed of; respondents, particularly PBMC, directed to extend to the members of the petitioners the benefit of 1/30th of pay of the minimum of the relevant pay scale + Dearness Allowances in terms of the Office Memorandum dated 22.09.2017, within 4 weeks from the date of judgment. ¶¶31

Nagar Palika Shramik Sangh Vs the Port Blair… — Writ and Judicial Review | Calcutta HC (2024)

What the court decided

AI extract

Outcome

¶¶31

Issue for consideration

Whether the writ petitions are maintainable despite the respondents' objections of disputed questions of fact and the suggested alternative remedy of approaching the Labour Court/Industrial Tribunal. +1 more

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Court's answer

The objection to the maintainability of the writ petitions is rejected: Coordinate Benches as well as a Division Bench of this Court have repeatedly entertained writ petitions for similar relief on the same cause of action.

¶¶19

Ratio / Principle

The decision to exclude the petitioners falls foul of the specific directions of the Division Bench that no distinction was to be made between DRMs working against sanctioned posts and DRMs casually engaged by the Administration.

¶¶28

Key takeaways

There is a presumption of unreasonableness in the exclusion of the members of the petitioners from the benefits of the Office Memorandum dated 22.09.2017; the exclusion on the ground of alleged ineligibility is an afterthought contrary to the Division Bench direction, and being opaque (without reasons) it is arbitrary.ratio¶¶29
The Full Bench decision in Awadhesh Singh and others does not govern these writ petitions, having been rendered on a different issue, namely whether persons seeking regularization/absorption in Eastern Railway service could directly approach the High Court under Article 226 of the Constitution.ratio¶¶30

Detailed headnote1 paragraphs

Service law — parity/Daily Rated Mazdoors (DRMs)/Muster Roll workers of Port Blair Municipal Council (PBMC) — benefit of 1/30th of pay of the minimum of the relevant pay scale + Dearness Allowance under Office Memorandum No. 289 dated 22.09.2017 — petitioners' members, though named in PBMC Note dated 13.06.2023, excluded while 44 similarly situated DRMs were granted the benefit by Office Order dated 18.07.2023 pursuant to circular dated 10.08.2023 — exclusion contrary to Division Bench direction (order dated 19.12.2022) that all DRMs, whether against sanctioned posts or casually engaged, receive the benefit — exclusion without reasons, an afterthought, opaque and therefore arbitrary, attracting a presumption of unreasonableness — maintainability objection (disputed facts / Labour Court remedy) rejected; Full Bench decision in Awadhesh Singh distinguished as concerning a different issue — writ petitions allowed; benefit to be extended within 4 weeks.

¶1

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT: HON'BLE JUSTICE MOUSHUMI BHATTACHARYA

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WPA/979/2023 WITH WPA/980/2023

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NAGAR PALIKA SHRAMIK SANGH … PETITIONERS

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VERSUS

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THE PORT BLAIR MUNICIPAL COUNCIL AND OTHERS … RESPONDENTS For the petitioners : Mr. Gopala Binnu Kumar For the respondents : Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on : 08^th February, 2024 Judgment on : 09^th February, 2024

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MOUSHUMI BHATTACHARYA, J.

¶10

The petitioners pray for a direction on the respondent Nos. 1

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and 2, being the Port Blair Municipal Council (PBMC) and its Secretary, respectively, to provide the benefit of 1/30^th of pay of the minimum of the relevant pay scale + Dearness Allowances at par with regular employees.

¶12

¶13

The petitioners are Unions registered under the Trade Union Act, 1920 and consist of a larger number of members who were engaged by the PBMC from 2011-2022 for discharging duties, which the petitioners say, to be at par with the regular employees of the PBMC . The petitioners work for 8 hours for a day in different shifts.

¶14

The case of the petitioners is that the members of petitioner perform the work of Data Entry Operators, Linesmen, Plumbers, Sanitary Workers, Gardners, Mazdoors, Peons, Watchmen, Artists on a Daily-rated basis under the PBMC. The nature of work described above is not exhaustive.

¶15

Learned counsel appearing for the petitioner relies an Office Memorandum No. 289 dated 22.09.2017 issued by the Office of the Labour Commissioner, Directorate of Employment and Training, Andaman and Nicobar Administration which allowed 1/30^th of pay of the minimum of the relevant pay scale + Dearness Allowance to Casual/Daily Rated Mazdoors (DRMs) who were working against a sanctioned posts. The Office Memorandum dated 22.09.2017 was to be given effect to from 01.09.2017 subject to the conditions stated therein. Counsel also places a Note dated 13.06.2023 of the PBMC by which a list of Muster Rolls was prepared for determining the names of the employees engaged by the PBMC prior to 01.09.2017 and whether the said employees were continuing to serve in PBMC.

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¶17

Learned counsel submits that vide a subsequent Office Order dated 18.07.2023, the PBMC accorded the benefit of 1/30^th of pay of the minimum of the relevant pay scale + Dearness Allowances to 44 Muster Rolls/DRMs from the said list but that the petitioners were deprived of such benefit. Counsel submits that the PBMC has adopted a pick-and-choose policy by extending the benefit to 44 DRMs but denying the benefit to the petitioners who were similarlysituated as those 44 DRMs.

¶18

Learned counsel appearing for the respondents submit that the members of the petitioners have been denied the benefit of the Office Memorandum dated 22.09.2017 on an account of criteria in the circular dated 10.08.2023. Counsel submits that the members of the petitioner were engaged for seasonal work and that the work performed by the petitioners is also not continuous in nature. Counsel also submits that the Court should not interfere with the decision of the respondents/PBMC since there are disputed question of facts and that the petitioners should be directed to approach the Labour Court /Industrial Tribunal.

¶19

The objection to the maintainability of the writ petitions is not acceptable since Coordinate Benches as well as a Division Bench of this Court have repeatedly entertained writ petitions for similar relief and on the same cause of action.

¶20

¶21

The Notifications / Office Memorandums relevant for the present writ petitions are as follows. Office Memorandum No. 289 dated 22.09.2017 allowed 1/30^th of pay of the minimum of the relevant pay scale + Dearness Allowances to eligible DRMs who were working against the sanctioned vacant posts with effect from 01.09.2017. There was an earlier Memorandum dated 07.06.1988 which was held to be unconnected to the Office Memorandum dated 22.09.2017 by the Division Bench in its order dated 19.12.2022. The Division Bench was of the view that the Office Memorandum dated 22.09.2017 is a stand-alone police decision of the Administration for enhancement of the wages payable to the eligible DRMs and that the Office Memorandum dated 22.09.2017 does not refer to Memorandum dated 07.06.1988.

¶22

The Division Bench held that the decision of the Administration as contained in the Memorandum dated 22.09.2017 must be implemented and that the benefits to the DRMs under this Office Memorandum would accrue only with effect from the date of the Office Memorandum and not before that. The Division Bench specifically held that all DRMs under the Administration shall be paid and granted the benefits of the Office Memorandum dated 22.09.2017 irrespective of whether the DRMs were working against the sanctioned post or were casually engaged by the Administration.

¶23

¶24

It further appears from the submissions made on behalf of the Administration that there was a further Circular dated 10.08.2023 setting down certain parameters of eligibility for the benefit of the 1/30^th of pay of the minimum of the relevant pay scale + Dearness Allowances. The circular dated 10.08.2023 was issued in supersession of an earlier circular dated 09.05.2023.

¶25

The PBMC subsequently issued a further Office Order dated 18.07.2023 which was stated to be in compliance with the Office Memorandum dated 22.09.2017 and contained the Muster Roll of 44 DRMs employees who were granted the enhance wages. These 44 DRMs were part of the Note dated 13.06.2023 of the PBMC which also contained the names of the members of the petitioners.

¶26

There is no indication from the pleadings filed before the Court as to the basis for excluding the members of the petitioners despite their names featuring in the Note dated 13.06.2023. This exclusion is all the more striking in view of a list appended to the writ petitions which shows that all the members of the petitioners have continuously served under the PBMC for a substantial number of years. There is also no indication in the pleadings or in the documents disclosed by the respondents that the 44 DRMs who were granted the benefit of enhanced pay were on a different footing from the petitioners before the Court.

¶27

¶28

The decision to exclude the petitioner also appears to fall foul of the specific directions of the Division Bench by which no distinction was to be made between DRMs working against sanctioned post and DRMs who were casually engaged by the Administration. The Division Bench gave an explicit direction to that effect that all the DRMs under the Administration shall be paid and granted the benefit of the Memorandum dated 22.09.2017.

¶29

Therefore, there is a presumption of unreasonableness in the exclusion of the members of the petitioners from the benefits of the Office Memorandum dated 22.09.2017. The exclusion on the ground of alleged ineligibility of the petitioners clearly appears to be an afterthought and contrary to the direction of the Division Bench. The exclusion is also opaque, that is without reasons and hence arbitrary.

¶30

The decision of the full bench of the Calcutta High Court in Awadhesh Singh and others (supra) was on a different issue altogether, that is whether the petitioners, who sought for regularization/ absorption in the service of the Eastern Railway, could directly approach the High Court by a writ petition under Article 226 of the Constitution.

¶31

WPA/979/2023 and WPA/980/2023 are accordingly allowed and disposed of for the above reasons. The respondents, particularly PBMC are directed to provide the benefit of 1/30^th of pay of the

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minimum of the relevant pay scale + Dearness Allowances to the members of the petitioners in the writ petitions in terms of the Office Memorandum dated 22.09.2017. The benefit shall be extended to the petitioners/members of the petitioners within 4 weeks from the date of this judgment.

¶34

Parties to act on a server copy of this judgment duly downloaded from the official website of the Hon’ble High Court at Calcutta.

¶35

( Moushumi Bhattacharya, J.)

Procedural history

How this case reached the court

AI extract

Order under challenge
Exclusion of the petitioners' members from the benefit of 1/30th of pay of the minimum of the relevant pay scale + Dearness Allowance under Office Memorandum dated 22.09.2017, pursuant to eligibility criteria fixed by circular dated 10.08.2023, although 44 similarly situated Muster Roll/DRMs were granted the benefit by Office Order dated 18.07.2023.¶¶17
Port Blair Municipal Council / Andaman and Nicobar Administration · 2023-08-10
Prior proceeding
Office Memorandum No. 289 dated 22.09.2017 issued by the Office of the Labour Commissioner, Directorate of Employment and Training, Andaman and Nicobar Administration, allowing 1/30th of pay of the minimum of the relevant pay scale + DA to Casual/Daily Rated Mazdoors (DRMs) working against sanctioned posts, effective from 01.09.2017 subject to conditions.¶¶15
Prior proceeding
PBMC Note dated 13.06.2023 preparing a list of Muster Rolls to determine employees engaged prior to 01.09.2017 and continuing in service; the names of the petitioners' members featured in this Note along with the 44 DRMs later granted the benefit.¶¶15
Prior proceeding
Division Bench order dated 19.12.2022 held an earlier Memorandum dated 07.06.1988 unconnected to the Office Memorandum dated 22.09.2017 and treated the latter as a stand-alone policy decision for enhancement of wages payable to eligible DRMs.¶¶21
Prior proceeding
Division Bench directed implementation of the Memorandum dated 22.09.2017 with benefits accruing only from its date, and held all DRMs under the Administration entitled to its benefits irrespective of whether working against sanctioned posts or casually engaged.¶¶22
Prior proceeding
Circular dated 10.08.2023 laid down parameters of eligibility for the 1/30th pay benefit and was issued in supersession of an earlier circular dated 09.05.2023; respondents relied on it to deny the benefit to the petitioners' members.¶¶24
Prior proceeding
PBMC Office Order dated 18.07.2023, stated to be in compliance with the Office Memorandum dated 22.09.2017, granted enhanced wages to 44 Muster Roll/DRM employees listed therein; those 44 formed part of the Note dated 13.06.2023 which also contained the petitioners' members.¶¶25

Nagar Palika Shramik Sangh v. the Port Blair Municipal Council and Others

Case brief

What is this about?

What did the court decide?

Nagar Palika Shramik Sangh v. the Port Blair Municipal Council and Others

Case brief

What is this about?

What did the court decide?

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What the court decided

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Procedural history

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