Allowed

Abdul Ahad Ganai and Ors. v. Union Territory of J and K and Ors. (Finance Department)

J&K HC26 Dec 2022WP(C)/218/2022

Case brief

AI extract

What is this about?

Petitioners, working as full-time sweepers and chowkidars in the Funds Organization, challenged an order denying them minimum wages applicable to sweepers in other wings. The Court quashed the order as arbitrary and discriminatory, commanding respondents to pay wages at par with SRO 460 of 2017.

What did the court decide?

Impugned order and communication quashed; respondents commanded to pay wages at par with SRO 460 of 2017 read with Government Order No. 25-F of 2018.

Abdul Ahad Ganai and Ors. Vs Union Territory of J and K… — Service and Employment | J&K HC (2022)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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Reserved on : 29.11.2022 Pronounced on: 26.12.2022.

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WP(C) No. 218/2022 CM no. 598/2022

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Abdul Ahad Ganai and ors.

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….Petitioner/Appellant(s)

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Through :- Mr. T.H. Khawaja, Advocate.

V/s

UT of J&K & ors.

….Respondent(s)

Through :- Mr. Sajad Ashraf, GA

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Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI JUDGE

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JUDGMENT

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In the instant petition, the petitioners claiming to be working as Sweepers, Chowkidars and Gatekeepers in the Funds Organization of the respondent-department have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India while imploring for the following reliefs:

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“A writ of mandamus commanding the respondents to pay wages to the petitioners at par with minimum of the pay scale attached to the posts of Sweepers and Chowkidars as also consequential Dearness Allowance admissible of such basic pay.

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In the alternative an appropriate writ of quashing impugned order dated 17.12.2021 and communication dated 14.12.2021 referred therein followed by a writ of mandamus commanding the respondents to revise the wages of

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petitioners and pay or cause to pay wages to petitioners at the rate of Rs. 225 per day in terms of and accordance with SRO 460 read with Government Order No. 25-F of 2018 from the date petitioners were entitled to it.”

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The case of the petitioners as detailed out in the petition is that they are working as full time Sweepers, Chowkidars and Gatekeepers in different offices of the Funds Organization-a wing of Finance Department of Govt. of Jammu and Kashmir, on consolidated wages ranging from Rs. 2,000/- to Rs. 4,375/- that has been fixed in the year 2012.

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It is stated by the petitioners that the remuneration presently paid to them has been fixed many years back without any enhancement or revision although the petitioners are entitled to be paid at par with the minimum pay scale attached to the post they are holding.

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It is being next stated by the petitioners that in 2017, Govt. issued SRO 460 of 2017 dated 26.10.2017 wherein minimum wages came to be revised and the petitioners, as such, became entitled to the same.

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It is being next stated that few of the Sweepers and Chowkidars of the

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Accounts wing of the Finance Department filed a writ petition before this Court for enhancement and revision of their wages upon issuance of SRO 460 OF 2017 read with Government Order No. 25-F of 2018 which petition came to be disposed of with a direction to the respondents to consider the eligibility of the petitioners therein on the touchstone of SRO 460 OF 2017 read with Government Order No. 25-F of 2018 and pass appropriate orders and that in consequence

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thereof, the claim of the said petitioners came to be accepted and were ordered to be paid daily wages as per the SRO @ Rs. 225 per day.

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It is being next stated by the petitioners that being similarly circumstanced with the petitioners of the petition (supra) also filed a petition for appropriate reliefs before this Court being WP(C) No. 836/2021, which too came to be disposed of with a direction to the respondents to consider the claim of the petitioners on the analogy of the petitioners in the earlier petition in light of SRO 460 0f 2017.

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It is being lastly stated by the petitioners that the respondents in compliance to the direction passed by the Court in their petition rejected their claim pursuant to Order No. 235 DGF of 2021 dated 17.12.2021 on the ground that the petitioners are part time employees. The said order dated 17.12.2021 along with communication dated 14.12.2021 are being impugned in the petition inter alia claiming for the other reliefs as well.

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The petition is maintained on the following grounds which in extenso are extracted and reproduced hereunder:

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a) Because petitioners are discharging all duties that are being required to be carried and performed by regular Sweepers and Chowkidars and put in more than 8 hours of duty every day without any fail not only as Chowkidars and Sweepers but also as Orderlies during office hours. Based on doctrine of equal pay for equal work emanating from Article 14 of the Constitution of India, the petitioners are entitled to be paid similar salary as is being paid to regular employees performing same job. The law is now well settled that all temporary employees, but is daily wage employees, ad hoc, appointees, employees appointed on casual basis, contractual employees and

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likewise are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. It has been laid down in Sabha Shanker Dube case that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post. The petitioners are performing on full time basis as is evidenced and conclusively established by the inter se communications of the respondents. The respondents are, therefore, liable to be directed to pay to petitioners at the minimum of the pay scales attached to the posts of Sweepers and Chowkidars.

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b) Because the impugned order has been passed in an arbitrary manner without application of mind and is based on ipsi dexit of the respondents. There is no record to support the opinion that petitioners are performing part time job only, rather the opinion is contrary to record. In this regard it is submitted that while claim of the petitioners was being considered by the respondents, the respondent no. 1 had sought information from respondents 2 and 3 about date of engagement, working hours, mode of engagement of petitioners. The information was submitted by the respondents 2 and 3 to the respondent no. 1 wherein it was specifically stated that petitioners are working on full time basis. There was no other information available with respondents. There was/is no occasion to hold that petitioners are working on part time basis. The record is to the contrary. It is submitted that since the very premise on which order has been passed does not exit, the impugned order is liable to be quashed.

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c) Because attitude of the respondents in denying benefit of Minimum Wages Act is discriminatory and arbitrary. It is submitted that while as Sweepers and Chowkidars of Accounts and Treasuries Wing have been admitted to benefit of Minimum Wages Act, the petitioners, who are working in Funds Organization, which is also a wing of Finance Department, have been denied similar benefit even though petitioners are similarly circumstanced with Sweepers and Chowkidars of Accounts and Treasuries Wing. The order of

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the Hon’ble Court required respondents to consider the case of petitioners on the analogy of petitioners in earlier writ petition i.e., Sweepers and Chowkidars of Tresuries. Having admitted Sweepers and Chowkidars of Treasuries of Accounts and Treasuries Wing to the benefit of Minimum Wages Act, there was no basis for the respondents to assume that Sweepers and Chowkidars of Funds Organization are doing part time job and thereby deny similar benefit to petitioners. The impugned order does not show as to how Chowkidars and Sweepers of Accounts Wing are differently circumstanced than petitioners and on what basis petitioners have been assumed to be part time workers while as no such distinction was carved when Sweepers and Chowkidars were admitted to the benefit of Minimum Wages Act.

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d) Because order suffers from vice of malafides. The fact is that respondents have got annoyed by the notice issued in the contempt petition filed by the petitioners and have passed the impugned order to wreck vengeance upon petitioners for otherwise there was no reason or distinguishing feature to deny the benefit to petitioners after such benefit had been extended to petitioners after such benefit had been extended to Sweepers and Chowkidars of Accounts and Treasuries Wing of the Department.

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e) Because approach of the respondents in not only discriminatory but out and out arbitrary and capricious in that while as benefit of minimum wages has been extended to contingent paid employees working in Accounts and Treasuries Wing of the department, the contingent paid employees working in Funds Organization Wing of same department has been denied similar relief even though they are similarly circumstanced in all material respects.”

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Per Contra, objections to the petition have been filed by the respondents wherein it is being admitted that the petitioners were engaged as Sweepers, Chowkidars and Gatekeepers in different offices of J&K Funds Organization of Kashmir Division on consolidated remuneration

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and that the petitioners are discharging their duties as consolidated workers and their remuneration enhanced from time to time as per Govt. instructions. It is also admitted in the objections that the petitioners previously filed a petition before this Court being WP(C) No. 836 of 2021 which came to be disposed of vide judgment and order dated 04.05.2021 with a direction to the respondents to consider the case of the petitioners in the light of SRO 460 of 2017 read with Government Order No. 25-F of 2018.

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It is, however, being averred in the objections that in compliance to the order passed by this Court on 04.05.2021 (supra), the case of the petitioners came to be considered on merits and rejected in terms of consideration order dated 17.12.2021 which order is stated to have been

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passed with complete application of mind on the ground that the order passed by the Court came to be taken up with the administrative department for necessary clarification and after going through the mode of engagement and the purpose of engagement of the petitioners, it transpired that the job of the petitioners is part time working as consolidated daily wagers having been paid remuneration as per Govt. Order No. 179-F of 2013 dated 21.08.2013.

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The petitioners have also filed a rejoinder affidavit in response to the reply filed by the respondents wherein the petitioners have reiterated their stand for their performing full time job and have also supported their contention by placing on record additional documents issued by the functionaries of the respondents wherein the immediate officers of

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the petitioners have in explicit terms certified that the petitioners are working on full time basis in absence of Class-IV staff.

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Heard learned counsel for the parties and perused the record.

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Perusal of the record produced by the counsel for the respondents would manifestly demonstrate that the stand of the respondents that the petitioners are part time workers has no basis and is not supported by any proof. The record rather suggests that the petitioners have been working on full time basis. The communication on record with the writ petition would show and demonstrate that the respondent no. 2 has, in no uncertain terms, informed the Director Codes, on the basis of record, that the petitioners are working on full time basis. What has prompted the respondent no. 1 to observe that the nature of job of Sweeper is part time is not forthcoming from record. The present case concerns not only Sweepers but also Chowkidars and Gatekeepers and the said jobs, by no sense of imagination, can said or termed to be part time jobs. Thus, there can be no hesitation in holding that the record is consistent with the stand taken by the petitioners that they are working on full time basis.

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The contention of the respondents in their reply as also the observation made in the impugned order that the petitioners’ job is part time appears to be based on ipse dixit of some official working in the Finance Department.

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The aforesaid contention and observation of the respondents that the job

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of the petitioners is part time while the similar workers working in Accounts and Treasuries Department have been admitted to benefit of

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wage fixed under Minimum Wages Act, 1948 is, to say the least, totally arbitrary and perverse inasmuch as it is neither supported by any reason nor by record. The approach of the respondents per se is discriminatory, in that, while the Sweepers and Chowkidars working in Accounts and Treasuries’ wing of the Finance Department doing same job under similar circumstances have been admitted to the benefit of wages fixed under Minimum Wages Act, 1948 while as the petitioners doing the same job under similar circumstances have been denied similar treatment by observing, though wrongly, that their job is part time in nature.

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The respondents, in law, cannot give differential treatment to similar employees doing similar jobs in two wings of the same department as the same would be an affront to the concept of equality enshrined in the Constitution.

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Perusal of the record ironically tends to show that the respondent no. 2- Director General, Funds Organization despite having informed Director Codes, on the basis of record, that the petitioners are working on full time basis has yet passed the impugned order and rejected the claim of the petitioners only on the basis of the communication of the Administrative Department dated 14.12.2021 wherein it has been observed, though without any basis, that “petitioners have been engaged as Sweepers, which is a part time job.” The respondent No. 2 appears to be oblivious to the communication that has emanated from his office wherein it is clearly stated that the petitioners are working on full time basis. The respondent no. 2, thus, while considering the matter

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ought to have taken a conscientious decision on the basis of the record that was available with him and ought not to have been influenced by the observation in the communication of the Administrative Department more so, when the said observation was to the knowledge of the respondent no. 2. The respondent no. 2 seemingly has acted under the dictations of the Administrative Department, which had no record before it. The said conduct of the respondent no. 2 besides being reprehensible also does not behove an officer of such a level.

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It is pertinent to note here that Minimum Wages Act, 1948 is a social piece of legislation and has been enacted not only to ensure descent living of working class particularly of those belonging to lower strata of society but to also rule out exploitation of labour. The law came to be enacted after the nation achieved independence and had been enacted before framing of the Constitution, which Constitution has been adopted with lofty and laudable object as discernible from the very preamble of the Constitution, to secure among other things, to all its citizens, justice, social, economic and political . The Constitution has further fortified the underlying principles of Minimum Wages Act, 1948 as is reflected in the Directive Principles of State Policy contained in part-IV of the Constitution.

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A reference hereunder to Articles 38 and 43 of the Constitution also become imperative.

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Article 38 of the Constitution of India provides as under:

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“38. State to secure a social order for the promotion of welfare of the people:

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(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.

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(2) The State shall, in particular, strive to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

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Article 43 of the Constitution of India provides as under:

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“43. Living wage, etc, for workers:

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The State shall endeavour to secure, by suitable legislation or economic organization or in any other way to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.

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The aforesaid provisions of the Constitution of India as contained in the

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Directive Principles of State Policy make it abundantly clear that the framers of the Constitution intended to have social and economic justice for all and development of society on sound equitable social principles. In order to achieve the said goals, State is supposed to be a model employer and act in consonance with aforesaid constitutional ideals. The ideals are expected to be reflected in the actions of the State. That being so, the State is expected to follow the spirit of Minimum Wages Act, 1948 and it cannot, as such, come with specious pleas and hollow

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pretexts to reject the genuine claims of its citizens and thereby defeat the spirit of mandatory provisions of law.

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Reverting back to the case in hand, the respondents have stated that the wages of the petitioners were fixed in the year 2013 and that the petitioners cannot claim more than what has been fixed in the year 2013. What has not been realized by the respondents that the cost of living has increased manifold during intervening period due to inflationary trends in the economy. The salary of the regular employees during the intervening period has been increased manifold because of regular pay revisions as also increasing dearness allowances from time to time. Denying similar benefit and dispensation to workers, who are not regular employees like the petitioners working on full time basis, cannot be said to be moral and just. Expecting the petitioners to work on wages those have been fixed ten years back is not in conformity with the principles underlying Minimum Wages Act, 1948 and Directive Principles of State Policy enshrined in the Constitution. If not more, the said workers like the petitioners in any case can be paid less that, what is notified in the Minimum Wages Act, 1948 and paying them less that, what is prescribed by the Govt. would be violation of law exposing the said workers including the petitioners to penal consequences.

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In the ultimate analysis, there is no doubt that the impugned order dated 17.12.2021 issued by the respondent no. 2 as also communication dated 14.12.2021 issued by respondent no. 1 wherein it is observed that the

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job of Sweeper is part time in nature are perverse, arbitrary, discriminatory and suffer from vice of having been passed without

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application of mind as also based upon no evidence. The impugned order and communication (supra) are therefore, liable to be quashed. Accordingly, the petition is allowed.

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(i) By issuance of writ of certiorari, the impugned order dated 17.12.2021 issued by the respondent no. 2 as also communication dated 14.12.2021 addressed by respondent no. 1 are quashed and

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(ii) By issuance of writ of mandamus, the respondents are commanded to pay the petitioners wages at par with SRO 460 of 2017 read with Government Order No. 25-F of 2018 or any other statutory modification therefrom the date of issuance of said SRO or statutory modification thereof.

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The Court cannot overlook the attitude of the respondents being manifestly arbitrary and obstinate having forced the petitioners to approach this Court not once but twice for a benefit, which ought to have been extended by the respondents of their own, as such, taking notice of such unbecoming attitude, the petitioners are held to be entitled to a cost to the tune of Rupees Fifty Thousand to be payable by the respondents. Record be returned back to the counsel for the respondents against proper receipt.

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The petition is disposed of accordingly along with connected application(s).

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(JAVED IQBAL WANI) JUDGE

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SRINAGAR 26.12.2022 NARESH/PS

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Whether approved for reporting: Yes/No

Abdul Ahad Ganai and Ors. v. Union Territory of J and K and Ors. (Finance Department)

Case brief

What is this about?

What did the court decide?

Abdul Ahad Ganai and Ors. v. Union Territory of J and K and Ors. (Finance Department)

Case brief

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