Remanded

Sumendra Debbarma v. the State of Tripura and Ors.

Tripura HC7 Sept 2017WP(C)/1144/2016

Case brief

AI extract

What is this about?

The High Court of Tripura consolidated four writ petitions challenging the denial of service regularisation for workers employed as Daily Rated Workers (DRWs). The court distinguished the case from a Supreme Court decision on casual employment, holding that long-term eight-hour work constitutes full-time status despite part-time payment, directing a committee to ascertain the actual service render

What did the court decide?

Constitution of a three-member committee by the CMD of the respondent Corporation to inquire into petitioners' actual working hours; respondents to act within two months of the report.

Sumendra Debbarma Vs the State of Tripura… — Pension and Retirement Benefits | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) No.1143 of 2016, W.P.(C) No.1144 of 2016, W.P.(C) No.1145 of 2016,

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W.P.(C) No.1292 of 2016

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In W.P.(C) No.1143 of 2016

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Petitioner:

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Smt. Hira Gour (Madraji), wife of Sri Purna Singha Gour, resident of Purba Sonatala, P.S. Khowai, District : Khowai, Tripura

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By Advocate :

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Mr. K. Nath, Advocate

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– V e r s u s –

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Respondents :

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1. The State of Tripura, to be represented by the Secretary, Department of Finance, Government of Tripura, New Secretariat Building, New Capital Complex, Kunjaban, P.S. New Capital Complex, Agartala, West Tripura, PIN : 799006

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2. Tripura State Electricity Corporation Limited, to be represented by the Chairmancum-Managing Director, Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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3. The Chairman cum Managing Director, Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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4. The Dy. General Manager, Transmission Division, T.S.E.C.L. 79 Tilla, Agartala

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By Advocate :

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Ms. A.S. Lodh, learned Addl. G.A. Ms. S. Deb Gupta, Advocate

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[2]

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Mr. B. Dutta, Advocate

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In W.P.(C) No.1144 of 2016

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Petitioner:

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Sri Sumendra Debbarma, son of late Raj Kumar Debbarma, resident of Baijalbari, P.O. Baijalbari, District : Khowai, Tripura

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By Advocate :

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Mr. K. Nath, Advocate

– V e r s u s –

Respondents :

2. Tripura State Electricity Corporation Limited,

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to be represented by the Chairmancum-Managing Director, Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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3. The Chairman cum Managing Director, Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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4. The Dy. General Manager,

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Transmission Division, T.S.E.C.L. 79 Tilla, Agartala

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By Advocate :

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Ms. A.S. Lodh, learned Addl. G.A. Ms. S. Deb Gupta, Advocate Mr. B. Dutta, Advocate

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W.P.(C) No.1143 of 2016 W.P.(C) No.1144 of 2016 W.P.(C) No.1145 of 2016

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W.P.(C) No.1292 of 2016

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Page 2 of 13

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[3]

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In W.P.(C) No.1145 of 2016

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Petitioner:

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Smt. Milan Chakraborty (Goswami), wife of late Sunil Goswami, resident of Paschim Sonatala, P.S. Khowai, District : Khowai, Tripura

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By Advocate :

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Mr. K. Nath, Advocate

– V e r s u s –

Respondents :

3. The Chairman cum Managing Director,

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Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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4. The Dy. General Manager, Transmission Division, T.S.E.C.L. 79 Tilla, Agartala

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By Advocate :

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Ms. A.S. Lodh, learned Addl. G.A. Ms. S. Deb Gupta, Advocate Mr. B. Dutta, Advocate

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W.P.(C) No.1143 of 2016 W.P.(C) No.1144 of 2016 W.P.(C) No.1145 of 2016

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W.P.(C) No.1292 of 2016

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Page 3 of 13

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[4]

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In W.P.(C) No.1292 of 2016

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Petitioner:

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Smt. Renu Deb (Ghosh), wife of late Bhulu Deb, resident of Banamalipur, B.K. Road, Agartala, Tripura (West), PIN : 799001

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By Advocate :

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Mr. K. Nath, Advocate

– V e r s u s –

Respondents :

2. Tripura State Electricity Corporation Limited,

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to be represented by the Chairmancum-Managing Director, Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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3. The Chairman cum Managing Director,

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Tripura State Electricity Corporation Limited, Bidyut Bhavan, Banamalipur, P.S. East Agartala, Agartala, District : West Tripura

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4. The Dy. General Manager, Transmission Division, T.S.E.C.L. 79 Tilla, Agartala

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By Advocate :

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Ms. A.S. Lodh, learned Addl. G.A. Ms. S. Deb Gupta, Advocate Mr. B. Dutta, Advocate

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W.P.(C) No.1143 of 2016 W.P.(C) No.1144 of 2016 W.P.(C) No.1145 of 2016

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W.P.(C) No.1292 of 2016

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Page 4 of 13

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BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA

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Date of delivery of : 07.09.2017 Judgment & Order Whether fit for reporting : Yes No √

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JUDGMENT & ORDER (ORAL)

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Heard Mr. K. Nath, learned counsel appearing for the petitioners as well as Ms. S. Deb Gupta, learned counsel appearing for the respondents No.2, 3 & 4 and Ms. A.S. Lodh, learned Addl. G.A and Mr. B. Dutta, learned counsel appearing for the respondent No.1.

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All these petitions being WP(C) 1143 of 2016 [Smt. Hira Gour (Madraji) versus State of Tripura & Others], WP(C) No. 1144 of 2016 [Sri Sumendra Debbarma versus State of Tripura & Others], WP(C) No. 1145 of 2016 [Smt. Milan Chakraborty (Goswami) versus State of Tripura & Others] and WP(C) No. 1292 of 2016 [Smt. Renu Deb Ghosh versus State of Tripura & Others] are consolidated for disposal by a common judgment inasmuch as in the common premise, the petitioners have urged this court for directing the respondents to regularise their service as the GroupD employee of the respondent No.2 Tripura State Electricity Corporation Limited in terms of the memorandum No.F.10(2)FIN(G)/2008(Part) dated 01.09.2008 and the subsequent memorandum under No.F.10(2)-FIN(G)/2008(Part) dated 21.01.2009.

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Page 5 of 13

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There is no dispute that the petitioners are working under the respondent No.2. However, their status is in serious controversy. When the petitioners have claimed that they have been working as the Daily Rated Worker (DRW) on full time basis for more than 10 years, the respondents by filing their reply has controverted that claim stating that according to their data base they are working as the part time worker (PTW). The said database is fondly called by the Tripura State Electricity Corporation Limited as Human Resource Inventory (HRI). Since they are the part time worker, according to the respondents, the petitioners are not entitled to get any regularisation under the policy as adopted by the respondent No.2.

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Mr. K. Nath, learned counsel having appeared for the petitioners has contended that from the records of the respondents, it would be apparent that the petitioners are working for eight hours though they are being unfairly paid the wages as the part-time workers. The petitioner in WP(C) No.1143 of 2016 [Smt. Hira Gour(Madraji)] was engaged on 01.07.1995 as the DRW under Khowai Electrical Sub-Division of the respondent No.2. From the correspondence under No.F.1(19)/SM/ELECT/KH/TSECL/690-93 dated 18.08.2007 [Annexure-P/2 to the writ petition] it appears that the petitioner has been shown as the DRW engaged on 01.07.1995 for eight hours of work. Similarly, another correspondence under No.F.4(22)/DGM/ED-X/TSECL/KH/307-11 dated 27.01.2011 [Annexure-P/3 to the writ petition] it further appears that the

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Page 6 of 13

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respondents have acknowledged that the writ petitioner in WP(C)1143 of 2016 was engaged as the DRW on fixed wage at least for eight hours. Thus, the said petitioner has claimed that she had completed ten years of service as on 31.03.2008 as the

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DRW (full time) but in terms of the memorandum under No.F.10(2)-FIN(G)/2008(Part) dated 01.09.2008 she was not regularised with effect from 01.08.2008. She filed the representation but without any positive yield. The writ petitioner in WP(C) No. 1143 of 2016 has further submitted that even her case of regularisation was not considered under the memorandum dated 21.01.2009.

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In reply the respondents have stated that they never asked the petitioner to sign the attendance roll twice in a day. The memorandum dated 23.08.1997, according to them, is one which is tentative in nature and these are not final and on the basis of that nobody can claim any right.

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The respondents No.2, 3 & 4 have categorically stated that the petitioner in WP(C) No.1143 of 2016 was engaged for washing, cleaning and watering and the duty has to be performed before the commencement of the office hour. The engagement is purely as the part time worker and therefore, there is no basis for regularising them under the government policy as stated.

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The writ petition in WP(C) No. 1144 of 2016 namely Sri Sumendra Debbarma has raised the similar claim on the basis of the correspondence dated 27.01.2011 [Annexure-P/1 to the writ petition being WP(C) No. 1144 of 2016] where it has been

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Page 7 of 13

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recorded that he was engaged on 25.02.1998 working for eight hours a day. The respondents have taken a similar stand in this case also like the writ petition being WP(C) No. 1143 of 2016.

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The writ petition in WP(C) No. 1145 of 2016 namely Smt. Milan Chakraborty (Goswami) has also raised the similar claim for regularisation on the basis of her service as DRW for more than ten years. She has also relied on the correspondence dated 18.08.2007 [Annexure-P/2 to WP(C) No. 1145 of 2016], the correspondence dated 27.01.2011 [Annexure-P/3 to the writ petition being WP(C) No. 1145 of 2016] and the statement issued by the Senior Manager, Khowai Electrical Sub-Division where the petitioner has been shown to have at least for eight hours but her status in that statement, has been shown as DRW (full time). In this case also the respondents have taken a similar position stating that the petitioner in WP(C) No. 1145 of 2016 (Smt. Milan Chakraborty(Goswami) was assigned duties as the part-time worker (PTW) and she has been paid accordingly. That apart, they have disclosed that there is no record to show that the petitioner was ever paid as the full time DRW.

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The writ petitioner in WP(C) No. 1292 of 2016 namely Smt. Renu Deb (Ghosh) has also urged this court for directing the respondents to regularise her service as she has rendered service for more than ten years as DRW. This petitioner has submitted that from the correspondence dated 21.08.2008 issued by the Chairman, Scrutiny Committee [Annexure-P/1 to the writ petition] it can be gathered that she was appointed as the DRW on

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01.02.2008 and has been working under the Central Civil Division, 79 Tilla. But with this writ petition, the petitioner has also submitted the office order dated 01.10.2005 [Annexure-P/2] wherefrom it appears that during the Puja holidays, the petitioner was asked for working for four hours. This order issued by the Deputy General Manager, Central Civil Division, 79 Tilla cannot imply that the petitioner was working as DRW (full time).

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From the correspondence dated 06.07.2006 [Annexure-P/4] it appears that the said petitioner in WP(C) 1292 of 2016 was engaged as DRW for eight hours. Despite her representation she was not considered for regularisation in terms of the policy as reflected in the memorandum as referred earlier.

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The respondents No.2, 3 & 4 have taken a position which is similar to the position as taken in other writ petitions. They have stated in their reply as under :

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“The respondent vehemently denied that the petitioner has been discharging the duty and responsibility of Group-D post being not paid in the pay scale pertaining to the Group-D post. It is also denied that despite discharging the duty and responsibility pertaining to the Group-D post the petitioner is not being paid like the Group-D. It is also denied that the petitioner is entitled to be paid as per with the pay and salary pertaining to the Group-D post.”

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Further, they have stated that though the respondents

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No.2, 3 & 4 have adopted the policy of the State Government but as the petitioner has been working as the part time worker and paid as the part time worker, her case would not come under purview of the said policy. As such, they cannot be regularised.

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They have categorically stated that from the pay bill dated 01.06.2007 issued by the Deputy General Manager, Central Civil

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Division, Agartala it is found that the petitioner has been mentioned as PW for four hours. The respondents have referred to the said acquaintance roll to show that the petitioners were being paid as the part time worker not as a full time DRW.

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Mr. K. Nath, learned counsel while contending that the petitioners were working for eight hours a day has firmly contended that they cannot be treated as part-time worker, even though they are paid for four hours by the respondents No.2, 3 & 4. Mr. Nath, learned counsel has submitted that this is nothing short of a primordial form of exploitation of labour which has been prohibited by the Constitution under Article 23. The government is only expected to protect the fundamental rights of the citizen not to destroy it. In support of his contention, he has relied on a previous decision of this court in Smt. Rubi Deb versus State of Tripura & Others [common judgment and order dated 28.06.2016] delivered in WP(C) No. 131 of 2015 and WP(C) No.

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464 of 2015 where this court had occasion to observe as under :

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“On consideration of their working hours, both of them are entitled to be treated as the Full Time Worker, which is the engagement comparable with the Daily Rated Workers and in all respects, they are Full Time Contingent Workers. As such, both the petitioners are entitled to be considered for regularisation under the scheme as stated above. The respondents, particularly the respondents No.2 and 3 are directed to take all required steps to regularize the petitioners with effect from 01.07.2008 as both the petitioners have completed 10(ten) years of service in the required category in terms of the memorandum dated 01.09.2008.”

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Ms. S. Deb Gupta, learned counsel appearing for the respondents No.2, 3 & 4 has submitted that the scheme does not envisage that a part time worker has to be regularised by the

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respondents No.2,3 & 4. It clearly stipulates that only the full time contingent/DRWs are entitled to get the benefit of the said policy as reflected in the memorandum dated 01.09.2008 and 21.01.2009. She has relied on a decision of the apex court in Secretary to Govt. Commercial Taxes and Registration Department, Secretariat and Another versus A. Singamuthu reported in AIR 2017 SC 1304 where the apex court has observed as under :

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“9. Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.”

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In the considered opinion of this court this judgment does not have any application in the present context equitous inasmuch as this court is concerned about implementation of the government policy as adopted b the Corporation-respondents where by the Contingent/DRW and the other Casual workers are sought to be brought under the regular establishment, subject to conforming the conditions as laid down in the memorandum. Therefore, the prime consideration that falls for consideration of this court is whether the petitioners can get the fruit of the said memorandum espousing the government policy. The status of the petitioners are in serious controversy as the respondents by filing

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their data-base in support of their averments in the reply have seriously question the status of the petitioner for purpose of regularisation. They have denied that the petitioners are working for eight hours despite the documents issued by very senior officers of the respondent No.2 reflecting the contrasted position. This is really unfortunate. In the reply the respondents No.2,3 and 4 have failed to mention why they were ignoring those records. At the same time, this court has already observed in the previous decisions that the worker who is working for eight hours cannot be treated under any circumstances as the part-time worker, even if he is paid as the part-time worker. The mode in payment of wage in that manner is exploitation of the value of labour, as we are all alive of the employment market. There is scope of bargain for the unskilled worker. The state cannot take or exploit such situation. As the model employer they have a duty to uphold the constitutional right as enshrined in Article 23 of the Constitution. They are not supposed to trample it. But this court cannot decide whether the petitioners are rendering service for eight hours in the context of the admitted position that they are paid for four hours as the part-time worker.

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That apart, the fact that the petitioners did not approach this court earlier for payment of the full wage they are entitled. Under the jurisdiction as conferred by Article 226 of the Constitution of India, such disputed facts are not ordinarily inquired into. In the fitness of things it would be apposite that the matter be remitted to an authority which can fairly inquire into

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these aspects and come into a definite inference, not being influenced merely by the acquaintance role or the master-roll.

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In view of what has emerged these writ petitions are disposed of

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by the following directions :

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(a) The Chairman-cum-Managing Director (CMD) of the respondent No.2 shall constitute a committee with three senior most officers in the Corporation for inquiring into the status of the petitioners particularly to ascertain whether they were rendering their service per diem for that eight hours for the requisite period of regularisation. If it is found that the petitioners were rendering eight hours of service but they were paid wage for four hours, they shall be treated as full time DRWs.

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(b) During the inquiry by the said Committee the petitioners shall be allowed the reasonable opportunity of laying down their case. The petitioner may place or may cause production of all the relevant records which are in their custody and which are not. If the petitioners are aware of some records laying in the custody of the respondents, they may apply for production of those records. The Committee shall remain obligated to consider all materials that would be placed by the petitioners for purpose of coming to inference.

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(c) The Chairman-cum-Managing Director shall form the said Committee within a period of 30(thirty) days from the day when the petitioners shall submit the copy of this order. From the date of such constitution the Committee shall give their report to the Chairman cum Managing Director of the respondent No.2 within 2(two) months. On the basis of the report, the respondent No.2 may take appropriate action for regularisation of their service if the Committee was of the view that the petitioners were rendering service for eight hours per diem. The respondents No.2,3 and 4 shall take action in terms of the report within 2(two) months from the date of receiving the same. If the petitioner are aggrieved by any action of said respondents in the regard they shall be at liberty to approach this court again and urge for the similar relief.

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There shall be no order as to costs.

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A copy of this order be furnished to the counsel for the

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parties for doing the needful.

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JUDGE

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Sabyasachi.B

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W.P.(C) No.1143 of 2016 W.P.(C) No.1144 of 2016 W.P.(C) No.1145 of 2016 W.P.(C) No.1292 of 2016