The Lucknow Bench of the Allahabad High Court while allowing the petition said that merely by engaging daily wage employees through a service provider agency, the State Government cannot shy-away from its responsibility of providing minimum pay scale which it is bound to pay in accordance with law.
A Single Bench of Justice Vivek Chaudhary passed this order while hearing a petition filed by Prem Chandra.
The petitioner has approached the Court challenging order dated 15.7.2019 passed by respondent no 2-Director, Horticulture and Food Processing, Lucknow whereby his representation for minimum pay scale is rejected.
Facts of the case, as claimed by petitioner, are that petitioner was engaged as a daily wager on Class-IV post (Mali) in the year 2013 in the office of Scientist, State Tissue Culture Lab, Sector-G, Aliganj, Lucknow, where he was being paid daily wages only.
He claims that other similarly situated daily wage employees, who have completed more than five years of service, are being paid the minimum of pay scale while the same is denied to him.
Counsel for petitioner submitted that impugned order is passed on false and incorrect facts. Submissions made by petitioner are either not considered in the impugned order or are rejected by concocting incorrect facts.
On the other hand, the Standing Counsel strongly opposing the petition, submits that since petitioner is working as a daily wager through a service provider agency, hence, he is not entitled for minimum pay scale. He further submitted that the impugned order is passed in accordance with law.
The Court said that,
It is not in dispute that the aforementioned Lab is run by the department of Horticulture and Food Processing and is part of the same. It is the officers and employees of Horticulture and Food Processing department of State of UP, who are working and running the said Lab.
While rejecting the representation, it is noted that petitioner in the year 2013 had worked for 2 months, in 2014 again for 2 months, in 2016 for 5 months, in 2017 for 4 months, in 2018 for 2 months and since September, 2018, he has been working through a service provider agency.
The Court noted that,
The chart shows that since the year 2013 till date, working of petitioner only on muster-roll is considered while rejecting his representation. His entire working admittedly through a service provider is not considered. The same shows that petitioner started working since September, 2013 and worked for all four months of the year 2013 and thereafter in 2014, he worked for 8 months, in 2015 for 7 months, in 2016 for 11 months, in 2017 for 10 months, in 2018 for 7 months, in 2019 for 12 months and in 2020, he was continuously working till the time chart was prepared.
Thus, from the aforesaid chart, it is clear that impugned order is passed by referring to wrong and incorrect facts. The Director, Horticulture and Food Processing is a senior officer. It is not expected that he would refer to incorrect and incomplete facts while considering the case of a person under the orders of the Court. He is cautioned not to conduct proceedings in such a manner in future.
The aforesaid facts clearly show that petitioner is now working for around ten years with the respondent department.
The petitioner claims that persons, who are working as daily wagers for more than five years, are paid the minimum of pay scale under the orders of this Court. For the said purpose, counsel for petitioner relies upon a communication dated 4.11.2004 made by Joint Director/Incharge Officer, Rajkiya Utak Samvardhan Prayogshala, Aliganj, Lucknow to Director, Horticulture and Food Processing, Lucknow. In the said communication, Joint Director/Incharge Officer has specifically stated that such daily wage employees in the department, who have completed five years or more service, are getting minimum pay scale of Rs 3050-4590 under the orders of High Court.
Pankaj Srivastava, Daily Wager is getting minimum of aforesaid pay scale. Thus, he has recommended that other similarly situated Class-IV employees should also be granted a minimum of said pay scale.
The said document is filed to the writ petition. The letter dated 4.11.2004 is admitted in the counter affidavit, but the same is explained by saying that on the aforesaid letter dated 4.11.2004, no decision has been taken at State level.
The Court further said that the same cannot be a ground for refusing benefit of minimum pay scale to petitioner, which is already being extended by respondent department to other similarly situated persons. In fact, said submission of petitioner though is noted in impugned order, but is nowhere considered and decided.
The Court observed that,
The Supreme Court after considering all the earlier law settled on the issue has again reiterated that the principle of ‘equal pay for equal work’, which has emerged by interpretation of different provisions of the Constitution and expounded through a large number of judgments of the Supreme Court, continues to be the law declared by the Supreme Court. The same is binding upon all. The same is extended to temporary employees including work charge, daily wage, casual, adhoc, contractual etc. Thus, it held that they are entitled to draw wages on the minimum pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.
In the aforesaid circumstances, petitioner, who is continuously working since 2013 except for artificial breaks, is also entitled for payment of minimum pay scale, that is being given to regular employees providing the same work in respondent department.
The respondents again try to hide behind the argument that they have not engaged any Class-IV employee in the Laboratory. The Laboratory itself is part of the Horticulture and Food Processing department. It is not in dispute that regular Class-IV employees are working in the Horticulture department. It is also not in dispute that in absence of petitioner, other Class-IV employees of the department would be bound to perform duties that are being performed by petitioner. Therefore, petitioner is entitled to the minimum pay scale that any Class-IV regularly appointed employee would be entitled to, in case petitioner is not available for performing his duties.
Submission of the respondent-State that petitioner is engaged through a service provider agency, therefore, he is not entitled for minimum pay scale and also does not have any force.
The Court further noted that the Supreme Court in the case State of Punjab and others vs Jagjit Singh and others (2017 held that the said benefit is available to all temporary employees whatever their nomenclature may be.
“Hence, the order dated 15.7.2019 cannot stand and is set aside. Respondents are directed to pay minimum pay scale to petitioner as is being paid to similarly situated employees performing the same work in respondent department forthwith without any delay”, the Court ordered.