Om Prakash vs The State of Bihar and Others

Only the other day we found that the post of Receptionist Clerk (Class III) in the Indira Gandhi Central Casualty Unit of the Patna Medical College Hospital (''P.M.C.H.'', for short) was filled up from time to time in an ad hoc and irregular manner (vide CWJC No. 6518 of 1990; date of disposal, August 18, 1992).

The present application concerns the post of Driver (Class IV) in the same unit. The facts stated in these applications, which the Respondent authorities have been unable to dispute are disquieting and bring to light a state of complete mismanagement both financial and administrative. The scenario emerges as follows. A new casualty unit is established in P.M.C.H. It is made ''functional'' without adequately providing for the Class III and Class IV personnel who would make the infrastructure for a smooth functioning of the unit. An advertisement, issued shortly after the unit became functional, in order to fill up the Class III and Class IV posts is cancelled by the order of the State Government. No appointments on these posts can be made in a proper and regular manner in view of the complete ban imposed by the Government against any new appointments. However, the incharge, with a view to anyhow run the unit, engages persons on these posts on daily wage basis. The persons so engaged continue to work on their respective posts for months and years. But the Court is told blithely that the authority had the forethought to take care not to allow any person so engaged to complete 240 days in a year and, in fact, the services of the daily wagers were regularly broken for 2 to 4 days on monthly interval. Such engagements though made under practical compulsions are nevertheless without any sanction by the Government and, therefore, the payment of wages to these employees is to be made from the contingency head. On this side also the story is dismal. It is admitted that a person engaged on daily wage basis has actually worked for several months and yet he has not been paid his wages. The Incharge of the unit helplessly states that though the bills for payment of wages have been prepared and passed yet he has not been able to pay the wages for want of funds and wages will be paid as soon as any fund is received from the Government. There is yet Anr. angle to this story. Such ad hoc employments made behind the public gaze tend to become largesses in the hands of the Incharge of the unit; in such employments there is a greater possibility to subvert the constitutional guarantee of equality of opportunity in public employment as it enables the Incharge to call and engage a person of his own choice. The person so engaged, bypassing any selection based on merit, however, does not cease to lead a precarious existence as in the case of daily wagers, the Incharge has a free hand to change and replace the workers almost at his will. It is not uncommon that a daily wager, after having worked for months and years may one day find himself sidelined and his post occupied by some one else; his fault may not be more than demanding the payment of the arrears of his wages. The system of engaging daily wagers, on jobs of a permanent nature and later on either disengaging them or regularising them permanently creates an arbitrariness and favouritism and is wholly against the constitutional mandate.

Now coming back io the specifics of this case, it is stated that the Petitioner was appointed as a Driver in the India Gandhi Central Casualty Unit by appointment letter dated 31.3.1939. It is averred in the writ petition, and not disputed in the counter affidavit, that the Petitioner was selected, from amongst several applicants on the basis of a driving test. In this case, therefore, there was a substantial compliance with the requirement of ''equal opportunity'' and the appointment was preceded by selection based on merit. The report of the driving test is at Annexure-1 and a copy of the letter of appointment is enclosed as Annexure 2. It states that the Petitioner was appointed for a period of three months on a purely temporary basis. As noted, the letter of appointment was issued on 31.1.1989 but it takes note that the Petitioner had earlier worked for the period 1.11.1988 to 28.11.1988 and again from 1.12.1988 to 28.12.1988. The roster schedules of the Ambulance drivers for different periods have been enclosed as Annexure 3 series to the writ petition: this is in support of the contention that from the date of his appointment, the Petitioner had been working continuously (except in of course, the monthly breaks of 2 to 4 days). He, however, has not been paid his salary from 1.2.1990. It is also stated that other drivers similary situated as the Petitioner have been regularised/absorbed in the service but a discriminatory treatment has been meted out to the Petitioner. An amendment petition has also been filed stating that after filing of this application the services of the Petitioner were discontinued and someone else was engaged in his place.

A counter affidavit has been filed in this case by the Superintendent of the P.M.C.H. From the counter affidavit it appears that the advertisement issued for filling up this post was cancelled by the order of the State Government, the Petitioner was engaged purely on temporary basis to meet the needs of the unit. It is stated with some stress that the authorities did not allow the Petitioner to ever complete 240 days in a year so that he may claim regular appointment and it is said that his services on daily wages were regularly broken on montly intervals. It is, however, admitted that he has been working during the relevant period and he is entitled to his wages for this period. The relevant averments made in the counter affidavtt in this regard are to be quoted:

It is also worthwhile to mention that the Petitioner has functioned on daily wages basis for the period mentioned below at the rate of Rs. 26 and 25 paise per day.

1.3.90 to 28.3.1990

1.4.90 to 28.4.1990

1.5.90 to 28.5.1990

1.6.90 to 28.6.1990

The payment order for such period has however been passed by the authorities concerned but however owing to paucity of fund available at hands oi hospital authorities, payment has not been made. However, the payment of this period will be made immediately when the funds are made available.

That subsequent to 28.6.90 till 28th March, 1992 the Petitioner has worked on daily wages basis from 1st of the month till 28th of each month. The wages of this period is still due to be paid to the Petitioner on daily wages basis.

It may also be mentioned that the payment for daily wages is made out of the contingency amount allotted by the Government but such amount has not been received from the Government and that is why the payment for this period is also not made.

It is denied that the Petitioner was given any discriminatory treatment. The cases of other individuals cited by the Petitioner in his writ petition are explained as being on different footing. There is no reply to the amendment petition.

From the statements made in the counter affidavit the following facts emerge;

(i) The post of driver in the Indira Gandhi Central Casualty Unit, P.M.C.H. is of a permanent nature and requires an incumbent to work every day on that post yet it was not filled up on a regular basis but on a daily wage basis @ Rs. 26.25 per day.

(ii) The Petitioner was selected on the basis of merits from amongst several Candidates but was engaged to work on daily wapes.

(iii) The authorities deliberately introduced breaks in the service of the Petitioner at monthly intervals in order to deny any claim on the basis of having worked for 240 days in a year.

(iv) The Petitioner has not been paid his wages even for the period he admittedly worked.

What have been stated at serial Nos. (i) and (iii) clearly constitute unfair labour practice on the part of the Respondent authorities. Once the label of ''daily wager'' arbitrarily put upon the Petitioner is removed, the unmistakble reality comes to light that the Petitioner has been working permanently on a job of permanent nature; he got the job of driver not as a favour from some one but only after he was found best suited among several candidates; the job of driver in the Central Casulty is of a permanent nature is not disputed; the period of almost four years for which the Petitioner has worked also has some permanence, notwithstanding the monthly breaks of 2 to 4 days. The label of ''daily wager'' stuck upon the Petitioner has, however, effectively denied him the manifold benefits to which he would have been entitled as a permanent workman. The action of the Respondent authorities (mentioned at serial No. (i) here-inabove) is thus clearly covered by serial No. 10 of the Fifth Schedule enumerating unfair labour practice under the Industrial Disputes Act, 1947.

As regards the position at serial No. (iii) hereinabove, the Supreme Court in the case of H.D. Singh Vs. Reserve Bank of India and Others, had occasion to consider the practice of introducing breaks in the service of a daily wager so that he may not accumulate 240 working days in a year and the apex Court deprecated the practice in no uncertain terms. In paragraph 13 of the judgment it has stated as follows:

The confidential circular directing the officer that workmen like the Appellant should not be engaged continuously but should be as far as possible, be offered work on rotation basis and the case that the Appellant is a badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra) Item 10 reads as follows:

To employ workmen as ''badlis'', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.

I have no option but to observe that the bank, in this case, has included in methods amounting to unfair labour practice. The plea that the Appellant was a badli worker also has to fail.

It was further observed in paragraph 14 of the judgment as follows:

We will not be far from truth if we say that the bank was deliberately indulged in unhealthy labour practice by rotating employees like the Appellant to deny them the benefits under Industrial law.

Again non-payment of wages to the Petitioner for the periods during which he admittedly worked is clearly an infraction of Article 300A of the Constitution and also of the various provisions of the payment of Wages Act.

Viewed from any angle, therefore, the actions of the Respondent authorities are quite illegal, unfair and unreasonable.

On a consideration of all the relevant facts and circumstances, we are of the opinion that establishment of a new casualty unit at the P.M.C.H. was a welcome step as it was intended to provide better service and facilities to the general public. The authorities, however, made a grave error in making the unit ''functional'' without providing for the necessary Class III and Class IV staff on a regular basis. This only impaired the functioning of the unit and frustrated the object. After all, a casualty unit is not run by doctors and nurses alone it also requires an infrastructure of para medics and other skilled and un-skilled staff. In case there was a general ban against making any appointments, care should have been taken that the ban was lifted in the case of this newly established casualty unit and necessary staff were employed on a regular basis when the unit became functional.

For all these reasons this Court must intercede and give the following directions in this case:

(i) The Petitioner must be paid his wages for the periods he admittedly worked. The payment of all arrears of wages must be made to him within six weeks from the date of production/receipt of a copy of this order. In case no funds are available with the Superintendent/Administrator of the P.M.C.H. then the Commissioner cum Secretary, Department of Health must make arrangement for the release of adequate funds within five weeks from the date of production/receipt of a copy of this order.

(ii) All sanctioned Class III and Class IV posts in the Indira Gandhi Central Casualty Unit of P.M.C.H. which may be necessary for a smooth functioning of the unit must be filled up in accordance with law on a regular basis within four months from the date of production/receipt of a copy of this order.

(iii) Persons like the Petitioner who have been working on a particular post in that unit will be entitled to relaxation in the age limit to the extent they have worked in the unit; they shall also be entitled to due weightage for the experience gained by working in the same unit.

(iv) The Petitioner shall continue to work as a driver till the post is duly filled up in terms of the directions given above. Similarly all other employees who may be presently working on daily wages on Class III and Class IV posts in the unit shall continue to work till those posts are duly filled up in a regular way.

In the result, this application is allowed with the directions as above.

Let a copy of this order be handed over to the State counsel to forward it to the Health Commissioner.