w w w . L a w y e r S e r v i c e s . i n



H.M. Kotresh & Others v/s Bangalore Electricity Supply Company & Others


Company & Directors' Information:- BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED [Active] CIN = U04010KA2002SGC030438

    W.P. Nos.43037-43041 of 2015 (S-RES) c/w Writ Petition Nos. 21281-21291 of 2014 (S-RES), 20897-20899 of 2015 (S-RES), 27417-27420 of 2015 (S-DIS), 29903-29937 of 2015 (S-REG), 44902-44923 of 2015 (S-DIS), 47557 of 2015 (S-RES), 37308 of 2016 (S-RES), 37309, 37310 of 2016 (S-RES), 8249-8268, 8269-8294 of 2016 (S-REG), 8325-8341, 8342-8360 of 2016 (S-RES), 11357-11361, 18035-18042, 36649-36660, 53610-53635 of 2017 (S-RES), 50163-50167 of 2018 (S-REG), 50168-50169 of 2018 (S-RES)

    Decided On, 31 August 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE DIXIT KRISHNA SHRIPAD

    For the Petitioner: V. Lakshminarayana, Senior Counsel, G. Srinivas, K. Manjunatha, Shilpa Rani, L. Anusha, M. Subramanya Bhat, Sampat Anand Shetty, A.S. Harish, Pruthvi Wodeyar, B.K. Manjunath, B.M. Hala Swamy, P.S. Rajagopal, Senior Counsel, Shwetha Ravishankar, Akash B. Shetty, Advocates. For the Respondents: R. Subramanya, AAG, Sandesh Kumar, HCGP, S.S. Naganand, Senior Counsel, S. Sriranga, G.I. Gachchinamath, H.V. Devaraju, Ravindra Reddy, H.V. Devaraja, P. Prasanna Kumar, Harikrishna S. Holla & B.L. Sanjeev, Advocates.



Judgment Text

(Prayer: W.P. Nos.43037-43041 of 2015: These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying to set aside the Order, dated 1.6.2015 vide Annexure-M passed by the R3 and District the R3 & 4 to consider Communication, dated 1.6.2015 issued by the R4 to 3 Annexure-N and Letter, dated 21.8.2015 Annexure-P issued by the R2 to 3 and direct the Respondents to reinstate the Petitioner as Micro Feeder Franchisee.)

1. Petitioners can be broadly grouped under three categories, viz., (i) those who have been continuing in the service of Electricity Supply Companies (hereafter 'ESCOMS'), (ii) those who have been innocuously discontinued from such engagement, and (iii) those who have been stigmatically removed from service; in substance, all they are seeking continuation & regularization of their services, and grant of salaries in regular Pay Scales admissible to comparable posts; after service of notice, Respondents have entered appearance; Govt. is represented by learned Addl. Advocate General & Addl. Govt. Advocate; KPTCL and ESCOMs are represented by their Panel Counsel.

2. The Committee appointed vide G.O. dated 31.12.2018 had recommended the case of the Grama Vidyut Pratinidhis (hereafter “GVPs”); however, Govt. by G.O., dated 7.5.2019, declined to accept the recommendations; this development having happened pendente lite, a challenge thereto is also laid by amending the pleadings with the leave of Court; Statement of Objections have been filed by the Govt. and other Respondents resisting the Writ Petitions.

3. Learned Senior Advocates Sri V. Lakshminarayana & Sri P.S. Rajagopal and other Advocates appearing for the Petitioners, vehemently argued as under:

(a) services of all the Petitioners have been engaged by the ESCOMs pursuant to Recruitment Process in terms of Notifications issued time and again; these Notifications are structured on the Govt. Policy; while presenting 2004-05 Budget, the Chief Minister had made a Statement on the Floor of the House assuring the rural youths inter alia of the jobs in question; all these GVPs having undergone a due Selection process on the basis of their Educational qualifications and other prescriptions, have been appointed;

(b) although the services of these GVPs have been hired by executing individual Memorandam of Understanding (hereafter “MoU”), there exists master-servant relationship, as held by the Provident Fund Authorities, Labour Courts & this Court too, the camouflaging terms of MoU notwithstanding; regardless of the text of the MoUs, in substance all the Petitioners have been discharging their duties on par with regular recruits in the posts of Meter Readers, Meter Reader-cum-Clerks, Junior Assistants, Linemen, Assistant Linemen, Junior Linemen, Station Attendants Gr-I, Station Attendants Gr-II. & Junior Station Attendants;

(c) the GVPs are being treated as Regular Employees/Workmen by the Management of ESCOMs; they are subjected to transfers and to the Disciplinary action for the dereliction of duties; in some cases, the Labour Courts have held that these GVPs answer the definition of 'Workman' given under Section 2(s) of the Industrial Disputes Act, 1947 and on challenge, this Court too has confirmed the said finding;

(d) the long and spotless service rendered by these poor persons is not yielding to them the Salary in regular Pay Scales on the principle of 'equal pay for equal work' and that they are denied absorption/ regularization of their services in the comparable posts arbitrarily rejecting the recommendations of a High Level Committee formed by the Government;

(e) the action of the Respondents in terminating the services of some of the GVPs being stigmatic, is liable to be invalidated for want of Inquiry and therefore, they are entitled to continue in service, as held by a Coordinate Bench of this Court in similar cases, inasmuch as an action in gross violation of Principles of Natural Justice is non est; non renewal of MoU amounts to unlawful termination of service; it also violates their legitimate expectation; and

(f) the Respondents are not justified in denying regularization of services and equal pay for equal work by placing a wrong interpretation on the decision of the Apex Court in Secretary, State of Karnataka and others v. Uma Devi, 2006 (3) LLN 78 (SC): 2006 (4) SCC 1, disregarding the march of law laid down in subsequent decisions into which the case of the Petitioners perfectly fits; thus, there is error apparent on the face of the impugned Orders; act of Respondents in not regularizing the services and in not paying equal pay for equal work amounts to Unfair Labour Practice.

4. The learned AAG and the Panel Advocates appearing for the Respondents made their submission with equal vehemence, opposing the case of Petitioners; learned AAG argued for the sustenance of the impugned Orders of the Government which rejected the recommendation of the High Level Committee; learned Sr. Advocate Mr. S.S. Naganand and the learned Panel Advocate Mr. P. Prasanna Kumar also, put forth the following contentions seeking dismissal of the Writ Petitions:

(a) the engagement of the GVPs is a matter of pure contract and therefore, rights & duties of the parties need to be ascertained from the terms of their engagement namely the MoUs and not on the Principles of Public Service; all the Petitioners having entered into contractual service with eyes wide open, now cannot turn around and seek benefits de hors the contractual terms, similar prayers having already been rejected by a Coordinate Bench of this Court;

(b) these GVPs are not working against any existing vacancies nor even against the sanctioned posts; there is no provision in the Service Rules to grant them higher Wages since the jobs they do are not comparable to the work done by regular recruits in terms of quantum & quality; they do not possess the Educational qualifications prescribed for the appointment to the posts into which they seek absorption/regularization;

(c) the Government declined to accept the recommendation of the Committee which suggested promulgation of a scheme for absorption/ regularization of GVPs, perfectly in accordance with the law declared by the Apex Court from time and again; the contemporary judicial trend spurns at the claim for equal pay for equal work or for absorption/ regularization, since the Service Rules do not provide for that; the arguments of Unfair Labour Practice is untenable;

(d) the Complaint of the Petitioners that the discontinuance/ disengagement of a section of GVPs is unsustainable, is not correct, in the absence of a duty cast on the answering Respondents to renew the Contract for service there is no vinculum juris of Employer-Employee between the Petitioners and ESCOMs; even otherwise, they do not answer the definition of 'Workman' under Section 2(s) of the ID Act; and

(e) The contractual engagement of some of these Petitioners has not been continued since there were adverse reports by the supervising officials and this cannot be found fault with; in some cases a formal Enquiry is not held, may be true, but there is no such legal requirement of holding one especially when their engagement is on Contract basis the said contracts having come to an end by efflux of time; the very purpose of engaging contract service is to dispense with them on the expiry of the contract.

5. I have heard learned Counsel for the parties at length and perused the Petition papers; I have also adverted to only relevant of the Rulings cited at the Bar; I am of a considered opinion that a moulded relief as under needs to be granted, for the following discussion:

(a) As to 'State' and its instrumentalities being 'model Employers':

The KPTCL being a Public Sector Undertaking of the Govt. of Karnataka and the ESCOMs being its subsidiaries answer the definition of 'Govt. Company' under Section 2(45) of the Companies Act, 2013; they discharge functions of Public law character under the provisions of the Electricity Act, 2003 and allied legislations; they function under the pervasive control of the State Govt. and therefore, they are its instrumentalities/agencies; thus, they answer the description of 'State' under Article 12 of the Constitution of India in the light of R.D. Shetty v. International Airport Authority, 1979 (3) SCC 489; this position is specifically admitted by the Respondent-BESCOM in its Statement of Objections; the Directive Principles of State Policy enshrined in Part IV of the Constitution as interpreted by the Apex Court in a catena of decisions eminently expect the State and its Instrumentalities to conduct themselves as model Employer; a Welfare State as ordained by the Constitution, cannot act as the East India Company of the bygone days in treating its Employees/Workmen, regardless of their employment being contractual or otherwise in the matter of employment, be it contractual or otherwise all their actions need to be just & reasonable and 'Fair Standard' Compliant; otherwise, they run the risk of being invalidated in 'Judicial Review' at the hands of Constitutional Courts vide Shreya Singhal v. Union of India, AIR 2015 SC 1523.

(b) Genesis of GVP Scheme and the nature of employment of GVPs:

(i) The Chief Minister of the State, in his Budget Presentation Address for the financial year 2004-2005 had stated on the Floor of the House as under:

[Vernacular omitted]

The above Statement was made on the recommendation of an expert committee for implementation & monitoring of Rural Electrification Project. This policy gave rise to formulation of a scheme by the ESCOMs for engaging the services of rural unemployed youths as GVPs; in fact the Scheme is intended to provide employment opportunities to the small and marginal farmers in rural areas whereunder the unemployed rural folk would work as Village Electricity Representatives i.e., Grama Vidyut Pratinidhis; this position is specifically admitted by the Respondent-Govt. at para 9 of the Statement of Objections, dated 23.6.2020.

(ii) As to justiciability of Government's assurance and its relevance to decide nature of employment:

The above assurance given by the Executive needs to be kept in view in adjudging the legal tenability of the respective stand taken by the parties at logger-heads; the Apex Court in Union of India and others v. Indo-Afghan Agencies Ltd., AIR 1968 SC 718, observed as under:

“The Respondents were not seeking to enforce any contractual right: they are seeking to enforce compliance with the obligation which is laid upon the Textile Commissioner by the terms of the Scheme. The claim of the Respondents was rounded upon the equity which arose in their favour as a result of the representation made on behalf of the Govt. in the Export Promotion Scheme, and the action taken by the Respondents acting upon the representation. Even though the case did not fall within the terms of Section 115 of the Evidence Act, it was still open to a party who had acted on a representation made by the Govt. to claim that the Govt. should be hound to carry out the promise made by it, though not recorded in the form of a formal contract as required by the Constitution. ... Under our jurisprudence the Govt. is not exempt from liability to, carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise, solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.”

The same has been more or less reiterated in Manuelsons Hotels Pvt. Ltd. v. State of Kerala and others, 2016 (6) SCC 766; in view of this legal position, the policy of engaging the services of GVPs cannot be regarded as purely a matter of 'private contract' especially when the job they do has the trappings of public service, the terms of MOU being couched in a different language, notwithstanding; the Apex Court in Chander Mohan Negi and others v. State of Himachal Pradesh and others, C.A. No.2813/2017 decided by the Apex Court vide Judgment dated 17.4.2020, examined the services rendered by Casual Employees under Govt. Schemes and held that such employment is not illegal and therefore Employees cannot be denied regularization, of course subject to certain conditions being fulfilled, which aspect is discussed infra.

(c) As to trappings of Employer-Employee relationship in GVP engagement:

(i) Qualifications & Conditions of appointment: the Respondent-ESCOMs vide Recruitment Notifications issued from time to time, had called for applications from the eligible candidates for hiring their services as GVPs, is not much in dispute; some of the important conditions stipulated in these Notifications provided that: the Applicants should be in the age group of 18 to 38 years; should possess ITI Trade Certificate in G-ODC or Diploma or Degree, SSLC/PUC with knowledge of electricity billing and connection; should be ordinary residents of the village concerned; should furnish required bank guarantee as security for services; selectees should undergo classroom/on-field training; there are restrictive covenants as to other employment; they should generate power bills & collect the bill amounts from the consumers; submit proposals for the new connections; maintain Registers & Records; should attend to Complaints of consumers; should carry out all works entrusted by the ESCOMs from time to time; the complaints filed by them against theft of electricity have been held to be competent by the Courts.

(ii) Remuneration & other benefits:

The GVPs would receive 10% of the monthly collection as incentive; the GVPs are subject to transfer from one unit to another and the erring ones are liable to Disciplinary action, is evidenced by the material on record; it is relevant to mention what the Govt. at para 12 of its S.O. states “...the Grama Vidyut Pratinidhis working in all ESCOMs were enabled to get Rs.12,000 as stipend (”Subsidy Amount“) per month and Rs.5,000 as Medical expenses and a Compensation of Rs.2 Lakh in case of death due to electrical accidents. And these points were included clearly in the Memorandum of Understanding...”.

If the GVPs were independent contractors as sought to be made out by the Respondents, it is bit difficult to understand the above package of emoluments being extended to them; such packages usually avail to the Employees; the same are seldom found in the realm of pure contract for service; regardless of the nomenclature assigned to remuneration, what is being given to the GVPs is nothing but the wage, more particularly because the same approximates to the 'Minimum Wages' notified by the Govt. under the provisions of the Minimum Wages Act, 1948.

(iii) As to Ravikumar Case and Division Bench clarification in Kollaiah case:

There is yet another reason for not countenancing the contention of the Respondents that the engagement of GVPs is contractual and therefore their services cannot be regularized or that they cannot be given regular wages; similarly placed persons who were engaged as Monsoon Gangman on Casual/Contract basis had approached this Court in the case of Sri T.N. Ravikumar and others v. State of Karnataka and others, W.P. Nos.6556-6560 of 2018, etc.; the KPTCL & the BESCOM being the contesting Respondents took up a stand that these persons were not working against any vacant posts, their services having been engaged by outsourcing through an independent contractor; a learned Single Judge vide Judgment, dated 25.10.2018 rejected the said contention and directed payment of wages on par with regular Junior Linemen on the Principle of Equal pay for Equal work; however, the Division Bench in the case of BESCOM v. Sri C. Kollaiah and others, W.A. No.922/2019 (S-RES) vide Order, dated 8.1.2020 marginally modified the said Judgment with the following observations:

“5. On hearing learned Appellant's Counsel, we are of the view that appropriate interference is called for. 'Equal pay for equal work' cannot be denied. However, payment on this basis on par with the regular linemen as has been done in Writ Petition Nos.6556-6560 of 2018 on 25.10.2018, is inappropriate.

6. The Petitioners are holding different positions. They all cannot get the same Salary. The Writ Petitioners are entitled for such pay to the post they are holding. All of them cannot be equated with a common post of a junior linemen.

7. For the aforesaid reasons, the Order, dated 15.12.2018 passed in Writ Petition Nos.54914-54927/2017 by the learned Single Judge, is set aside. However, the Appellant is directed to pay wages to the Writ Petitioners for the post that they are holding. With the above directions, the Writ Appeal is disposed off.”

It is relevant to note that the direction issued by the learned Single Judge for the payment of regular wages on the Principle of 'equal pay for equal work' was on the premise that there was Employer-Employee relationship and this has not been disturbed by the Division Bench, which only clarified that a uniform wage rate cannot be adopted since the Monsoon Gangman were doing various jobs corresponding to various posts; this becomes apparent by the specific direction of the Division Bench at para 7.

(iv) Substance of service v. Form of service: In all civilized jurisdictions, judicial trends markedly show a movement from form to substance, in adjudicatory process except where the law otherwise provides; there is no reason for this Court to have an approach in variance with the same; in assessing Employer-Employee relationship, a court cannot be swayed away by the usual terms & conditions unilaterally stipulated by the Employer in printed 'standard formats', in the making of which the hapless sellers of physical Labour have no choice; we live in a society wherein at times, blood appears to be cheaper than bread; it needs to be regrettably stated that the Constitutional expectation that the State and its Instrumentalities should conduct themselves as model Employers, more often than not, is observed in violation; veil needs to be lifted to see the truth; what needs to be X-rayed is the substratum & substance of the engagement, and not its amoebic form; admittedly, the GVPs have been working since very long, their MOUs having been renewed from time to time with artificial break; they are liable to disciplinary action and their routine job is supervised by the higher ups; in the performance of duties, the GVPs have no discretion which an independent Contractor ordinarily has; a Coordinate Bench of this Court in a catena of cases has set aside stigmatic removal of GVPs on the ground of violation of Principles of Natural Justice;

(v) In deciding whether there is Employer-Employee relationship, what the top Court of the country observed in Hussainbhai, Calicut v. Alath Factory Thozhilali Union, Kozhikode and others, 1978 (2) LLN 276 (SC): 1978 (4) SCC 257, has to be borne in mind; the Three-Judge Bench speaking through Hon'ble Justice V.R. Krishna Iyer lucidly stated the legal position as under:

“The true test may, with brevity, be indicated once again. Where a worker or group of Workers Labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the Employer. He has economic control over the Workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the Workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real Employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when Labour legislation casts welfare obligations on the real Employer, based on Articles 38, 39, 42, 43 & 43-A of the Constitution. The Court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.”

Happily, it is not the concrete case of ESCOMs that services of the GVPs have been hired through an independent Contractor; what they assert is that the MoU under which the GVPs render service make out a case of contract “for service” and not “of service”; in the sense that there is no Employer-Employee relationship; that being the stand, the above observations assume more significance than otherwise.

(vi) It is relevant to advert to the Order, dated 4.1.2017 made by the Employees Provident Fund Commissioner, Bangalore, a copy of which is part of the record in a few Writ Petitions; the question related to the status of GVPs in relation to Paragraph 26(B) of the EPF Scheme, 1952; the Commissioner having considered all aspects of the matter has entered a finding that there is Employer-Workman relationship between the ESCOMs and the GVPs; similarly, the removal of a few GVPs having been set aside by the Labour Court with a direction for reinstatement, the challenge to the same is negatived by a learned Coordinate Judge in Managing Director, GESCOM v. Mallappa, W.P. No.84093/2011 (L-TER) decided on 6.1.2015; the said Employee is reinstated also; that being so, the stand of the Respondents that there is no master-servant relationship, cannot be appreciated; the 13-Member High Level Committee which aspect is discussed in detail infra, has approximated their services to those of lower rung posts in the ESCOMs; it is difficult to accept the contention of the Respondents that the MoU is only a 'Contract for service' as contradistinguished from "Contract of service"; after all, every Public service begins with a 'Contract' and graduates to 'status' vide Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 at 1894.

(vii) In Sheo Narain Nagar v. State of U.P., 2017 (4) LLN 529 (SC): 2018 (13) SCC 432, the Apex Court expressed its anguish as to the interpretation placed by the authorities on the ratio in Uma Devi and denial of equal pay for equal work on the ground of contractual engagements; at para-7 it observed as under:

"7. ... The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available Pay Scale. That spirit of the Uma Devi has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Uma Devi has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due Salary for which they are entitled on the basis of Articles 14, 16 read with Article 34(1)(d) of the Constitution of India as if they have no Constitutional protection as envisaged in D.S. Nakara v. Union of India, from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc. There is clear contravention of Constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi. Thus, the time has come to stop the situation where Uma Devi can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of true spirit in Uma Devi."

(c) March of law from Uma Devi to AITUC Case:

(i) The vehement contention of Sr. Advocate Mr. Naganand, AAG Mr. Subramanya and Sr. Panel Counsel Mr. Prasanna Kumar that the case of the Petitioners does not fit into para 53 of Uma Devi, is bit difficult to accede to; true it is that the inner voice of this decision is to block back door entry to the public service; but the said paragraph which was in the nature of a key hole has been widened as a ventilator if not as a window, precedent by precedent; by its very nature law abhors status quo & stillness; as jurists often say; law marches from April to June of life, as rightly shown by Mr. V. Lakshminarayana and Mr. P.S. Rajagopal by placing reliance on Narendra Kumar Tiwari v. State of Jharkhand, 2019 (1) LLN 310 (SC): 2018 (8) SCC 238, wherein the Apex Court found fault with the Govt. in engaging services sans regular recruitment and later terminating the same on the ground that they were irregular appointments; the State Govt. was chided for not extending the benefit of regularization even to such Workers who fell outside the cut-off date prescribed in Uma Devi observing "...This is nothing but a form of exploitation of the Employees by not giving them the benefits of regularization and by placing the sword of damocles over their head; this is precisely what Uma Devi and Kesari sought to avoid..."; at para 10, a direction was given in the following words:

"(i) Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the Appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc."

(ii) As to existence of post being since quo non for claiming regularization: the contention that for making a claim for regularization of services, the Claimant should be working against the vacancy in an existing post and therefore, existence of post is a sine qua non, as an ordinary norm, is true; however, it is not an inviolable 'Thumb Rule' that admits no exception; there can be circumstances where the denial of regularization by invoking this norm may result in a manifest injustice warranting a deviation as an exception; the Apex Court in All India Judges Association and others v. Union of India and others, Writ Petition (Civil) No.1022 of 1989 vide Order, dated 2.8.2018, directed creation of posts for accommodating the Court Managers who were not working against any post at all, inasmuch as a cadre of posts was non-existent and was yet to be created; this decision is referred to only to highlight that even in the absence of posts, regularization of casual Employees is not unlawful; there have been many such cases too; the Petitioners have produced a few Court Orders whereby several such persons have been regularized after creating posts; admittedly, the engagement of services of these poor persons as GVPs is pursuant to State Policy which intended to support the unemployed rural youths; the GVPs huge in number have been working since very long and uninterruptedly; the renewal of their engagement by fresh MoU would create only an artificial break which does not much come to the rescue of the Respondents.

(iii) The contention of the Respondents that in Chander Mohan Negi, supra, all the persons were working against existing vacancies in the sanctioned posts which is not the case here, need not deter the Court from granting a moulded relief here too; true it is that, ordinarily no Writ is issued directing regularization/absorption of service vide Union of India v. Vartak Labour Union, 2011 (4) SCC 200; this aspect of the matter having been examined in Union of India v. All India Trade Union Congress, C.A. No.3146/2019 decided on 15.3.2019, the Apex Court at Para 17 observed as under:

“17. All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the Government to consider for framing an appropriate Scheme having regard to the facts and circumstances of any case which this Court did in the case of Union of India (supra) but not beyond it. It is only in an exceptional case where the Court considers it proper to issue appropriate mandatory directions it may do so but not otherwise.”

Arguably the Respondents may be right only to the limited extent that the Petitioners have not made out an exceptional case in variance with the ordinary norm for this court itself straightaway issuing a direction for regularization by creating posts or otherwise; however it cannot be gainsaid that there is no case for directing promulgation of a Fair Scheme laying down criteria for considering their case for regularization/ absorption and for identifying the matchable posts for the purpose of payment of wages in the minimum Pay Scale, in terms of D.B. decision in Kollaiah case.

(d) As to recommendations of High Level Committee and their rejection by the Govt.:

(i) A13-Member High Level Committee that was constituted by the Govt. vide Order, dated 31.12.2013, with the participation of all stakeholders and after thorough examination of all aspects of the matter, vide Report dated 23.2.2015 found that the work done by the GVPs answers the Job Chart of Regular Employees in the lower rungs of service in the ESCOMs; one of the ten reference points was “To study the existing vacancy position equivalent to GVP (MFF) i.e. Junior Meter Reader, Overseer/Meter Reader/Operator”; the Apex Court in Pawan Hans Ltd. v. Aviation Karmachari Sanghatana, 2020 (1) LLN 560 (SC) (Civil Appeal No.353/2020, decided on 17.1.2020), observed that if appointments are made for the work which is perennial and permanent, the engagement of services cannot be treated as contractual appointments; admittedly, these GVPs have been working since very long and with no Complaints whatsoever; more than a thousand vacancies in Group-D posts do exist till date, is not disputed; the fact matrix of this case nearly matches the one in Chander Mohan Negi, supra, wherein the challenge to the regularization of casual teachers is negatived; there too, the services were hired on Casual/Contract basis under successive schemes of the Government sans any regular recruitment process; in fact the terms of engagement prohibited the Employees from seeking regularization/absorption all the appointed candidates were working for the meager salaries for a long period, as has happened in this case; the Apex Court at para-13 observed "... Having regard to nature of such appointments, appointments made as per policies cannot be termed as illegal; GVPs too have been performing the job of lower rung officials of the ESCOMs, in the rural areas, the regular recruits having been shifted off to the urban & semi urban areas; there are comparable posts, huge number of vacancies wherein have been continuing since years.

(ii) The Govt. intended regularization of services of GVPs becomes evident by its act of constituting a High Level Committee; one of the points for reference was "to study the existing vacancy position equivalent to GVP (MFF) i.e., Junior Meter Reader/Overseer/Meter Reader/Operator"; the Committee after examining the same, has pointed out the comparable posts into which GVPs can be accommodated; on page-7 of the Report it said:

"The responsibilities being discharged by the rural Electrical Representatives GVP's can be compared with the work being done by the Meter Readers in the Power Transmission Companies.";

The recommendations of the Committee have not been agreed to by the Govt. after taking a pedantic view of the ratio in Uma Devi without adverting to march of law occasioned by subsequent pronouncements vide Narendra Kumar Tiwari v. State of Jharkhand, 2019 (1) LLN 310 (SC): 2018 (8) SCC 238; Sheo Narain Nagar v. State of U.P., 2017 (4) LLN 529 (SC): 2018 (13) SCC 432; Prem Singh v. State of U.P., 2019 (10) SCC 516 and 2019 (4) SCC 219, as rightly pointed out by Mr. V. Lakshminarayana; the Govt. has not considered the recommendations of the Committee with due seriousness; with no joy in heart, this Court reminds to the quarters that be, that the degree of seriousness to be shown in treating Employees' claim for regularization has to be higher than what is evinced in cases arising under the Cattle Trespass Act; the arbitrary rejection of Committee Recommendations falls short of "Fair Standard Norms" applicable to Governmental actions; thus, there is an error apparent on the face of the impugned Orders whereby regularization and equal pay are denied to the GVPs.

(e) As to 'equal pay for equal work':

(i) The GVPs grieve against the ESCOMs in not extending the Salary and allowances admissible to Regular Employees in the lower cadres, even when since very long they have been discharging substantially similar work if not the same; as to the nature, quality & quantum of their services, on the wealth of material placed on record, one can safely conclude that their grievance is genuine; the High Level Committee referred to above has stated about this; in Ravikumar and Kollaiah Cases which are mentioned above, a Division Bench of this Court directed payment of wages prescribed to the GVPs at the rates prescribed to Regular Employees holding comparable posts; denial of equal pay for equal work apart from violating the principle of equality enshrined in Article 14, amounts to begar which the founders of the Constitution; the ESCOMs admittedly being the instrumentalities of the State Govt., are expected to conduct themselves as model Employers; therefore, they have to be fair & equal in treating the Workmen, more particularly ours being a constitutionally ordained Welfare State;

(ii) In State of Punjab v. Jagjit Singh, 2017 (2) LLN 562 (SC): 2017 (1) SCC 148, the Apex Court observed as under:

"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of Labour. An Employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."

The Hon'ble Supreme Court in Sabha Shanker Dube v. Divisional Forest Officer, 2018 (4) LLN 564 (SC): 2019 (12) SCC 297, having considered the above ratio in Jagjit Singh observed at paras 11, 12 & 14 as under:

"11. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary Employees (Daily Wage Employees, ad hoc appointees, Employees appointed on casual basis, Contractual Employees and 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(12). In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the Pay Scales (14) For the aforementioned reasons, we allow these Appeals and set aside the Judgments of the High Court holding that the Appellants are entitled to be paid the minimum of the Pay Scales applicable to Regular Employees working on the same posts. The State of Uttar Pradesh is directed to make payment of the minimum of Pay Scales to the Appellants with effect from 1.12.2018."

(iii) Justice M. Rama Jois in his magnum opus 'Services Under the State', Indian Law Institute 2007, at page-23 writes as under:

"The security of tenure and better conditions of service by way of suitable Pay Scales, promotional opportunities and Retirement benefits and a just and fair treatment to Government servants have to be given with the object of securing honesty, contentment and discipline among the civil servants which are of utmost importance and form the very foundation for their discharging their duties as expected of them. A useful principle laid down in "Sukraniti", the great ancient Indian compilation, of the principles to be adopted in the administration of the affairs of the State is as follows:

Low Salary, harsh treatment, insults and imposition of heavy penalties are causes of unrest among the Employees. Satisfied with adequate wages, promoted honorably and consoled or cheered up by gentle words, the Employees would never desert the kind."

Regard being had to the wealth of material placed by the Petitioners on record including the recommendations of High Level Committee, the Division Bench decision in Kollaiah case, supra and the law reiterated by the Apex Court, the Respondents are required to identify the posts/cards whose Job Chart substantially matches with the nature & quantum of the work being done by the GVPs, and to pay the Minimum Wages in the Pay Scales admissible to the comparable posts; this exercise needs to be done expeditiously, since years have rolled eluding fruition of the claims of the helpless GVPs, their earliest grievance having been noted by the Coordinate Judge of this Court in W.P. No.16457-16459/2010 decided on 28.7.2011.

(f) As to direction for considering regularization vs. direction for considering regularization/absorption:

There is some force in the contention of the Respondents that a Writ Court ordinarily does not itself direct regularization or the payment of wages on the principle of 'equal pay for equal work' vide All India Trade Union Congress, supra; the power of Writ Court is coextensive with the requirement of doing justice, in accordance with law; however, these are the matters which essentially pertain to the domain of the Employer and the Govt. of the day; a host of factors enter the decision making process and a Writ Court is ill-suited for undertaking such an arduous exercise; the matter by its very nature merits an examination by the Govt.; suffice it to say that the impugned Orders which rejected the recommendations of the Committee are being infected with the legal infirmities are liable to be invalidated facilitating consideration of the matter afresh with the participation of all the stakeholders; a direction for regularization is not warranted is arguably true; however, this Court cannot overlook the long agitation of the Employees in militant silence even when their Constitutional Rights are violated with impunity; their first case in W.P. No.16457-459/2010 was decided on 28.7.2011; the contention that in a similar matter a learned Coordinate Judge declined to grant similar prayer to some of the GVPs, even if arguably true does not much come to the rescue of the Respondents because of march of law relating to regularization, subsequent Committee recommendations and the D.B. decision in Kollaiah case.

(g) As to ONGC Case, reference to Larger Bench of Apex Court and request for deferring the hearing in these cases:

Learned Panel Counsel Mr. Prasanna Kumar at the outset had for sought the deferment of hearing of these cases on the ground that, very important Questions of laW of some relevance to the adjudication herein are being d

Please Login To View The Full Judgment!

ebated before the Larger Bench of the Apex Court after being referred vide Judgment in ONGC v. Kishangopal, Civil Appeal No.1878/2016, dated 7.2.2020; it is bit difficult to concede to this request in the absence of any indication by the Apex Court, of interdiction, like the one in the cases relating to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013; no provision in the Constitution is brought to Notice of this Court which provides that once a case is referred for the consideration of Larger Bench, the precedential value thereof is robbed off; delaying relief on such ground may virtually amount to denial of relief itself, regard being had to the age of several of the Petitioners; therefore, with due deference to the learned Counsel, this Court declines to defer the hearing of this batch of cases. (h) Stigmatic removal of GVPs & Non-renewal of so called 'service contracts' by issuing fresh MoU: (i) In connected W.P. No.27417/2015 & W.P. No. 44902/2015 the GVPs have laid a challenge to the punitive orders of their removal from service on the ground that the Principles of Natural Justice have not been followed, much less any Enquiry was conducted preceding such removal; a few of them have the grievance that because of some allegations that are not substantiated in Enquiry or otherwise, have been discontinued from service there being no renewal of MoA; in support of their case, their learned Advocates Bank upon the decisions of a Coordinate Bench of this Court granting relief to the similarly circumstanced GVPs who had suffered removal from service sans Enquiry or non-renewal of MoU; they also press into service the doctrine of legitimate expectation; this assertion is not much controverted by the other side; however it is contended that the delinquent GVPs had misappropriated funds and were not punctual in the performance of their duties and therefore their removal/non-removal of their engagement cannot be faltered; (ii) For Employees in the lower rung of service, removal from job is a serious matter, atleast for those for whom, job is the only means to hold body and soul together, as is the case here; the act of snatching away the means of livelihood may amount to taking away the life itself and therefore it is a gross breach of Fundamental Right to life & liberty guaranteed under Article 21 of the Constitution vide Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545; before punishing Adam & Eve, for their eating forbidden fruit, even God is said to have given an opportunity of hearing; that being the sanctity of Principles of Natural Justice which the Apex Court has read inter alia into Article 14, the impugned action is liable to be set aside reserving liberty to the concerned ESCOMs to hold Enquiry in the matter in a time bound way. In the above circumstances, these Writ Petitions are favoured in part: (i) A Writ of Certiorari issues quashing the impugned Govt. Orders whereby GVPs' claim for absorption/regularization and for the grant of wages in regular Pay Scales has been rejected; (ii) A Writ of Mandamus issues to the First Respondent to frame a Fair Scheme for considering the claim of GVPs for regularization/absorption in service, keeping in view the High Level Committee Recommendations; the current services of the GVPs shall not be dispensed with except on the ground of proven delinquency or the like; (iii) A Writ of Mandamus issues to the Respondents to identify the posts whose Job Chart substantially matches with the work being done by the GVPs and to pay them the wages in the minimum of the Pay Scales admissible to such posts, having in mind the Recommendations of High Level Committee and observations in Kollaiah Case, with effect from 2.10.2020, being the Jayanthi of Father of the Nation; (iv) A Writ of Certiorari issues quashing the impugned Termination Orders in W.P. No.43037/2015 and in W.P. No.44902/2015, with liberty to hold Disciplinary Enquiry within eight weeks; if not found guilty, these Petitioners shall be reinstated without any consequential benefits such as Back Wages, counting of service, etc.; and (v) The Respondent-Govt. KPTCL and the ESCOMs shall report compliance of above directions to the Registrar General of this Court within two weeks following the expiry of respective periods prescribed in the paragraphs, supra. Now, no Costs.
O R