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2024 Supreme(Online)(RAJ) 29200
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MR. JUSTICE ARUN MONGA, J
DINESH PANDIT – Appellant
Versus
THE UNION OF INDIA – Respondent
CW / 16426 / 2022
Mr. S.P. Sharma, Mr. Mukesh Rajpurohit, Dy. S.G.
Daily wagers cannot claim parity with regular employees, and their employment is at the discretion of the employer based on work exigency.
Headnote:(A) Contractual Employment - Termination of Services - The petitioners, employed as Safai Karmchari on a contractual basis, challenged their termination by the respondent authorities. The court noted that the petitioners had worked for 8 to 10 years before their services were terminated to outsource cleaning services. The Central Administrative Tribunal initially ordered their reinstatement, which was later set aside by the High Court for lack of jurisdiction. The Tribunal subsequently dismissed their application, leading to further petitions before the High Court. The court emphasized that daily wagers cannot claim parity with regular employees and that their services are at the employer's discretion. The court directed the placement agency to consider the petitioners for re-employment based on their past satisfactory service. (Paras 1-12)
(B) Jurisdiction of Tribunal - The court reiterated that the Tribunal could not adjudicate on the merits of the case without establishing the petitioners as employees of the respondent. (Paras 5, 6)
(C) Employment Rights - The court highlighted that daily wagers cannot claim past wages on the principle of no work no pay. (Paras 11, 12)
Findings of Court:
The court disposed of the writ petitions with directions for the placement agency to consider the petitioners for re-employment based on their past service.
Issues: The main issues included the legality of the termination of the petitioners' services and the jurisdiction of the Tribunal to order their reinstatement.
Ratio Decidendi: The court ruled that daily wagers do not have the same rights as regular employees and emphasized the discretionary nature of their employment.
Result: Writ petitions disposed of with directions.
Order
23/01/2024
1. Grievance of the petitioners herein stems out of the action on the part of the respondent authorities in terminating the services of the petitioners vide an order dated 16.08.2014. They were working on contract/daily wages basis as Safaiwala (Sweeper) at Military Hospital, Jodhpur. Services of private contractor were hired to provide sweepers.
2. Facts are not disputed as referred hereinafter in course of recording my discussion. I have heard the rival arguments of learned counsels and perused the case file.
3. Before this Court are poor hapless Class-IV Safai Karmchari (Sweepers), whose services at the relevant time were contractually hired by respondent no. 3. They continued to work uninterruptedly for different time durations viz. 8 to 10 years, whereafter their services were terminated summarily.
4. It transpires that the respondent no. 3 took a policy decision to hire Safai Karmchari required for the cleanliness of the hospital by outsourcing them through private contractor/placement agency. The very fact that the private agency was hired to continue making the recruitment of the sweepers reflects that the services of the sweepers are/were indeed required by the hospital. In order to avoid any administrative inconvenience, respondent no. 3 has decided not have two sets of contractual employees (a) ones’ who are hired through private agency, (b) Ones’ who were working in the past under the contractual engagement by the hospital.
5. It is in this background that the services of petitioners were terminated with instructions to them that they may approach private agency to give applications afresh in case they wish to continue in service. However, either under an advice or on their own volition, or whatever may be the case, instead of approaching the private agency, the petitioners filed Original Application (OA) No. 290/00441/2014 before the Central Administrative Tribunal, which was allowed vide judgment/order dated 12.04.2017 (Annexure.12). Learned Tribunal directed the respondents to re- engage the petitioners by inducting them in service on contractual basis along with 30% back-wages. Aggrieved, the respondents preferred writ petition before this Court being D.B. Civil Writ Petition No. 7083/2017. The judgment/order of the learned Tribunal was set aside by the Division Bench of this Court vide a rendition dated 12.07.2017 (Annexure.13). It was opined therein that without returning a specific finding as to whether the petitioners were employees of respondent no. 3, Tribunal could not have traversed on merit of the case issuing the directions to induct them back. Accordingly, the matter was remanded for fresh decision by the learned Central Administrative Tribunal.
6. Upon remanding, the matter was heard afresh and as it turned out, it was so held by the Tribunal that the petitioners since did not hold this Civil post, therefore, their claim on merit of being re-inducted on contractual basis could not be adjudicated for lack of appropriate jurisdiction vested with the CAT vide order dated 19.07.2019 (Annexure.14). Against the dismissal of the OA in the second round by CAT, the petitioners then once again approached this Court by filing writ petition being D.B. Civil Writ Petition No. 2300/2020 and other bunch of petitions, which too met similar fate as they were dismissed without any interference in the findings of learned Tribunal.
7. It is in this premise that the petitioners are before this Court th what is perhaps the 5 foray of lis i.e. twice before the CAT and twice before the Division Bench seeking indulgence under extra- ordinary jurisdiction.
8. Ordinarily, this Court though would have been reluctant in invoking the extra ordinary jurisdiction given that the petitioners’ services were admittedly hired on contractual basis. The services of the petitioners at the relevant time were originally hired, though, of course through employment exchange, but merely on daily wages. Trite law it is that daily wagers
