TMI Blog2018 (11) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough agency of UPNL and to deny them minimum of pay-scale including dearness allowance is arbitrary and unreasonable. The State Government is directed to regularize the employees sponsored through UPNL in a phased manner within a period of one year as per regularization schemes framed from time to time - The State Government is directed to ensure that the employees sponsored by UPNL get minimum of payscale with dearness allowance along with arrears to be paid within a period of six months from today - The respondents are directed not to deduct any GST or Service Tax from the salary of the employees sponsored by UPNL - petition disposed off. - Writ Petition No. 116 of 2018 (PIL) - - - Dated:- 12-11-2018 - RAJIV SHARMA, AND SHARAD KUMAR SHARMA, JJ Mr. M.C. Pant, Amicus Curiae for the petitioner. Mr. S.S. Chauhan, Deputy Advocate General for the State. Per: Hon ble Rajiv Sharma, J. Uttarakhand UPNL Savinda Karamchari Sangh through its General Secretary has filed Impleadment Application No.16484 of 2018 highlighting therein the exploitation of the workmen by the State Government as well as local bodies. It is stated in the application that though, the workmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles of Association was placed on record by learned Amicus Curiae for the petitioners. 6. On 09.06.2016 and 05.07.2016, the Government has taken a decision to sponsor the Ex-Army personnel and their dependants through UPNL only. 7. To the queries raised by the Court, it is stated that the persons engage through UPNL on honorarium basis and who are working in different departments of the State Government and State Government undertakings, the government has not made any plan or scheme to regularize them. The persons sponsored through UPNL are being paid the fixed salary and apart from that they are not being given any dearness allowance. The salary/honorarium of the persons engaged through UPNL has been revised from time to time. 8. In Garhwal Region, total 12118 persons (unskilled, semi-skilled, skilled, highly skilled and officers) are engaged through UPNL, whereas in Kumaon Region 5953 (unskilled, semi-skilled, skilled, highly skilled and officers) have been engaged through UPNL. 9. The Cabinet in its meeting held on 20.09.2018 has discussed the matter and decided that the matter is covered by the judgment of Hon ble Supreme Court rendered in the case of State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se suitable Ex-servicemen/their dependants are not available employment can be provided to others to meet the requirements of Principal Employer. 18. The State Government in its own wisdom vide letter dated 09.06.2016 had directed that in future UPNL will sponsor ex-servicemen only and thereafter, vide letter dated 05.07.2016 UPNL has been allowed to sponsor dependants of ex-servicemen also. 19. The UPNL is neither registered under Section 7 of the Act nor it has got license as contractor under Section 12. 20. The UPNL has sponsored the names of thousands of employees for engagement by State Government. The funds are provided by the State Government. The disciplinary control is also of the State Government. The agency of UPNL has been used as intermediary only to deny the benefits of regularization and regular salary to the workmen. The UPNL was never intended to sponsor the names of all employees except exservicemen and their dependants and it was only when suitable ex-servicemen/their dependants are not available, the names of other candidates could be sponsored. The persons appointed by the State Government through agency of UPNL are only a camouflage. 21. The moment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded. That however does not affect the position. The words of the definition of workmen in Section 2(z) to mean any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the contractor of the management. Unless however the definition of the word employer included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between employer and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by sub-clause (iv) of Section 2(i). The position thus is: (a) that the respondents are workmen within the meaning of Section 2(z), being persons employed in the industry to do manual work for reward, and (b) they were employed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the ratio of the judgment passed by Hon ble Supreme Court in Uma Devi case. The State Government in its own has framed the regularization rules from time to time but has not made them applicable qua persons sponsored by UPNL. In Uma Devi case, their Lordships of the Hon ble Supreme Court have directed that the Courts cannot issue directions for framing of scheme but State Governments of their own could frame the scheme for regularization. 29. The action of the State Government of not regularizing the employees sponsored through agency of UPNL and to deny them minimum of pay-scale including dearness allowance is arbitrary and unreasonable. 30. The employees have a legitimate, statutory and fundament rights to be regularized. The workmen are being paid meager honorarium and out of the same, GST and Service Tax are also deducted. Every workman is entitled to living and fair wage to make both ends meet. The UPNL has not obtained the license as Contractor nor has registered under the Act qua most of the departments and local bodies. 31. Salary is the property within the meaning of Article 300-A of the Constitution of India. No GST or Service Tax can be deducted from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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