JUSTICE v. NARASINGH DATE OF FINAL HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14928 of 2013 In the matter of an application under Article 226 & 227 of the Constitution of India. ------------------ Shantilata Mallik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner For Opposite Parties : : Mr. D.K. Mohapatra, Advocate Mr. S.N. Pattnaik, AGA CORAM: JUSTICE V. NARASINGH DATE OF FINAL HEARING : 18.10.2023 DATE OF JUDGMENT : 15.04.2024 V. Narasingh, J. 1. The Petitioner working as a pump driver has prayed for a direction to quash the letter dated 29.05.2013 issued by the Sarpanch, Badapokhari Gram Panchayat and letter dated 12.04.2013 issued by the Govt. in Panchayati Raj Department under Annexure-1 and 2 respectively. 2. The Petitioner Smt Shantilata Malik while discharging her duty as a Pump driver at Badhi Pump house under Badapokhari W.P.(C) No.14928 of 2013 Page 1 of 11 Gram Panchayat, has filed this Writ Petition being aggrieved with the decision of the Block Development Officer, Oupada and its implementation, wherein the Petitioner was directed to handover lock and key of the pump house in view of the direction, to the newly engaged self employed mechanics to operate the pump. 3. It is contended by the Petitioner that no disengagement order has been issued but on a bare perusal of Annexure-1 i.e. order issued by the Sarpanch Badapokhari Gram Panchayat dated 29th May 2013, it is sufficient to infer that it amounts to disengagement of the Petitioner. 4. It is further contended by the Petitioner that she is aggrieved with the decision of the Government in Panchayati Raj
Decision
Department at Annexure-2 to the Writ Petition which is a letter from the Government to all the Collectors and PDs emphasising upon engagement of SEM and to deploy them in the gram panchayats of the state for operation and maintenance of piped drinking water supply system tube wells. As per the said letter Government has instructed by referring to its earlier letter dated 19th April 2012, the Gram Panchayat can engage the existing self-employed mechanics or additional self-employed mechanics as per requirement for maintenances of tube wells as well as operating piped drinking water supply systems. It is further clarified in the said letter that except the person deployed by RD department, Gram Panchayat in no case can engage pump operator in PWS system. Only SEM or additional SEM can do the job in PWS system. For the above management, the monthly honorarium of self-employed mechanics were enhanced from ₹500 to ₹1000 per month for each operation i.e. operation and maintenance of system and maintenance of tube well with effect W.P.(C) No.14928 of 2013 Page 2 of 11 from 01.04.2013. The Petitioner in the present Petition has assailed both the letter of Government at Annexure-2 and its implementation at Annexure-1. 5. The case in short of the Petitioner is that she was issued with an order of engagement by the Opposite Party No.9 bearing Order No.1 dated 26th July 2010 as Pump driver in Badhi pump house under Badapokhari gram panchayat in Oupada Block in the District of Balasore. Accordingly, the Petitioner joined in work with effect from 31st July 2010 and since then she has been discharging her duties as a pump driver successfully. While the matter stood thus, the State Government introduced a scheme to facilitate their drinking water to all in the state of Odisha through piped water supply. Accordingly, for the smooth functioning of such scheme the Pump houses including the water supply system was handed over to the Gram Panchayat with a further direction that the maintenance cost and the purchase of materials will be done from 12th Finance Commission fund at block level. 6. The Petitioner cited different correspondences with respect to the requirement of engaging a pump driver to look after the scheme floated by the Government and contended that though the working hour for operation of pumps have been fixed 8 hours per day but the pump drivers including the present Petitioner were deprived of from getting minimum rate of wages despite their working on Sundays and on all other holidays for smooth functioning of this scheme. Assailing the same, the Petitioner filed Writ Petition along with other Pump drivers engaged in the District of Balasore praying W.P.(C) No.14928 of 2013 Page 3 of 11 for minimum rate of wages in WP(C) No. 8886 of 2012 where the name of the Petitioner appears at serial number 34. 7. The aforesaid Writ Petition was disposed of on 17th May 2012 with clear instruction that if the Petitioners are not being paid the wages as per their category in terms of the Labour and Employment Department notification dated 13.7.2009 steps shall be taken for payment of their wages in term of the rate as prescribed in the said notification. 8. Once again the Petitioner along with other pump driver approached this Court in WP(C) No.24743 of 2012 where the Petitioner is at serial number one with respect to grant of revised rate of minimum wages taking into consideration the revision made by the Government of Odisha which was disposed of on 4th February 2013, directing the Executive Officer Oupada panchayat samiti, to pay minimum wages as determined by the Government under the revision notification to the Petitioners if they are working as Pump drivers as claimed by them under Oupada panchayat samiti. 9. The Petitioner has admitted of receiving the minimum rate of wages from the Opposite Parties. 10. While the matter stood thus the Petitioner apprehended that she will not be provided the work further in terms of the decision of the Government at Annexure-2 and its compliance under Annexure-1 to the present Writ Petition. Under such circumstances she filed present Writ Petition. 11. At the time of issuing the notice to the Opposite Parties for making their submission, entertaining a misc. case to grant interim protection in favour of the Petitioner, this Court by direction dtd. 07.08.2013 protected the Petitioner that she will not be disengaged W.P.(C) No.14928 of 2013 Page 4 of 11 and allowances as are being paid shall be continued to be paid to her till the next date. 12. Initially Opposite Party Nos.3 and 7 filed a counter clarifying their position as follows a. The department of Panchayati Raj and Rural Development in State of Odisha have jointly issued order regarding revision of honorarium of self-employed mechanics deployed in the Gram Panchayat for operation and maintenance of PWS scheme and tube wells as per letter dated 12.04.2013 at Annexure-2 enhancing the existing honorarium from ₹500 to that of ₹1000 for each operation with effect from 1st April 2013. It is also decided therein that gram panchayat in no case can engage pump operator or pump driver in PWS system. Only SEM or additional SEM can do the job in PWS system. b. It is also stipulated there in that the Gram Panchayat will own the responsibility if it violates the above terms and conditions. Therefore, instructions were issued to the Gram Panchayat Executive Officer to implement the aforesaid decision of Government by suggesting the names of available SEM or additional SEM who are working in the respective Gram Panchayat. Under such circumstances the continuance of pump driver like the Petitioner who were evidently engaged by the Gram Panchayat being not in consonance to the above direction of the Government, the Petitioner was directed to handover the lock and key of the pump house at Badhi. c. The Opposite Parties have also disputed the engagement of the Petitioner as pump driver in a proper manner since the Gram Panchayat completely ignored the availability of W.P.(C) No.14928 of 2013 Page 5 of 11 trained SEMs by RWSS in the block for operation and maintenance of rural piped water supply system. In this context the Government has relied upon the Government letter bearing number 12053 dated 23rd September 2006 and letter No. 12242 dated 27th September 2006 at Annexure- C/ 7 and D/ 7 of the counter. d. The Opposite Parties emphasised upon the decision of Government in terms of the different letters issued from time to time that, for every Commission and ongoing PWS scheme, employees from RWSS in order of reference in the category of pump driver/assistant pump driver/khalasi/NMR/HR/DLR subject to availability will be deployed to the Gram Panchayat for maintenance of the works that is pump house. In case no staff is available with the RWSS organization the gram panchayat will make its own arrangement to deploy personnel for operating the PWS scheme. As per the letter dated 19th March 2012 it is stipulated that if required the Gram Panchayat can engage SEM or additional SEM only on recommendation of the junior engineers RWSS II with the approval of the concern Block Development Officer on resolution and agreement made by gram panchayat for PWS scheme including overall maintenance of tube wells with additional honorarium of ₹500 in case no SEM is readily available with the RWSS organization. It is also contended that as per the letter dated 24th February 2010 the PWS after functioning shall be handed over to the village committee. The village committee will maintain the said PWS and also will engage Pump drivers and decide their monthly remuneration. The RWSS will give guidance to the village committee for smooth running of PWS. The gram panchayat will W.P.(C) No.14928 of 2013 Page 6 of 11 engage SEM deployed by the RWSS department as Pump driver only. e. So far the case of the present Petitioner is concerned, it is clarified by the Opposite Parties in their counter that the present Petitioner does not come under the Minimum Wages Act directly since their daily working period do not confirm the required criteria of daily work as tabulated under Minimum Wages Act, 1948. However, as per direction of this Court, the authorities are making payment of remuneration up to March 2013 in favour of the Petitioner at the rate of skilled labour under Minimum Wages Act, 1948 read with the notification dated 13.07.2009 issued by the Labour and Employment Department. 13. The Opposite Parties 1 and 7 filed another counter in complying with the direction of this Court as per order dtd. 1st November 2022 more particularly to answer the allegation of the Petitioner that in spite of order passed by this Court she has not been paid what she is entitled to in terms of the order dated 7th August 2013. 14. The Opposite Parties have taken a specific stand there in that the Petitioner has already been paid towards her honorarium for the period 1st April 2013 to 28th February 2015 but no further payment could be made in her favour as it is ascertained from the Sarpanch, Bada Pokhari gram panchayat so also Panchayat Executive Officer, Bada Pokhari gram panchayat and the Assistant engineer, RWSS, Oupada that the Petitioner has not been serving as a pump driver from March 2015 onwards despite the interim order being in her favour. W.P.(C) No.14928 of 2013 Page 7 of 11 15. Since she has voluntarily abandoned the duty as a pump driver from March 2015 onwards, the work is managed through others as additional work. 16. Under such circumstances, even if Petitioner is willing to work at present as SEM after a gap of more than 7 years in Bada Pokhari gram panchayat it has to deliberate on the present arrangement in comparison to engaging the Petitioner in the Gram Panchayat meeting and decide on this issue. 17. The Petitioner has filed a rejoinder affidavit to the earlier counter filed by Opposite Party Nos.3 and 7 but has not disputed contentions made in the second counter filed by Opposite Party Nos.1 and 7. 18. The Petitioner in her rejoinder affidavit contended that she being engaged as pump driver with effect from 26.7.2010, the subsequent guideline issued by the Government from time to time as discussed in the counter affidavit and impugned in the Writ Petition, having no retrospective effect cannot have any application to her continuance as a pump driver. In view of this it is contended by the Petitioner that the instruction given by the Opposite Party No.7 to the Executive Officer to take the action by suggesting names of available SEMs only duly trained by the RWSS at present working in the respective Gram Panchayat ignoring the Petitioner who has been engaged as pump driver and continuing as such, is purely based on ignorance of ground reality and the same is also illegal and bad in law. 19. Nevertheless the engagement of the Petitioner is not disputed in the face of the Government letters and clarifications issued from time to time which were in operation as on her date of W.P.(C) No.14928 of 2013 Page 8 of 11 engagement as Pump driver which were governing the field to operationalize such schemes. 20. The Petitioner also contended that in the said organization i.e.RWSS there are regular and trained pump drivers, assistant pump drivers who are working in the department before the year 2006. Since the existing steps were not sufficient to manage and operate the pump houses after installation of large number of PWS and pump houses throughout the state it was decided to engage the pump driver and their nature of duties and responsibility being same there should not be any discrimination while treating the existing pump drivers in department like the Petitioner. The Petitioner further clarified that the Assistant Engineers had requested the Sarpanchs who have not engaged the pump drivers to engage the pump drivers immediately by way of panchayat resolution with a further clarification that at new pump houses no SEM shall work as Pump drivers therefore after due deliberation and proper manner the Petitioner was engaged and the same cannot be challenged taking into consideration the subsequent decision of the Government having no retrospective effect. In addition to the above stand, to justify her engagement the Petitioner has also stated that the validity of her claim with respect to the minimum wages during the period of her engagement as Pump driver in terms of the Government resolution followed with the direction of this court. 21. Admittedly the State Government has introduced a scheme to facilitate the drinking water supply in rural area of the state of Odisha. This scheme of rural pipe drinking water supply system is to be operated as per the decision to be taken by the authorities competent in this regard from time to time by engaging suitable W.P.(C) No.14928 of 2013 Page 9 of 11 person in terms of the decision of the Government regulating such operation of scheme. 22. Admittedly, the interim order passed in this Writ Petition is in operation but the Petitioner has not disputed the averments of the Opposite Parties with respect to release of the arrear of wages till February 2015 and thereafter, no further payment has been made as because the Petitioner is found to be absent since March 2015 and accordingly the Badhi PWS is being operated through local arrangements as per the requirements of Badapokhari gram panchayat. 23. In the absence of any dispute relating to the averments vis- à-vis voluntary abandonment in discharging the duty as a Pump driver by the Petitioner since March 2015 onwards, this Court does not find the action of the Opposite Parties to be erroneous in operating the PWS at Badhi under Badapokhari Gram Panchayat by way of local arrangement, calling for any intervention in this W.P.(C). 24. The protection of interim order is not sufficient to entitle the Petitioner to get honorarium or get continuity of service unless complying the said interim order the Petitioner discharges her duty in the post. Under such circumstances this Court does not find any merit in the claim of the Petitioner to allow her to continue in the post of pump driver looking at her conduct that admittedly she has voluntarily abandoned discharging her duty despite the interim order of the Court, since March 2015. 25. However, taking into consideration the duties discharged by the Petitioner till February 2015 since the date of her engagement as a pump driver this Court further observes that in case the W.P.(C) No.14928 of 2013 Page 10 of 11 Petitioner is so interested can make an application before the competent body for her engagement as pump driver and appropriate steps may be taken by Badapokhari Gram Panchayat to engage her as pump driver since the work is still managed by local arrangement and nobody has been engaged in the said post as per the affidavit of the opposite parties dated 16.12.2022. Accordingly, if such a Petition is filed by the Petitioner within 30 days from the date of receipt of certified copy of the order the competent authorities will take appropriate decision in this regard within a further period of six weeks and decision taken shall be intimated to the Petitioner. It is also made clear that in case the Petitioner is allowed to be engaged as a pump driver the Opposite Parties will do well to release the wages or honorarium keeping in view the decision of this court in WP(C) No. 8886 of 2012 disposed of on 17.5.2012. 26. With the observation as above, the Writ Petition is disposed of. Interim order stands vacated. No costs. (V. Narasingh) Judge Orissa High Court, Cuttack, Dated the, 15th April, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 25-Apr-2024 18:49:24 W.P.(C) No.14928 of 2013 Page 11 of 11