Kundan Singh Versus State & others
GST
2018 (11) TMI 889 – UTTARAKHAND HIGH COURT – 2018 (19) G. S. T. L. 387 (Uttarakhand)
UTTARAKHAND HIGH COURT – HC
Dated:- 12-11-2018
Writ Petition No. 116 of 2018 (PIL)
GST
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 are being paid the honorarium of Rs. 8,400/-, however, the GST @18% and 2.5% Service Tax are also deducted from their salary. It is also highlighted that the administrative, disciplinary and financial control on each and every employee is of the establishment, in which, they are working. They are disch
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through UPNL vis-à-vis their regularly appointed counterparts in the government department.
v. The State Government is further directed to give the date of engagement of every employee/workman through UPNL in a tabular form.
vi. The State Government and UPNL are directed to ensure that no displeasure is shown to any person or employee in highlighting the difficulties faced by them.”
4. In sequel to the directions issued by this Court, the State Government has filed the comprehensive affidavit. According to the averments made in the affidavit, the employees have been engaged in the various Government Departments and other institutions/corporations/local bodies etc. through outsource. The Government of Uttarakhand issued G.O. dated 12.06.2013 by which after fixing the categories of the officers/personnel, the honorarium was also fixed for the employees engaged through outsourcing. The honorarium of the personnel sponsored through UPNL was revised on 10.05.2018. The honorarium
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led, 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 Karnataka vs. Uma Devi.” Thus, the persons engaged through UPNL cannot be regularized.
10. It would be apt at this stage to take into consideration the Memorandum and Articles of Association of Uttarakhand Purv Sainik Kalyan Nigam Limited (as amended vide extraordinary General Meeting held on 01.09.2015). The main objects of the company are to provide employment/self employment to Ex-servicemen and their dependants and in case suitable Ex-servicemen/their dependants are not available, employment can be provided to others to meet the requirements of Principal Employer.
11. Thus, it is evident that it is only when suitable Ex-servicemen/their dependants are not available, then the employment could be provided to others to meet
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ntract Labour.
15. “Establishment” means any office or department of the Government of a local authority or any place where any industry, trade, business, manufacture or occupation is carried out.
16. “Principal employer” means in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in that behalf.
17. It is evident from the Memorandum and Articles of Association of UPNL, the UPNL was required to provide employment/self-employment to Ex-servicemen and their dependants and in case 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
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Rs. 8,400/-. The persons appointed in the corresponding posts are getting regular pay-scale. The dearness allowance is also not being paid to them.
23. The State must act like a Modal employer. Something which cannot be done directly cannot be permitted to be done indirectly. The agreement entered into between the UPNL and its employees is unconstitutional. Thus, violative of Articles 14 and 16 of the Constitution of India. The employees working through agency of UPNL, deployed by the State Government and local bodies are entitled to at least minimum of pay-scale, which is being paid to their counterparts on the principle of “Equal Pay for Equal Work.” The employees sponsored through UPNL are working without being regularized for decades together. It amounts to begaar.
24. The State Government while filing the affidavit has overlooked Section 2(i)(iv) and 2(z) of the Industrial Disputes Act, 1947.
25. In AIR 1964 SC 355, in the case of “M/s Basti Sugar Mills Ltd. vs. Ram Ujagar & ot
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n the sub-clause are clearly sufficient to achieve this purpose.
7. It is true, as pointed out by Mr Pathak, that the definition of the word “workmen” did not contain any words to show that the contract labour was included. 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 indu
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through UPNL is a sham. The Principal Employer is State Government.
27. In 1985 (3) SCC 545, in the case of “Olga Tellis vs. Bombay Municipal Corp.”, their Lordships of the Hon'ble Supreme Court have held as under:-
“40. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonabl
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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 d
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