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Tuesday, January 10, 2017

denied the benefit of minimum pay-scales despite long years of service in arduous conditions prevalent in a difficult terrain.= twenty nine of men – have been engaged as porters in the Indian Army as casual labouror daily wage employees in the border areas of Rajouri, Jammu and Poonch.-There are three areas where we propose to issue directions to the Union government, and accordingly do so in the following terms. Firstly, the scheme as proposed provides for the payment of minimum wages at the prevailing ‘Nerrik Rates’. This aspect requires a fresh look so that the porters are paid wages at par at the lowest pay-scale applicable to multi- tasking staff. Further, if there are provisions enabling additional payments to be made (either by way of allowances or otherwise) for work in high altitude areas or in high risk/active field areas, such payments shall be allowed under the scheme. Secondly, the scheme must provide for regular medical facilities including in the case of injury or disability. Thirdly, the amount of compensation in the case of death or permanent disability should also be looked at afresh and suitably enhanced. The present scheme provides for an interim relief of rupees twenty thousand to be sanctioned at the discretion of the local formation commander. A maximum payment of Rupees two lakhs as applicable under the Workmen’s Compensation Act, 1923 is contemplated. The provision for compensation shall be enhanced to provide for dignified payments in the event of death or disability. Fourthly,a onetime severance grant of rupees fifty thousand is provided in the proposed scheme subject to a minimum service of ten years. This measly payment on severance does not fulfil the mandate of fairness, on the part of the State. We direct that the terminal benefits should be enhanced so as to provide for compensation not less than at a rate computed at fifteen days’ salary for every completed year of service. The Union government shall bear in mind these directions in the course of the finalization of the scheme which shall be done within the next three months.- proposal may envisage regularizing army porters who have rendered service for a stipulated period upto five per cent of the sanctioned strength of multi-tasking staff. Since the pool of porters is large, the number of persons who may benefit from such a proposal every year may be minimal. This is an aspect which should be duly borne in mind while enhancing the proportion of the sanctioned strength for regularization; in order that the benefit of security of tenure is made available to a reasonable proportion of persons who complete a stipulated minimum tenure of service. The competent authority will consider this aspect while taking a decision in the matter. 15 The writ petitions are accordingly disposed of in the above terms.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 616 OF 2013


YASH PAL & ORS                .... PETITIONERS

                                   VERSUS

UNION OF INDIA & ORS             .....RESPONDENTS

                                    WITH



                    WRIT PETITION (CIVIL) NO. 912 OF 2013



                           J  U  D  G  M  E  N  T



Dr D Y CHANDRACHUD, J

The petitioners – twenty nine of men – have been engaged as porters in the
Indian Army as casual labouror daily wage employees in the border areas of
Rajouri, Jammu and Poonch. Annexure P-1 to the writ petition, which has
been instituted under Article 32 of the Constitution of India, contains
photocopies of identity cards issued by the army authorities.  The
grievance is that the petitioners have not been treated as regular
employees and have been denied the benefit of minimum pay-scales despite
long years of service in arduous conditions prevalent in a difficult
terrain. According to the petitioners, many of them have worked for long
years. Details have been furnished of the period over which they have been
engaged in the writ proceedings.  The relief which they seek is in the
following terms :
“(a)  ..an appropriate writ in the nature of mandamus  or  any  other  writ,
direction or order commanding respondents to treat  petitioners  as  regular
civilian employees in the Indian Army and extend  them  all  benefits  which
are  being  given  to  the   regularly   appointed   /   recruited   porters
discharging..identical work by treating already  rendered  services  by  the
petitioners as .. by regularly appointed/recruited porters.”



2     Similarly situated porters  engaged  by  the  Indian  Army  as  casual
labour instituted a proceeding before  the  Armed  Forces  Tribunal  at  its
Principal Bench in New Delhi.[1] By  a  judgment  dated  11  May  2010,  the
Tribunal  held  that  since  the  porters  are  not  subject  to   statutory
provisions which govern the Army, Navy and Air Force,  their  grievance  did
not fulfil the definition of  a ‘service matter’ under Section 3(o)  of  the
Armed Forces Tribunal Act, 2007.  Hence by the  judgment  of  the  Tribunal,
the application was dismissed.

3     Special Leave Petitions were moved before this Court which  eventually
resulted in a judgment dated  14  May  2013  in  Isher  Singh  v.  Union  of
India[2].  Leaving open the issue of jurisdiction, a Bench  of  two  learned
Judges of this Court held that  the  appellants  were  working  for  between
fifteen and twenty years. Hence, in the view of the Court, the  observations
contained in paragraph 53 of the decision of a Constitution  Bench  of  this
Court in Secretary, State of Karnataka v. Uma Devi[3] “would come  in  their
aid”. For convenience of reference the observations in Uma  Devi  have  been
extracted below :

"53. One aspect needs to be clarified. There may be cases   where  irregular
appointments (not illegal appointments)  as  explained  in State  of  Mysore
vs. S.V. Narayanappa (1967) 1 SCR  128,   R.N.Nanjundappa  vs.  T.  Thimmiah
(1972) 1 SCC 409  and  B.N.Nagarajan vs. State of  Karnataka  (1979)  4  SCC
507,  and  referred  to  in paragraph 15 above, of  duly  qualified  persons
in  duly  sanctioned  vacant  posts   might   have   been   made   and   the
employees  have continued to  work  for  ten  years  or  more  but   without
 the intervention of orders of courts or  of  tribunals.  The   question  of
regularization of the services of such employees may have  to be  considered
on merits in the light of the  principles  settled  by  this  Court  in  the
cases above referred to  and  in  the  light  of   this  judgment.  In  that
context,  the  Union  of   India,   the    State   Governments   and   their
instrumentalities  should  take  steps   to  regularize   as   a   one  time
measure,  the  services  of   such irregularly appointed,  who  have  worked
for ten years or more  in duly sanctioned  posts  but  not  under  cover  of
orders of courts or of tribunals and  should  further  ensure  that  regular
recruitments are undertaken  to   fill   those   vacant   sanctioned   posts
that require to be filled  up,  in  cases  where  temporary   employees   or
daily wagers are being now employed. The  process  must  be  set  in  motion
within six months from this date. We  also  clarify   that   regularization,
if any already made, but not subjudice, need not  be reopened based on  this
 judgment,   but   there   should   be   no  further   by-passing   of   the
constitutional   requirement   and regularizing or making  permanent,  those
not  duly  appointed  as per the constitutional scheme."



The appeals were disposed of by directing the Union government  to  consider
the case of the appellants considering their past service record,  within  a
period of four months.

4     Contempt petitions were filed before this Court with a grievance  that
the judgment had not been complied with.[4] By an order dated  23  September
2015 this Court took on the record a decision taken by  the  Union  Ministry
of Defence in the following terms :

“Hon'ble Supreme Court, during the  course  of  hearing  of  above  Contempt
Petitions on the above mentioned case, has observed that  some  benefits/ex-
gratia should be paid to those porters who worked for a specified number  of
years say 10 or 12.

2. The issue of giving some additional benefits  to  these  petitioners  has
been considered in the Ministry in deference to  the  above  observation  of
the Hon'ble Supreme Court.

3. In recognition of the services rendered by these petitioners  for  Indian
Army in operationally active areas having life  threatening  conditions,  it
is proposed that these petitioners engaged  at  the  border  posts  of  Army
along the LOC for a minimum period of 10 years, be  paid  an  honorarium  of
Rs.50,000/- (Rs. Fifty thousand only). The payment of  honorarium  is  being
granted as a special dispensation  and  as  a  onetime  measure.  The  above
decision should not be treated as a precedent.”



While dealing with the question  of  regularization,  the  court  noted  the
submission of the  Union  government  that  the  employment  of  porters  is
“absolutely seasonal” and that when the earlier civil appeals were  disposed
of, there was no direction to regularize the services of the porters.  After
recording this submission, this Court held thus :

“In  our   considered   opinion,   there   cannot   be   a   direction   for
regularization.”



However, the Court (having regard to the hazardous conditions in  which  the
porters have to work, facing injury and disability and in some cases  death)
suggested to the Union Ministry of Defence to frame  a  scheme  which  would
govern porters who suffer injury or disability. The Court directed that  the
scheme shall also contain provisions for the payment of compensation to  the
families of civilians who meet with death while  working  as  porters.  This
Court noted that a roster  is  maintained  when  civilians  are  engaged  as
porters.  The  contempt  petitions  were  disposed  of  with  the  following
observations :

“Before parting with this application for contempt, we may note that if  the
authorities feel appropriate, apart from what we  have  stated  hereinabove,
they can frame a better scheme so that these seasonal porters feel  secured.
The competent authorities shall discuss with the Chief of Army Staff or  the
officers deputed by him and work  out  the  modes  so  that  there  is  real
enthusiasm to take these kinds of risky jobs.

Professor  Bhim  Singh  also  submitted  with  agony  that  unless  economic
security is provided to this category of porters, who because of  the  basic
livelihood take up such jobs, may not feel that they are  not  being  looked
after. We hope and trust, the authorities who engage them  shall  understand
and appreciate their agony, anguish and the need and  proceed  as  suggested
by us”.



5     The issue as to whether the porters  are  entitled  to  regularization
has  been  dealt  with  first  in  the  judgment  dated  14  May  2013   and
subsequently in  the  order  disposing  of  the  contempt  petitions  on  23
September 2015. The Bench hearing the civil appeals had left it open to  the
Union government to consider the case of the porters having regard to  their
past service record in  the  light  of  para  53  of  the  decision  of  the
Constitution Bench in Uma Devi. In the contempt  proceedings  the  plea  for
regularization was not accepted and the Court observed that a direction  for
regularization could not be granted. However, it was left open to the  Union
government to frame a better scheme so that the porters feel secure. We  may
also note here that the plea for regularization  was  not  declined  in  the
original judgment of 14 May 2013. In fact, this Court had  adverted  to  the
observations in para 53 of the decision in Uma Devi.

6     In response to the present proceedings, a counter affidavit  has  been
filed on behalf of the respondents stating that (i) of the  petitioners  who
have moved this Court, only the  first  and  second  petitioners  have  been
working since 1998 while the others have  been  recruited  after  2000;  and
(ii) petitioners eleven to sixteen have been  engaged  since  2010.  It  has
been stated that with the acceptance of the  recommendations  of  the  Sixth
Pay Commission, Group D posts were upgraded to Group C posts as a result  of
which the former stand abolished. The implications of  this  have  been  set
out in a memorandum of the Union government in  the  Ministry  of  Personnel
(Department of Personnel and Training) dated 30 April 2010,  followed  by  a
clarificatory memorandum. In the present case, it has  been  submitted  that
casual labour is engaged when required on “Nerrik Rates” as approved by  the
station headquarters.

7      Relying  upon  the  above  mentioned  contentions  in   the   counter
affidavits, Mr P.S.Patwalia, learned Additional Solicitor General and  Mr  R
Balasubramanian, learned counsel have submitted that they are no  sanctioned
posts  against  which   the   petitioners   can   be   regularized.   Direct
recruitmentis to Group  C  posts  and  for  posts  of  multi-tasking  staff,
minimum qualifications and age criteria have to be fulfilled.

8     During the course of the hearing of these proceedings,  an  order  was
passed on 29 July 2016 allowing the Additional  Solicitor  General  to  take
instructions on the willingness of  the  Union  government  to  formulate  a
suitable policy or scheme for  providing  better  working  conditions   “and
related matters” for a large number  of  porters  working  with  the  Indian
Army. A draft was filed before this Court  of  a  proposed  scheme  and  the
court was apprised that given sufficient time, the  Union  government  would
formulate a proper scheme.  The proceedings have thereafter been stood  over
on 22 August 2016, 14 September 2016 and 30 September 2016. On 30  September
2016, the Court  was  informed  that  the  Union  government  “is  seriously
considering the  steps  that  will  ameliorate  the  conditions  of  porters
serving with the Army”.

9     In the meantime,an affidavit has been filed stating that a scheme  has
been finalized by the Ministry of Defence in consultation  with  the  Indian
Army for the engagement of “seasonal civilian  labour  in  high  risk/highly
active field areas” in pursuance of the observations contained in the  order
of this Court. The  scheme  has  been  produced  as  Annexure  R-1A  to  the
affidavit. We may note at this stage, that the court has  been  informed  by
the learned Additional Solicitor General that  the  scheme  which  has  been
placed on the record is now awaiting approval of  the  competent  authority.
The learned ASG and Mr R Balasubramanian have  taken  pains  to  pursue  the
matter at all levels of the government and have assured the Court  that  the
plea  for  dignified  conditions  for  these  porters  is  engaging   active
attention.

10    The Indian Army engages twelve thousand porters.  The  nature  of  the
work which is rendered by the porters engaged as casual labour by  the  Army
is not in dispute.   They  are  engaged,  as  the  affidavit  of  the  Union
government  indicates,  in  “high  risk/highly  active  field  areas”.   The
decision which was taken earlier (and referred to  in  the  order  dated  23
September 2015) referred to the  work  being  rendered  by  the  porters  in
“operationally active  areas  having  life  threatening  conditions.”  These
porters are civilians who possess an innate knowledge  of  the  terrain  and
its hazards. The proposed scheme indicates in a fair measure the  nature  of
the work which the porters perform, in the following terms :

“Hiring of Seasonal Porters Concert with Ministry of Defence policy  letter,
“Seasonal Porters and Animals  will  be  hired  for  bona  fide  duties,  to
enhance the operational efficiency of troops.  They  will  be  utilized  for
carriage of stores, stocking of  posts,  collection  of  water  for  troops,
carriage  and  replenishment  of  ammunition,  beating   of   tracks,   snow
clearance,  conveyance  of  private   mail   and   evacuation   of   serious
casualties”. (emphasis supplied)



By all accounts, there is no element  of  doubt  that  the  porters  provide
valuable  support  to  the  Indian  Army  and  are  an  integral,   if   not
indispensable, requirement of operations in border areas. They  are  engaged
for the  carriage  of  stores,  stocking  of  posts,  collection  of  water,
replenishment  of  ammunition,  clearance  of  tracks  and   evacuation   of
casualties. In high altitudes of  the  north  and  north-east,  the  porters
trudge along with their mules, ponies and donkeys  in  terrain  inaccessible
to any other form of  transport.  They  belong  to  the  poorest  strata  of
society. Many of the porters may  not  possess  educational  qualifications.
However, the value addition which they provide to the Indian Army  in  terms
of their knowledge of conditions makes them a sure footed  ally  in  hostile
conditions. To look at their work from a metro centric lens is to  miss  the
wood for the trees.  They work, albeit as  casual  labour,  for  long  years
with little regard of safety.  Faced with disability, injury and many  times
death, their families have virtually no social security.  Such  a  situation
cannot be contemplated having regard to the mandate in Articles  14  and  16
of the Constitution.

11    This Court consistent with the position in law and the  background  of
this case in regard to regularization may not be in a position  to  issue  a
mandamus to the Union government to regularise  but  surely  that  does  not
prevent the government from taking a robust view of reality in  consultation
with the Armed Forces whom the porters serve  with  diligence  and  loyalty.
The scheme which has been proposed undoubtedly marks a  welcome  improvement
over the present conditions of porters and we  appreciate  the  steps  which
have been pursued  by  Mr  P.  S.  Patwalia,  learned  Additional  Solicitor
General, Mr R Balasubramanian, learned Counsel  assisting  him  and  by  the
concerned officials of the Ministry  of  Defence  and  the  Indian  Army  to
ensure a just resolution. The scheme as  proposed  contains  provisions  for
(i) maintenance  of  records  of  hiring;  (ii)  paid  weekly  and  national
holidays; (iii) hours of work and a six day week;  (iv)  medical  facilities
in emergent circumstances;  (v)  compensation  in  the  event  of  death  or
permanent disability; (vi) canteen  services;  (vii)  insurance  cover;  and
(viii) a onetime financial grant on severance.

12    In State of  Punjab  v.  Jagjit  Singh[5],  this  Court  has  recently
revisited the entire body of law on the subject.  The  Court  observed  that
the principle of equal pay for equal work has  been  extended  to  temporary
employees (differently described as work – charge, daily wage,  casual,  ad-
hoc,  contractual  and  the  like).  The  principles  have  been  succinctly
summarised thus :

“79. 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.”



13    There are three areas where we propose  to  issue  directions  to  the
Union government, and accordingly do so in  the  following  terms.  Firstly,
the scheme as proposed provides for the payment  of  minimum  wages  at  the
prevailing ‘Nerrik Rates’.  This aspect requires a fresh look  so  that  the
porters are paid wages at par at the lowest pay-scale applicable  to  multi-
tasking  staff.  Further,  if  there  are  provisions  enabling   additional
payments to be made (either by way of allowances or otherwise) for  work  in
high altitude areas or in high risk/active field areas, such payments  shall
be allowed under the scheme. Secondly, the scheme must provide  for  regular
medical facilities including in the case of injury or  disability.  Thirdly,
the amount of compensation in the case  of  death  or  permanent  disability
should also be looked at afresh and suitably enhanced.  The  present  scheme
provides for an interim relief of rupees twenty thousand  to  be  sanctioned
at the discretion of the local formation commander.  A  maximum  payment  of
Rupees two lakhs as applicable under the Workmen’s  Compensation  Act,  1923
is contemplated.  The  provision  for  compensation  shall  be  enhanced  to
provide for  dignified  payments  in  the  event  of  death  or  disability.
Fourthly,a onetime severance grant of rupees fifty thousand is  provided  in
the proposed scheme subject to a minimum service of ten years.  This  measly
payment on severance does not fulfil the mandate of fairness,  on  the  part
of the State. We direct that the terminal benefits should be enhanced so  as
to provide for compensation not less than at  a  rate  computed  at  fifteen
days’ salary for every completed  year  of  service.  The  Union  government
shall bear in mind these directions in the course  of  the  finalization  of
the scheme which shall be done within the next three months.

14    During the course of the hearing,  the  learned  Additional  Solicitor
General indicated that the formulation of a proposal for  regularization  is
under consideration. It has also  been  stated  during  the  course  of  the
submissions that the proposal may envisage  regularizing  army  porters  who
have rendered service for a stipulated period upto  five  per  cent  of  the
sanctioned strength of multi-tasking staff. Since the  pool  of  porters  is
large, the number of persons who may benefit  from  such  a  proposal  every
year may be minimal. This is an aspect which should be duly  borne  in  mind
while  enhancing   the   proportion   of   the   sanctioned   strength   for
regularization; in order that the benefit of  security  of  tenure  is  made
available to a reasonable proportion of persons who  complete  a  stipulated
minimum tenure of  service.  The  competent  authority  will  consider  this
aspect while taking a decision in the matter.

15    The writ petitions are accordingly disposed of in the above terms.



                                .….......................................CJI
                                           [T S  THAKUR]





  ..............................................J
                                                      [Dr D Y  CHANDRACHUD]



New Delhi
January 02, 2017.
-----------------------
[1]

      [2]   O. A. Nos. 302 & 204 of 2010
[3]
      [4]    Civil Appeal Nos. 6248-6249 of 2010
[5]
      [6]    (2006) 4 SCC 1
[7]
      [8]   Contempt Petition(Civil) Nos.2-3 of 2014 in Civil Appeal
Nos.6248-6249 of 2010
[9]
      [10]  (2016) SCC OnLINE SC 1200


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