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
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
