YASH PAL & ORS.versusUNION OF INDIA AND ORS.

                            [2017] 1 S.C.R. 406 ,



A                           YASH PAL & ORS.
                                       v.
                      UNION OF INDIA AND ORS.
                   (Writ Petition (Civil) No. 616of2013)
B                           JANUARY 02, 2017
      [T.S. THAKUR, CJI AND DR. D.Y. CHANDRACHUD, J.]
           Constitution of India - Arts. 32, 14, 16 - Extension of
    principle of equal pay equal work to temporary employees -
    Petitioners-porters, engaged by Indian Army as casual labour for
c   number of years, filed writ petition seeking treatment as equal as
    regular employees and benefit of minimum pay-scales - Held:
    Consistent with the position in law and the background of the instant
    case in regard to regularization, mandamus may liot be issued to
    the Union government for regularization - However, scheme
D   proposed by the Ministry of Defence in consultation • with the Indian
    Army for providing better working conditions to the porters - Taking
    into consideration the said scheme, directions issued to the
    respondent-Union Government - Firstly, fresh look directed to be
    given at the aspect of payment of minimum wages so that the
    petitioner-porters are paid wages at par at the lowest pay-scale
E
    applicable to multi-tasking staff and further if there are provisions
    enabling additional payments to be made for work in high altitude
    or high risk/active field areas, such paymellls to be allowed under
    the scheme - Secondly, scheme to provide for regular medical
    facilities including in the case of injury or disability - Thirdly,
F   amount of compensation in case of death or permanent disability
    also directed to be looked at afresh and suitably enhanced -
    Fourthly, terminal benefit directed to be enhanced so as to provide
    for compensation not less than at rate computed at fifteen days
    salary for every completed year of service - Said directions to be
    kept in mind in the course of the finalization of scheme - Workmen s
G
    Compensation Act, 1923 - Regularization.
          The Petitioners - porters were engaged by the Indian Army
    as casual labour daily wage employees in the border areas of
    Rajouri, Jammu and Poonch. Their grievance is that they have
    not been treated as regular employees and have been denied the
H
                                 406
      YASH PAL & ORS. v. UNION OF INDIA AND ORS.                         407



benefit of minimum pay-scales despite long years of service in           A
arduous conditions prevalent in a difficult terrain.
      Disposing of the writ petitions, the Court
      HELD:l.1. Though 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                 B
government to regularize 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 proposed by the Ministry of Defence in
consultation with the Indian Army for providing better working            c
conditions to the porters undoubtedly marks a welcome
improvement over the present conditions of porters. [Para 11 J
[415-A-BJ
       1.2. However, there are certain areas where this Court
proposes to issue directions to the Union government, iu the              D
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, ifthere are provisions enabling additional payments
to be made (either by way of allowances or otherwise) for work in         E
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             F
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          G
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. The terminal benefits should be enhanced so as to           H
408             SUPREME COURT REPORTS                        [2017] 1 S.C.R.


A      provide for compensation not less than at a rate compnted 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. [Para 13) [416-B-F)
B            2. During the course of the hearing, it was indicated that
       the formulation of a proposal of 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.
c      Since the pool of porters is large, the number of persons who
       may benefit froni 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
D      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. [Para 14] [416-G-H; 417-A]
             !sher Singh v. Union of India Civil Appeal Nos. 6248-
E            6249 of 2010; Secretmy, State of Kamataka v. Uma
             Dzvi (2006) 4 SCC 1; State of Punjab v. Jagjit Singh
             (2016) SCC Online SC 1200 - referred to.
                               Case Law Reference
       c2006) 4 sec 1                  referred to              Para3
F
            CVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
       616of2013.
             Under Article 32 of the Constitution oflndia
                                       WITH
G
             W. P. (C) No. 912 of2013.
              Bhim Singh, Sr.Adv., B. S. Billowria, Naved, YivekGupta,Advs.for
      . the Petitioners.
              P. S. Patwalia, ASG, R. Balasubratnanian, Aditya Sharma, A~anya
H
       YASH PAL & ORS. v. UNION OF INDJA AND ORS.                               409


Sharma, Shailender Saini l\fokesh Kumar Maroria, Advs. for the                  A
Respondents.
      The Judgment of the Court was delivered by
       DR. D. Y. CHANDRACHUD, J. l. 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,            B
Jammu and Poonch. Annexure P-1 to the writ petitfon, which has been
instituted under Article 32 of the Constitution of India, contains
photocopies of identity cards issued by the am1y 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           c
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:
                                                                                D
       "(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
       Anny and extend them all benefits which are being given
       to the regularly appointed I recruited porters
       discharging .. identica.l work by treating already rendered               E
       services by the petitioners 2 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.' By ajuclgment dated 11 May 20 I0, the             F
Tribunal held that since th c porters are not subject to statutory provisions
which govern the Anny, Navy and Air Force, their grievance did not
fulfii the definition ofa 'service matter' under Section 3(o) of the Armed
Forces fribunal Act, 2007. Hence by the judgment of the Tribunal, the
application was dismissed.
                                                                                G
      3. Special Leave Petitions were moved before this Court which
eventually resulted in a judgment dated 14 May 2013 in Ishcr Singh v.
Union of India'. Leaving open the issue ofjurisdiction, a Bench of two
 1
  0. A. Nos. 302 & 204 of2010
'Civil Appeal Nos. 62,18-6249 of2010                                            H
410            SUPREME COURT REPORTS                            [2017] I S.C.R.


A     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'
      "would come in their aid". For convenience ofreference the observations
      in Uma Devi have been extracted below :
B
            "53c 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) I
            SCC 409 and B.N .Nagarajan vs. State of Karnataka (I 979)
c           4 sec 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
D           I 0. A. Nos. 302 & 204 of2010 2 Civil Appeal Nos. 6248-
            6249 of20 I 0 3 (2006) 4 SCC I 3 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
            oflndia, the State Governments and their instrumentalities
E           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
F           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
            ;my already made, but not subjudice, need not be reopened
            based on this judgment, but there should be no further by-
G           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

H     '(2006) 4 sec 1
       YASH PAL & ORS. v. UNION OF INDIA AND ORS.                                  41 I
              [DR. D.Y. CHANDRACHUD, J.]

to consider the case of the appellants considering their past service record,       A
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." 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:                           B
       "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 ofyears
       say IO or 12.                                                                C
       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                    D
       having life threatening conditions, it is proposed that 4
       Contempt Petition(Civil) Nos.2-3 of2014 in Civil Appeal
       Nos.6248-6249 of 20 I 0 4 these petitioners engaged at the
       border posts of Army along the LOC for a minimum period
       of I 0 years, be paid an honorarium ofRs.50,000/- (Rs. Fifty                 E
       thousand only). The paymentofhonorarium 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 ofregularization, the court noted
the submission of the Union government that the employment of porters
                                                                                    F
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."
                                                                                    G
      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
 'Contempt Petition(Civil) Nos.2-3 of2014 in Civil Appeal Nos. 6248·6.249 of2010    H
412             SUPREME COURT REPORTS                           [2017] l S.C.R.

                                                       ~


A     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:
B           "Before parting with this application for contempt, we may
            note that ifthe authorities feel appropriate, apart from what
            we have stated hereinabove, they can frame a better
            scheme so that these seasonal po1ters feel secured. The
            competent authorities shall discuss with the Chief of Army
            Staff or the officers deputed by him and work out the modes
c           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
D           not feel that they are not being looked after. S We hope and
            trust, the authorities who engage them shall understand and
            appreciate their agony, anguish and the need al)d proceed
            as suggested by us".
             5. The issue as to whether the po1ters are entitled to regularization
E     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
F     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 po1ters feel
      secure. We may also note here that the plea for regularization was not
      declined in the original judgment of 14 May 2013. ln fact, this Court had
G     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 petiiioners have
      been working since 1998 while the others have been recruited after
H
       YASH PAL & ORS. v. UNION OF INDIA AND ORS.                             413
              [DR. D.Y. CHANDRACHUD, J.)

2000; and (ii) petitioners eleven to sixteen have been engaged since           A
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 Tpining) dated
                                                                               B
30 April 20 I 0, 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 stati9n 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
                                                                               c
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        D
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            E
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".
                                                                               F
       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 asAnnexure R-
I A to the affidavit. We may note at this stage, that the court has been       G
informed by the learned Additional Solicitor General that the scheme 7
which has been placed on the record is now awaiting approval of the
competent authority. The learnedASG 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     H
414             SUPREME COURT REPORTS                           [2017] I S.C.R.


A     is engaging active attention.
              Io. The Indian Anny engages twelve thousand porters. The nature
      of the work which is rendered by the porters engaged as casual labour
      by the Anny is not in dispute. They are engaged, as the affidavit of the
      Union government indicates, in "high risk/highly active field areas". The
B     ctecision which was taken earlier (and referred to in the order dated 23
      September 20 I 5) referred to the work being rendered by the porters in
      "operationally active areas having life threatening conditions." These
      porters are civilians ~ho 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:
c
            "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 utilizea for carriage
            of stores, stocking of posts, collection of water for
D           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
E     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
F     along with their mules, ponies and donkeys in 8 terrain inaccessible to
      any other fonn 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
G     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.
H
       YASH PAL & ORS. v. UNION OF INDIA AND ORS.                              415
              [DR. D.Y. CHANDRACHUD, J.]

        U. This Court consistent with the position in law and the background    A
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
                                                                               B
marks a welcome improvement over the present conditions of porters
and we appreciate the steps which have been pursued by Mr P. S.
Patw~lia, 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              c
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 9 cover; and (viii) a
onetime financial grant on severance.
                                                                                D
       12. In State of Punjab v. Jagjit Singh;, 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 :                                                               E

       "79. In our considered view, it is fallacious to determine
       artificial parameters to deny fruits of labon•. 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                    F
       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.           G
       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
 '(2016) sec OnLINE SC 1200
                                                                                H
416            SUPREME COURT REPORTS                           (2017] l S.C.R.


A           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.
B 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, ifthere are provisions enabling
   additional payments to be made (either by way of allowances or

c otherwise)     for work in high altitude areas or in high risk/active field
   areas, such payments shall be allowed under the scheme. Secondly, the
   5 (2016) sec OnLINE SC 1200 10 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
    shonld also be looked at afresh and suitably enhanced. The present
D 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 ofrupees
 E fifty thousand is provided in the proposed scheme subject to a minimum
    service often 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
 F   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 thatthe formulation of a proposal for regularization is
 G    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
 H
         YASH PAL & ORS. v. UNION UF INDIA At\ID ORS.                                417
                [DR. D.Y. CHANORACHUD, .I]

borne in mind while enhancing the proportion of 11 the sanctioned strength           A
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 !he matter.
         15. The writ petitions are accordingly disposed of in the above              B
terms.
Ankit Gyan                                         \\'rit Petitions dispo:.-.cJ oL