STATE OF BIHAR Vs. BIHAR HUMAN RIGHTS COMMISSION

JUDGEMENT

(1.) STATE of Bihar and its officials have challenged the recommendation dated 28.5.2012 made by Chairperson, Bihar Human Rights Commission in File Nos. 547/11, 42,752,938/12, communicated to the Principal Secretary, Finance, Information Technology Department, Government of Bihar by the Deputy Secretary of the Commission under Letter No. 6361 dated 29.5.2012, Annexure -11. Aforesaid recommendation was made by the Commission considering the complaint of Data Entry Operators, Respondent No. 2 to 5 that take home remuneration of Rs. 6341/ - per month payable to them is meager impinging on their livelihood. The Commission having considered the grievance recommended that Data Entry Operators at the entry level be paid remuneration at least one notch higher than the proposed wage structure at the entry level i.e. Rs. 10,086/ - recommended for Grade -II, if not more. The Commission also expected the Government to take a holistic view of the matter and to accept its recommendation to pay the Data Entry Operators remuneration at least one notch higher.

(2.) IT is submitted by the counsel for the State that the impugned recommendation made by the Commission amounts to revision of wage payable to Data Entry Operators which is the executive function of the appropriate Government in accordance with procedure laid down in the Minimum Wages Act, 1948. It is also submitted that the Commission having made the recommendation to provide dignified wage/livelihood to the Data Entry Operators usurped executive function of the appropriate Government under the Minimum Wages Act, 1948. The Commission ought not to have recommended revision of quantum of wage to be paid to contractual employees Respondent No. 2 to 5 herein when the contractual employees concerned are neither employees of the State Government nor of Bihar State Electronics Development Corporation (hereinafter referred to as ''BELTRON '') rather their services have been provided to the State Government by BELTRON adopting the mode of outsourcing from private agency. The concerned employees entered into written agreement with BELTRON wherein the wages to be paid to them were clearly specified. They agreed to receive the quantum of wage by accepting the contractual employment.

(3.) IN this connection learned counsel for the State relied on the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) (2006)4 SCC Page -1 paragraph 45 to 48. It appears from perusal of Paragraph 45 relied upon by the learned counsel for the State that Supreme Court having considered the nature of engagement of temporary, contractual or casual workers observed that the temporary, casual or contractual worker is aware of the nature of his employment as he accepts the employment with open eyes ... ... ... If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power that too would not enable the Court to grant any relief to that employee. A total embargo on casual or temporary employment is not possible giving the exigencies of administration and if imposed would only mean that some people who at least get employment temporarily, contractual or casual would not be getting even that employment when securing of such employment bring at least some succour to them. It has further been observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules he is aware of the consequences of the appointment being temporary, casual or contractual in nature ... ....