The Contract System is a Subterfuge

The Contract System is a Subterfuge

Among Sanitation Workers of Tumkur

Clifton D’ Rozario

More than 50,000 powrakarmikas are employed as sweepers, drivers, loaders, cleaners, helpers, underground drainage workers, etc. across various urban local bodies in Karnataka. With the sole intention of exploiting the workers, artificial categories of workers have been created, namely permanent powrakarmikas, then direct payment/daily-wages/equal-wages/welfare powrakarmikas and finally contract powrakarmikas shown as employed through manpower supply agencies/labour contractors/SHGs/NGOs, etc. Permanent workers are paid regular salary as per pay scale, while others are paid mere minimum wages. Moreover, only permanent workers are entitled to weekly off, holidays, gratuity, pension, bonus, etc. One indisputable fact though is that almost all powrakarmikas are Dalit, and in BBMP and several other ULBs, are predominantly women.

The last two decades have witnessed a spirited struggle of the powrakarmikas for abolition of contract labour, end to exploitative forms of employment and regularisation of all powrakarmikas. The most recent struggle being the historic strike from 1st – 4th July 2022 culminating in the Karnataka Government agreeing, in writing, to (a) regularise services of all direct payment/daily-wages/equal-wages/welfare powrakarmikas (largely employed as sweepers), and, (b) bring contract powrakarmikas (largely employed as drivers, loaders, cleaners, UGD workers,  etc.) under the direct payment system. To advice the State Government on implementing these decisions, a Committee was constituted on 15th July 2022, consisting of officials and Powrakarmika representatives, including AICCTU.

The abovesaid Committee has held several meetings, the last meeting being on 28th October 2022 wherein the powrakarmika representatives have insisted that it is legally and morally necessary for all Powrakarmikas to be regularised in one go.  Disregarding this, and even before the Committee could submit its report, the State Government, announced that it would initiate recruitment to fill 11,133 posts of powrakarmikas. Shocked at this, AICCTU has  strongly objected and demanded the roll-back of this decision and demanded that the State Government implement its written assurance of granting permanent status to all powrakarmikas.

At this important juncture comes the judgment of the Karnataka High Court dated 6th December, 2022, in W.P. No. 28392/2018, which pertains to the regularisation of services of 250 Powrakarmikas working in the Tumkur Municipal Corporation.

A brief background of the case is essential here. As far back as the early 2000s, the Tumkur Pourakarmikara Sangha demanded the regularisation of powrakarmikas working in the Tumkur Municipal Corporation. This matter was adjudicated in the Industrial Tribunal, which passed judgement dated 26.09.2017 directing the Tumkur Municipal Corporation to regularise the services of the Powrakarmikas from the date of their joining. Most unfortunately, instead of complying with this judgment, the Tumukur Municipal Corporation challenged this in the Karnataka High Court in W.P. No. 28392/2018.

This is unconscionable, especially considering that the previous Congress government passed a cabinet resolution on 04.05.2016 to abolish the contract labour system and regularise all contract powrakarmikas. Moreover regularisation has been a constant demand of Powrakarmikas for over two decades, and has been recommended by two official committees, the IPD Salappa report (1976) and Chandrashekar Committee report (2013).

What is perhaps most unforgivable is that when the writ petition was taken up for final hearing in September 2022, both the advocate for the Tumkur Municipal Corporation and the Additional Advocate General appearing for the State Government argued for the judgement of the Industrial Tribunal to be set aside. The question to be asked is why did the State Government object to the order of the Industrial Tribunal directing regularisation of powrakarmikas in Tumkur when it had already committed, in July 2022, to regularise all powrakarmikas across the State!

Coming to the judgment of the High Court in this writ petition, we find that the Court has emphatically ruled in favour of the powrakarmikas being regularised.

Firstly, the Court has held the work carried out by powrakarmikas, contract or otherwise, is perennial in nature and held as follows: “It is not that the workmen change from time to time on the basis of the Contractor changing, but irrespective of the Contractor changing, it is same workmen who continue to render services.” (para 12.14)

Secondly, the Court has held that the work carried out by the contract powrakarmikas is identical to that carried out by regular workmen of the Corporation (paras 13.7 and 13.9)

Thirdly, the Court rejected the arguments of Corporation/ State government where it relied on the judgment of the Supreme Court in Uma Devi’s case to argue that merely because powrakarmikas have been working for a long period of time, they would not as a matter of right, be entitled for regularisation. The Court also took judicial notice of the fact that the sanctioned posts are as per the calculation of one powrakarmika for 700 citizens (para 14.19) and that since sanctioned posts are lying vacant “the engagement of contractors to provide labour in terms of Pourakarmikas to discharge the functions which would have normally been discharged by paurakarmikas regularly employed, in my considered opinion would not attract the embargo and/or the gravities expressed by the Hon’ble Apex Court in Umadevi's case, SAIL’s case, Daya Lal’s case, Ilmo Devi’s case etc.” (14.20)

Fourthly, the Court has held that the failure to provide sanctioned posts or fill sanctioned posts cannot be used as an excuse to deny regularisation. To quote: “The sanctioned post not having been filled and the required posts not having been sanctioned, it is for the Corporation to write to the Government seeking for exemption, if any, available and permission to fill up the vacant posts with the persons who have applied and are qualified even though they may be of different category. Merely because the persons of a particular category for whom the posts have been reserved do not apply despite repeated notifications, the said posts cannot be left vacant in perpetuity resulting in the present situation.” (para 14.21)

Lastly, the Court has held that the contract system “is only the subterfuge which has been used by the Corporation to engage the workmen on contract basis so as so make lesser payment.” (para 15.10). As such the Court concluded that: “I am of the considered opinion that the subterfuge cannot be allowed to work and the same would be violative of Article 14 of the Constitution of India.” (para 15.11)

Thus, the High Court has rejected all the arguments that the State Government usually employs to plead inability of regularising powrakarmikas. Given that powrakarmikas across Karnataka are similarly placed as the 250 powrakarmikas in Tumkur, they too can be extended the benefit of permanency directed by order of Industrial Tribunal, and as upheld by the High Court. In fact, this ought to be done, as a legal requirement, but more so in fulfilment of the obligation the government has towards Dalit powrakarmikas who have suffered all these years under exploitative conditions of service.

It is unmistakable that to date sanitation work is primarily caste-based and hereditary. To date it is primarily under the oppressive contract system. Still the labour laws are blatantly violated and sanitation workers are not accorded any respect or dignity. And securing any semblance of justice is through protracted struggles, including in the courts. This is not just the case of the sanitation workers in Tumukuru Municipal Corporation, but throughout the country.