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JKLR-Part(III)                                                 SWP 336/1998                                       Back To Index

(2001) 1 J & K Law Reporter 274
High Court of Jammu and Kashmir
at Jammu
Before

Hon’ble Mr. Justice T.S. Doabia, Judge

Babli Koul Petitioner
versus
State of J&K and others Respondents

SWP No. 336 / 1998, decided on 9.8.2000.

Constitution of Jammu and Kashmir, S. 103 - Constitution of India, Art. 226 - Resjudicata- Earlier writ petition filed- Writ petition dismissed on the ground that the writ petitioner was unable to establish her status as permanent daily labour - Latter writ petition seeking regularisation would not be barred.

So far as this preliminary objection is concerned, this would not come in the way of the petitioner in seeking the relief that in her capacity as a daily rated worker, she is entitled to regularisation. The earlier writ petition had left this question open. Therefore, as indicated above, the mere rejection of the petitioners earlier writ petition would not stand in her way in claiming the present relief.

J & K Daily Rated Workers Work Charged Employees (Regularisation) Rules 1994 -Issue regarding post held by the petitioner required to be decided by the fact finding authority. Held director Rural Development Authority to decide the issue - Petitioner accordingly directed to produce all record before the said officer who will proceed in accordance with the directions of the court.

In any case, this is an issue which is to be decided by a fact finding authority. The issue is supposed to be decided by the Director, Rural Development Jammu. The petitioner would therefore, produce all relevant record before the aforementioned officer. In case she is not in possession of the requisite record, she would indicate the particulars of the record which are required to be requisitioned from the government department(s). In the event of particulars being furnished that record would be summoned and examined thereafter. The claim of the petitioner would be examined. Prima facie, the petitioner does fall within the definition of daily rated worker and would be entitled to the benefit of the rule in question. Even otherwise where a Government employee who falls within the definition of a workman is disengaged and the requirement of section 25 F of the Industrial Dispute Act is not complied with. Even then such an employee becomes entitled to re-instatement with back wages. This view has been taken by the Division Bench of this court in Letters Patent Appeal No. 438 / 98.

Advocates who appeared in this case :
Mr. P.N. Bhat, Advocate for petitioner
Mr. Sanjay Kakkar, Advocate for respondents

Case referred :
LPA NO; 438/1998 decided on 16-8-99

JUDGMENT AND ORDER

 

The petitioner is no longer in service. It is her case that she has completed seven years of service it is also startad that she is migrant. Her claim is that she had completed seven years of service, therefore , she became entitled to regularisation not only in term of SRO 64 of 1994 but also in view of the law laid down by the Supreme Court of India in several judicial pronouncements.

The learned councel appearing for the State submits that thepetitioner had approaching this court earlier also. Writ petition No 687/91 was preferred by her. This writ petition came to be dismissed. The operative part of the order passed in the above writ petition is being reproduced below:

"Learned counsel for the petitioner was directed to place on record any evidence with regard to her status as permanent daily Labourer which he has not been able to prove. Unless the petitioner proves her status as permanent Daily Labourer she is not entitled to the benefits accruing under the circular. The petitioner could not make out a case for grant of relief for the aforesaid reasons. The petition having no merit is dismissed."

The learned cuunsel for the petitioner submits that notwithstanding the fact that the petitioner had come to the court earlier also but the issue involved in that petition was different. The petitioner was only claiming leave salary as permanent Daily Lobour. As requisite proof was not available with the petitioner therefore, the said relief was not granted. It is submitted that this court had observed that this is an issue regarding which the petitioner has to establish her right. It is, accordingly submitted that the filing of the earlier writ petition and its rejection would not stand in way of the petitioner in claiming present relief.

So far as this preliminary objection is concerned. This would not come in the way of the petitioner in seekng the relief that in her capacity as a daily rated worked. She is entitled to regularisation .The earlier Writ petition had left this question open. Therefore, as indicated above the mere rejection of the petitioner’s earlier writ petition would not stand in her way inclaiming the present relief.

The learned counsel appearing for the state submits that it is only the daily rated workers who are entitled to seek regularisation. It is submitted by the petitioner that since she was a permanent daily labourer, therefore, she is not entitled to regularisation. The definition of casual labour as given in Rule 2 (b) of J&K Daily Rated Workers / Work Charged Employees (Regularisation) Rules, 1994 be also noticed at this stage. This and some other definitions read as under :

" 2. Definitions: In these rules, unless the subject or context otherwise requires:

...

(b) "Casual Lobour worker" means a person who is enaged through an appointment order or otherwise on daily rated basis for rendeering casual services to a Department."

...

(e) Continous working means continuous working of Daily Rated workers or work chared Employee. After his first engagement regardless of the fact whether wages have been paid for the Gazetted holiday / sunday.

Provided that the working shall be deemed to be continuous if not more than one break up to two days has been given in his continuous working in a period of 90 Calender days.

(f) "Daily Rated Worker" means a person engaged on daily wage basis at the rates sanctioned by the Government from time to time.

The definition of work charged employee as contained in Rule 2 (j) be also noticeed. This read as under :

(j) "Work Charged Employee" means any person employed on a work charged establishment to do any skilled, un-skilled, manual, supervisory or technical work."

Rule 4 takes of regularisation of a Daily Rated Worker / Work Charged Employee if he fulfills the conditions enumerated in the rule 4. Most important condition is that he should have worked for a period of seven years continousely as Daily Rated Workers or Work Charged Employees. It is in these premises urged that the petitioner being a casual labourer only was not entitled to regularisation.

The word ‘casual’ has been defined in the Reader’s something resulting from or occurring by chance, un-premediated. Un-planned, informal, irregular, occasional, part time, it also makes reference to word ‘casual Labourer’. According to this dictionary the casual Labourer would be a person who works at irregular intergals.

The term casual employment has also been defined in Black’s Law Dictionary at page 218 is as under :

"Casual Employment : Employment at uncertain or irregular times. Employment for short time and limited and temporary purpose. Occasional, irregular or incidental employment. Such employee does not normally receive seniority rights nor if hours worked are below a certain number each week, fringe benefits. By statute in many States, such employment may or may not be subject to workers compensation at the election of the employer. The test is the nature of the work or the scope of the contract of employment or the continuity of employment."

If above defination is taken into consideration then also it can be said that the petitioner was casual worker. She states that she continued for seven years and therefore, her employment can never be as a casual worker.

The persual of the letter annexure ‘A’ would indicates that the petitioner was engaged as a daily rated worker and to say that she fell within the defination of casual labour and was not entitled to seek regularisation would not be apt. In any case, this is an issue which is supposed to be decided by the Director, Rural Developement Jammu. The petitioner would therefore produce all relevent record before the aforementioned officer. In case she is not in possession of the requsite record. She would indicate the particulars of the record which are required to be requisitioned from the goverement depatement(s). In the event of particual being furnished that record would be summoned and examined thereafter. The claim of the petitioner would be examined prima facie, the petitioner does fall within the definition of daily rated worker and would be entitled to be benifit of the rule in question. Even otherwise where a goverement employees who falls within the definition of a workman is disengaged and the requirement of section 25 F of the Industrial Dispute Act is not complied with. Even then such an employee becomes entitled to re-instatement with back wages. This view has been taken by the Division Bench of this Court in Letters Patent Appeal No. 438/98.

Rule 8 of the Rules was interpreted in LPA No. 438 of 1998 decided on 16.08.99 relevant observations made therein with regard to interpretation of this rule is as under :

"Claims of the appellants that they are covered by J&K Daily Rated Workers & Work Charged Employee Regulation Rule 1994 be now examined.

These rules indicate that where an employee has completed seven years service or completes such service in a subsequent financial year then he or she is entitled to seek regularisation. Rule 7 & 8 are being noticed. These read as under :

"Rule -7 Restriction on engagement of Daily Rated Workers Work Charged Employee :

(1) With effect from the commencement of these Rules, no filled /subordinate officers shall have the power for engagement of Daily Rated Worker or Work Charged Employee in the department and the existing delegation if any, in this regard is withdrawn.

Provided that the competent authority may engage casual labour or seasonal labour in any of the department to be specified by notification from time to time by the Government and such payment of wages no engagement or

(2) After the commencement of these rules the workcharged posts shall be created only by the administrative department in consulation with the Finance and Planning Department."

"Rule 8 Application for Rule to existing Daily Rated Workers and Work Charged Employee: The policy of absorption of Daily Rated workers and work charged Employee shall also apply to such of the existing Daily Rating Workers and Work Charged Employee who may complete by the end of subsequent financial years and their absorption shall be considered in that financial year in accordance with these Rules."

Thus the rules provide for the policy of absorpation of Daily Rated Workers and Work Charged Employees. Employees who may have complete d seven years are entitled to regularisation. These employee who have not complete their seven years can also be regularised. Rule 8 takes care of those Daily Rated workers who are working with the employer but have not completed seven years tenure. The only exception which has been carved out is that they would be entitled to absorption only on the completion of seven years of service. It be seen that the words used in Rule 8 are :

".... Seven years on 31.03.1994 but may complete by the end of subsequent financial year...."

The word the ‘subsequent financial years’ has not been given full meaning. The Rule cannot be ignored. The intetion of Rule making authority is let an employee continue and then regularise the services of an employee who is working as a Daily Rated Worker or Work Charged Employee and has not completed seven years of service. He is to be permitted to continue to work as such but his service are to be regularised only when he complete seven years of service."

With regard to applicability of provision of Industrial Disputes Act observation made by the Division Bench in LPA No. 438/98 decided on 16.08.1999 be also noticed. These areas under :

"The net result is that in the matter regularising the services of an employee who is a workman then some of the factors indicated above are to be taken note of. The propenderance of the view is that efforts should be madewithin the frame work of the cader of regularisation Even if anemployee has become over age then efforts should be made to regularise his services where an employee answers the discription of term workman then it is imperative for the employer to comply with provision of section 25-F of the Industrial Disputes Act. If services are to be terminated then retrenchment compensation are to be paid. Again in case a vacancy arises then preference has to be given to those employee who have already rendered service. This has to be done by taking note of section 25-H of the Industrial Disputtes Act."

The petitioner would accordingly furnish a certified copy of the judgement mentioned above also to the aforementioned officer. All these aspects would be taken note of and if the claim of the petitioner has to be rejected then the same would be rejected by passing a speaking order. The issue be decided within a period of four months from the date a copy of this passed today alongwith relevant data and other connected documents are made available by the petitoner to Director Rural Development Jammu. If is further directed that in the event of the rejection of the claim of the petitioner it would be referred to the Industrial Tribunal for adjudication. This would be so referred within a period of one month of its rejection.

Disposed of accordingly.