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JKLR-Part(III) SWP 336/1998 Back To Index
(2001) 1 J & K Law
Honble Mr. Justice T.S. Doabia, Judge
Babli Koul Petitioner
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 :
Case referred :
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:
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 petitioners 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 :
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 Readers 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 Blacks Law Dictionary at page 218 is as under :
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 :
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 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.