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1999 Supreme(J&K) 231
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
T.S. Doabia,A.K. Goel, JJ.
Daya Krishan & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA No. 438/1998
Decided On : 16 August, 1999
Advocate For Appellant: D.C. Raina
Advocate For Respondent: B. Singh
Advocate For Appellant: P.N. Bhat
Employees who are engaged as daily wagers or on an ad hoc basis may be entitled to regularization of their services, the benefits of the Industrial Disputes Act, and protection as workmen, depending on the specific facts and circumstances of their employment, the applicable rules and regulations, and the provisions of the Industrial Disputes Act.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 25 F AND 25 H - JAMMU AND KASHMIR DAILY RATED WORKER & WORK CHARGED EMPLOYEE REGULATION RULE 1994 - RULE 7 AND 8 - SRO 64 OF 1994 - WORKMEN - REGULARISATION OF SERVICES - ADHOC APPOINTMENTS - STATUS OF EMPLOYEES ENGAGED ON ADHOC BASIS - POLICY OF ABSORPTION OF DAILY RATED WORKERS AND WORK CHARGED EMPLOYEES - CONTINUOUS SERVICE - TEMPORARY EMPLOYEES - CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970 - SEASONAL EMPLOYEES - EMPLOYEES EMPLOYED UNDER A SCHEME - JUDICIAL PRECEDENTS - INTERPRETATION OF RULES AND PROVISIONS - ANALYSIS OF FACTUAL AND LEGAL ISSUES - DIRECTIONS FOR EXAMINATION OF CLAIMS AND GRANT OF BENEFITS.
Fact of the Case:
The appellants, who were engaged as daily wagers in the Power Development Department in 1994, filed a writ petition challenging the disengagement of their services due to a ban on the employment of daily wagers. They claimed that they had rendered service in difficult times, particularly during militancy in the district, and that their services should be regularized.
Finding of the Court:
The court observed that the appellants were engaged by the respondent-authorities with the concurrence of the competent authority and that they had worked for almost two years. The court also noted that the appellants were engaged as daily wagers due to a shortage of regular staff and that their services were disengaged following a ban on the employment of daily wagers.
Issues: 1. Whether the appellants were entitled to regularization of their services under SRO 64 of 1994 and the Jammu and Kashmir Daily Rated Worker & Work Charged Employee Regulation Rule 1994. 2. Whether the appellants were entitled to the benefits of the Industrial Disputes Act, including Sections 25 F and 25 H. 3. Whether the appellants were entitled to be treated as workmen and to the protection of the Industrial Disputes Act.
Ratio Decidendi: 1. The court held that the appellants were entitled to the benefits of the Industrial Disputes Act, including Sections 25 F and 25 H, as they fell within the definition of workmen and had worked for more than 240 days in one calendar year. 2. The court also held that the appellants were entitled to the benefits of SRO 64 of 1994 and the Jammu and Kashmir Daily Rated Worker & Work Charged Employee Regulation Rule 1994, as they had been engaged after the enforcement of the SRO and had completed more than seven years of service. 3. The court further held that the appellants were entitled to be treated as workmen and to the protection of the Industrial Disputes Act, as they were engaged in an industry and had rendered continuous service for more than 240 days in one calendar year.
Final Decision: The court directed the respondent-State to examine the claims of each of the appellants and record findings as to the period for which they had worked. The court also directed the respondent-State to pass speaking orders within three months, granting the appellants the benefits of Sections 25 F and 25 H of the Industrial Disputes Act, SRO 64 of 1994, and the Jammu and Kashmir Daily Rated Worker & Work Charged Employee Regulation Rule 1994, as applicable.
2. A learned Single Judge of this court after appreciating the factual position came to the conclusion that once the State administration took a decision to not to relax the policy and regularise the services of the appellants then that decision is the last word on the subject. No judicial review is permissible. The writ petition was accordingly dismissed. It is in these circumstances, the present appeal has been preferred under clause 12 of the Letters Patent Appeal.
3. The learned counsel for the appellants submits that there are communications on the record. These are to the effect that the appellants have continued to work as daily wagers with the Power Development Department from June 1994 to 1997. These certificates have been signed by Assistant Executive Engineer Sub Division Thatri.
4. The counsel for the respondent-authorities however, disputes this position.
5. The appellants have also placed on record attendance register indicating that they had worked in the month of September, October, November, December 1994 and also in the later years. It was precisely for this purpose reliance was placed on the certificate issued by the Assistant Executive Engineer, Sub Division Thatri, reference to which has already been made above. In a nutshell the undisputed fact is that the appellants did come to be appointed. Their services were discontinued on account of
