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IN THE HIGH COURT OF UTTARAKHAND
K.M. JOSEPH, ALOK SINGH, JJ.
State Of Uttarakhand - Appellant
Versus
Dinesh Chandra Joshi - Respondent
Special Appeal No. 371 of 2017
Decided on : 08-09-2017
Advocate Appeared:
For the Appellant : Mr. Pradeep Joshi, Standing Counsel
For the Respondent:Mr. M.C. Pant, Advocate
The key legal principle established is that the mode of payment does not affect the entitlement for regularization if the employees have fulfilled the requirements of continuous employment against sanctioned vacant posts.
Headnote:
Regularization Rules - Regularization of Daily Wagers - Payment of Wages Act - [Regularization Rules, 2013, Section 6 of the Payment of Wages Act] - The court discussed the provisions of the Regularization Rules, 2013 and Section 6 of the Payment of Wages Act, emphasizing the requirement of continuous employment for a period of five years against sanctioned vacant posts for regularization. The court highlighted that the mode of payment does not stand in the way of regularization if the employees have worked on a daily wage basis for the required period against sanctioned and vacant posts.
Fact of the Case:
The petitioners sought regularization and consequential benefits based on the Regularization Rules, 2013. The court considered the mode of payment and nature of work in determining the entitlement for regularization.
Finding of the Court:
The court found that the mode of payment, specifically cash payment, does not prevent regularization if the employees have worked on a daily wage basis for the required period against sanctioned and vacant posts.
Issues: The issues revolved around the entitlement for regularization based on the Regularization Rules, 2013 and the mode of payment to the employees.
Ratio Decidendi: The court emphasized that the key requirement for regularization is continuous employment for a period of five years against sanctioned vacant posts, irrespective of the mode of payment.
Final Decision: The court disposed of the appeals and directed the concerned authorities to make a decision on the regularization within a specified period.
K.M. Joseph, J.
Heard learned counsel for the parties on the delay condonation applications. In the circumstances of the case, delay in filing the appeals will stand condoned. Both the delay condonation applications will stand disposed of.
2. Appellants are the respondents in the writ petitions. Petitioners approached this Court seeking following relief:
i. To issue, writ, rule or direction in the nature of Mandamus directing the respondents to consider the case of the petitioner for regularization along with all consequential in view of the regularization Rules, 2013 w.e.f. the date when the same has been given to other similar situated persons along with all consequential benefits and further to treat their classification as permanent in terms of the legal position highlighted in the writ petition
ii. Issue a writ, rule or direction in the nature of declaration or Mandamus to declare that the employees working with the department either on daily wager/work charge are in the same homogeneous category and the mode of payment through HR through hand receipt or through must role is only a sham arrangement to deprive the employees from their legal rights under the beneficial statue like ID Act, payment of wages act and Industrial Employment Standing orders Act and Gratuity and EPF Act.”
3. Learned Single Judge allowed the writ petition. The order impugned in the writ petition, was the order passed in the representation, which came to be quashed and matter was referred to the Secretary for consideration of petitioners' regularization. It is this order which is challenged here. We extract paragraphs 7, 8, 9, 10 and 11 of the judgment:
“7. Taking this argument further the learned counsel for the petitioners would also argue that section 6 of the Payment of Wages Act (from hereinafter referred to as the “Act”), has been amended in Uttarakhand in the year 2014 by the Uttarakhand Act No. 17 of 2014. The amended Section 6 of the Act reads as under:-
“All wages shall be paid by Banks Cheques or Real Time Gross Settlement or National Electronic Fund Transfer or Electronic Clearing Service System or Postal Cheque.
Provided that if the work of the employed person is of temporary nature or employed person is migrant and he wants to receive cash payment of his earned wages, after the written permission of the officer not below the rank of Assistant Labour Commissioner posted in the work area of employment, cash payment of wages of the concerning employed person may be paid.”
8. With the enforcement of the above proviso, the learned counsel for the petitioners would argue that payment by cash to the present petitioners is not even permissible, and in exceptional circumstances, it is permissible only in case of migrant labourers but with prior permission of the Assistant Labour Commissioner. The cash payment may be given to a person, whose work is only of a temporary nature.
9. All the same, this is not the factual situation in the Public Works Department, inasmuch as, it cannot be said that their work is of temporary nature, for the simple reason that they have been continuing in some cases for the last more than ten years. In other words, an employee even though working on a daily rated basis cannot be paid his wages/salary in cash. The petitioners challenge the exception carved out under the proviso and states that it is not applicable in their case as their work is not of temporary nature.
10. After hearing the learned counsel for the parties, this Court is of the opinion that ultimately, it is not the mode of payment but the nature of work, which would determine whether the petitioners have been continuing in services and are daily rated employees liable to be regularized, like any other employees and the mere fact that they have been given money by cash would not distinguish their case from other employees seeking regularization.
11. The matter is, therefore, referred to the Secretary, Public Works Department as well as to the Chief Enginee
