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2001 DIGILAW 340 (JK)

Nazir Ahmad Hajam v. State Of J. &K.

2001-12-27

NISAR AHMAD KAKRU

body2001
1. The facts material for disposal of this writ petition may be stated in brief. The petitioners 1&2 claim to have come on the establishment of the respondents in the capacity of casual labourers in May, 1995, petitiones 3,4&5 October 1995, September 1998 and May 1997 .respectively. The petitioners have registered an apprehension of likelihood of their ouster in consequence to Govt. Order No. 144-GAD of 2001 dated 02/02/2001. On the basis of averments made the writ petition a question has arisen: Whether Govt. Order No. 144-GAD of 2001 dated: 02-02-2001 (for short impugned order) countenances termination of a casual labour as well.� 2. The respondents were put on notice. In response thereto, objections have been filed. Refuting the stand of the petitioners it is contended that in absence of availability of work the petitioners could not be allowed to continue and their discontinuation has resulted independent of the impugned order. In view of the stand taken, the answer to the question formulated hereinabove pales into insignificance yet I would to answer the question because several petitions have been filed in which controversy centers around the impugned order, obviously the answer to the question is likely to set at rest the controversy in all other pending writ petitions. To appreciate the scope and sphere of the impugned order in its right perspective, it is reproduced here under: Government of Jammu and Kashmir General Administration Department. Subject: Disengagement of Daily Wagers appointed after imposition of ban. Reference: Cabinet Decision No. 151 dated: 31-01-2001. Government Order No. 144-GAD of 2001. Dated: 02-02-2001 Whereas under Government Order No. 26-Fof 1994 dated: 31-01-1994, the practice of engagement of employees on daily wage basis daily rated workers in the Government in any form was withdrawn retaining only the category of casual labour, seasonal labour for specified Development Departments. Reference: Cabinet Decision No. 151 dated: 31-01-2001. Government Order No. 144-GAD of 2001. Dated: 02-02-2001 Whereas under Government Order No. 26-Fof 1994 dated: 31-01-1994, the practice of engagement of employees on daily wage basis daily rated workers in the Government in any form was withdrawn retaining only the category of casual labour, seasonal labour for specified Development Departments. The existing delegation of powers for engagement of daily rated workers, work charged employees available to the field officers (if any) was also withdrawn; Whereas, the decision for withdrawal of powers for engagement of daily rated workers, work charged employees w.e.f. 01-02-1994 with any of the subordinate officers/offices was reiterated in SRO 64 of 1994 dated: 24-03-1994 also; and Whereas, it has come to the notice of the Government that a number of daily rated workers have been appointed even after the imposition of ban in the Departments in total disregard of the above orders and Rules by some of the officers who had no jurisdiction or authority to do so and, therefore, such orders have been issued without jurisdiction are not legally valid; and Whereas, the Cabinet vide their decision No. 151 dated: 31-01-2001, referred to above noted with concern that these appointments were unauthorised and ordered that all such daily rated workers appointed after the ban if they have been performing duties shall be paid their salary up to 31-01 -2001 after which their services shall be terminated as these appointments have been unauthorised. Now, therefore, it is hereby ordered that all the daily rated workers who have been appointed after imposition of ban i.e. after 31 -01 -1994 and are still performing their duties shall be paid their wages up to 31st of January, 2001 and thereafter their services shall be disengaged/discharged. By order of the Government of Jammu and Kashmir. Sd/-(Naved Masood) Commissioner Secretary to Government General Administration Department.� 3. It transpires from the aforementioned order that the power conferred on the officers of the Government for appointment of daily rated workers was withdrawn yet appointments were made in breach by officers of the Departments and to undo such infraction, impugned order was brought into being. A plain reading of the impugned order makes it clear that the power of engaging casual labourers and seasonal labourers was not disturbed by the Government. A plain reading of the impugned order makes it clear that the power of engaging casual labourers and seasonal labourers was not disturbed by the Government. As a corollary, the power of engaging casual labourers remains with the authorities to whom it has been delegated. In addition to that, stand of the respondents from the very inception of the Government Order No. 26-Fof 1994 dated: 31-01-1994 and SRO 64 of 1994 dated: 24-03-1994 is that the said Govt. order and SRO do not have any applicability to the casual labourers. The same stance was taken by the State in writ petition titled Ghulam Ahmad Bhat vs. State of J&K and others which resulted in dismissal of the writ petition upheld by the Division Bench in LPA 249/1998 in Ghulam AhmadBhat Vs. State of J&K reported in JKLR 2001 Part II page 37 at 365. Relevant excerpts may be noticed: .... We are, therefore, of clear opinion that SRO 64 applies only to daily rated workers and work charged employees and not to casual labourers/workers or seasonal labourers/workers....� 4. It is clear that ground of inapplicability of SRO 64 to the casual labourers pressed into service by the State persuaded the court to dismiss the writ petition; therefore, State cannot be allowed to turn round to terminate the services of the casual labourers on the basis of impugned order. Apart from that it will be in utter disregard to the objective the government aims at that is simply to do away with violation of embargo imposed by it on the engagement of daily rated workers. Viewed thus, the impugned order has absolutely no application to a casual labour which is the only interpretation possible in view of the scheme of SRO 64. Obviously disengagement of a casual labour by application of impugned order is invalid. Nonetheless, State is not powerless to dispense with the services of a casual labour (sic) if there is no work available for the simple reason that continuation of a casual labour depends on availability of work and this is the only view this court can opt for to be in line with the mandate of the judgment of the apex court in Himachal Pradesh Vs. Ashwani Kumar and others reported in AIR 1997 Sc 252. Ashwani Kumar and others reported in AIR 1997 Sc 252. A perusal of the judgment reveals that the judgment of the writ court requiring the employers to regularise the services of the daily rated workers was interfered with inter alia because of non availability of work as is evident from the observation of the court made in para 4 of the judgment which is extracted: .... The court would adopt pragmatic approach in giving directions. The directions amount to creating of posts and continuing them in spite of non availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference......� 5. To escape fall out of the ratio of judgment supra the LC for the petitioners has placed reliance on judgment of the Supreme Court in Hindustan Machine Tools vs. Rangareddy reported in AIR 2000 page 3287. A reading of para 10 of the judgment reveals that it was case of the workmen who have been rendering service to the company for almost ten years on daily wage basis and being quite insecure, job wise, they succeeded in a writ of mandamus requiring the respondent-Company to frame a policy of absorption to offer regular service to the petitioners therein. The judgment of the High Court was upheld by the apex court but with certain modifications empowering the respondents to assess the requirement of regular work force and fix the strength of work force which could be regularized and against which quota petitioners could be considered for absorption. Thus what emerges is that despite longevity of the services of the petitioners the apex court while upholding the judgment of the High Court subjected the relief to the requirement which pre-supposes availability of the work on which count respondents have gone on record to say that the services of the petitioners could not be hired further because of non availability of work and they are no more in service. The stand taken is supported by an affidavit. Obviously the facts being distinguish able the judgment does not help the petitioners. The stand taken is supported by an affidavit. Obviously the facts being distinguish able the judgment does not help the petitioners. True it is that continuation of a casual labourer depends on the availability of work but cases are conceivable where work is extracted from casual labourers for a very long time without break and despite availability of work, they are shown the door by replacement that too by a pick and choose mode. If such would be the case, the court would not hesitate to display indulgence but it is really not so. 6. Before parting with it needs to be observed that respondents have categorically stated in their reply that in case need arises to hire the services of casual labourers, the petitioners will be considered subject to their performance. Respondents having gone on record in urge such assurance, it should take care of grievances of the petitioners and that is the only relief they could get from the court in the given facts and circumstances of the case. Should the respondents choose to deviate from assurance it shall be at their own peril and nothing prevents the petitioners to invoke the appropriate remedy.