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2011 DIGILAW 193 (JK)

Ravinder Kumar v. Union of India and others

2011-04-22

HASNAIN MASSODI

body2011
JUDGMENT Honble Mr. Justice Hasnain Massodi, Judge 1. Challenge in this petition is to order No. LAS/B/1133/ Confdl/CL/ dated 07.08.1998, whereby the petitioner has been disengaged as Casual Worker. 2. Briefly stated, petitioner's case is that the petitioner was engaged as Casual Labour by the respondents with effect from 18.01.1992 and continued to work, as such, with intermittent breaks till December 1993. The petitioner claims to have completed 206 days in a calendar year as Casual Labour in the year 1993 and thus to have been entitled to grant of temporary status as per Regularisation Scheme of 1993, vide memorandum No. DOP and POM No. 51016/2/90-Estt/C dated 10.09.1993. It is averred that the petitioner, though not given temporary status as per Regularisation Scheme of 1993, was nonetheless again engaged as Casual Labour with effect from 04.02.1994, in the office of respondent No. 5, though a formal order was issued on 16th September 1994. The petitioner claims that respondent No. 5, in response to letter dated 17th July 1995, received from respondent No. 2, communicated the period the petitioner and others served as casual labourers, though the previous period as casual labourer with respondent No. 4, was not communicated to respondent No. 2. It is insisted that the petitioner had more than 240 days as casual labour to his credit in the year 1993, and such period in the year 1994 and 1995 was 266 days and 170 days respectively. 3. The petitioner aggrieved of termination order dated 6th September 1996, whereby his services as casual labour were terminated filed a writ petition registered as SWP No. 3173/1996. The petition was disposed of vide order dated 24.06.1998, with a direction to respondents to dispose of representation made by petitioner in light of Regularisation Scheme of 1993 and to allow petitioner to continue till the representation was so decided. The petitioner aggrieved of order, in wake of writ court order, whereby his representation has been rejected and the petitioner disengaged, questions order on the following grounds: 1. that the order has been passed in a laconic manner without any reasons recorded in support thereof and thus smacks of arbitrariness; 2. that the competent authority did not take into account the service rendered by petitioner during the year 1993, though such period was considered in case of Ram Prakash - similarly situated as petitioner; 3. that the order has been passed in a laconic manner without any reasons recorded in support thereof and thus smacks of arbitrariness; 2. that the competent authority did not take into account the service rendered by petitioner during the year 1993, though such period was considered in case of Ram Prakash - similarly situated as petitioner; 3. that the competent authority thus did not accord consideration to the petitioner's representation in an objective and proper manner; 4. that the competent authority while disengaging petitioner did not consider the fact that there were two other casual labourers working in the office of respondent No. 5 and in case there was no work available in the office of respondent No. 5, casual worker to be disengaged, was to be the junior most in the office and not the petitioner, who was senior to other two casual labourers; 5. that the respondents acted in a pick and choose manner and picked up the petitioner for disengagement, leaving other similarly situated casual labourers unatouched; 6. that the respondents cannot pursue the policy of hire and fire and disengage a casual labour in an unreasonable and discriminatory manner and that the petitioner even if found not entitled to grant of temporary status ought to have been allowed to continue to work as casual labour in the facts and circumstances of the case. 4. The petitioner on the strength of aforementioned grounds seeks following reliefs: i) A writ of certiorari quashing order No. LAS /B/1133/ Confdl/CL dated 7.8.1998. ii) A writ of mandamus commanding respondents to confer temporary status upon the petitioner in terms of Scheme of 1993. iii) A writ of mandamus commanding respondents to re-engage the petitioner as a casual labourer as work is available with the respondents inasmuch as juniors of petitioner are still working as casual labourers. iv) A writ of mandamus commanding respondents to formulate a policy for conferring temporary status upon the casual labourers who have been working continuously after the year 1993 in Central Government Offices. 5. The writ petition is opposed on the grounds that the petitioner was disengaged prior to coming into force of Regularisation Scheme of 1993, and thus cannot claim benefit under said Scheme. 5. The writ petition is opposed on the grounds that the petitioner was disengaged prior to coming into force of Regularisation Scheme of 1993, and thus cannot claim benefit under said Scheme. It is pleaded that the petitioner, after his disengagement with effect from 08.10.1993, was engaged afresh as Casual Labourer in the office of respondent No. 5 with effect from 04.02.1994 upto 07.08.1998 and with effect from 19.09.1994 till his disengagement and that the engagement letter No. LAS /B/1133/ Confdl/II dated 16.09.1994 conveyed in explicit terms that the petitioner would be liable to be disengaged in the event no work was available. The second employer i.e., respondent No. 5, it is insisted, is under no obligation to confer temporary status on the petitioner because of the work done in the office of first employer i.e., respondent No. 4. The respondents plead that the conduct of petitioner while serving as Casual Labourer was not upto mark and the petitioner was in the habit of stealing ration items and selling canteen items in the market. 6. Heard and considered. 7. The petitioner, as pointed out, filed a writ petition registered as SWP No. 3173/1996, seeking therein writ of mandamus commanding respondents to allow him to work as Casual Labourer and also to consider his regularisation. The petitioner insisted that he was entitled to be conferred temporary status under Regularisation Scheme of 1993. The writ petition was disposed of vide judgement dated 24.06.1998, with the direction to respondents to examine the petitioner's case in light of policy in vogue and in the event petitioner is found entitled to regularisation/temporary status, issue necessary orders. The petitioner was in the meantime directed to be allowed to work as Casual Labourer till his representation was disposed of. The matter was examined by respondents and the petitioner's claim to benefit under Regularisation Scheme of 1993, declined on the ground that the petitioner was not 'in employment as Casual Worker on the date of issue of Scheme' and that the petitioner had not rendered 240 days continuous service on 10.09.1993. The petitioner was disengaged, as due to non-availability of work, his services were found to be no more required. 8. The petitioner, soon after consideration order dated 7th August 1998, disengaging him and declining regularisation, filed the instant petition. The petitioner was disengaged, as due to non-availability of work, his services were found to be no more required. 8. The petitioner, soon after consideration order dated 7th August 1998, disengaging him and declining regularisation, filed the instant petition. The controversy involved in the present case makes it necessary to revisit the Regularisation Scheme of 1993, so as to see whether the requirements of the Scheme were fulfilled and whether the petitioner satisfied such requirements. 9. The respondent No. 1 in the year 1993 formulated a Scheme for conferment of temporary status on the Casual Labourers. The Scheme came into force with effect from 01.09.1993 Para (i) of the Scheme needs to be noticed. It reads: (i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of the O.M. and who have rendered a continuous service of atleast one year which means that they must have been engaged for a period of at least 240 days (206 days in the case of office observing 5 days week). 10. The petitioner's claim for conferment of temporary status has been primarily rejected on the ground that the petitioner was not 'in employment on the date of issue of Scheme'. 11. The Regularisation Scheme, as pointed out earlier, came into force with effect from 01.09.1993. The respondents in their reply have admitted that the petitioner served in the office of Defence Pension Disbursing Office (DPDO) respondent No. 4 herein, with effect from 20.01.1992 to 09.10.1993, for 564 days on daily wages against the sanction issued by the Controller of Defence Accounts. The stand taken by respondents in their reply thus belies the ground set out in the order dated 7th August 1998 to the effect that the petitioner was not in employment of respondents on the date Regularisation Scheme of 1993, came into force. The consideration order dated 7.8.1998, impugned in the petition, is thus factually incorrect, based on erroneous assumptions, and liable to be set aside on this ground alone. 12. The respondents having in their reply admit that the petitioner worked as Casual Labourer with effect from 20.01.1992 to 09.10.1993. The consideration order dated 7.8.1998, impugned in the petition, is thus factually incorrect, based on erroneous assumptions, and liable to be set aside on this ground alone. 12. The respondents having in their reply admit that the petitioner worked as Casual Labourer with effect from 20.01.1992 to 09.10.1993. It is for respondents to show that the petitioner is still not entitled to benefit of Regularisation Scheme of 1993 on the grounds that the breaks were given after periodical intervals and the petitioner did not render 'continuous service' for 240 days (206 days in case office of respondent No. 4 observed 05 days week). In any case the petitioner's case has not been accorded consideration in an objective manner and in compliance of the writ court order dated 24.06.1998 in SWP No. 3173/1996. 13. For the reasons discussed, the order No. LAS/B/1133/ Confdl/CL dated 07.08.1998 is set aside and the respondents directed to consider the petitioner's case for conferment of temporary status having due regard to the Regularisation Scheme of 1993 dated 01.09.1993, whereunder temporary status is to be conferred on all Casual Labourers, who satisfy the conditions laid down in the Scheme. The respondents shall in any case take decision in the matter within eight weeks from the date copy of the order is served on the respondents. The respondents shall also consider re-engagement of the petitioner as Casual Labourer pending accord of consideration to his case. 14. Record be returned. 15. Disposed of.