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2012 DIGILAW 171 (PAT)

Arun Kumar v. State of Bihar

2012-01-27

NAVIN SINHA

body2012
ORAL ORDER Heard learned counsel for the petitioner and the State. 2. Contending discharge of duties on daily wage since 1993 seeking regularization, it is submitted that the respondents should be directed to file a counter affidavit disclosing reasons for not regularizing the petitioner and the wrong notice given for recovery of certain advance paid to the petitioner. It is lastly submitted that certain daily wage also remains in arrears since 2006. 3. Reliance is further placed on an order of this Court in C.W.J.C. No. 5836 of 1999 dated 20.1.2005 directing consideration for regularization of similarly situated persons. 4. Counsel for the State submits that the petitioner was a daily wager. The question of his regularization does not arise. The petitioner has not responded to two notices given to him for refund of the advance payments made. He was entitled to daily wage only for days that he has worked. It is primarily a question of fact on what dates he has worked and whether he is in employment in any capacity today with the respondents. 5. The order in C.W.J.C. No. 5836 of 1999 cannot bring any relief to the petitioner. In (2006) 4 SCC 1 (Secretary State of Karnataka vs. Uma Devi (3)) holding that all orders to the contrary passed earlier are no more good law, it has been held that a daily wager holds no post and the question of his regularization does not arise. The reliance by the counsel for the petitioner at Paragraph-44 of the judgment is completely misconceived. It applies to persons who were appointed on sanctioned vacant posts but in an irregular manner. The same judgment in Paragraph-39 to 43 excludes its applicability to daily wagers. The interpretation being given to Paragraph-44 of the judgment in its application to daily wagers, was not the correct law in accordance with the ratio laid down in the judgment has more than sufficiently been explained in 2010(3) SCC 115 and 2010 (4) SCC 179 . 6. It is primarily a question of fact if the petitioner is in employment today or not. If there is no master servant relationship, the question of any regularization does not arise as it is not a mode of appointment. 7. 6. It is primarily a question of fact if the petitioner is in employment today or not. If there is no master servant relationship, the question of any regularization does not arise as it is not a mode of appointment. 7. If the respondents have given him any advance payments, even as a daily wager, it is his obligation to respond to the notice and satisfy the respondents that he has earned the advance by subsequent discharge of duties and cannot refuse to answer the same. If he does so, the respondents would be justified in taking such appropriate action they may deem fit in accordance with law. 8. Without prejudice to the same, if the petitioner has worked on any dates on daily wage, subject to the satisfaction of the respondents, he is naturally entitled to his arrears for the same. If any arrears be there, after settlement of the advance given to him, let it be so paid within a maximum period of three months from the date of receipt/production of a copy of this order. 9. The writ application is dismissed with the aforesaid observation.