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2013 DIGILAW 213 (JK)

Abdul Rashid Sheikh & Ors. v. State of J&K & Ors.

2013-04-16

ALI MOHAMMAD MAGREY, MANSOOR AHMAD MIR

body2013
Magrey, J.— 1. This Letters Patent Appeal has been filed against the judgment dated 18.02.2008 passed by the learned Writ Court in SWP no.737/2002, dismissing the writ petition. 2. The appellants claimed to have been engaged on daily wage basis in September, 1993. Way back in July, 1995, they filed writ petition, SWP no.913/1995 seeking directions upon the respondents to pay them wages and to regularise their services. In their objections, the respondents contested the claim put forth by the appellants in their writ petition, and denied their engagement on daily wage basis. 3. The writ petition came to be disposed of by order dated 09.10.1998 directing the respondents to treat the writ petition as representation and take some decision thereon in accordance with the relevant rules and policy decisions dealing with the benefit of regularization. It was further directed that till a decision was taken, the relationship of master and servant shall be kept intact and that the claim for monetary benefits be also considered. 4. Contempt Petition no. 319/2000 filed by the appellants for implementation of the aforesaid judgment of the learned Writ Court, too, was contested by the respondents, inter alia, on the ground that on scrutiny of the claim of the daily wagers of Langate Forest Division, including the appellants, by a committee appointed for the purpose, it was found that they had never been on the rolls of daily wagers of Langate Forest Division and that they did not find place in the lists of daily-wagers framed in 1993 and subsequently in 1994. Record of the aforesaid contempt petition was called for and perused by us. 5. During the pendency of the aforesaid contempt petition, respondent no.3, in compliance of the order of the Court dated 09.10.1998 passed in SWP no.913/1995, issued a detailed order dated 07.05.2002, rejecting the claim of the appellants. Operative part of the order is quoted hereunder: "Now, therefore, in the light of Hon'ble High Court order, their wages beyond March 1999 till this order is issued, be released under the bona fide intention that the Master and Servant relationship has to be maintained, contrary to the fact that they have never worked for the period as reported by the DFO, Langate Forest Division vide his letter No.2720-23/DW dated 29.09.2000. In view of the circumstances enumerated hereinabove, the case of the petitioners cannot be further processed for submission to superior authorities for regularisation of their services under SRO 64. Their claim for such regularisation is hereby negated." After issuance of the aforesaid order, the counsel appearing for the respondents in the aforesaid contempt petition made a statement on 20.09.2004 before the Contempt Court that the order of the Court of which non-compliance was urged had been complied with in its letter and spirit. The learned Court dismissed the contempt petition, observing "it appears that they (the appellants) have lost interest because of the compliance shown". 6. The appellants, thereafter, challenged the aforesaid order dated 07.05.2002 passed by respondent no.3, in SWP no.737/2002. The said writ petition, too, was resisted by the respondents by rebutting and contravening the averments made therein. The said writ petition was dismissed by the learned Writ Court vide the judgment dated 18.02.2008, holding as under: "The Chief Conservator of Forests Kashmir has while rejecting the claim of the petitioners found that the Divisional Forest Officer, Langate Forest Division/Conservator, Kashmir North Circle have approved list of only 158 daily rated workers in which the petitioners does (sic do) no figure. From this the Chief Conservator of Forests has concluded that the engagement of the petitioners from 1993 is not correct. Thus I find due reasons have been recorded by the respondents in arriving at the conclusion that the petitioners were not working in the department as daily rated workers in the year 1994 as such they were not entitled to the benefit of SRO 64 of 1994. The petitioners have cited instances to show that they had been engaged and were working in the Langate Forest Division as daily rated workers but they have failed to place on file even a single order of appointment/engagement in this behalf. They could not even place the copies of the applications submitted by them for their engagements, nor have they given the details as to when and on which date they were actually appointed and when they joined the department and how much amount they received for the period they have actually worked. They have placed reliance on a communication of the Range Officer Rajwal No.070/DW dated 23.6.1994 photocopy of which has been placed on file as Annexure P-1. They have placed reliance on a communication of the Range Officer Rajwal No.070/DW dated 23.6.1994 photocopy of which has been placed on file as Annexure P-1. The annexure is in the shape of a list of daily wagers of Rajwal. The list has, however, been prepared on 23.6.2004, i.e., much after the date when the ban for appointment of daily rated workers was imposed." The aforesaid judgment thus rendered by the learned Writ Court on 18.02.2008 in SWP no.737/2002 is assailed in the present appeal. 7. We have heard leaned counsel for the parties and considered the matter. 8. In this appeal, nothing new is stated by the appellants. However, during the pendency of this appeal, the inept and maladroit functioning of some Forest Officers and their apathy towards the public duty cast on them, which has cost the State exchequer, has come to fore. On the basis of what has now come on record, it would not be an exaggeration to say that over the time, the facts and figures have been presented by the lower rung forest officers in such a manner as point only to the conclusion that all was not well with their official dealings. A glimpse thereof is given hereunder. 9. On 01.04.2010 respondent no.3 presented a status report that as per the CV/TV statements furnished by DFO, Langate Forest Division counter signed by respondent no.4, the appellants have been engaged on 01.09.1993. On 31.05.2011 the learned counsel for the appellants produced photocopy of letter no.H50-52/Estt dated 29.12.2010 addressed by Divisional Forest Officer, Langate Forest Division to the Chief Conservator of Forests, Kashmir along with proforma-II thereto containing list of 11 daily rated workers who were stated to be due for regularisation. In the said list, names of nine of the appellants were also noted. This would have clinched the whole issue. But that was not to be; the learned Government Counsel sought time to get instructions. Thereafter, on 09.07.2012, counsel for the respondents produced Government order bearing no. 260-FST of 2011 dated 15.06.2011 passed by the Government wherein it was stated that the Department would stick to the stand taken earlier before the Writ Court and would not accept the status report filed by respondent no.3. In addition, it was reported that an inquiry had been ordered to ascertain the circumstances under which a contradictory stand had been taken. In addition, it was reported that an inquiry had been ordered to ascertain the circumstances under which a contradictory stand had been taken. In order to dish out the correct version on the issue, time was granted from time to time for completion of the enquiry and for producing a report thereon before the Court. 10. The enquiry report ultimately filed before the Court revealed that Shri Barkat Ali Qureshi, Ex-DFO, Langate had made a false statement in his communication no. DFO Langet/924-26 dated 26.07.2008 addressed to respondent no.2 with copies thereof endorsed to respondents 3 and 4. In the said statement made by the said DFO, quoted in the enquiry report, it was stated that in SWP no.737/2002, this Court had directed the department to release appellants' wages and consider them for regularisation and that the Department had chosen not to go in appeal. The said DFO on that pretext sought allotment of 4.02 lacs for the wages of nine of the appellants with effect from 09/1993 to 11/1997 as also processing their cases for regularisation. In the enquiry report, it is stated that the DFO's request was, accordingly, processed and allotment of funds, including the amount of Rs.4.02 lacs with specific mention of wages for the appellants, was made. On release of the said funds, appellants were paid the wages from 9/1993 to 11/1997. It is further stated in the report that it is on that basis that a misconception cropped up that since the appellants had been paid their wages from 9/1993 to 11/1997, their status had changed and, accordingly, a status report pursuant to Court order dated 07.07.2008 passed in CMP no.43/2008 was filed by respondent no.3 before the Hon'ble Court. 11. Mr. Qayoom, learned counsel for the appellants has filed his response to the enquiry report, enclosing therewith the history sheets of each of the appellant and their wage statements indicating their engagement with effect from September, 1993. 12. The whole controversy involved in this lis hinges on answer to the question whether the appellants had been engaged as daily rated/daily wage workers prior to the issuance of SRO 64 of 1994 and were continuing as such on 31.03.1994. Respondents have all along refuted their claim. The petitioners themselves, as rightly held by the learned Single Judge, have not produced any engagement letters/orders to establish their case. Reliance by Mr. Respondents have all along refuted their claim. The petitioners themselves, as rightly held by the learned Single Judge, have not produced any engagement letters/orders to establish their case. Reliance by Mr. Qayoom on the history sheets and wage statements produced in response to the enquiry report is misplaced. These documents have been prepared for purposes of drawing the wages of the appellants from September, 1993 to 11/1997 pursuant to the false statement made by the DFO concerned on the basis of which he got the funds released for payment of back wages in favour of the appellants. The fraud played with the department and the documents fabricated in connection therewith will not clothe the appellants with any right, nor would such documents be a proof of establishment of their claim. This Court in its extra ordinary writ jurisdiction cannot require the respondents to perpetuate the wrong, particularly, given the fact that there have been enquiries after enquiry conducted by the respondents to ascertain the true facts and all the enquiries have established that the claim of the appellants is unfounded. In that view of the matter, we feel that the matter deserves to be given a quietus now. 13. In light of the above, we do not see any ground or reason to interfere with the impugned judgment passed by the learned Writ Court. 14. This appeal is, accordingly, dismissed alongwith the connected CMPs. Interim direction, if any subsisting, shall stand vacated. No order, however, as to costs.