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2014 DIGILAW 3080 (ALL)

Jawahir Singh Kushwaha v. State of U. P.

2014-10-08

D.Y.CHANDRACHUD, P.K.S.BAGHEL

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JUDGMENT Pradeep Kumar Singh Baghel, J. The learned Single Judge has by the impugned order dated 04 September 2014 dismissed the writ petition under Article 226 of the Constitution by relegating the appellants to the remedy of raising an industrial dispute before the competent forum. 2. In the writ petition, which was filed by the appellants, the appellants sought the benefit of the provisions of the Uttar Pradesh Regularization of Daily Wages Appointments on Group ‘D’ Posts Rules, 20011. The specific averment, which is contained in paragraph 8 of the writ petition, is to the following effect: “8. That the petitioners have been working as daily-wagers/skilled Collie on Muster-Roll prior to cut of date i.e. 29.06.1991 as provided under Regularisation Rules, 2001 under respondents corporation at Ghazipur and still continuously working under the office of respondent no. 4 at 33/11 K.V. Sub-Station-Mohamdabad, Ghazipur.” 3. The learned Single Judge simply recorded the statement of counsel for the respondents, on the instructions received, that the appellants are not working with the respondents. On the basis of this statement, learned Single Judge dismissed the writ petition as raising disputed questions of fact and relegated the appellants to the alternative remedy of approaching the competent forum under the Industrial Disputes Act, 1947. 4. We find merit in the contention of the appellants that the appellants had specifically averred that they were appointed on daily wages prior to the cut off date of 29 June 1991 and were continuing in service on the date of commencement of the Rules. As a matter of fact, the contention of the appellants in paragraph-8 of the writ petition is that they are still working in the office of the fourth respondent to the writ petition. In view of the averments, which were made in the writ petition, it was appropriate and proper for the learned Single Judge to have directed the respondents to file the counter affidavit to the petition. Dismissal of the petition merely on the basis of an oral statement of learned counsel for the respondents was not appropriate and proper because if the statement of pleadings was to be controverted, this ought to have been done by filing a counter affidavit. 5. In the circumstances, we deem it appropriate and proper to allow the special appeal and to remit the proceedings to the learned Single Judge for decision afresh. 5. In the circumstances, we deem it appropriate and proper to allow the special appeal and to remit the proceedings to the learned Single Judge for decision afresh. To facilitate the aforesaid exercise, we set aside the impugned order dated 04 September 2014 and restore the writ petition to the file of learned Single Judge. We also direct that the respondents shall file their counter affidavit in the writ petition within a period of six weeks. The petition shall thereafter be listed before the learned Single Judge. We grant liberty to the appellants to move the learned Single Judge for expeditious disposal of the petition. The special appeal is, accordingly, allowed. There shall be no order as to costs.