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2016 DIGILAW 948 (UTT)

Dinesh Chandra Joshi v. State of Uttarakhand

2016-12-08

SUDHANSHU DHULIA

body2016
JUDGMENT : 1. Mr. M.C. Pant, Advocate, present for the petitioners. 2. Mr. Vikas Pandey, Brief Holder, present for the State/respondents. 3. In both these petitions, the petitioners are working on daily rated basis either in the capacity of Class – IV employee or Driver in the Public Works Department. They claim their regularization under the Regularization Rules of 2013, which have been framed by the State Government for regularizing the services of daily rated employees in the Government departments. 4. All the same, the candidature of the petitioners for regularization is not being considered on the ground that the mode of payment, which they are receiving, is not by cheque but by hand receipt i.e. through cash payment. 5. Learned State Counsel has argued that the very fact that the petitioners are being paid through hand receipt shows that they are not performing any work of perpetual nature and there is a provision in the Public Works Department where the employees, who are performing casual nature of work are given wages in cash under this head. 6. The contention of the petitioners on the other hand would be that they are continuing since 2006 in the department shows that the work they are performing is not of casual nature. 7. Taking this argument further the learned counsel for the petitioners would also argue that Section 6 of the Payment of Wages Act (from hereinafter referred to as the “Act”), has been amended in Uttarakhand in the year 2014 by the Uttarakhand Act No. 17 of 2014. The amended Section 6 of the Act reads as under:- “All wages shall be paid by Banks Cheques or Real Time Gross Settlement or National Electronic Fund Transfer or Electronic Clearing Service System or Postal Cheque. Provided that if the work of the employed person is of temporary nature or employed person is migrant and he wants to receive cash payment of his earned wages, after the written permission of the officer not below the rank of Assistant Labour Commissioner posted in the work area of employment, cash payment of wages of the concerning employed person may be paid.” 8. With the enforcement of the above proviso, the learned counsel for the petitioners would argue that payment by cash to the present petitioners is not even permissible, and in exceptional circumstances, it is permissible only in case of migrant labourers but with prior permission of the Assistant Labour Commissioner. The cash payment may be given to a person, whose work is only of a temporary nature. 9. All the same, this is not the factual situation in the Public Works Department, inasmuch as, it cannot be said that their work is of temporary nature, for the simple reason that they have been continuing in some cases for the last more than ten years. In other words, an employee even though working on a daily rated basis cannot be paid his wages/salary in cash. The petitioners challenge the exception carved out under the proviso and states that it is not applicable in their case as their work is not of temporary nature. 10. After hearing the learned counsel for the parties, this Court is of the opinion that ultimately, it is not the mode of payment but the nature of work, which would determine whether the petitioners have been continuing in services and are daily rated employees liable to be regularized, like any other employees and the mere fact that they have been given money by cash would not distinguish their case from other employees seeking regularization. 11. The matter is, therefore, referred to the Secretary, Public Works Department as well as to the Chief Engineer Level -1 who shall both take a decision in this matter, considering the nature of the employment of the petitioners. If the only distinguishing factor between the petitioners and other daily rated employees who are eligible for regularization is that the petitioners have been given their salary/wages through cash then that in itself will not stand in their way for their regularization. What has to be considered by the Secretary, Public Works Department and Chief Engineer Level – 1 is the actual nature of work being performed by the petitioners. In case they are satisfied as to their nature of work, they shall take a decision for regularizing the services of the petitioners within a period of six weeks from the date of production of a certified copy of this order. 12. In case they are satisfied as to their nature of work, they shall take a decision for regularizing the services of the petitioners within a period of six weeks from the date of production of a certified copy of this order. 12. Consequently the order dated 19.05.2015 by which the representation of the petitioner in WPPS No. 1550 of 2016 has been rejected is hereby quashed. 13. In view of the aforesaid directions, writ petitions stand disposed.