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2017 DIGILAW 234 (UTT)

SUNITA v. STATE OF UTTARAKHAND

2017-04-12

RAJIV SHARMA

body2017
JUDGMENT Hon’ble Rajiv Sharma , J. The husband of the petitioner was appointed as daily wager employee since 1982. He was retrenched on 24.02.1989. He raised the industrial dispute. Learned Labour Court answered the reference in favour of the workman on 20.08.2010. The employer assailed the Award before this Court by filing WPMS No.2030 of 2011. This Court upheld the Award dated 20.08.2010 vide its judgment dated 28.09.2011. 2. The husband of the petitioner submitted an application for his joining on 17.10.2011, however, the same was not accepted. He died on 24.10.2011. 3. Thereafter, the petitioner moved an application for compassionate appointment. The case of the petitioner has been primarily rejected on two grounds that the petitioner’s husband has not joined his duties, pursuant to the Award dated 20.08.2010 and consequently, he was appointed on temporary basis. 4. These issues have no more res integra in view of the judgment rendered by this Court in WPSS No.583 of 2010, titled as “Firoz Mukhtar Vs. Uttarakhand Jal Sansthan & another” on 08.05.2012. Learned Single Judge has held that once the order of termination is set-aside, the petitioner’s father’s name was automatically entered in the rolls of the employee’s register. Since there was an order of the High court for the Jal Sansthan to comply with the award, it became the onerous duty of the Jal Sansthan to reinstate the petitioner’s father. By not doing so, the liability of the Jal Sansthan did not come to an end and the petitioner would be deemed to be a workman pursuant to the Award of learned Labour Court. 5. The husband of the petitioner would be deemed to be the workman of the respondent-department pursuant to the Award dated 20.08.2010. 6. Leaned Single Judge of this Court in 2004 (1) UD 156 in the case of Smt. Manisha Chand Vs. Distt. Magistrate, Pithoragarh and another has held that even a daily wager is entitled for the benefit of the rules under Dying in Harness. Learned Single Judge has held as under :- “7. In the case of Umarao Singh Rawat and others Vs. D.M. Nainital and others. It has been held as under :- “This writ petition has been filed with a prayer for mandamus directing the respondents no. 2 and 4 to regularize the service of the petitioners as collection peons, as the case may be. In the case of Umarao Singh Rawat and others Vs. D.M. Nainital and others. It has been held as under :- “This writ petition has been filed with a prayer for mandamus directing the respondents no. 2 and 4 to regularize the service of the petitioners as collection peons, as the case may be. In this case, on 13.3.1997, this court granted learned standing counsel for four weeks time to file a counter affidavit but no counter affidavit has been filed, hence, the allegation in the petition are being treated as correct and the petition is being disposed off finally. The petitioner nos. 4 to 9 are seasonal collection Amins and the petitioners no. 10 to 14 are Seasonal Collection peons in District Nainital since 1989 and onwards. The dates of their appointments have been given in para no. 3 of the writ petition. In para no. 4 of the petition, it is alleged that the work of seasonal collection amins and collection Amins is similar. In fact in the entire Tehsil Nainital there is only collection Amin and the rest of the work is being done by the petitioner no. 1 to 9who are called seasonal collection Amins and they are performing the samework as the collection Amins. In para no. 6 of the petition, it is alleged that the situation in the hills area is some what different from the plains in U.P. prior the 1989 the land revenue in the hill areas was received through patwaris and in fact there were no post like that of collection Amins in the Hills. In 1989, the patwaris of the hills were on strike demanding higher wages as they have very wise functions to perform including police duties. In the hills of U.P. the patwaris have been given police powers, as the V.I.R. can be made by them in certain case. In 1989, the decision was taken at the higher level and it was decided that work of collection on land revenue will be performed by the collection Amins in the hills, hence, 1989 a large number of Seasonal Collection Amins were appointed and although the work taken from them is of a regular nature they are being called Seasonal Collection Amin. It is alleged in para no. It is alleged in para no. 8 of the petition, that it was absolutely unjustified Amins since there was no difference in the nature of work being performed by the Seasonal Collection Amins and the regular collection Amins. Similarly, the Seasonal Collection peons are also doing regular nature of work as they are assisting the seasonal collection Amins. The service conditions of the collections Amins are mentioned in the U.P. Collection Amins service Rules, 1974 by a notification dated 23.10.92. Certain amendments more in these rules. The true copy of the notification is Annexure-3 to the petitions. By this amendments certain Seasonal Collection Amins can be appointed as Collection Amins. If they have worked for more than four seasons. The petitioners no. 1 to 7 have worked satisfactory for more than four seasons as stated in para no. 22 of this petition. In para no. 24 it is stated that 50% posts of collection peons are be filled from Seasonal Collection peons vide Annexure no. 5 to the petition. In para-33 it is stated that except for one single person there is no collection Amins in Tehsil Nainital, although there is need for many more. It appears that the position in the Hills is very different from that in plains of U.P., the patwaris in the hills was revenue official, equivalent to Lekphal but his power were much wider since they included police powers. Hence the decision of this court relating to Seasonal Collection Amins unlike in the plains. Hence, there is nothing “Seasonal” about the work of Seasonal Collection Amins. In fact the District Magistrate, Nainital has been repeatedly writing to the higher authorities in this connection vide annexure no. 1 and 3 to the writ petition. Similarly the Seasonal Collection peons are doing same work as regular collection peons. In view of the unrebutted allegations in the petition I am of the opinion, that his petition deserves to be allowed. Since the petitioners have been performing the same work as of the regular collection Amins and regular collection peons. I direct that they shall be given the same salaries, allowances and other benefits and other facilities as regular collection Amins and collection peons, as the case may be on the Principle of equal pay for equal work. The stated Govt. Since the petitioners have been performing the same work as of the regular collection Amins and regular collection peons. I direct that they shall be given the same salaries, allowances and other benefits and other facilities as regular collection Amins and collection peons, as the case may be on the Principle of equal pay for equal work. The stated Govt. is further directed to take a decision of recommendations of the District Magistrate, Nainital for certain posts, copies of which are annexure 1 and 2 of the writ petition expeditiously and till then the services of the petitioners shall be continued without any artificial break in service”. 7. Learned Single Judge of this Court in 2004 (1) UD 144 in the case of Mst. Mangali Devi Vs. State of Uttaranchal and others has held that the work-charge employees are also covered under dying-in-harness rules. The Learned Single Judge has held as under:- “15. As will appear from the aforesaid order that the appeal was allowed only on the ground that the Consumer Forum has no jurisdiction to decide the case of recruitment of services of Dying in Harness rules. He has not adjudicated the application on merits. 16. A counter affidavit has been filed by the State where it was admitted that the petitioner was a government servant being serving in the work charge establishment so, far as other facts with regard to the disparity in the employment is concerned, the same was also admitted. Paragraph 4- “That late husband of the petitioner Sri Govind Singh wasengaged as a daily wager in the year 1976 and he worked as such till 1979. Thereafter in the year 1980 he was taken on the work charge establishment worked as such till 5.6.1993 when he died. The petitioner is claiming for giving employment to one of his family under the Dying in harness Rules, 1974 and also for pension/gratuity etc. as service benefits payable to other regular employees of the department. As the husband of the petitioner was working s a work charged establishment employee to which the Dying in Harness Rules 1974 are not applicable, as such her claim and representation were rejected accordingly. as service benefits payable to other regular employees of the department. As the husband of the petitioner was working s a work charged establishment employee to which the Dying in Harness Rules 1974 are not applicable, as such her claim and representation were rejected accordingly. Aggrieved by the aforesaid, the petitioner also moved a claim petition before the District Consumer Protection Forum, Tehri, District-Tehri Garhwal which are allowed in contravention to specific government orders of service rules made in this behalf time to time. As such, aggrieved by the aforesaid order of the District Consumer Protection forum, the respondent no. 3 filed an appeal before the State Consumer Forum, which was allowed in favour of the respondents vide its order dated 21.7.2000, as such the writ petition of the petitioner is not maintainable as per Government Order dated 11.3.93 and 30.10.96 the benefits of Dying In Harness Rules 1974 are not permissible in the case of the petitioner. The copy of the aforesaid Government Order dated 11.3.93 and 30.10.1996 are annexed herewith and marked as Annexure No. C.A.1 and C.A.2 to this counter affidavit respectively.” Paragraph10- “That the contents of para no. 4B, which has been wrongly typed as para no. 4 again are not admitted as stated, because Sri Trilok Singh was an employee of a regular establishment on the post of Chaukidar, who died on 23.9.97. Being the son of a regular employee Sri Kamal Singh was provided employment in the department under Dying in Harness Rules, 1974 and not otherwise. In this connection the copy of the order dated 18.12.97 issued by the Executive Engineer, Temporary Division, P.W.D. Sri Nagar is annexed herewith and marked as Annexure No. C.A.3 to this counter affidavit.” Paragraph 11- “That the contents of para no. 5 of the writ petition, as stated is incorrect and denied. The petitioner has stated that Sri Harshmani has died and his son was given employment under the Dying in Harness Rules, 1974 in the department is rather misleading. Sri Harshmani is alive and is still working in the department. In this connection the information has furnished by the Executive Engineer, Temporary Division, P.W.D. Thatuer, Tehri Garhwal dated 14.9.2001 addressed to the Executive Engineer, Construction Division, P.W.D. Narendra Nagar, Tehri Garhwal is relevant, copy of which is annexed herewith and marked as Annexure No. C.A.4 to this counter affidavit.” 8. Accordingly, the writ petition is allowed. In this connection the information has furnished by the Executive Engineer, Temporary Division, P.W.D. Thatuer, Tehri Garhwal dated 14.9.2001 addressed to the Executive Engineer, Construction Division, P.W.D. Narendra Nagar, Tehri Garhwal is relevant, copy of which is annexed herewith and marked as Annexure No. C.A.4 to this counter affidavit.” 8. Accordingly, the writ petition is allowed. The respondents are directed to offer appointment letter to the petitioner in lieu of death of the husband of the petitioner, within a period of ten weeks from the date of production of certified copy of this order.