Maini Devi, wife of Ledo Mahli @ Lalu Mahli v. State of Jharkhand
2017-05-02
SHREE CHANDRASHEKHAR
body2017
DigiLaw.ai
ORDER : Prayer in the writ petition is for regularisation. 2. Heard. 3. The petitioner claims that she has been working on daily-wages as Sweeper since 1998. She has produced a certification by the Divisional Forest Officer, Gumla Forest Division in support of her claim that she has been working continuously since 1998 as Sweeper. She has also produced extracts of her bank account with Allahabad Bank which would reflect that payment of Rs.4,873/- was made to her account. This payment was in lieu of her engagement on daily-wages. In the supplementary counter-affidavit, the respondents have pleaded that now she is paid Rs.5,761.86 as daily-wages for 26 days. The stand taken by the petitioner that she has been working continuously since 1998 was not disputed in the counter-affidavit dated 17.03.2017 filed on behalf of respondent no.4. The stand taken by respondent no.4, under whom the petitioner is working, is that she was never appointed on a Class-IV post rather, she is working as daily-wages labourer and working as Sweeper. 4. Just after one month, there was a change of mind and the respondent nos. 3 to 5 filed an affidavit on 26.04.2017, taking a position that the petitioner has been engaged on "temporary" daily-wages since June, 2001 and she has been engaged “as per requirement of work” on oral instructions. This is a serious contradiction in the stand of the respondents in their affidavits filed in the present proceeding. Once it is admitted that she is paid wages for 26 days, the above stand stands falsified. The State being a model employer is not expected to oppose a petition only for the sake of opposing it. It seems, the respondent nos.3 to 5 have chosen to file an affidavit dated 26.04.2017 denying the claim of the petitioner, by play of words. 5. The issue does not stop here. How many times the Courts must reiterate the position in law? Enumerable times or just one decision of the Court is sufficient? It needs no reiteration that judgments of the Supreme Court are law of the land and binding on all Courts and authorities within the territory of India. Equally true is the proposition, that orders passed by this Court are binding on all Courts, Tribunal and authorities and unless, it is modified, reviewed or set aside, it must be followed by all. In “S. Nagaraj and Others Vs.
Equally true is the proposition, that orders passed by this Court are binding on all Courts, Tribunal and authorities and unless, it is modified, reviewed or set aside, it must be followed by all. In “S. Nagaraj and Others Vs. State of Karnataka and Another” reported in 1993 Supp. (4) SCC 595, the Hon'ble Supreme Court has observed as under : “12. ......... Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper...............” 6. Why I am recording this, is for the reason that more than once, in particular, in W.P(S) No.466 of 2015 this Court categorically rejected the stand taken by the Department of Forest, Environment and Climate Change, State of Jharkhand, that the daily-wages workers working for 26 days in a month shall not be considered working continuously in the Department. Law on this issue has been conclusively decided by the Supreme Court in “Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Ltd.” reported in (2014) 11 SCC 85 , wherein deprecating introduction of artificial break in service, the Court has observed as under: “27. Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates “unfair labour practice” as defined under Section 2(ra) of the ID Act, which is not permissible in view of Sections 25T and 25U of the ID Act read with entry at Serial No. 10 in the Vth Schedule to the ID Act regarding unfair labour practices. Section 2(ra) reads thus: “2.
The aforesaid conduct of the respondent perpetuates “unfair labour practice” as defined under Section 2(ra) of the ID Act, which is not permissible in view of Sections 25T and 25U of the ID Act read with entry at Serial No. 10 in the Vth Schedule to the ID Act regarding unfair labour practices. Section 2(ra) reads thus: “2. (ra) ‘unfair labour practice’ means any of the practices specified in the Fifth Schedule.” Further, Entry 10 of the Vth Schedule reads as under: “5. To discharge or dismiss workmen— *** 10. To employ workmen as ‘badlis’, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.” 7. In the present proceeding, the respondents have admitted that the petitioner has been working on daily-wages for 26 days in a month for which she has been paid minimum wages as fixed by the Government of Jharkhand. On the issue of possessing qualification of Matriculation, suffice would be to record that if a qualification different from the requirement for direct recruitment on the post at the time when an employee was engaged is insisted upon, that would frustrate the whole object behind regularisation. On instructions from Mr. Shashi Nandkeolyar, Addl. PCCF, HRD, Jharkhand, the learned State counsel states that there is only one person working on daily-wages as Sweeper within Gumla Forest Division, and the petitioner is that daily-wages employee. 8. In the supplementary-affidavit dated 26.04.2017, the respondents have produced a chart of sanctioned vacant Class-IV posts. It is stated that within Gumla Forest Division there are 24 sanctioned Class-IV posts which includes, one post of Sweeper and which was vacant prior to 1998. In the circumstances, it must be inferred that the petitioner has been working against sanctioned vacant post of Sweeper. 9. Mr. Shashi Nandkeolyar, Addl. PCCF, HRD, Jharkhand and Mr. Ajit Kumar Singh, Conservator of Forest, Gumla Forest Division are present in the Court. In the affidavit dated 26.04.2017, the respondents have disclosed that there are 456 vacant sanctioned posts of Class-IV employees against the sanctioned strength of 1053. Mr. Srijit Choudhary, the learned Sr. SCIII, on instructions, states that a process for regular appointment on the remaining vacant posts shall be initiated within two months. It is expected that the whole exercise shall be concluded within six months. 10.
Mr. Srijit Choudhary, the learned Sr. SCIII, on instructions, states that a process for regular appointment on the remaining vacant posts shall be initiated within two months. It is expected that the whole exercise shall be concluded within six months. 10. In the meantime, petitioner's claim for regularisation in the light of the observations made in this order shall be undertaken, and a decision shall be taken within next three months. Initiation of recruitment exercise for filling up vacant Class-IV posts must not come in way of deciding the claim of the petitioner for regularisation. 11. The writ petition stands allowed, in the aforesaid terms.