HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 254 OF 2002 Union of India & ors Petitioners Harish Chander Respondent !Mr. N. A. Choudhary, CGSC ^Mr. R.K. Gupta, Advocate Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 10.11.2010 :J U D G M E N T :
Dr. Saikia, CJ:
Heard Mr. N. A. Choudhary, learned Central Government Standing
Counsel, appearing for the appellants as well as Mr. R. K. Gupta, learned counsel
appearing for the sole respondent.
2. The correctness and legality of the order dated 16.08.2001 passed by Writ
Court in SWP no. 2460/1999, whereby the petitioners prayer for regularization in
the post he was claiming to work as Casual Labour since 1989 till 1999, was
acceded to by the Writ Court, with a direction to the respondents to give benefit to
the writ petitioner taking note of the Casual Labourers (Grant of Temporary Status
and Regularization) Scheme of Government of India, 1993, (for short the
Scheme), and the law laid down by the Honble Supreme Court, has been assailed
in this Letters Patent Appeal.
3. During the course of hearing, Mr. Gupta, learned counsel for the
respondent- writ petitioner has fairly submitted that he does not want to press the
issue as regards the applicability of Section 25 (H) of the Industrial Dispute Act, as
observed by the Writ Court, which has also been assailed by Mr. Choudhary,
learned counsel for the Union of India.
4. In consideration of above submission, we now take up the limited issue as to
whether the Scheme, formulated by the appellants in the year 1993, would be
applicable to the present case.
5. The case of the respondent before the Writ Court, as the writ petitioner, was
that he was appointed as casual labourer in the year 1989. Since then he had been
working in the same capacity till 1999 and had completed ten years of continuous
service in the capacity of a casual labour in the department concerned. He has
sought for writ of mandamus commanding the respondents to regularise his service
as Class IV employee in the Department.
6. Appellants, as respondents in the Writ Court, while refuting the said averments
and contentions made in the writ petition, have taken the stand by filling an
affidavit that petitioner was never appointed as casual labourer. Rather he was
temporarily engaged on oral understanding only for some days in a month on
contractual basis and after the month of September 1999, he was disengaged as no
work was available for the petitioner. As such, it has been averred that petitioner is
not entitled for his regularization.
7. Having given our due consideration to the arguments so advanced on behalf of
learned counsel for the parties and also upon careful consideration of the impugned
judgment and order, it appears that respondent had been working in the
establishment of the appellants since 1989 upto 1999. However according to the
appellants, he was engaged only on temporary basis of oral arrangement. It is the
admitted position that the aforesaid Scheme, came into force with effect from
01.09.1993 and the respondent had been admittedly working till 1999 within the
operational period of the Scheme.
8. Even though, it is claimed by the appellants that respondent had been
engaged on oral arrangement, but, on pointed queries, it could not be brought to
the notice of the Court as to how a government department can utilize services
of a person without issuing a written order. The business in government
departments is not being conducted orally but is being transacted through
written orders /communications. As it is admitted by learned counsel for
appellants that respondent-writ petitioner was in their temporary engagement,
though on the strength of oral agreement, for the purpose of this case, it can be
easily said that respondent-writ petitioner was in the service of appellants.
9. The Scheme aforementioned has come into force on 1st of Sept. 1993 and
on that date the respondent-writ petitioner was in the service of the appellants. It
is the duty of the Court of law to ensure that a person, who is in a lower
bargaining position, is not subjected to any kind of exploitation by his
employer. The appellants, in view of the mandate contained in the Constitution
of India, are duty bound to deal with the citizens in a manner so as to achieve
the purpose underlying the constitutional provisions as contained in Articles
14, 16 and 21 of the Constitution of India.
9. This Court, being a constitutional Institution is, in law, the sentinel and
repository of the rights of the people. When it is brought to the notice of the
Court that injustice is meted out, a duty is cast on it to undo the same.
10. The appellants, Union of India, and its authorities, in view of facts which
have come on record, are duty bound to address to the grievance of respondent,
are obliged to accord consideration to his claim in terms of the Scheme.
11. The position which has emerged in this case calls for issuance of
appropriate directions.
12. The appellants are, accordingly, directed to consider the case of the
respondent-writ petitioner in terms of the aforesaid Scheme. The process of such
consideration shall be undertaken and concluded within a period three months from
today.
13. The judgment and order passed by learned Single Judge on 16.08.2001
stands modified accordingly.
14. This disposes of the Letters Patent Appeal along with all connected CMP(s).
(Muzaffar Hussain Attar) (Dr. Aftab H. Saikia) Judge Chief Justice Jammu: 10.11.2010 Sunita, JS.
