Chattisgarh High Court

Monoj Kumar Nirmalkar vs State Of Chhattisgarh And Ors on 10 February, 2023

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                                                                                        AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         Order reserved on : 16/11/2022
                          Order passed on : 10/02/2023
                               WPS No. 4293 of 2012
       Manoj Kumar Nirmalkar son of Late Vishnu Nirmalkar, aged
       about 35 years, Village Lokhandi, Post Mangla, Distt. Bilaspur
       (CG)
                                                                            ---- Petitioner
                                          Versus
1.     State of CG, Through Secretary, Public Works Department, DKS
       Bhawan, Raipur (CG)
2.     Chief Engineer, Public Works Department, Bilaspur (CG)
3.     Executive Engineer, Public Works Department (B & R), Bilaspur
       Division No.1, Distt. Bilaspur (CG)
4.     Sub-Divisional Officer, Public Works Department (B & R),
       Bilaspur Division No.1, Distt. Bilaspur (CG)
                                                                        ---- Respondents
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For Petitioner                   :       Mr. S.P. Kale, Advocate
For Respondents/State :                  Mr. Ishwar Jaiswal, Panel Lawyer

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Hon'ble Smt. Justice Rajani Dubey

C A V Order This petition has been filed under Article 226 of the Constitution

of India for a direction to the respondent authorities to consider the

representation of the petitioner and regularize his services without any

further delay.

02. Case of the petitioner, in brief, is that he was appointed as a

daily wager on the post of peon from January, 1997 and was working

with respondent No.4. He had submitted an application for

regularization of his services in light of the circular of the State

Government dated 5.3.2008 as the services of some of his juniors

were regularized but the respondent authorities did not accept his

application. Hence the petitioner filed a writ petition i.e. WPS

No.3265/2011 wherein this Hon'ble Court passed an order on

24.6.2011 directing the respondents to consider the case of the

petitioner strictly in accordance with the judgment of the Hon'ble

Supreme Court in the case of Secretary, State of Karnataka and others

Vs. Uma Devi and others, (2006) 4 SCC 1 and the circular dated

5.3.2008 issued by the respondents, as expeditiously as possible. But

the respondent authorities did not consider the case of the petitioner,

so he filed a contempt case bearing No. 433/2011 wherein this Court

vide order dated 9.12.2011 directed the concerned head of the office to

consider the case of the petitioner for regularization in compliance of

the order passed by this Court and further observed that as five

months have already lapsed, if no decision is taken on the petitioner's

claim within a period of two months from the date of receipt of copy of

the order which is now being passed, the petitioner would be at liberty

to revive the petition. Thereafter, the respondent authorities directed

the petitioner to submit certified documents within a week regarding his

working from January, 1997. The petitioner submitted reply on

24.1.2012 but the respondent authorities without considering his reply,

rejected the claim for regularization on 24.1.2012 itself. Hence this

petition for the following reliefs:

"1. The Hon'ble Court may kindly be pleased to direct the respondents to consider the representation of the

petitioner and regularize his services without any further delay.

2. Hon'ble Court may kindly be pleased to quash the Kki- dzaekad [email protected] dk- [email protected]&12 fnukad 24-01-2012 and direct respondent authority to consider the case of petitioner for regularization in pursuance of the circular dt. 05.03.2008."

03. Learned counsel for the petitioner submits that the action on the

part of the respondent authorities is illegal, arbitrary, discriminatory in

nature and also violative of the principles of natural justice and Articles

14, 15 & 21 of the Constitution of India. The petitioner is a daily wager

working on the post of helper since January 1997. The State

Government regularized the services of similarly situated daily wage

employees on the basis of circular dated 5.3.2008, therefore, the

petitioner is entitled for regularization of his services on the post of

helper. The respondent authorities wrote a letter in which it is

mentioned that there is a vacant post against which the petitioner is

working as Chowkidar (watchman) and he fulfills the educational

qualification also. In compliance of the circular dated 5.3.2008 the

State Government directed to regularize the services of those persons

who were working prior to 31.12.1997 on daily wages basis, even then

the respondent authorities have not regularized the services of the

petitioner and instead directed the petitioner to submit certified copy of

the documents regarding his working since 1997. All such documents

are with the respondent authorities and even then they directed the

petitioner to submit such documents which shows that they are

deliberately and willfully not considering the case of the petitioner for

regularization in light of the circular dated 5.3.2008.

Reliance is placed on the judgment of the Hon'ble Supreme

Court dated 01st August, 2018 in the matter of Narendra Kumar Tiwari

and others Vs. The State of Jharkhand and others in Civil Appeal

Nos. 7423-7429 of 2018 and the judgment in the matter of R.M.

Yellatti Vs. Assistant Executive Engineer reported in 2005 AIR SCW

6103.

04. Per contra, learned counsel for the respondents/State would

submit that in compliance of the order passed by this Court, notice was

issued to the petitioner on 16.1.2012 (Annexure P/7) directing him to

produce any document with regard to his engagement with the

department since January, 1997 as contended by him in his

representation as well as in WPS No.3265/2011. In response thereto,

the petitioner in his reply dated 24.1.2012 stated that since the required

documents are with the department, demand of documents from him is

not proper and reiterated his contention that he has been engaged with

the department since January, 1997, without submitting any cogent

evidence before the authority. So, after considering the reply of the

petitioner, his representation for regularization has been rejected on

well reasoned ground vide impugned order dated 24.1.2012 (Annexure

P/1). Since the petitioner has not been engaged with the department

prior to 31.12.1997, he is not at all entitled for regularization as per

circular dated 5.3.2008.

05. Heard learned counsel for the parties and perused the material

available on record.

06. In WPS No.3265/2011 this Court vide order dated 24.6.2011

directed the respondents to consider the case of the petitioner strictly

in accordance with the judgment of the Supreme Court in the case of

Secretary, State of Karnataka and others (supra) and the circular dated

5.3.2008 issued by the respondents as expeditiously as possible.

Thereafter, in Contempt Case (C) No. 433/2011 this Court vide order

dated 9.12.2011 directed the respondents that if no decision is taken

on the petitioner's claim within a period of two months from the date of

receipt copy of the order, which is now being passed, the petitioner

would be at liberty to revive the petition.

07. The petitioner filed an application on 29.6.2011 (Annexure P/5)

seeking regularization of his services on the ground that he is working

since January, 1997 but the respondent authorities dismissed his claim

by the impugned order dated 24.1.2012 on the ground that as per

office record, he was not working since January, 1997 but was working

since 28.1.2002 and therefore, he was not entitled for regularization.

08. In the previous writ petition i.e. WPS No.3265/2011, it was the

case of the petitioner that he was appointed as a daily wager after

1.1.1989 and before 31.12.1997. This submission of the petitioner was

not rebutted by the respondent authorities. The petitioner has also filed

his application dated 23.1.2012 to the Executive Engineer, PWD,

Bilaspur for regularization of his services vide Annexure P/8 wherein he

stated to have been working with the department since January, 1997

and all the muster-rolls related to his working and daily wages are in

possession of the respondent authorities but they did not rebut the said

contention of the petitioner. Even before this Court, the respondent

authorities did not file documents of the year 1997 which could show

that the petitioner was not working since January, 1997 with the

respondent department.

09. In WPS No.3265/2011 and in Contempt Case (C) No.433/2011,

the respondent authorities did not rebut the claim of the petitioner that

he has been working with the department since January, 1997 and

when the petitioner applied for regularization, his claim was denied on

the ground that he did not file any document showing him to be

working since January, 1997.

10. In the matter of R.M. Yellatti (supra), the Hon'ble Supreme Court

held in para 17 of the judgment as under:

"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce

before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."

11. The Hon'ble Apex Court in the matter of Narendra Kumar Tiwari

(supra) held in para 11 as under:

"11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc."

12. In the present case, the respondent authorities in the impugned

order (Annexure P/1) have written in the last paragraph that the

petitioner was working since 28.1.2002, so at the time of passing the

impugned order, the petitioner had completed 10 years of service but

they did not regularize his services. Therefore, it is clear from all the

documents that the respondent authorities did not follow the aforesaid

directions of the Hon'ble Supreme Court and this Court in the matter of

regularization of services of the petitioner.

13. Having regard to the facts and circumstances of the case and

the principles of law laid down by the Hon'ble Supreme Court in the

subject-matter, the petition is allowed and the impugned order dated

24.1.2012 (Annexure P/1) is hereby set aside. The respondent