Jammu & Kashmir High Court - Srinagar Bench
Director vs Abdul Qayoom Dar S/O Gh. Mohd. Dar R/O ... on 23 February, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
OWP no.66/2007
c/w CPOWP no.509/2013
Pronounced on: 23.02.2024
Director, Rural Development, Kashmir, Srinagar
.......Petitioner(s)
Through: Mr Alla Uddin Ganai, AAG
Versus
1. Abdul Qayoom Dar S/o Gh. Mohd. Dar R/o Hassanabad, Rainawari,
Srinagar
2. Industrial Tribunal/Labour Court, Srinagar
......Respondent(s)
Through: Mr T.H.Khawja, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Director, Rural Development, Kashmir, Srinagar - petitioner herein,
prays for passing of a writ of certiorari, quashing and setting-aside the
Award/judgement dated 15th November 2006, passed by Industrial
Tribunal/Labour Court, Srinagar - respondent no.2 herein, for short
"Tribunal", in a claim petition titled as Abdul Qayoom Dar v. State of
J&K. Petitioner also seeks for passing of a writ of certiorari to declare
null and void the Reference dated 3rd September 2001 made by the
Government to the Industrial Tribunal/Labour Court, Srinagar.
2. It is Government of Jammu and Kashmir that vide SRO 375 dated 3 rd
September 2001 made a Reference to the Trial Court requiring it to
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adjudicate the dispute that was raised by respondent no.1 herein. It
would be appropriate to reproduce SRO hereunder:
"GOVERNMENT OF JAMMU AND KASHMIR
CIVIL SECT: LABOUR & EMPLOYMENT DEPARTMENT
.....
NOTIFICATION
SRINAGAR, THE 3rd September 2001.
SRO 375 : - Whereas, the Government is of the opinion that an
Industrial Dispute exists between the Director Rural
Development Srinagar and its workman namely Shri Abdul
Qayoom Dar S/o Ghulam Mohd. Dar R/o Rainawari, Srinagar
regarding the matter here-in-after appearing; and
Whereas, the Government considers it desirable to refer
the dispute to the Labour Court for adjudication.
Now, therefore, in exercise of the powers conferred by
clause (c) of sub-section (1) of section 10 of the Industrial
Dispute Act, 1947 (XIV of 1947), the Government of Jammu and
Kashmir hereby refer the said dispute to the Labour Court for
adjudication in respect of the following matters, namely:-
a/ legality or otherwise of the action of the management
(Director Rural Development, Srinagar) in
terminating the engagement/services of the aforesaid
workman, namely Abdul Qayoom Dar; and
b/ award appropriate relief to the said workman in case
illegality of the action of the said management is
established.
By order of the Government of Jammu and Kashmir.
Sd/-
( P. L. Raina )
Commr. & Secretary to Government
Labour and Employment Department
No.L&E/ID/64/2001 Dated: 3.9.2001
Copy to the:
1- Commissioner & Secretary to Govt., Law Department (w.7.s.c.)
2- Labour Commissioner, J&K, Srinagar
3- General Manager, Government Press, J&K, Srinagar for publication in
the next Government issue Gazettee.
4- Presiding Officer/Industrial Labour Court, J&K, Jammu along with 39
leaves
5- Assistant Labour Commissioner, Srinagar/Jammu.
6- Stock file."
3. The Tribunal on receiving SRO/Reference, summoned the parties to put
in attendance before it. Respondent no.1 herein filed his claim petition,
stating therein that he was engaged in 1992 and continued to work
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under Block Development Officer, Srinagar, and that he remained in
service up to August 1998. It was also contention of respondent no.1
that his services were suddenly dispensed with by petitioner-
department which according to him was in utter disregard to provisions
of Industrial Disputes Act and in violation of Chapter V-B of the Act.
He, thus, sought a direction upon petitioner-department to him back in
service with all consequential benefits and declaring his termination/
dispensing with services as unjustified.
4. Objections to the claim petition of respondent no.1 were filed by
petitioner-department. Their stand before the Tribunal was that it has
no jurisdiction to try and entertain claim petition of respondent no.1 as
he is not a workman as defined under the Act because he has already
approached the Civil Court and his suit stands dismissed. According to
petitioner-department there existed no dispute between respondent no.1
and the department because he did not come within the definition of
workman as defined under the Act and that respondent no.1 was
disengaged in view of the policy decision with regard to all daily
wagers. It was further stand of petitioner-department before the
Tribunal that respondent no.1 was initially engaged for 60 days with
usual breaks and he had never been allowed to continue for more than
sixty days as such, he did not come within the definition of workman
as defined under the Act.
5. As is evident from perusal of the material on the file, the Tribunal given
the rival contentions of the parties framed following issues:
(1) Whether this Court has no jurisdiction to try the present
petition? OPR
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(2) Whether the present petition is barred by res judicata?
OPR
(3) Whether the action of the management in terminating the
services of the petitioner is illegal and unjustified,
therefore, is required to be quashed? OPP
(4) To what relief the parties are entitled? OP Parties.
6. It appears that the Tribunal vide its interim order dated 29th April 2003
decided Issue nos.1&2 in favour of respondent no.1 and against
petitioner-department. Thereafter, parties were directed to adduce their
evidence. Respondent no.1 produced and examined seven witnesses,
besides himself. Petitioner-department as impugned judgment on its
perusal would reveal failed to adduce any evidence and, as such, its
right to produce evidence was closed on 2nd May 2005. It is in terms of
the impugned Award/judgment that the Tribunal held action of
petitioner-department in terminating services of respondent/claimant as
illegal and uncalled for and, consequently, held him entitled to
reinstatement along with all back wages and other consequential
service benefits.
7. Learned counsel for petitioner has stated that conclusion drawn by
Tribunal is without any material inasmuch as it has exceeded its
jurisdiction by declaring respondent no.1 entitled to reinstatement as
well as back wages along with other consequential benefits. He would
contend that respondent no.1 was never employed as a daily wager for
a period of more than two months and he never worked continuously.
The Tribunal has not appreciated the fact of the matter that respondent
no.1 had been disengaged pursuance to policy decision of the
Government and, as such, no illegality had been committed by
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petitioner-department. It is contended that under law a daily wager or
casual labour has no right to seek regularization or continuation unless
and until there is a need for the same and, therefore, the Tribunal had
no competence to hold respondent no.1 entitled to reinstatement and
back wages along with all consequential benefits. Respondent no.1 has
not produced any evidence which would have suggested that he was
continuously working in petitioner-department. Respondent no.1 had
filed a civil suit on the same subject-matter, which was before the
Tribunal. The said suit was dismissed.
8. On the other hand, it is stated by learned counsel for respondent no.1
that petitioner are precluded to raise the question of jurisdiction,
authority and competence of the Tribunal because it is the Government
of Jammu and Kashmir that vide SRO 375 dated 3 rd September 2001
referred the matter to the Tribunal with points of reference. Those two
points of reference to be adjudicated upon by the Tribunal was legality
or otherwise of action of petitioner-department in terminating
engagement/ service of respondent no.1/workman; and award
appropriate relief to the workman/respondent no.1 in case illegality of
action of the said petitioner-department is established.
9. I have heard learned counsel for parties and considered the matter.
10.It is an admitted position on the part of petitioner-department that
respondent no.1 had been engaged/appointed in petitioner-department
way back in the year 1992, i.e., SRO 64 of 1994, viz. Jammu and
Kashmir Daily Rated Workers/Work Charged Employees
(Regularisation) Rules, 1994. These Rules have come into effect from
1st April 1994. These Rules apply to Daily Rated Workers/Work
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Charged Employees engaged in any Government Department. Rule 2
(b) says that casual labour/worker means a person who is engaged
through an appointment order or otherwise on daily rated basis for
rendering casual services to a department. Rule 2 (e) provides that
"continuous working" means continuous working of daily rated
workers or work charged employee after his first engagement
regardless of the fact whether wages have been paid for the gazette
holidays/Sundays. Daily rated Worker means a person engaged on
daily wage basis at the rates sanction by the Government from time to
time as is defined under Section 2(f) of the Rules. Rule 4 provides tat a
daily rated worker/work charged employee shall be eligible for
regularization if he is resident of J&K; if on the date of his initial
appointment his age was within the minimum and maximum age limit
as prescribed for appointment in government service; if he possess the
prescribed academic and/or technical qualification for the post against
which he is required to be engaged; if he has completed seven years
continuous period of working as daily rated worker or work charged
employee or partly as daily rated worker and partly as work charged
employee. Rule 5 provides that all the daily rated workers who on 31 st
March 1994 are eligible under Rule 4 for regularization shall with effect
from 1st April 1994 be appointed on the regular pay scale of Class-IV
prescribed in the concerned department for the relevant category of
posts in the scale of Rs.750-940. It is clearly mentioned in Rule 8 that
the policy of absorption of daily rated workers and work charged
employees shall also apply to such of the existing daily rated workers
and work charged employees who may not have completed seven years
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on 31st March 1994 but may complete by the end of subsequent
financial years and their absorption shall be considered in that financial
year.
11.As record would tend to show that after framing of issues, the witnesses
were adduced by the parties who in unison admitted that respondent
no.1 was working in petitioner-department prior to imposition of ban
under SRO 64 of 1994, i.e., respondent no.1 was working in petitioner-
department since 1992, and, as such, entitled to continue. Taking into
account these aspects of the matter, the Tribunal has rightly held
termination of respondent no.1 as illegal and uncalled for and
consequently held respondent no.1 entitled to reinstatement along with
all back wages and other consequential service benefits.
12.The power of Labour Courts, Tribunals and National Tribunals to give
appropriate relief in case of discharge or dismissal of workmen is
provided in Section 11A of the Industrial Disputes Act. It envisions that
where an industrial dispute relating to discharge or dismissal of a
workman is referred to a Labour Court, Tribunal or National Tribunal
for adjudication and in the course of adjudication proceedings, the
Labour Court, Tribunal or National Tribunal is satisfied that order of
discharge or dismissal is not justified, it may, by its award, set aside the
order of discharge or dismissal and direct reinstatement of the
workman. In such circumstances, there is no substance in the contention
of petitioner-respondent that the Tribunal has no jurisdiction to pass
impugned Award.
13.Petitioner-department admits that respondent no.1 had been engaged in
the year 1992. So, he had/has a right to challenge his discontinuation
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which has rightly and correctly been declared by Tribunal as illegal. In
that view of matter, impugned order/award passed by the Tribunal does
not call for any interference and consequently writ petition is liable to
be dismissed.
14.Reference made by learned counsel for petitioner to judgement dated
23rd April 2021 passed by this Court in OWP no.498/2014 titled as
Director Rural Development and others v. Assistant Commissioner and
others is extremely distinct and different in facts and circumstances to
the case in hand.
15.For the reasons discussed above, writ petition is devoid of any merit
and is, accordingly, dismissed.
16.Insofar as contempt petition (CPOWP no.509/201) is concerned, the
proceedings are dropped and the same is closed, at this stage.
However, it is made clear that in the event petitioner-department
does not implement the order(s) with respect whereof the contempt
petition was filed, within eight weeks, respondent no.1 will be free to
review come up with a contempt petition against petitioner-department.
(Vinod Chatterji Koul)
Judge
Srinagar
23.02.2024
Ajaz Ahmad, Secy.
Whether approved for reporting? Yes/No.
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