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Judgment
Muzaffar Hussain Attar, Judge
OWP No. 157/2006
The Authority under Payment of Wages Act, 1936 (for short 'Act of 1936') passed an award in favour of the respondents vide its order dated
March 8, 2006. The claim of the respondents before the Authority was that their wages from March, 1993 to April, 1997 were not paid by the
petitioners. The application filed u/s 15 of the Act of 1936 before the Authority, being time barred, application seeking condonation of delay in
filing the claim petition was also filed. The ""Authority"" vide its award aforementioned directed petitioner no. 2, Divisional Forest Officer, Kehmal,
to deposit an amount of Rs. 28,64,000/- within thirty days from the date of passing of the order. It was also provided in the order that in case the
amount aforementioned is not deposited within the stipulated period, recovery proceedings u/s 15(5)(b) of the Act of 1936 would be initiated.
Petitioners', being aggrieved of the said order, have challenged the same in this writ petition.
On notice issued in this case, the respondents have filed objections.
Heard learned counsel for the parties and considered the matter.
Mr. Javed Iqbal, learned counsel for the petitioners, submitted that the order impugned in this petition is illegal, inter alia, on the grounds that the
respondents were brought on the establishment of petitioners in the year 1997 in pursuance of the orders passed by this Court in earlier writ
petitions filed by the respondents; the respondents have given undertakings in which they have specifically stated that they will not claim wages
from March, 1993 to April, 1997; the claim petition, being time barred, the Authority has committed illegality in passing the award inasmuch as the
application for condonation of delay as also the petition u/s 15 of the Act of 1936 have been disposed of by one single order; the fact that the
respondents had approached the Court earlier and sought directions and have given undertakings to the authorities, having not been mentioned in
the claim petition before the Authority, the impugned award is consequentially rendered illegal. The learned counsel also referred to Section 15 of
the Act of 1936 to state that before entertaining the claim petition of the respondents the Authority was duty bound to consider and dispose of the
application seeking condonation of delay for filing the claim petition. Learned counsel also submitted that though statutory appeal is provided in
terms of Section 17 of the Act of 1936, yet, that being alternative remedy and being not efficacious inasmuch as huge amount was required to be
deposited by the Authority under the Act of 1936, this writ petition is maintainable. Learned counsel further submitted that the claim projected by
the respondents before the Authority is based on fraud as all the facts aforementioned were not brought to the notice of the Authority.
Mr. M.A. Beigh, learned counsel for the respondents submitted that petition is not maintainable as the petitioners cannot be allowed to bypass
the statutory remedy available to them u/s 17 of the Act of 1936. Learned counsel further submitted that the claim projected by the respondents
before the Authority, being within the jurisdiction of Authority, it cannot be said that the award passed by it is without jurisdiction, so, the writ
petition is not maintainable. Learned counsel also submitted that while considering the claim of the respondents, the petitioners constituted a
Committee of Officers and the Committee concluded its report with following recommendations:
That the actual daily rated workers registered on 01.04.1994 should have been (187) including the one shifted from Kamraj Forest Division
who shall get regularized in due course of time;
The number of Daily Rated Workers who have been accepted from 01.04.1997 be treated as regular Daily Wagers notionally from the date
they have been engaged as per their engagement orders and formally from 01.04.1997 without back wages for which they have already given
undertaking on record;
The name-wise list of these daily wagers be issued to avoid any illegal inclusion and to settle the case once for all.
Learned counsel also invited attention of the Court to the order issued by the Committee which reads as under:
That the actual Daily Rated Workers registered in Kehmil Forest Division on 01-04-1994 should have been (187) including the one shifted
from Kamraj Forest Division;
The number of Daily Rated Workers who have been accepted from 01.04.1997 without back wages for which they have already given
undertaking on record;
Name-wise list of Daily Wagers yet to be regularized in Kehmil Forest Division as shown in the lists received from predecessor DFO which
include (47) number of Daily Rated Workers whose wages were ordered to be released vide this office No. CCF(K)/Estt/2002/4090-91 dated:
25-10-2002 is hereby forwarded for record and reference and to avoid any complicacy in future. These Daily Rated Workers be paid wages by
debit to particular Budget Head recorded against each individual in the enclosed list.
Learned counsel also referred to the communication of Divisional Forest Officer, Kehmil Forest Division, Kralpora dated 10.05.2005
addressed to the Conservator of Forests, Kmr. North Circle, Sopore and submitted that in the said communication it has been admitted that the
daily wagers of the Division, as per the record available, have not been paid their wages from March, 1993 to March 1997 for want of funds. In
the said communication it is also mentioned by the said Authority that, in this behalf, series of communications/requisitions were made for making
available the requisite funds for disbursement to the daily wagers. In the said communication, it is also mentioned that the daily wagers were
permitted to continue in service, in view of the orders passed by the High Court, from April, 1997 onwards on the production of undertaking to the
effect that they will not claim wages prior to April, 1997. Learned counsel submitted that in view of the recommendations of the Committee and the
orders passed by the said Committee as also the communication aforementioned, it transpires, on the face of the record, that the respondents-daily
wagers were continuing in service. Learned counsel submitted that the undertakings given by the respondents would not prevent them from staking
claim for the wages which were denied to them notwithstanding the fact that they rendered services. Learned counsel also referred to the Division
Bench judgments of this Court in cases titled Ghulam Ahmad Nagoo v. Managing Director, J&K State Forest, reported in 2000 SLJ 583 and
Western Bus Service v. Assistant Commissioner & ors. passed in LPA no. 173/2007 on 16th October 2007, and case titled Director Rural
Development and others v. Zahida Akhter and others, OWP no. 73/2008 decided on August 4, 2008 and submitted that the writ petition, in the
facts and circumstances of this case, is not maintainable. Learned counsel also submitted that the case of the respondents for their regularization
was submitted but the authorities declined to accord consideration to them on the ground that the respondents have not been paid wages from
March, 1993 to March 1997. Learned counsel submitted that the persons who were engaged after the respondents have since been brought on
regular temporary establishment while the respondents alone are denied the said right and it is for this reason that the respondents have been
constrained to file SWP no. 386/2006 seeking direction to the respondents for consideration of their case for regularization of their services.
The enquiry report placed on record, which is not disputed by the learned counsel for the petitioners, does not anywhere state that the
respondents have not worked from March, 1993 to March, 1997. The orders issued by the Enquiry Committee, however, provided that the daily
wagers have been accepted from 1997 without back wages for which they had given undertakings. The respondents were not paid their wages for
a long period of time, therefore, they approached this Court and sought direction for payment of wages and for their continuation. When the issue
was not settled by the authorities, respondents filed contempt petition. It is after this, petitioners-authorities initiated action in the matter and
constituted Committee for resolving the issues raised.
The respondents are daily wagers. They were without wages from March 1993 to April 1997. The petitioners devised a method to continue the
respondents in service, however, asked the respondents to submit undertakings that they will not claim the back wages. The respondents, who
belong to the lowest strata of the society and were hard pressed in the circumstances in which they were landed because of the inaction of
petitioners-authorities and being in lower bargaining position, had no option but to furnish undertakings on the dotted lines asked for by the
authorities. Whether such undertakings can be said to be binding on the daily wagers, in the facts and circumstances of this case, requires to be
seen. The respondents-daily wagers had discharged their duties, so, would be entitled to receive the wages. Asking them to furnish undertakings to
enable them to continue in service would tantamount to taking 'beggar' from the respondents which is prohibited by Article 23 of the Constitution
of India. The right to receive the wages for the work rendered by the respondents-daily wagers is a statutory right recognized by the provisions of
the Act of 1936. This right could have not been denied to them. The agreement arrived at in the shape of asking the respondents to give
undertaking falls foul of Section 23 of the Contract Act which provides that the consideration or object of an agreement is lawful, unless it is
forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to
the person or property of another; or the Court regards it as immoral or opposed to public policy. Admittedly, the respondents-daily wagers have
been compelled to surrender their right to property which has accumulated to them in the shape of wages that they have earned by rendering
services to petitioners. The undertakings besides violating the provisions of Act of 1936 are also against the public policy. The undertakings cannot
be said to be legal as they violate the fundamental principle underlying Article 21 of the Constitution of India. The contention of learned counsel for
the petitioners that in view of the undertakings given, the respondents-daily wagers could not seek direction from the Authority for payment of
these wages, is not acceptable in view of the above discussion.
The issue raised by learned counsel for the petitioners that the condonation of delay application filed by the respondents has been disposed of
by the Authority while disposing of the main petition, is also inconsequential in the backdrop of the scheme of the Act of 1936. The purpose
underlying the Act of 1936 is to mitigate the hardships to which the workman is subjected to by the employer. The application seeking condonation
of delay in filing the claim petition, as per the submission of learned counsel for the petitioners, being disposed of alongwith the main petition, does
not render the order illegal. Assuming, for a moment, that the order is illegal, on this score, the writ petition is not competent as it does not touch
the jurisdiction of Authority. Writ petition can be filed only when it is shown that the order impugned is without jurisdiction or the Authority has
acted without jurisdiction. Those, admittedly, are not the issues raised in this case.
The contention of learned counsel for petitioner that award has been obtained by practicing fraud on the Authority, inasmuch as, the
respondents suppressed the fact of having executed undertakings, is rendered inconsequential in view of the finding recorded that undertakings are
illegal and unconstitutional. Non disclosure of factum of execution of undertakings, the product of an unequal bargaining power, would not
constitute fraud on the plain language of Section 17 of Contract Act.
For the abovestated reasons, this petition, being meritless, is dismissed.
SWP No. 386/2006
The petitioners have sought following reliefs in this writ petition:
A. Issue a writ, order or direction in the nature of mandamus commanding the respondents to regularize services of the petitioners as Helpers in
terms of SRO 64 of 1994 from the date petitioners are due for the same as per their engagement orders retrospectively and also to pay/release all
service benefits including pay salary, increments etc. to which petitioners will be entitled under rules.
B. Issue a writ, order or direction in the nature of prohibition restraining the respondents from disentitling the petitioners from regularization in terms
of SRO 64 of 1994 for non-payment of wages from 3/93 to 4/97 as the same being not a requirement for regularization of service of a daily rated
worker in terms of SRO 64 of 1994 and on the basis of promise extended by the respondents in terms of letter dated 10th June, 2003 as also
reflected in letter dated 10.05.2005.
The respondents in their objections have stated that the petitioners were brought on the establishment in terms of Court order from the year
1997. In view of the observations made in the order passed in OWP no. 157/2006, what transpires is that the petitioners have completed their
seven years of service, thus, are entitled for being brought on regular establishment in accordance with the mandate contained in SRO 64 of 1994.
It appears that the petitioners have been denied consideration for regularisation of their services on the ground that they have not been paid wages
from March, 1997 to April, 1997. In view of the facts enumerated hereinabove, this cannot be the ground for not bringing the petitioners on
regular temporary establishment.
This petition is, accordingly, allowed. The respondents are directed to consider the claim of the petitioners for being brought on regular
temporary establishment in terms of the Rules notified vide SRO 64 of 1994 irrespective of the fact that wages have not been paid to them from
March, 1993 to April, 1997. The exercise be initiated and concluded within three months from the date copy of this order is served on them.