Pashori Lal vs State

A.M. Mir, J.—This petition seeks relief in the nature of prohibition restraining the respondents from ousting the petitioner, who on the date

of filing of present petition was working on daily wage basis in D.R.D.A. Project, Doda. A prayer for writ of mandamus also is made for

regularisation of his services.

Objections to the petition have been filed by Mr. Siddiqi, Government Advocate.

I have heard the learned counsel for the parties Mr. Gupta, appearing for the petitioner has, while reinforcing the contentions projected in the

petition, advanced his arguments on the following analogy :

(i) That the petitioner has been working as a daily wager for four years. In this context some orders were passed by the respondents whereby he

was appointed for different spans. In this behalf he has referred to the last order passed by District Rural Development Agency Doda vide his No.

120809 dated 31.7.1998. The text of this order reads as under :

Sh. Pishori Lal s/o Sh. Jodh Ram R/o Amora is hereby engaged as casual labour for a period of 30 days @ Rs. 25/ per day w.e.f. 3.8.93 in this

agency.

Mr. Gupta has produced before me a judgment passed by a Single Bench of this Court whereby state of J&K was called upon to evolve a policy

with regard to absorption of daily rested labourers;

(ii) That the petitioner comes within the definition of ""a work charge employee"" and, therefore, must be given a treatment as envisaged under rule

14 of J&K Work Charge Employees Rules, 1972, (hereafter to be referred as the Rules);

(iii) That the judgment of Hon'ble Supreme Court in Piara Singh's case, reported in AIR 1992 SC 2130, shall apply to the facts of the case and the

petitioner is entitled to get benefit of the ruling. Mr. Siddiqi, appearing for the respondents, has on the other hand argued that the direction passed

by the Single Bench of this Court was complied with in toto and it was in this connection that the Government formulated a policy whereby 25000

daily wagers are ordered to be regularised. The direction of absorbing the daily wagers who had put in three years service was contingent upon the

omission of the State to formulate any policy has under Court direction, now that the policy has been formulated by the Government, the plea of

the petitioner cannot hold good. He has also refuted the claim of the petitioner falling within the definition of a work charge employee.

The finding of the apex court in Piara Singh's case relates to work charge employees, therefore, this limb of the argument will depend upon

answer to point No. (ii) supra.

I have considered the case. For me only two questions arise in the case :

(i) Whether the finding of a Single Bench in Raj Nath's case can have any effect on the facts of this case and whether the Court direction in that

judgment for regularising a daily wager who has put in three years service shall be binding for this Court;

(ii) Whether the petitioner is a work charge employee and entitled to the benefit under the rules.

I have gone through the judgment delivered by Hon'ble Justice R.P. Sethi in Raj Nath and others v. State and others. Direction No. 2, while

concluding the text of the judgment reads as under :

In case no policy or guidelines are framed or issued within the specified time, all the petitioners who are presently in service and have completed

three years of service as daily wagers, shall be regularised on the minimum payable wages of the posts presently held by them.

It will be pertinent to mention here that under direction No. 1 Hon'ble Judge has called upon the Government to formulate a policy, as observed

above. Taking both the directions cumulatively it is manifest that direction No. 2 would have a binding force only in case no policy would have

been formulated. Once a policy has been formulated and necessary government orders issued in that behalf, direction No. 2 cannot be said to have

survived. It is not a case of a single individual. Once the Government has formulated certain policy it must have taken care of all the persons who

are engaged subsequently and who have not worked in the given span of seven years. According to me Mr. Siddiqi is right when he says that this

direction, after formulation of a policy by the Government, cannot hold the field. Therefore, this argument fails.

The words ""work charge establishment and employee"" have been defined under the rules. ""Employee"" is defined as a person employed in a

work charged establishment to do any skilled, unskilled, manual, supervisory or technical work. ""Work charge establishment"" is in an establishment

as is employed upon the actual execution, as distinct from the general supervision, of a specific work or of subworks of a specific project or upon

the subordinate supervision of departmental labour, stores and machinery in connection with such work or subworks. A person while making a

claim of being an employee of a work charge establishment has to prove that his engagement was made upon an actual execution of a specific

work or a subwork of a specific project as distinct from the general supervision of a specific work. I have gone through the orders of engagement

placed on record by the petitioner alongwith his petition. I do not find anything in them to suggest that he was engaged for the actual execution of a

specific work or a subwork of a specific project. In absence of that being so the Court will not be in a position to accommodate the view point of

the petitioner in so far as it relates to his being a work charge employee. Therefore, the protection provided under the rules is not available to him.

The finding returned by the Hon'ble Supreme Court in AIR 1992 SC 2130 also lays down similar principles as was laid down by the Single Bench

of this Court in Raj Nath's case. The ratio laid down by the apex Court also was that the State should formulate a policy and while that is not done

a presumption of the requirement of the petitioner could be drawn. I think after formulation of the policy in our State whole complexion of the case

has changed and the daily wagers engaged by different departments will have to be governed by that policy.

That being so I do not find any merit in this petition and the same is dismissed. However, admittedly the petitioner has been working for some

time as a daily wager, his coming to the Court and seeking relief should not prejudice the respondents and he should not be victimised on that

account. Interim direction issued earlier shall stand vacated.

Petition dismissed.