Uttarakhand High Court
State Of Uttarakhand And Others vs Dinesh Chandra Joshi And Others on 8 September, 2017
Author: K.M. Joseph
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 371 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Dinesh Chandra Joshi
and others. ...... Respondents.
With
Special Appeal No. 372 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Anil Kumar Negi. ...... Respondent.
Present:
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / appellants.
Mr. M.C. Pant, Advocate for respondents.
Dated: September 08, 2017
Coram:
Hon'ble K.M. Joseph, CJ.
Hon'ble Alok Singh, J.
Hon. K. M. Joseph, C.J. (Oral)
1. Heard learned counsel for the parties on the delay condonation applications. In the circumstances of the case, delay in filing the appeals will stand condoned. Both the delay condonation applications will stand disposed of.
2. Appellants are the respondents in the writ petitions. Petitioners approached this Court seeking following relief:
i. To issue, writ, rule or direction in the nature of Mandamus directing the respondents to consider the case of the petitioner for regularization along with all consequential in view of the regularization Rules, 2013 2 w.e.f. the date when the same has been given to other similar situated persons along with all consequential benefits and further to treat their classification as permanent in terms of the legal position highlighted in the writ petition ii. Issue a writ, rule or direction in the nature of declaration or Mandamus to declare that the employees working with the department either on daily wager / work charge are in the same homogeneous category and the mode of payment through HR through hand receipt or through must role is only a sham arrangement to deprive the employees from their legal rights under the beneficial statue like ID Act, payment of wages act and Industrial Employment Standing orders Act and Gratuity and EPF Act."
3. Learned Single Judge allowed the writ petition. The order impugned in the writ petition, was the order passed in the representation, which came to be quashed and matter was referred to the Secretary for consideration of petitioners' regularization. It is this order which is challenged here. We extract paragraphs 7, 8, 9, 10 and 11 of the judgment:
"7. Taking this argument further the learned counsel for the petitioners would also argue that Section 6 of the Payment of Wages Act (from hereinafter referred to as the "Act"), has been amended in Uttarakhand in the year 2014 by the Uttarakhand Act No. 17 of 2014. The amended Section 6 of the Act reads as under:-
"All wages shall be paid by Banks Cheques or Real Time Gross Settlement or National Electronic Fund Transfer or Electronic Clearing Service System or Postal Cheque.3
Provided that if the work of the employed person is of temporary nature or employed person is migrant and he wants to receive cash payment of his earned wages, after the written permission of the officer not below the rank of Assistant Labour Commissioner posted in the work area of employment, cash payment of wages of the concerning employed person may be paid."
8. With the enforcement of the above proviso, the learned counsel for the petitioners would argue that payment by cash to the present petitioners is not even permissible, and in exceptional circumstances, it is permissible only in case of migrant labourers but with prior permission of the Assistant Labour Commissioner. The cash payment may be given to a person, whose work is only of a temporary nature.
9. All the same, this is not the factual situation in the Public Works Department, inasmuch as, it cannot be said that their work is of temporary nature, for the simple reason that they have been continuing in some cases for the last more than ten years. In other words, an employee even though working on a daily rated basis cannot be paid his wages/salary in cash. The petitioners challenge the exception carved out under the proviso and states that it is not applicable in their case as their work is not of temporary nature.
10. After hearing the learned counsel for the parties, this Court is of the opinion that ultimately, it is not the mode of payment but the nature of work, which would determine whether the petitioners have been continuing in services and are daily rated employees liable to be 4 regularized, like any other employees and the mere fact that they have been given money by cash would not distinguish their case from other employees seeking regularization.
11. The matter is, therefore, referred to the Secretary, Public Works Department as well as to the Chief Engineer Level -1 who shall both take a decision in this matter, considering the nature of the employment of the petitioners. If the only distinguishing factor between the petitioners and other daily rated employees who are eligible for regularization is that the petitioners have been given their salary/wages through cash then that in itself will not stand in their way for their regularization. What has to be considered by the Secretary, Public Works Department and Chief Engineer Level - 1 is the actual nature of work being performed by the petitioners. In case they are satisfied as to their nature of work, they shall take a decision for regularizing the services of the petitioners within a period of six weeks from the date of production of a certified copy of this order."
4. We heard Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / appellants and Mr. M. C. Pant, Advocate for the respondents.
5. Claim of the petitioners appears to be based on the provisions of Regularization Rules, 2013. Learned Standing Counsel would submit that one of the conditions in Regularization Rules, 2013 for regularization is that person should have worked for a continuous period of five years against sanctioned vacant post.
6. According to Mr. M. C. Pant, Advocate for the writ petitioners/ respondents, there were sanctioned and vacant posts against which writ petitioners were working. The issue which has been seen considered in the judgment by the learned Single Judge 5 is that according to the appellants, writ petitioners were working as daily wagers and they were paid only in cash and this would stand in the way of regularization. Learned Single Judge, as we have noticed from the paragraphs we have extracted, made reference to the amended provision of Section 6 of the Payment of Wages Act, amended in the Uttarakhand in the year 2014. Apparently, attempt of the learned Standing Counsel to rely upon fact of method of payment is to bring into focus that they were not working against sanctioned post, as required.
7. Mr. Pradeep Joshi, Standing Counsel submits that all the daily wagers and the work charge employees have been paid through cheque or by electronic mode and only casual labourers, as per the Financial Hand Book, have been paid in cash or on hand receipt - Form 28. He further submits that as far as daily wagers are concerned, they are actually being paid at the end of month by calculating the number days they have worked whereas in the case of the writ petitioners, they have been paid on daily basis for the number of days they had worked by way of cash.
8. This, in fact, is refuted by Mr. M.C. Pant, Advocate for the respondents. He submits that they were being paid on monthly basis.
9. We may no doubt notice that learned Single Judge has sought to draw support from amended Section 6 of the Payment of Wages Act, which we have already referred to. Be it noticed that the requirement for regularization under the Regularization Rules, 2013 is that a person should have completed 5 years of continuous employment on daily wage basis inter alia against such post or equivalent post, on the date of commencement of these Rules. The service must be of continuous nature. Therefore, requirement is that the person, who has completed 5 years of continuous employment, as on the date of commencement of these Rules would be entitled. The Rules commenced on 6 31.12.2013, therefore, reference to the amended Section 6 of the Payment of Wages Act, which came into force after relevant date may not be relevant.
10. Coming to the finding in paragraph 11 of the judgment namely that if the only distinguishing factor between the petitioners and daily rated employees, who are eligible for regularization is that petitioners have been given salary in cash that by itself would not stand in the way of their regularization, we would again scan the provisions of the Rules. Rule 4 reads as follows:
"4. Conditions for regularizations of persons on daily wages or on work charge or on contract or on fixed charge or on part time or on ad hoc:
Any such person eligible for regularization under these Rules, who i. completed 5 years of continuous employment on daily wages or on work charge or on contract or on fixed charge or on part time or on ad hoc against such post or equivalent post on the date of commencement of these Rules;
ii. possessed requisite educational and other qualifications and fulfilling age limit conditions in accordance with the prevailing relevant service rules at the time of such employment against vacant / sanctioned post as mentioned in sub-rule (1); & iii. shall be considered for regular appointment against the sanctioned and vacant post in the cadre, as may be available on the date of commencement of these Rules.
iv. all persons inscribed in the eligibility list till the date prescribed in sub-rule (i) shall be regularized till the availability of vacant post."7
11. The rule can be broken down as follows: since we are dealing in this case only with case of daily wagers, so the requirement is that a person must have completed 5 years of continuous employment. Such employment must be on daily wages basis. He must have been employed against such post or equivalent post. The period of five years continuous service must be on the date of commencement of the Rules. Further, he must be possessed of the requisite educational and other qualification. He must fulfil the age limit condition, as per relevant Rules, at the time of such employment. Employment must be against vacant sanctioned post, as mentioned in sub-Rule 1. Such person would be entitled to be considered for regularization against sanctioned and vacant post in the cadre. Vacant and sanctioned posts are to be determined with reference to their availability as on the date of commencement of the Rules. Persons, in the eligibility list till the date prescribed in sub Rule 1, namely those who are eligible with reference to the date of commencement of the Rule, are to be regularized till availability of vacant post. In the Rules, there is no mention about mode of payment in regard to daily wagers. Therefore, we would think that Authority which is bound by the Rules will necessarily have to look into elements present in the statutory Rules to decide the question - whether petitioners are entitled for regularization. This would necessarily include question - whether the petitioners have worked on daily wage basis for continuous period of 5 years against sanctioned and vacant post. Subject to these observations appeals are disposed of. A decision must be taken, as directed by learned Single, within a period of two months from the date of production of certified copy of this judgment.
(Alok Singh, J.) (K.M. Joseph, C.J.)
08.09.2017 08.09.2017
SKS