Rajnandgaon, Chhattisgarh v. 1 - State Of Chhattisgarh Through The Secretary, Department Of Forest, Mahanadi Bhawan, New
Case Details
1 2025:CGHC:3154 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4328 of 2020 1 - Lal Chand Sahu S/o Late Shri Preetam Sahu Aged About 43 Years R/o Village And Post Madiyan, Tahsil Dongargarh, District : Rajnandgaon, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Forest, Mahanadi Bhawan, New Mantralaya, Hasaud, Naya Raipur District : Raipur, Chhattisgarh 2 - The Principal Chief Conservator Of Forest Head Quarter, Jail Road, Arenya Bhavan Medical College Road, District : Raipur, Chhattisgarh 3 - The Chief Conservator Of Forest Durg Circle, Durg District : Durg, Chhattisgarh 4 - The Conservator Of Forest Durg Circle, Durg, District : Durg, Chhattisgarh 5 - The Divisional Forest Officer Khairagarh, Forest Division, Khairagarh, District : Rajnandgaon, Chhattisgarh ... Respondent(s) For Petitioner For State : :
Legal Reasoning
Mr. Bharat Rajput, Advocate Ms. Mukta Tripathi, Panel Lawyer (Hon'ble Shri Parth Prateem Sahu, Judge) 17/01/2025 Order on Board 1. Petitioner has filed this writ petition seeking following relief : “10.1 That, this Hon’ble Court may kindly be set-aside/quash the impugned order dated 26.11.2019 and further issue a direction to the respondent authorities for consideration of regularization of the services of petitioner on the basis of order dated 16.05.2017. 10.2 Any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the cost of the petition may be given.” 2. Learned counsel for petitioner submits that petitioner was initially appointed 2 as Watchman / Chowkidar on daily wage basis in the office of Divisional Forest Office, Division - Khairagarh in the year 1994. He was discontinued as daily wage employee in the year 2008 by oral instruction. Discontinuation of engagement of petitioner as daily wage employee was challenged before Labour Court. Case of petitioner was allowed vide award dated 26.07.2012. He was directed to be reinstated in service without back-wages. Petitioner, thereafter, is continuously working with respondents. Earlier, petitioner has
Decision
filed a writ petition bearing W.P.S. No. 1670 of 2019 which was disposed of vide order dated 11.03.2019 directing respondents to consider case of petitioner for regularization in the light of the award of Labour Court dated 26.07.2012 as also the order of Division Bench of this Court in the case of Tukaram vs. State of Chhattisgarh which is an order dated 16.05.2017 passed in W.P.S. No. 1703 of 2015. Initially, when claim of petitioner was considered, he was found eligible for regularization in service upon assessment by Divisional Forest Officer. When even after receipt of report, petitioner was not regularized in service, he filed a contempt petition and only because of filing of contempt petition against higher officials, subsequently, claim of petitioner was rejected by impugned order dated 26.11.2019 (Annexure P/8). It is contention of learned counsel for petitioner that while rejecting claim for regularization of petitioner, respondents have considered that petitioner has not completed ten years of service and he was not engaged against sanctioned and vacant post which is contrary to the facts of the case, order of Labour Court dated 26.07.2012 and further in contravention of Circular dated 05.03.2008 issued by State Government for regularization of daily wage / temporary employee working in the Departments of State Government. Petitioner from the date of reinstatement is continuously working. 3. Learned State counsel opposes the submission made by learned counsel for petitioner and would submit that though petitioner was initially engaged in the 3 year 1994, however, his services were discontinued in the year 2008 and as per order Labour Court dated 26.07.2012, he was reinstated only in the year 2012 and therefore, it cannot be said that on the date of issuance of Circular dated 05.03.2008, petitioner has completed ten years of service. She further contended that benefit of Circular is to be given only to the person who were engaged prior to 1997 and have completed ten years of service. She also contended that specific reason has been assigned by respondent authorities for not adverting to the claim of petitioner for regularization on the ground that he was not engaged against sanctioned and vacant post. 4. I have heard learned counsel for the respective parties and also perused documents annexed along with the record. 5. It is not in dispute that petitioner was initially engaged in the year 1994 as Watchman / Chowkidar with the respondent and posted at Divisional Forest Office, Khairagarh, his services were discontinued in the year 2008 by oral order / instruction. Order of discontinuation of service was put to challenge before Labour Court, Rajnandgaon and application submitted by petitioner was allowed vide order dated 26.07.2012 directing reinstatement of petitioner, he was reinstated and as per submission of learned counsel for petitioner, he is still continuing as daily wage employee and not disputed by learned State counsel. 6. In the aforementioned facts of the case when there is an order of competent Court for reinstating service of petitioner, he was reinstated, it will have its effect that petitioner continued in service since initial date of his engagement i.e. from the year 1994 unless otherwise specified. 7. State Government has issued Circular dated 05.03.2008 for regularization of service of daily wage employee / temporary employee and under Clause B, it is mentioned that regularization of an employee engaged in between 01.01.1989 to 31.12.1997 as daily wage / temporary employee. In the said Circular, under Clause 2 (VII) wherein it is specifically provided that regularization be made against sanctioned and vacant post and it further 4 mentions that wherever in the Department it is required, supernumerary post be created. Clause 2 (VII) is extracted below for ready reference : “(viii) नि(cid:2)यनि(cid:4)ति(cid:6)करण स्वीकृ(cid:6) एवं रिर्ሹ पद पर ही निकया जाएगा। इस हे(cid:6)ु जिज(cid:2) निवभागों (cid:4)ें आवश्यक हो वहां सांख्ये(cid:6)र पद नि(cid:2)ኌ(cid:4)(cid:6) निकये जायें। यनिद पद ही कलेक्टर दर पर स्वीकृ(cid:6) हो (cid:6)ो स्वीकृ(cid:6) पदों (दैनि(cid:2)क वे(cid:6)(cid:2) पर) को नि(cid:2)यनि(cid:4)(cid:6) वे(cid:6)(cid:2)(cid:4)ा(cid:2) (cid:4)ें परिरवቔኌ(cid:6)(cid:6) (सृजिज(cid:6)) कर(cid:2)ा होगा । " 8. While rejecting claim of petitioner, Divisional Forest Officer vide Annexure-P/8 dated 26.11.2019 erred in rejecting claim of petitioner observing that petitioner was discontinued from service in the year 2008 and petitioner has not continuously worked for a period of ten years and further that he has not worked against sanctioned and vacant post. Said observation / reason assigned for rejecting claim for regularization of petitioner is contrary to the order passed by Labour Court wherein petitioner has been reinstated which is having effect of reinstating in service from initially date of his appointment and further is in contravention of specific Clause under Circular dated 05.03.2008 as extracted above. 9. Division Bench of this Court while considering almost identical issue in case of Tukaram Vs. State of Chhattisgarh passed in W.P.S. No. 1703 of 2015 and batch of writ petitions, has observed thus : “21. In the landmark decision in the case of Olga Tellis & Others v. Bombay Municipal Corporation & Others, 1985 (3) SCC 545, the Hon’ble Supreme Court in very categorical terms dealing with Article 21 and comparing it with the right to livelihood held that, “The sweep of the right to life conferred by Article 21 is wide and far reaching. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to live, the easiest way of depriving a person of 5 his right to life would be to deprive him of his means of livelihood. Right to work is the most precious liberty that man possesses. It is most precious liberty because, it sustains and enables a man to live and the right to life thus is a precious freedom. Life means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed”. 22. Now if we look into the facts of the present case, undisputedly, by now it has to be accepted that these workmen were initially appointed on different dates as mentioned in the aforementioned chart. Perusal of the said chart would reveal that all the workmen have put in a considerable period of time from the date of their appointment before they were discontinued in service and after the order of the Labour Court which in due course of time has attained finality they have also been reinstated. From the date of reinstatement also till date all the workmen are still working with the Respondents and from the date of reinstatement also they have put in a considerable period of time. All these workers have been slogging with the Respondents with a hope and legitimate expectation of being regularized one day. Based upon the judgment of Umadevi (supra), the State of Chhattisgarh also has issued a circular on 5.3.2008. The object of the said circular also was for considering the persons who had completed more than 10 years of service they should be regularized. The alleged order of termination of service of the daily wage workers was held to be illegal by the Labour Court. The effect of the termination order being set aside would mean that the workmen remained in continuous employment as if the order of discontinuance never existed. All these workmen as on date are all middle aged persons and would not be now in a position for getting a regular employment elsewhere. 23. Considering the fact that the Industrial Disputes Act is a social welfare legislation and the circular dated 5.3.2008 also being the circular of the State Government issued keeping in mind the welfare of the poor workers and has been issued for the promotion and welfare of the people ensuring 6 equality and equity between the workers appointed on daily wage basis and the post against which these persons are discharging so as to subserve the common good that can occur to the workers for the long service rendered by the respective workmen. 24. Once when we reach to the conclusion that the implication of the order of dismissal, removal or termination being set aside it has to be construed as, the workers would be put in the same position at which they were, but for the illegal dismissal, removal or termination order. If this analogy is applied to the facts of the present cases then all the workmen before this Court would squarely fall within the ambit of the category of workers who would be eligible for regularization in terms of the circular dated 5.3.2008. 25. In view of the legal precedents enumerated in the preceding paragraphs and also considering the facts and circumstances of the present cases, this Court is of the opinion that the claim of these workmen for consideration of regularization in terms of the circular dated 5.3.2008 is just, proper and legal. 26. Accordingly, these Writ Petitions are allowed. The question of law discussed earlier to be decided in these petitions is answered in the affirmative in favour of the petitioners- workers holding that they would not fall in the category of litigious worker and that they would be entitled for continuity of service for the period they were out of employment while they were litigating before the Labour Court.” 10. Order of Division Bench of this Court was put to challenge by State in S.L.P. bearing S.L.P. (Civil) Diary No. 35123 of 2017 which came to be dismissed vide order dated 22.01.2018, which is also not in dispute. 11. Considering aforementioned facts of the case and discussion made above as also decision in case of Tukaram (supra), in the considered opinion of this Court, respondent No. 5 committed error of law in rejecting claim of regularization of petitioner which is not sustainable in the eyes of law. Accordingly, order dated 26.11.2019 (Annexure-P/8) is quashed. 7 12. Undisputedly, petitioner, till date, is continuously working for the work on which he is engaged as daily wage employee and therefore, in the aforementioned facts of the case, respondents are directed to consider case of petitioner for regularization in accordance with Circular dated 05.03.2008 granting him advantage of continuity of service from date of his initial engagement till date, subject to verifying facts. Let exercise of regularization be completed within a period of three months from the date of receipt of this order. 13. The writ petition is accordingly allowed in above terms. Digitally signed by SHAYNA KADRI Shayna Sd/- (Parth Prateem Sahu) JUDGE