J&K&L High Court Explains The Difference Between 'Casual Labourer' And 'Daily Wager'
The Jammu & Kashmir and Ladakh High Court has explained the difference between a 'Casual Labour' and a ‘Daily Wager’ while ordering regularisation of service from a prior date of a Security Guard under the University of Jammu.
The bench of Justice Sanjeev Kumar held, "'Casual Labour' refers to labour whose employment is intermittent, sporadic or extends over short period or continued from one work to another, whereas a 'daily rated worker' or 'daily wager' is a person, who is engaged for rendering continuous nature of service and is paid wages on daily basis".
The Court rejected the argument of the University that the Petitioner was a Casual Labourer and not entitled to the benefit of regularisation that is only available to daily wagers under a SRO issued by the state.
“Where the employer is in a dominating position and pitted against it is a petty employee like the petitioner, it is very difficult for such employee to muster courage and challenge the terms and conditions of the employment offered to him at the time of appointment”, the Court held.
The Petitioner, initially hired as a Casual Labourer in 1997, later served as a Security Guard without formal regularisation. Despite repeated pleas for regularisation, no action was taken for long and was finally regularised in 2010. However, the petitioner argued for retrospective regularisation under SRO 64 of 1994 after seven years of service i.e. from 2004 when he completed 7 years. In 2016, the petitioner sought retrospective regularisation from 2004, but this request was ignored, leading to the current petition.
As per the respondent-university, the writ petition filed by the petitioner after six years of the cause of action is highly belated and is hit by delay and laches. They further argued that the petitioner was not strictly a daily wager but was engaged on a casual basis, as such, he was not covered by SRO 64 of 1994 and his regularisation was, however, made by the University as per its policy decision taken to regularise the daily wagers/casual labourers, who were working for a long time.
It was further submitted that the petitioner in 2010 accepted the regularisation without any objection and, therefore shall be deemed to have acquiesced to the terms and conditions of the said order.
The Court observed that the petitioner completed 7 years in service. It further stated that the University of Jammu had not framed any policy for regularisation of daily rated workers and rather had adopted the policy of the Government of Jammu & Kashmir promulgated vide SRO 64 of 1994.
The Court noted that in pursuance of the policy of regularisation framed by the Government and adopted by the University of Jammu several daily wagers working in the University were regularised from time to time on completion of seven years of continuous service.
The Court noted that the Petitioner was not regularised after 7 years of service and accepted the regularisation without any objection but could come up with an actual claim only after 6 years from the cause of action and observed, “In a case where a petty daily labourer, who after rendering long services has been regularized as a Security Guard, is pitted against a University, a mighty statutory body, it is the University with all bargaining power that will be in a dominating position.”
The Court stated that ordinarily, a writ petition seeking service benefits after so many years of the accrual of cause of action is not entertained by the Writ Court. However, as per the Court, delay and laches can be ignored in the present case because of its peculiar facts and circumstances.
It further stated that the retrospective regularisation given to the petitioner, at the stage when the petitioner has retired from service, would not adversely affect the service rights of any of the employees of the University.
Accordingly, the Court concluded that a person who is engaged temporarily and is paid wages at the rates sanctioned by the Government from time to time and continues to perform his duties for a continuous period of more than seven years cannot, by any stretch of reasoning, be termed as “casual labour” to deny him the benefit of regularisation under SRO 64 of 1994.
The Court held that the petitioner was entitled to regularisation as a Security Guard w.e.f. 2005 with all consequential benefits. Finally, the Court allowed the Writ Petition.
Cause Title: Ghar Singh v. University of Jammu
Appearance:
Appellant: Adv. Gaurav Goswami
Respondent: Adv. Ajay Abrol