Srinagar, July, 07: The High Court of Jammu & Kashmir and Ladakh Thursday ruled that the employer cannot impose conditions of employment which have the effect of taking away the right of its employees to seek judicial review of the actions of the employer.
The court held that the right to seek judicial review is a vital right conferred by the Constitution and any terms and conditions of employment taking away this right, which restrain a person to seek legal remedies for enforcement of his rights, are null and void.
Dismissing the pleas of casual labourers seeking regularisation and permanent establishment under Food Corporation of India, the court observed that it "hopes and trusts" that the Public Sector Undertakings (PSU) will, sooner than later, come up with appropriate policy of regularization "to erase the scars that are left after healing of wounds (grant of temporary status) of the petitioners”.
Justice Sanjeev Kumar further observed that this court is sure that the respondent- Corporation (PSU), being a model employer, is alive to its duty towards its employees particularly those working at the lowest rung and "would not indulge in any labour practice which is unfair and is tantamount to exploitation."
The bench said that the nature of appointment (temporary status with several service benefits) offered to the petitioners has all the trappings of permanent or regular appointment.
It observed that the petitioners may have lost the battle for the present, but nothing stops them to come to this court seeking regularization of their services on the ground of long officiation independently of the judgments earned by them in the past.
The court passed the observations in two petitions filed by the casual labourers challenging the order of Area Manager, Food Corporation of India (FCI) issued in November, 24, 2016 wherein the petitioners along with proforma respondents have been accorded temporary status, subject to certain terms and conditions laid down in the order.
The petitioners were given the temporary status which entitled them to have the minimum pay scale of regular class IV employees working in FCI including DA, HRA, Lunch, subsidy and conveyance allowance on par with regular class-IV employees of FCI.
The petitioners claim that they are entitled to be brought on permanent establishment in the same manner in which the petitioners of SWP Nos. 1549/1998 have been regularized and brought on the permanent establishment of Food Corporation of India.
The order provided that the casual workers including the petitioners, who were conferred temporary status shall not be brought on permanent payroll and shall not become employees of the FCI unless policy of regularization or permanent absorption is issued by the FCI in future.
However, the order also laid down some conditions on which the court said it cannot be said to be in consequence with Article 14 of the Constitution of India.
Perusing the material on record, Justice Kumar noted that the condition No.(iii), debarring the petitioners and other beneficiaries of order from taking recourse to litigation for seeking their regularization and arrears etc., is not sustainable in law.
The bench recorded that one of the conditions i.e condition No. (iii) of the order, is bad in the eyes of law and the same shall be deemed to have been deleted from the said order.
"Otherwise also, the aforesaid condition has outlived its utility and has not been pressed into service by the respondent-FCI to deny the petitioners any right, nor shall the petitioners be liable for any action for filing the instant petitions or in future to enforce their rights in breach of offending clause i.e condition No.(iii) of the impugned order," the court said.
It recorded that rest of the conditions do not offend Article 14 of the Constitution in any manner and, therefore, cannot be termed as irrational or arbitrary.
Dismissing the pleas, the court noted that the petitioners approached the court after the gap of five years.
The bench pointed out that the petitioners along with proforma respondents got the benefits envisaged under the impugned order and worked in that capacity for almost five years without any objection or demur.
"The petitioners have not been able to bring to my notice any representation or protest petition filed by them against the impugned order," the court said.
It was only in the year 2021, it underscored, the petitioners and proforma respondents woke up from the slumber and issued a legal notice through their counsel to the FCI on July 26, 2021.
"This notice was obviously issued as a run up to the filing of instant petition and to come out of the delay and laches," the bench recorded.