Bilal Ahmed Mir vs State of J&K

Mr. Ramalingam Sudhakar, J. - The writ petition is of the year 2003.

The petitioner was appointed on daily wage basis for watch and ward of PWD government Building at Banihal on 04.02.2001.

The petitioner was arrested by Local Police on July 1992 on the ground that he was involved in militancy relating activities. An FIR was lodged

on 06.07,1992. The formal charge sheet was laid and the trial was conducted before the Presiding Officer Designated Court as TADA (P) Act,

Jammu in File No. 8/Ch. The trial concluded in the petitioner's favour and the Criminal Court came to hold that charge against the petitioner that he

is involved in militant activities was not proved beyond doubt and he was acquitted. According to the learned counsel for he petitioner, Criminal

Court has observed that the complainant in this case was the person who was involved in militant activities.

Be that as it may, he made a request to the Department after his being acquitted by the Criminal Court, he could not continue his employment

due to his arrest and the criminal proceedings. It appears that petitioner also have made request for reemployment while he was on bail. The

request was finally considered and rejected by a communication dated 12.04.2002 by Under Secretary to Government Public Works Department

addressed to The Chief Engineer PW(R&B) Department Jammu. Challenging this, the writ petition has been filed.

Learned counsel for the petitioner states that since he was wrongly incarcerated in criminal case and having the hon'ble acquittal, the authorities-

respondents should have accorded consideration to his request for reemployment. He places reliance on a decision reported in 1999 KLJ 390 in

case titled Sheer Ahmad Khan v. State & ors. where a similarly placed daily rated worker was picked up by security forces and later on

released on the ground that he was not involved in militant activities and he sought certain benefits and the department acceded to the request and

his claim for reemployment and regularization was ordered by this Court. Relying on a decision of Punjab and Haryana High Court in a case titled

Talwinder Singh v. State of Punjab and others where a probationer was dismissed on account of registration of an FIR and when he was

subsequently acquitted, he got the benefit of reemployment; the counsel drawing analogy from these two judgments submits that a daily rated

worker will be entitled to be considered for reemployment on being honorably acquitted by the Criminal Court.

Learned counsel for the respondents pleaded that the first case of Jammu and Kashmir High Court can be distinguished as in that the person

was detained by the security forces and later on released on the ground that he was not involved in militant activities. There is no formal criminal

charge pending against him and there were no criminal proceeding initiated which debarred the person from being reemployed. Whereas in the

present case a regular FIR was lodged and a criminal case was initiated. Consequent to that he could not be reemployed.

The decision not to grant further employment was on the ground that a daily rated worker is temporary in nature and such person has no right to

substantial post and therefore, he cannot, as a matter of right, claim reemployment. Furthermore, there is an observation in the impugned order that

the employment came to an end from the date of arrest.

The petitioner though arrested on registration of an FIR and a criminal case was conducted, he was acquitted. In view of his arrest he could not

continue as daily rated worker. That fact is not in dispute. In view of the findings in the Criminal Court, the petitioner pleads innocence and prays

that he should be allowed to rejoin as daily rated worker.

It is one thing to say that temporary employees working on daily wage basis have no right to claim reemployment as a matter of right. But the

authorities are at liberty to consider the reemployment if he is otherwise found fit.

The issue is that but for the arrest and the criminal case, he would have continued as daily rated worker. That has to be considered by the

authorities in the light of the Criminal Court Judgment. The discretion is that of the authority to decide as to whether they are willing to reemploy the

petitioner on daily wage basis. The discretion has to be exercised considering the nature of employment, the need of the Department concerned

and in a manner which is not arbitrary.

The fact that he was acquitted by the Criminal Court and the observation of the Criminal Court apparently has not been considered by the

authorities. Therefore, in all fairness it would be appropriate to direct the authorities concerned to revisit the claim of the petitioner.

As a result, the impugned proceeding is set aside and the matter is remitted back to the authorities concerned to accord reconsideration to the

petitioner's claim.

The writ petition is disposed of accordingly.