Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh on Thursday ruled that an employer cannot impose such 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, which restrain a person to seek legal remedies for enforcement of his rights, are null and void. 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 had 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 had challenged the said order of FCI whereby 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 on the ground that it took away their right of seeking a judicial review. In their plea before the court, the petitioners also claimed that they were entitled to be brought on permanent establishment in the same manner in which similarly situated petitioners in another petition had been regularized and brought on the permanent establishment of Food Corporation of India. Perusing the material on record the bench noted that the condition No.(iii) in the impugned order, 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, the bench underscored. "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. While declining any intervention, the court noted that the petitioners approached the court after the gap of five years and 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, 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. However court in its judgement also 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". Parting ways 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." Case Title: Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors.Citation: 2022 LiveLaw (JKL) 64 Click Here To Read/Download Judgment

Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court

Basit Amin Makhdoomi

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