Terms of employment cannot remove employees’ right to seek judicial review of employer’s actions: J&K&L High Court

The High Court of Jammu and Kashmir and Ladakh ruled on Thursday that an employer cannot impose such conditions of employment which have the effect of stripping its employees of the right 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 that all conditions of employment that prevent a person from seeking legal remedies to enforce their rights are null and void.

The court adopted submissions in two petitions filed by the casual workers challenging the order of the Regional Director of Food Corporation of India (FCI) issued on November 24, 2016, in which the petitioners along with the pro forma respondents were granted temporary status , subject to certain conditions. conditions set out in the order. The applicants were granted temporary status which allowed them to have the minimum pay scale for regular Class IV employees working at FCI, including DA, HRA, lunch, subsidy and transportation allowance, on par with regular Class IV employees. FCI IV.

The petitioners had challenged the said FCI order that casual workers, including the petitioners, who had been granted temporary status would not be placed on the permanent payroll and would not become FCI employees unless a policy of regularization or permanent absorption be issued by the FCI in the future on the grounds that it takes away their right to seek judicial review.

In their plea before the court, the petitioners also asserted that they had the right to be placed in a permanent establishment in the same way as petitioners in a similar situation in another petition had been regularized and brought to the establishment. staff of Food Corporation of India.

In reviewing the documents on file, the bench noted that Condition No. (iii) of the impugned order, prohibiting petitioners and other beneficiaries of the order from resorting to litigation to seek their regularization and arrears, etc. , is not durable in law. The bench noted that one of the conditions, namely condition No. (iii) of the order, is wrong in the eyes of the law and it will be deemed to have been deleted from the said order, the bench pointed out.

Otherwise also, the above-mentioned condition has lost its usefulness and has not been put into operation by the Respondent-FCI to deny the Petitioners any rights, and the Petitioners shall not be responsible for any action for the filing of the Instant Petitions or to the future to assert their rights. in violation of the offending clause, i.e. condition No. (iii) of the contested order,“said the court.

While refusing to intervene, the court noted that the petitioners applied to the court after the five-year interval and that the petitioners as well as the proforma respondents obtained the benefits provided by the contested order and worked in this capacity. for almost five years without any objections or objections. .

The applicants have not been able to bring to my attention any representation or protest motion filed by them against the contested order,“said the court.

It was not until 2021 that the Petitioners and Proforma Respondents awoke from their slumber and issued a legal opinion through their attorney at the FCI on July 26, 2021.”This notice was obviously issued as a preamble to the filing of the instant request and to get out of the delay and the cowards,” recorded the bench.

However, the court, in its judgment, also observed that it “hopes and counts” on the fact that the public sector undertakings (PSUs) will, as soon as possible, come up with an appropriate regularization policy”erase the scars left after the healing of the wounds (granting of temporary status) of the applicants“.

Judge Sanjeev Kumar further observed that this court is confident that the Respondent – Corporation (PSU), being a model employer, is aware of its duty to its employees, especially those who work at the lowest level and “do not engage in any labor practice”. which is unfair and amounts to exploitation.”

Case title: Jaffar Hajam Mohd Abbas and others. V/s Chairman and Chief Executive Officer, FCI & ors.

Click here to read/download the judgment