- (1.) THIS Letters Patent Appeal has been preferred by the original petitioners who had instituted W.P. (S) No. 1951 of 2006 which was dismissed by the learned Single Judge vide judgment and order dated 31st October, 2012, whereby the prayer of these appellants (original petitioners) for making payment of arrears of salary after 2002 till date for working on the post of Road Roller Drivers in Public Works Department, Road Construction Division, Dhanbad, has been dismissed.
(2.) COUNSEL for the appellants submitted that these appellants were appointed as a Road Roller Drivers in the year 1988 as a daily workers. They have worked for the period in which the salary is mentioned in the memo of petition i.e. after 2002 they have worked as a Road Roller Drivers and as the salary has not been paid, the writ petition being W.P. (S) No. No. 1951 of 2006 was instituted by these appellants. As a proof of their working, these appellants are relying upon annexures annexed with the Memo of Appeal and the recommendation, etc made by the Executive Engineer which are annexed as Annexures 5, 6 7, 8 and 9. It is submitted by the counsel for the appellants that Annexures 5, 6, 7, 8 and 9 are the evidences of the work done by these appellants and, hence, the salary ought to have been made by the learned Single Judge. Hence, the judgment and order passed by the learned Single Judge in W.P. (S) No. 1951 of 2006 dated 31st October, 2012 deserves to be quashed and set aside.
(3.) WE have heard the learned counsel for the State also who has submitted that on more than one occasions in the writ petition, the counter affidavits have been filed by the respondents and categorically it has been stated that they were not given any work, hence, they are not entitled for any salary because they have not worked at all as a daily wagers as Road Roller Drivers. This decision was taken in pursuance of several circulars issued by the Government which are also annexed in the writ petition that daily wagers shall not be appointed by the Government officers. It is also submitted by the counsel for the State that previously also these very appellants had preferred writ petition being W.P. (S) No. 5933 of 2002 which was dismissed vide order dated 31st July, 2003. Thereafter, Letters Patent Appeal was preferred by these appellants being L.P.A. No.569 of 2003 which was also dismissed vide order dated 11th December, 2003. Thereafter, the original petitioner No.1 had preferred a writ petition being W.P. (S) No. 6843 of 2005. That was also dismissed vide order dated 05.04.2006. and, thereafter, Letters Patent Appeal has been preferred by the present appellant No.1 being L.P.A. No.302 of 2006 which was also dismissed by the Division Bench of this Court vide order dated 24th October, 2007. These aspects of the matter have been properly appreciated by the learned Single Judge and rightly, therefore, the claim of these appellants (original petitioners) were rejected by the learned Single Judge and, therefore, this Letters Patent Appeal may not been entertained by this Court. Having heard both sides and looking to the facts and circumstances of the case and the judgment and order delivered by the learned Single Judge in W.P. (S) No. 1951 of 2006 dated 31st October, 2012, we see no reason to entertain this Letters Patent Appeal mainly for the following reasons: - (i) It is alleged by these appellants that they are original writ petitioners who had instituted W.P. (S) No. 1951 of 2006 for getting arrears of salary for the period after 2002 till date for working on the post of Road Roller Drivers in Public Works Division, Road Construction Division, Dhanbad. It appears that they were engaged as a daily wagers in the year 1988 as submitted by the counsel for the appellants. (ii) There are Government circulars issued which are on record not to engage daily workers. Various annexures in the writ petition and counter affidavits as well as in the Letters Patent Appeal were filed. One of such circulars is dated 04.06.2002. In pursuance of this type of circulars and in due compliance thereof, the high ranking offers of the State had stopped taking work from these appellants (original petitioners). Counsel for the appellants submitted that despite the circulars, the Government high ranking officers continued taking work from these appellants. Thus, this is a bottom line in the whole matter. (iii) If we look at this dispute very closely, it appears that against the allegation levelled in the memo of petition, there are more than one counter affidavits filed by the respondents. One is filed by respondent No.6.This counter affidavit by the respondent No.6 is dated 24th August, 2006 preferred in the writ petition being W.P. (S) No. 1951 of 2006. Paragraph 11 thereof reads as under: - "11. That in pursuance to the direction issued by the Department, Executive Engineer, Road Division, Dhanbad forwarded the direction to follow the same strictly. In accordance with the aforesaid directions no work was taken at all from daily wages muster Roll laborers. Hence the question of payment of salary / wages from the year 2002 till date does not arise." (iv) Similarly, one more counter affidavit has been filed by respondent Nos.2 to 5. The said affidavit is dated 22nd November, 2006. Paragraph 11 thereof reads as under: - "11. That in pursuance of the direction issued by the Department, the Executive Engineer,Road Division Dhanbad forwarded the direction to follow the same strictly. In accordance with the aforesaid directions no work was taken at all from daily wages Muster Roll laborers. Hence the question of payment of salary wages from the year 2002 till dated does not and cannot arise." (v) In view of the aforesaid counter affidavits filed by the respondent No.6 as well as by respondent Nos.2 to 5, they have categorically stated on oath that no work was taken from al the daily wagers. Thus, there are words against words and allegation against allegation. This makes the fact highly disputed. To establish the fact stated by these appellants (original petitioners), cogent and convincing evidences are required to be led and normally in the writ petitions under Article 226 of the Constitution of India, we will be very slow in exercising our writ jurisdiction, whenever there is a highly disputed question involved. More than one affidavits have been field; Government circulars are also annexed in support of their contention that the State Government has directed the high ranking officers of the State not to take work from the daily wagers. In pursuance of this mandate in more than one circulars, no work was taken from these appellants (original petitioners). Both the circulars as well as the facts as stated in paragraph 11 of both the affidavits, make it clear that on the basis of no work no salary was paid. These aspects of the matter have been properly appreciated by the learned Single Judge and no error has been committed in dismissing the writ petition preferred by these appellants. (vi) Moreover, it is also stated in paragraph 12 of the counter affidavit filed by the respondent nos.2 to 5 which reads as under: - "12. That in reply to the points of law formulated in paragraph 2 of the said writ application it is stated that the same is not tenable. It is stated that for payment of wages to daily wages Muster Roll workers it is compulsory that daily report in respect of daily work done by daily Laborer must be submitted by the concerned Junior Engineer to the Assistant Engineer in the prescribed form -2 (TC form no. 49) laid down in Bihar Public Work Account Code Rules 266 and 277. On the basis of submission of the said report the concerned Assistant Engineer has to make payment. In the case of the petitioners, no Muster Roll form -21 (TC form -49) has been sent by the Junior Engineer. Hence the petitioners are not entitled for any salary/wages as claimed. A Xerox copy of document showing rules 226 and 227 of Bihar P.W. Account Code has already been annexed as Annexure -F to the counter affidavit filed by the respondent No.6 in the present case." (vii) The aforesaid procedural aspect has also been laid down by the Government in the supplementary counter affidavit also. Thus, the documents upon which these appellants are relying upon i.e. Annexures 5, 6, 7, 8 and 9 are also highly disputed because form form -21 (TC form No.49) . However, in paragraph 12 it has wrongly been mentioned as form -2, in place of form - 21 (TC form no.49) as laid down in Bihar Public Work Account Code Rules 226 and 277. This form was not sent by the Junior Engineer. Meaning thereby it is highly doubted by the respondents in the original writ petition that these appellants (original petitioners) have ever worked after 2002 as a daily wagers. Had the respondents taken any work from these appellants, as per procedures laid down in Bihar Public Work Account Code Rules 226 and 227 in a prescribed form -21 which is also known as TC form -49, the details would have been sent to the high ranking officers in the same department. There is no such evidence on record at all. These aspects make Annexures 5, 6, 7, 8 and 9 highly disputed. Thus, the documents are also doubtful, upon which the appellants are relying upon and the facts that the work was taken by the Government after 2002, is also doubtful looking to the paragraphs of the counter affidavits as stated herein above. In this set of circumstances, rightly the learned Single Judge has dismissed the writ petition. (viii) Moreover, these appellants had also previously instituted a writ petition being W.P. (S) No. 5933 of 2002 which was dismissed vide order dated 31st July, 2003. These appellants were party in that writ petition. Thereafter the Letters Patent Appeal being L.P.A. No.569 of 2003 was preferred which was also dismissed by the Division Bench of this Court vide order dated 11th December, 2003. Initially, the counsel for the appellants argued that one of these appellants had preferred writ petition being W.P. (S) No. 5933 of 2002, but, the counsel for the State has stated that in L.P.A. No.569 of 2003, thee were 13 appellants which included these 07 appellants who are the original petitioners. Thus, both the writ petition as well as the Letters Patent Appeal, have been dismissed by this Court. Moreover, the original petitioners had also preferred writ petition being W.P. (S) No. 6843 of 2005. That was also dismissed by the learned Single Judge vide order dated 5th April, 2006, against which the original petitioner no.1, who is also appellant in this Letters Patent Appeal, had preferred L.P.A. No.302 of 2006 which was also dismissed by the Division Bench of this Court vide order dated 24th October, 2007. All these orders are at Annexure -2, Annexure -A to the counter affidavit filed by the State in the Letters Patent Appeal as well as at Annexures 10 and 11 of the Memo of Appeal.;