HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CMP no. 4/2010 Date of order: 09.02.2010 In LPASW no. 182/2009, CMP no. 237/2009 Jammu and Kashmir Project Construction Corporation. v. Hans Raj and ors Coram: Hon’ble Mr. Justice Barin Ghosh, Chief Justice Hon’ble Mr. Justice Gh. Hasnain Massodi, Judge Appearing counsel: For appellants) : Mr. D. C. Raina, Sr. Advocate with Vikas Mangotra, Advocate. For respondent(s) : Mr. S. K. Puri, Advocate for R-1. Mrs. Neeru Goswami, Dy. A. G. for R-2. i) Whether approved for reporting in Yes. Law journals etc.: ii) Whether approved for publication in press: Optional In a writ petition registered as SWP no. 1315/1998, the writ petitioner contended that he is a daily rated employee engaged by the appellant, whose engagement has been unjustly terminated. This writ petition was contested and the appellant sought to justify the order of termination. The writ petition was finally disposed of on July 6, 2001, when the learned Judge directed reinstatement of the petitioner. Learned Judge directed that petitioner would be paid his wages prospectively and that he would be entitled to any back wages at that stage. The Court gave liberty to appellant to pass fresh order after affording an opportunity of hearing to the writ petitioner. The Court made it clear as to how the intervening period is to be treated would depend upon the decision which the appellant would take in that regard. Petitioner was, accordingly, reinstated. Subsequent thereto, on April 9, 2002, the petitioner was called upon by the appellant to show cause as to why his services be not put to an end in view of his absence from duty with effect from December 2, 1994 and also in view of the completion of the work for which the petitioner was allegedly engaged. No further action was taken by the appellant after issuance of the said show cause notice. The matter remained as such and the petitioner was permitted to work as a daily rated worker. Subsequently, petitioner filed the second writ petition registered as SWP no. 992/2003, in that, he asked for consideration of his regularization with effect from January 1999, treating the intervening period to be on duty during which he remained out of work. Despite 2 several opportunities given by the Court, the appellant did not file any objection to the writ petition. The writ petition ultimately came up for final consideration before the Court on July 28, 2009, when having taken into account the fact that the junior to the petitioner have been regularised, the Court directed regularisation of the services of the petitioner along with consequential benefits to which he would be entitled to. Court, however, did not direct regularization of the petitioner with effect from January 1999 nor the Court directed payment of back wages to the petitioner by its order dated July 28, 2009. In the present appeal, the appellant is contending that the rights inter se the parties in the first petition stood crystallised by reason of the order of the Court dated July 6, 2001 and the same could not be opened or altered by a co-ordinate Bench in a second writ petition. In addition to that, it was contended that, on the one hand, there is a direction to accord consequential benefits and, on the other hand, there is no pronouncement as regards conclusion of the proceedings initiated upon issuance of show cause 3 notice dated April 29, 2002 and, as such, the order is not clear, the same requires to be clarified. In preferring the appeal, there is eight days delay. Accordingly, when the appeal was preferred, an application for condonation of delay was also filed. Therewith, an application for stay of the order appealed against was also filed. The Appellate Court did not issue any notice on the application for condonation of delay but, at the same time, allowed the condonation application. The Appellate Court, thereupon, considered the application for stay of the order appealed against and stayed the same. By the application, CMP no. 4/2010, the writ petitioner-respondent is seeking vacation of the stay of the order appealed against. Order dated October 27, 2009, having been passed without notice and that being contrary to the specified provisions of law, is per curiam. However, learned counsel appearing on behalf of the respondent submitted that he has no objection in the event the 4 application for condonation of delay in preferring the appeal is allowed, taking note of such submissions made on behalf of learned counsel writ petitioner- respondent, we allow the application for condonation of delay. LPASW no. 182/2009 Admit. Notice of appeal is waived by learned counsel for the respondent. We have heard learned counsel for the parties on merits of the appeal and have perused the records. The fact remains that the order of this Court dated July 6, 2001, passed on SWP no. 1315/1998, has reached finality. Court did not devise what will happen to the claim for back wages in the event, the appellant, in exercise of the liberty granted by the Court, refuses to pass fresh order. Be that as it may, in the subsequent writ petition, registered as SWP no. 992/2003, it was not contended that because the appellant has failed to exercise the liberty granted to 5 it pertaining to the back wages and, as regards, the intervening period, the Court should decide the same. While SWP no. 992/2003 was dealt with and disposed of by the judgment and order dated July 28, 2009, the Court also, as it appears from the face of the order, did not go into the said question. The logical conclusion would be that by the judgment and order dated July 28, 2009, the Court directed regularization of the services of the petitioner from the date of the said order dated July 28, 2009 with further direction upon the appellant to complete the formalities thereof, within a period of three months the date thereof. In that background, the consequential benefits would mean the benefit of regularization effected from July 28, 2009. That being the situation and there being no dispute that juniors to the petitioner were regularized with effect from July 6, 2002, regularization of the petitioner with effect from July 28, 2009 in the backdrop of what has been above, we feel, is not interferable. 6 We, accordingly, dispose of the appeal, inasmuch as, the appeal stands disposed of. It is hoped and expected that appellant would implement the order as above at an early date and the writ petitioner- respondent will not press the contempt application for a period of six months from today. (Gh. Hasnain Massodi) (Barin Ghosh) Judge Chief Justice Jammu, 09.02.2010 Tilak, Secy. 7