Central Administrative Tribunal - Ernakulam
Ambika M C vs Dep Of Culture on 22 January, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00269/2024
Wednesday, this the 22nd day of January, 2025
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
1. Ambika M.С., Aged 50 years, W/o Unnikrishnan,
Kundoor House, Oorakam P.O., Thrissur-680562,
Presently working as daily wager at Peruvanam Mahadeva temple,
Cherpu, Thrissur-680561.
2. Suresh P.R., Aged 57 years, S/o Raman, Palakizhi House
Oorakam P.O., Thrissur-680562, Presently working as daily wager at
Peruvanam Mahadeva temple, Cherpu, Thrissur-680561.
3. Ramadas, Aged 60 years, S/o Raman Menon,
Chettiatil House, Oorakam P.O., Thrissur-680562,
Presently working as daily wager at Peruvanam Mahadeva temple.
Cherpu, Thrissur-680561.
4. Sethumadhavan, Aged 50 years, S/o Krishnankutty
Puthan Valappil House, Ambalapara,Palakkad-679515,
Presently working as daily wager at Vadakkumnathan temple,
Swaraj Round, Thekkinkadu Maidan, Thrissur-680001
-Applicants
[By Advocate : Mr. Arjun S]
Versus
1. Union of India, represented by the Secretary, Ministry of Culture,
Ground Floor, IGNCA, Janpath, New Delhi-110001.
2. The Archaeological Survey of India (ASI) represented by its Director
General, Dharohar Bhavan, 24 Tilak Marg, New Delhi-110001.
2025.01.23
DEEPA S
09:24:53+05'30'
O.A.No.269/2024 2
3. The Director General, Archaeological Survey of India (ASI)
Dharohar Bhavan, 24 Tilak Marg, New Delhi-110001.
4. The Superintending Archaeologist,
Archaeological Survey of India- Thrissur Circle,
Puratattva Bhavan, KSHB Flats, Pullazhi P.O.. Thrissur-680012.
5. Omkar Security Agency, represented by its Managing Director
ESIC building, K.S.Puram, Puthentheruvu, Karunagapally
Kollam-690544.
- Respondents
[By Advocates: Mrs.O.M.Shalina SCGSC for R1 to R4
Mr.Rajesh R. for R5]
The application having been heard on 08.01.2025, the Tribunal on
22.01.2025 delivered the following:
ORDER
Applicants, four in number, have joined together seeking reliefs against the Union of India represented by Secretary, Ministry of Culture and Archaeological Survey of India, ASI for short, and its functionaries. Applicants claim that they were daily wagers working under the 4 th respondent-Superintending Archaeologist, ASI, Thrissur. It is claimed that applicants 1 and 2 were working as daily wagers from 2004 onwards and 3 and 4 since 2009, in various temples which are protected monuments by the ASI, for doing maintenance works of a perennial and permanent 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 3 nature at their places of posting. It is claimed that from 2018 onwards applicants 1 to 3 were engaged through a contractor and the 4 th applicant through a contractor from 2019 onwards. They continued even though they were deployed by different contractors. The applicants continued to be engaged by the 4th respondent between 2018 and 2024 engaged through such contractors without any break in service. Applicants 1 to 3 are posted at Peruvanam Mahadeva temple, whereas the 4 th applicant was posted at Vadakkumnathan Mahadeva temple under the 4 th respondent. They have been engaged in the maintenance work of a perennial and permanent nature at their places of posting. They were paid wages in cash at the end of every working day. In November 2018 applicants 1 to 3 were engaged through a contractor, AKG Memorial Labour Contract Society, but continued to be under the instructions and control of the 4th respondent and his officers. They have completed 10 years on daily wages under the 4th respondent. The 4th applicant was also engaged through a contractor. The applicants have continued to be engaged through various contractors from 2018 till 2024, but remained under the control of the 4th respondent in the discharge of their duties. In 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 4 other words, their employment on daily wages is to protect the monuments, which are being preserved and protected by the ASI.
2. Relying on the decision in R.K.Panda v. Steel Authority of India [(1994) 5 SCC 304] it is submitted that even though contractors are regularly changed, the employer, that is the ASI, is one and the same, even when the contract labour works under different contractors, the establishment continues to be the same, then it can be considered as sham and camouflage. Hon'ble Supreme Court in the above decision has held that contract workers, who had been initially engaged through contractors but have been continuously working with the principal employer for a long time on different jobs assigned to them in spite of replacement and change of the contractors, shall be absorbed by the principal employer. Then, relying on the decision in Hussainbhai, Calicut v. Alath Factory Thozhilali Union [(1978) 4 SCC 257] it is submitted that the real test is who has economic control over the workers' subsistence, skill and continued employment. According to the Supreme Court, despite the fact that contractors are being changed, what is important is who makes payment and have immediate or direct relationship contract 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 5 is of no consequence when lifting the veil or looking at the conspectus of factors governing employment. So, according to the applicants, despite the fact that contractors are being changed from time to time, applying the above stated dictum, it can be stated that the ASI is the real employer and there is employer-employee relationship between the applicants and the respondents 1 to 4.
3. Referring to the decision in Haldia Refinery Canteen Employees Union and another v. Indian Oil Corporation Ltd. and others [(2005) 5 SCC 51] the applicants have submitted that it has to be considered whether the contractors have been responsible for maintenance of registers and records of employment; here, the registers and records are maintained by the 4th respondent and therefore, it can be seen that the applicants are employed under the direct control of the respondents 1 to 4. They have also relied on the decision in Mahanadi Coalfields Ltd. v. Brajrajnagar Coal Mines Workers' Union [2024 (2) SLR 621 SC]. It is submitted that workers employed to perform perennial/permanent nature of work cannot be treated as contract workers under the Contract Labour (Regulation and Abolition) Act, 1970 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 6 and they cannot be denied regularisation of a job.
4. To sum up, the applicants claim that for more than ten years, they are continuously working under the 4th respondent. Though the contractors changed, the employees and the employer do not change and in the circumstance, they are entitled to be regularised. They have a further case that every month they are forced to pay an amount of Rs.700/- from their salary to the contractor, which is illegal. So, they seek a declaration that they are entitled to be regularised in service and a direction is sought to respondents 1 to 4 to consider and pass orders on Annexure-A4 application for regularising their service.
5. The respondents have not disputed the claim of the applicants that they were being engaged as daily wagers through different contractors. The facts that the applicants 1 to 3 were working in Peruvanam Mahadeva Temple and the 4 th applicant was working in Vadakkumnathan Mahadeva temple are also not disputed. But according to them, they do not have any right to be regularised. The claim that they are employed continuously for over ten years is disputed. There is no employer-employee relationship between the applicants and the 4 th 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 7 respondent. Referring to the decision in Secretary, State of Karnataka and others v. Uma Devi and others [(2006) 4 SCC 1] which has been clarified through State of Karnataka and others v. M.L.Kesari and others [AIR 2010 SC 2587] it has been pointed out that the applicants are not entitled to get any relief.
6. Further it is submitted that the policy engagement of casual workers and payment of wages were reviewed by the Government of India following guidelines issued vide DoPT O.M.No.49014/2/86-Estt.(C) dated 07.02.1988 the applicants are not entitled to be regularised. The directions issued in the said O.M. have also been quoted. According to them, the applicants were engaged for casual/seasonal/intermittent nature of work and not for regular nature of work, for which they were paid minimum wages as per the Minimum Wages Act, 1948.
7. They have denied the claim of the applicants that they are entitled to be regularised. They were engaged as casual/ seasonal/ intermittent workers, not on full time basis, for which regular posts are not created. The applicants were engaged on daily wage basis as per the requirement of manpower for carrying out work of casual nature by the 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 8 ASI, Thrissur Circle for different monuments till the financial year 2016- 2017. They were engaged only in the work which is not on full time nature, for which regular posts cannot be created. Casual workers thus engaged, including the applicants were well aware that the nature of services provided by them was for the limited time period and they will be disengaged after the completion of the said work. However, none of these applicants were engaged continuously and permanently by the respondents in any financial year.
8. Referring to Annexure-R1(A) it is submitted that the applicants were enagaged against seasonal conservation/horticulture work in the monuments. Hence they are not entitled for pay of the minimum of the pay scale attached to the Group-C posts in Central Government. It is also not true that the applicants remained under the direct control of the 4 th respondent after 2018. They were deployed by different outsourcing agencies through e-procurement formalities from time to time and the 4 th respondent has not engaged the applicants directly and the said fact is evident from the averments in the O.A. itself.
9. According to the respondents, deployment of labourers 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 9 including the applicants is the sole responsibility of the outsourcing agency as per the work order and the 4th respondent is not concerned about their rotation among monuments. Respondents have not directly engaged these applicants, but only deployed by the outsourcing agency. Applicants were not engaged against any permanent post, but were deployed for temporary duties of casual nature through outsourcing agencies. So, according to them, dictum in the judgment of the Hon'ble Supreme Court in Uma Devi, quoted supra, that contractual appointments should come to and end has to be followed.
10. In fine, the respondents have stated that the applicants were engaged through an outsourcing agency as per the need of the hour. It is not against any permanent vacancy and therefore they have no liability to regularise the applicants.
11. The 5th respondent filed separate reply stating that he has been made an unnecessary party in the proceedings, no relief is sought against him. He is a contractor for the supply of manpower. On the basis of the tender launched by the 4 th respondent, he had submitted quotation and he was the successful bidder for the supply of manpower 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 10 services to the 4th respondent. He is maintaining a bank of employable people and in case of emergencies he is bound to supply workers to the 4th respondent. The other allegation against him by the applicants that he used to collect Rs.700/- every month is disputed. According to him, the period of contract with the 4th respondent is over and they have engaged another contractor. In the circumstances, this respondent being the previous contractor is an unnecessary party and the O.A. is sought to be dismissed.
12. The applicants did not file any rejoinder to the contentions of the respondents.
13. I heard Sri.Arjun, the learned counsel for the applicants and Smt.O.M.Shalina, the learned Senior Central Government Standing Counsel for the respondents 1 to 4.
14. The respective contentions were reiterated by the counsel on both sides. Evidently, the applicants are contract labourers engaged by the 4th respondent in connection with the maintenance of monuments being preserved by the ASI in various temples under the preservation and maintenance of very old monuments of the 4 th respondent. The 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 11 applicants are unskilled workers who have to manage and preserve such monuments under the control of the 4 th respondent. The applicants claim that they are under the control of the 4 th respondent from 2004 onwards. That claim has been denied by the respondents. Despite the denial of the claim, the applicants did not produce any document to prove that for more than ten years they have been engaged by the 4 th respondent nor the applicants did file any rejoinder traversing the contentions of the respondents 1 to 4, who have denied the claims of the applicants.
15. When argued, the learned counsel for the applicants was highlighting the decision in Mahanadi Coalfields, quoted supra, whereas the learned Senior Central Government Standing Counsel submitted that there is no relevance for such a decision, factually also it is not applicable to the facts of the case and therefore, she relied on Uma Devi and said that the applicants are not entitled to get any relief.
16. After hearing counsel on both sides and also going through the materials pleaded and documents produced, I have no doubt that from the very face of the contentions of the applicants they are not entitled to succeed. They claim that they are under the control of the 4 th 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 12 respondent from 2004 onwards and that they are entitled to be regularised. It is the specific case of the respondents that the respondents are being engaged through the contractor for works which are of temporary nature in connection with the preservation of the monuments. They are not engaged for a regular nature of work, but for a temporary nature through the outsourcing agency. They were engaged only intermittently. Even though the respondents have denied the claim of the applicants that they are entitled to be regularised, the applicants have not taken care to file a rejoinder; on that count itself, the O.A. is liable to be dismissed.
17. Secondly, when the applicants claim that they are entitled to be regularised, there must be some statutory backing for the claim. They have not stated under what provision of law they are entitled to be regularised. They are working on daily wage basis and the specific case of the official respondents is that they are being deployed through outsourcing agencies, they are daily wagers who are engaged only for casual/seasonal/intermittent in nature and that there is no post as such against which they can be regularised. This is not disputed by the 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 13 applicants.
18. The learned counsel for the applicants wanted to say that they are seeking benefit on the basis of the decisions in R.K.Panda and Mahanadi Coalfields, quoted supra. When Uma Devi's case was pointed out, he said that the claim of the applicants cannot be considered in the background of Uma Devi. I find it difficult to uphold the contentions of the applicants. This Tribunal is unable to consider the claim dehors the decision of the Hon'ble Supreme Court in Uma Devi, quoted supra. In Uma Devi, as rightly pointed out by the learned Standing Counsel, the right of such temporary hands was considered by the Hon'ble Supreme Court elaborately and held that such claims can be considered only in the given facts and circumstances of the case. In Uma Devi, the Hon'ble Supreme Court has made it abundantly clear that regularisation cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or anybody or authority governed by the statutory Act or Rules framed thereunder. According to the Supreme Court, regularisation, furthermore, cannot give permanence to an employee, whose services are adhoc in nature. The fact that some 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 14 persons had been working for a long time would not mean that they had acquired the right of regularisation. The Hon'ble Supreme Court took exception to the trend of High Courts invoking Article 226 of the Constitution regularising temporary employees. The Supreme Court held that, "Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 15 Constitutional scheme of public employment..............."
19. The directions in Uma Devi have further been clarified in M.L.Kesari, quoted supra. On that basis, the DoPT has also issued O.M. on 07.06.1988. To sum up, the respondents have made clear that they have no liability to regularise the applicants.
20. The dictum in R.K.Panda and Mahanadi Coalfields, quoted supra, have turned up on its own facts, which cannot be applied to the advantage of the applicants. He is not claiming any benefits of Contract Labour (Regulation and Abolition) Act, 1970 also.
21. After hearing counsel on both sides, this Tribunal is also convinced that the applicants do not have a prima facie case to get any relief. It is very clear that they were engaged through an outsourcing agency. Here, the 5th respondent, at the time when the e-tender was quoted, submitted bid and the applicants were supplied by the 5 th respondent for the purpose of preserving and protecting the monuments. In that case, they were being engaged by the 4 th respondent. The mode of engagement was temporary, seasonal and intermittent. There is no evidence that they were being engaged for such a long period.
2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 16
22. To sum up, preservation and protection of the archaeological monuments is the primary concern of the respondents 1 to 4. For protecting such monuments, they do not have any permanent system or regular/permanent staff. They seek deployment of temporary staff outsourcing through contractors like the 5 th respondent. It is the contractor who supplied such staff. The applicants are such daily wagers supplied by the contractors. Even though the applicants claimed that they are in deployment from 2004, that has been denied by the respondent. It is true that the 4th respondent is the employer. But absolutely there is no material to say that the applicants are being employed from 2004 onwards. Even it is assumed that the applicants are in employment from 2004 onwards, that is purely on temporary and adhoc basis. The nature of employment is not perennial in nature, but engaged is casual, seasonal or intermittent in nature, for which employees are supplied by the contractors. There is no permanent post as such to be regularised. In fact, that aspect cuts the very root of the claims of the applicants.
The applicants cannot be employed against the Constitutional 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 17 scheme through back doors. They have no right to be employed on a regular basis, nor the respondents 1 to 4 have any liability, statutory or otherwise, to give permanency or for regularisation. Therefore, the Original Application is bereft of merits and only to be dismissed. Dismissed. No costs.
(Dated, this the 22nd January, 2025) JUSTICE K.HARIPAL JUDICIAL MEMBER ds 2025.01.23 DEEPA S 09:24:53+05'30' O.A.No.269/2024 18 List of Annexures Annexure A1(a): True copy of EPFO service history of the 3rd applicant having UAN:101434405877 dtd 06.04.2024.
Annexure A1(b): True copy of EPFO service history of the 4th applicant having UAN: 101632007669 dtd 06.04.2024 Annexure A2: True copy of the attendance sheet of the 4th applicant for the period 08.03.2024 to 07.04.2024.
Annexure A3: True copy of the complaint filed by the applicants with the 4th respondent dtd 07.04.2024.
Annexure A4: True copy of the application filed by the applicants with the 4th respondent dtd 19.04.2024.
Annexure A5: True copy of the office order No. 183/2023-Adm.I dtd 22.06.2023.
Annexure R1(A): A true copy of work order awarded to M/s Omkar Security Agency, Karunagappally, Kollam (5th Respondent herein) for the period from 04.07.2023 to 08.04.2024 through F. No. T-15022/57/2023 Thrissur Circle-1567 dated 17.07.2023 Annexure R1(B): A true copy of the letter No. T- 15022/26/2022- Thrissur Circle -903 dated 16.05.2024 issued by the 4th respondent to the 5th respondent excluding the enclosures ************** 2025.01.23 DEEPA S 09:24:53+05'30'