Central Administrative Tribunal - Madras
B. Tamizharasi And Ors. vs Union Of India (Uoi) And Ors. on 20 October, 2005
Equivalent citations: 2006(1)SLJ215(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. 135 applicants have filed O.A. No. 764/ 2005, seeking the following reliefs:
(a) To direct the respondents to accord temporary status and regularize the services of the applicants in suitable Group-D posts such as Sepoy etc., with all consequential benefits; and
(b) To pass such further or other orders as may be deemed fit and proper.
2. The brief facts of the case are as follows:
The applicants are all working as Casual Labourers/Contingent Staff in the office of the respondents No. 3 & 4, viz., the Chief Commissioner of Customs (Preventive) and the Commissioner of Customs and Central Excise, particulars of which are given in the annexure to the O.A. According to them, they had been working for periods ranging from 5 to 12 years, doing jobs such as taking Xerox, print outs, attending guest house and gardening etc. On many occasions, they continuously do jobs in morning and night shifts, without additional monetary benefits. They had been engaged on holidays and national holidays without any extra monetary benefits. According to them, they are performing the duties in the expectation that their services will be regularised. However, even after the framing of the Scheme by the Government on 10.3.1993, their services are not regularised. They stated that they have come to know the orders passed by the Government dated 22.11.2002 banning engagement of casual workers on daily wages, pointing out that it will be violating the said orders if the engagement are continued. It was pointed out that the work for which no regular posts have been created may be out outsourced through contractors following the procedure prescribed and the appointments be made under "Contingent Office Expenditure." On the basis of the above direction, the applicants who are receiving salary under the head "wages" are now being paid under the head "Contingent Office Expenditure". Besides, the respondents have initiated action to outsource the applicants' work through contractors. Aggrieved by the inaction on the part of the respondents to regularise the services of the applicants, the above O.A. has been filed.
3. In support of this O.A., learned Counsel for the applicants submitted that all the applicants are qualified under the relevant recruitment rules for Group 'D' post of Sepoy and considering their long number of years of service they have put in, they are entitled to be absorbed in the light of the various decisions of the Hon'ble Supreme Court. As identically situated persons are being regularised, the inaction to extend the same benefit to the applicants is violative of Articles 14 and 16 of the Constitution of India. All the applicants have reached the age of 40 and would not be in a position to seek regular employment elsewhere. The respondents cannot introduce contract labour system to escape from their liability to pay wages directly to the casual labourers engaged by them for long periods of time and that would be violative of Section 9 of the Industrial Disputes Act and would amount to retrenchment under Section 25 F of the said Act. Learned Counsel referred to various judgments, in support of his submission.
4. The sole applicant in O.A. 784/2005 and three applicants in O.A. 785/2005 are working as Cleaner/Sweeper in the respondent's department, namely Commissioner of Central Excise, Coimbatore. After having been sponsored through Employment Exchange in the year 1983 and selected, they were termed as Contingent Workers on contract basis. While employees who were engaged like that of the applicants were given temporary status, in spite of the representation of the applicants, their services have not been regularised and the respondents are trying to bring in private contractors to entrust the work of Cleaner/ Sweeper on contract basis. They have prayed to declare that the action of the respondents is illegal and for a direction to confer Casual Labourer temporary status.
5. The learned Counsels for the applicants in these cases fairly conceded that the applicants do not come within the purview of 1993 Scheme. However they assail the proposal to outsource their employment instead of regularising their services. They have also referred to the proposal of the respondents to accept the quotation for contracting of house keeping services.
6. Since, the issues involved in all the three O.As. are similar, we have decided to pass a common order.
7. We have heard the Counsels and considered the matter carefully. The relief sought for by the applicants is for the grant of temporary status and regularisation of their services in suitable Group 'D' posts such as Sepoy etc.
8. The question that would arise for our consideration is, Whether the applicants are entitled for the grant of casual worker temporary status and for regularisation of their services?
9. It can be straightaway stated that grant of temporary status is provided under a scheme called "Casual Labourers (Grant of Temproary Status and Regularisation) Scheme of Government of India, 1993". The said Scheme came into force w.e.f. 1.9.1993 extract of which is found at Page 241 Chapter 23 Swamy's complete Manual on Establishment and Administration 10th Edition. The Scheme explicitly states that it applies only to such of those casual labourers in employment on the date of issue of the said order. While setting out the benefits of temporary status to the casual labourers, Clause 4(iv)m of the Scheme states as follows:
Such casual labourers who acquire temporary status will not, however be brought on to the permanent establishment unless they are selected through regular process of selection for Group 'D' posts.
The Scheme further says in Para 10 that in future, the guidelines as contained in O.M. dated 7.6.1988 should be followed strictly in the matter of engagement of casual employees in Central Government Offices.
10. Grant of the temporary status to casual labourers is available only under the said Scheme, subject to satisfying the conditions laid down in that Scheme. One of the conditions being that the casual labourers should have been in employment on that date when the Scheme came into force viz. w.e.f. 1.9.1993. It has been clearly laid down by the Hon'ble Supreme Court that this is a one time Scheme introduced by the Government of India and it is not an ongoing scheme. Therefore, there is no scope for considering for the grant of temporary status to the applicants in this case. The question of regularising their services would arise only after getting temporary status under the said Scheme. Obviously because when thousands of such temporary status acquired Casual Workers are awaiting for regularisation there is no scope for outsiders of the scheme to enter except through open competition for permanent or temporary vacancies, following through regular recruitment procedure.
11. In UOI v. Mohan Pal, 2002 SCC (L&S) (sic), the Hon'ble Supreme Court has held that the Scheme of 1993 is a one time programme applicable to casual labourers who were in employment on the date of announcement of the Scheme and who had also rendered continuous service for the prescribed period. According to their Lordships, it is not possible to give temporary status to all the casual workers as and when they complete the continuous service for the period prescribed in Clause 4. The question that was dealt with by their Lordships in that case was, whether the conferment of temporary status is a one time programme as per the Scheme or whether it is not an ongoing scheme to be followed by the department and whether the casual labourers are going to be given temporary status as and when they complete 240 days of work in a year. Their Lordships answered the question rejecting the claim holding that this is not an on going scheme and held as follows:
From Clause 4 of the Scheme it does not appear to be a general guideline to be applied for the purpose of giving "temporary status' to all casual workers as and when they completed one year's continuous service".
(Emphasis added) Their Lordships gave opportunity to the Union Government to formulate any other Scheme as and when it is found necessary. The Hon'ble Supreme Court followed the above view in the case of UOI v. Gagan Kumar, (2005) AIR SCW 3594=2005(3) SLJ 7 (SC). In that case, the CAT accepted the employee's stand that he was entitled for temporary status for having worked for 240 days and directed the employer to accord temporary status from 1998 when he completed the requisite period of 240 days engagement with consequential benefit. Their Lordships held that the Tribunal's order was clearly untenable and the High Court did not examine the real issue involved in the case and set aside the order of the High Court.
12. There is no other rule, instructions or provision or scheme under which the applicants can claim to be granted temporary status and regularisation of service. On the other hand, it is seen that their engagement of the applicants are contrary to the Government orders made from time to time.
13. The Department of Personnel and Training, Government of India have issued a Brochure on Casual Labour containing all the O.Ms, in relation to appointment of Casual Labourers. As per O.M., dated 30.8.1974 and 27.5.1977, normally, casual employment should be restricted to work of a truly casual nature, there has been a complete ban on employment of casual labourers against regular posts and that casual workers must be restricted to work on truly casual nature and employment of casual staff paid from the contingencies for work of a truly casual nature or against the requirements of vacant posts, temporary or permanent should not be resorted to. All the Departments were notified of these guidelines and they were warned that any violation of the guidelines will be viewed seriously including disciplinary action vide D.O. Letter. No. 49024/5//92 Estt.(C) dated 1.1.1993 and D.O. Letter No. 49014/5/92-Estt.(C) dated 29.4.1993.
14. However, in the light of the directions of the Hon'ble Supreme Court in Shri Surinder Singh v. Engineer-in-Chief PWD, AIR 1986 SC 564, to pay the equal pay to the daily rated employees the Government of India formulated a scheme on the basis of a policy in O.M. No. 49014/2/86-Estt.(C) dated 7.6.1988 laying down guidelines for the regularisation. It was reiterated that persons on daily wages should not be recruited for work of regular nature and the recruitment of daily wages may be made only for work which is of casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created and that regularisation of the services of the casual workers will continue to be governed by the instructions in this regard. It was laid down that a strict and meticulous observance of the guidelines of those by all Ministries/Departments and it should be ensured that no more engagement of casual workers for attending to work of a regular nature, particularly after the review envisaged was duly completed. It was pointed out that any negligence in implementing the guidelines will be viewed seriously.
15. Thereafter, based on the directions contained in the O.A., of Shri Raj Kumar and Ors. v. Union of India by the Principal Bench, Central Administrative Tribunal dated 16.2.1990, the Government of India formulated another scheme called Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India 1993. The Scheme says that while the existing guidelines contained in O.M. 7.6.1988 will continue to be followed, the grant of temporary status of the casual employees who were presently employed as on 1.9.1993 was to be considered subject to certain conditions. One of the conditions under Para 9 of the Scheme is that on regularisation of casual workers with temporary status, no substitute in his place will be appointed as he was not holding any post and that they shall not be brought to regular establishment except through a process of selection. It further says that, violation of this should be viewed very seriously and attention of the appropriate authorities should be drawn to such cases of suitable disciplinary action against the officers violating these instructions. The Scheme further says that in future, the guidelines as contained in O.M. Dated 7.6.1988 shall be followed.
16. In this context, it is appropriate to refer to the recommendation of the Fifth Pay Commission on "Improving Productivity' covered in Volume-I Chapter 11, Paragraph 11.21 the Commission says that there are also numerous suggestions for reducing the numbers in Government employment through privatisation, contracting out of service, transfer of functions, or their conversion into cooperative institutions etc. On the Workforce Size Control in Chapter 27, a freeze on recruitment is recommended and abolition of vacant posts are strategies that will enable the Government to reduce its over size. In the Chapter on Contracting out of Services and Privatisation, it is recommended under Para. 8.17 (e) that there is a widening area of services which are currently being performed in house in the Government, but which can be conveniently outsourced to the private sector.
The recommendations of V CPC Vol. I, Para 8.17 (e) can be usefully extracted.
(e) Contracting out of services There is a widening area of services which are currently being performed in-house in the Government, but which can be conveniently outsourced to the private sector.
These may include designing, construction and maintenance of Government buildings, factories, workshops, residential colonies, Railway stations, equipment and transport, cleanliness, sanitation and housekeeping, maintenance of monuments, lawns and gardens, catering (including catering in airlines, trains, canteens), provision of transportation services (to replace the fleet of staff cars), postal deliveries, carriage of mail, security of all non-sensitive buildings and installations, reservations in Railways and Airlines, printing reprography, photography, audiovisual publicity, translation, interpretation, computer-related services, maintenance of accounts, etc.
17. The Government of India in GIMF No. 50(1)/16/97 dated 30.9.1997 have accepted the recommendations of the Commission broadly subject to certain modification. Of course, there is no specific notification accepting the recommendations of general nature brought to our notice.
18. Regularisation of Casual employees in permanent service requires the policy decision of the Govt, since there may be thousands or more in various departments throughout the country. A decision cannot be directed to be taken in isolation without considering the implications over service and financial commitment.
19. From the (O.Ms.) Government Orders, the policy of the Government has been explicitly spelt out and informed to all the Department and the Ministries. Regular employees are appointed against sanctioned posts, following the prescribed recruitment procedure. Regular appointments can be made both against temporary and permanent post. Ad-hoc appointment are made for stop gap arrangement for short periods to carry out the work, until regular appointments become available. Persons on daily wage basis are engaged for work for purely casual/seasonal/intermittent nature for which no posts can be created. These persons are not paid emolument in the pay scale of any post but are given daily wages. The casual workers are not subjected to other conditions of service relating to conduct or discipline, etc., of Central Government employees holding civil posts. The number of Government Orders referred to above point out that it would be irregular to engage daily wage employees against permanent posts and there has been a complete ban on engaging daily wage employees on daily wages. However, in spite of the various orders, some of the departments continue to engage number of persons on daily wage basis, erroneously, leading to demands of regularisation. Such kind of engagement are unauthorised and in excess of powers conferred on the Heads of Department. However, these officers put the Government to great financial strain and Courts feel helplessness in the absence of provision considering illegality in their engagement. However, in the light of the demands of casual workers, two Schemes were formulated, one in O.M. dated 7.6.1988 and secondly the Casual Labourers' Scheme of 1993. The applicants in this O.A. do not come under the purview of these schemes. Their engagement by the Department is clearly contrary to the ban set out in the various Government Orders. Therefore, the first respondent is perfectly right in referring to the ban on the engagement of casual workers, in pursuance of the instructions of the Government and reiterating that engagement of persons on daily wages has been banned and the head of the department cannot exercise their delegated power in this regard. It was further pointed out that work for which no regular posts have been created/ sanctioned, may be outsourced through service providers and the expense be made under "Contingent Office expenditure and not from wages. The said communication (Annexure-A-12) in O.A. No. 764/2005 is in consonance with the previous orders of the Government and all the orders of the Government clearly reflect the policy decisions of the Government. Therefore, it is not open to the applicants to contend that not withstanding the ban, with or without posts temporary or permanent, all of them should be granted temporary status and regularised in service in Group 'D' posts.
20. The various judgments referred to by the applicants are related to the period prior to the introduction of the Scheme for regularising the casual employees then in existence. The judgments referred to by the Counsel may now be referred.
(1) In K.S.P. College Stop Gap Lecturers' Association v. State of Karnataka, , relates to the ad hoc appointment of teachers. The Hon'ble Supreme Court pointed out that the widespread malady in educational institutions is the provision for temporary or ad Ziocappointments. They are being exploited by the management of private aided colleges. The existing two methods of selection, one by Selection Committee and the other by the management was for a short period appointment had been mis used. Taking into account those facts and circumstances in that case, their Lordships directed the respondents to absorb those temporary teachers, who have worked for three years and so on.
This decision, in our view, would not apply to the facts of the present case and would not be of assistance to the applicants.
(2) In Gujarat Agricultural University v. Rathod Labhu Bechar and Ors., - the engagement of daily rated labourers by a fully State aided university was held to be an unfair labour practice by the Hon'ble Supreme Court. There was a scheme for regularisation but on account of shortage of posts, the workers remained un-absorbed. The scheme framed by the university was approved by the State Government and the same was directed to be modified by the Hon'ble Supreme Court. In the present case there is no scheme as on date available or framed by the Government to absorb these applicants.
(3) In Jacob M. Puthuparambil and Ors. v. Kerala Water Authority, 1990(6) SLR 54 (SC) - the Hon'ble Supreme Court in the above decision found that there is an undertaking by the Government to consider the services of those who had put in continuous service for two years prior to the cut of date and the said stand was found inconsistent with the statutory rule to serve the emergent situation. Therefore, Their Lordships held that the relevant rules had to be interpreted whether it was permissible without doing violence to the said rules. It follows that the employees who were serving with the establishment for long spells and have the requisite qualifications for the job should not be thrown out that their services should be regularised as far as possible. In our case, no rules or provisions have been pointed out so as to interpret to take all the casual labourers to confer temporary status and regularise them in Group 'D' posts.
None of the features applicable in the above cited case are present in this case and there is no undertaking from the Govt. side to absorb and regularise all casual labour who have put in some service.
(4) In H.C. Puttaswamy and Ors. v. Hon'ble Chief Justice of Karnataka, - The Hon'ble Supreme Court held that appointments made by C.J. without consulting Public Service Commission, though not proper was directed to be directed regularly appointed on humanitarian ground.
(5) In the case of Hindustan Machine Tools and Ors. v. Mr. Rangareddy, , the direction issued by the High Court to prepare a scheme was not interfered with. However, opportunity was given to the undertaking while framing the scheme to assess the requirement etc. (6) In Commissioner, Coimbatore City Municipal Corporation v Andal Eswari, (2003) 3 MNJ 775 -the order of the learned single Judge directing to provide employment and regularise the service of the employees was confirmed by the Hon'ble High Court, Madras. In that case, the respondent/writ petitioner was continuously claiming for appointment in a permanent post having been appointed to assist the Billing Clerk. No ratio has been laid down in this judgment by the High Court in reference to regularisation.
(7) In Nirpinder Singh and Ors. v. State of Punjab and Ors., 2004( 1) ATJ 611--a Division Bench of Punjab and Haryana High Court directed the regularisation of daily wage employees who were continued for more than 10 years in spite of the fact that work was available. It was held that denial of the benefit of regularisation is unfair on account of the fact that the department has not obtained sanction for the additional posts, which is not the case on hand.
21. The Hon'ble Supreme Court in Workmen of the Food Corporation of India v. Food Corporation of India, held that the reintroduction contract labour system cannot be done without giving notice to workmen under Section 9-A of the ID Act. The said judgment of the Hon'ble Supreme Court would not be applicable to Government establishments and those employees who are working on daily rated basis. On the other hand, in D.K. Jadav v. UOI and Ors., 2003(2) ATJ 73 - The CAT, Mumbai Bench held that one cannot be considered for regularisation unless he was first conferred with temporary status. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Ors., , the Hon'ble Supreme Court held that regularisation or absorption of a person cannot be made when there is no sanctioned post in existence and completion of 240 days of work does not import the right for regularisation. Their Lordships held as follows:
5. We are unable to uphold the order of the High Court. There was no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad-hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under the law import the right to regularisation. It merely imposes certain obligation on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.
(Emphasis added) In Manager, RBI, Bangalore v. S. Mani, , the Hon'ble Supreme Court held that absorption of Ticca Mazdoors in their service is not automatic. The workmen concerned were required to fulfill the conditions laid down in the terms of settlement.
22. A Division Bench of the Punjab and Haryana High Court in Anil Kumar and Ors. v. Central Administrative Tribunal, 2005(3) ATJ 37 has taken the view that if the department has chosen to requisition the service to be provided by a service provider approved by the department, then the decision cannot be held to be faulty in any manner. It was held that policy decision by the administration not to fill up the post lying vacant with it but to requisition the services of drivers from an outside agency cannot be treated to be a camouflage in any manner. The petitioners were in contract of service are not members of the service or employees of the administration. Therefore, the grievances with regard to violation of any rules cannot be made by them. The Hon'ble High Court followed another similar case in Civil W.P. No. 1169-CAT of 2004 dated 31.3.2005.
23. In A. Uma Rani v. Registrar Cooperative Societies, the Hon'ble Supreme Court held that the appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder. The same would be illegal and cannot be regularised by the State. Their Lordships held that "regularisation is not and cannot be the mode of recruitment by any state within the meaning of Article 12 of the Constitution or any other statutory authority nor can it grant permanence to adhoc employees." In that case also there was a prohibition on filling up of vacant post or creating new posts including regularisation of daily wage employees. It was held that those who came by backdoor should go through that door. The said judgment, in our view, will apply to the facts of the present case. Since all these applicants were appointed in contravention to the Government orders banning recruitment, and any request for regularisation would be contravening the Government orders and recruitment rules. Their Lordships referred to all the judicial pronouncements on the subject and repelled the claim of regularisation of the services of adhoc employees.
24. Taking into account all these and the consistent policy decision of the Government and the orders issued from time to time, no objection can be made to Annexure A-12 dated 10.3.2004 in O.A. No. 764/2005. All the applicants were not engaged against permanent posts and their engagement was purely on casual and daily rated basis and this itself is contrary to the consistent orders of the Government banning engagement of casual workers. The applicants do not derive any right whatsoever on those engagement made contrary to the Government orders. Therefore no objection also could be raised for outsourcing the services by following the procedure prescribed as it is recommended by the V CPC as one of the improved mode of productivity and shortage of reduction of over sized work force. It was one of the suggestions that the workers themselves form Cooperatives to do the work efficiently.
25. For all the above reasons, we hold that no grounds are made out to grant the relief. The O.As. are dismissed. No costs.