Central Administrative Tribunal - Delhi
Rama Nand vs M/O Labour on 14 December, 2016
Central Administrative Tribunal
Principal Bench
OA No.3671/2014
Order reserved on: 15.11.2016
Order pronounced on: 14.12.2016
Hon'ble Mr. V. N. Gaur, Member (A)
Sh. Rama Nand, 44 years,
S/o Sh. Chajjoo Prasad
R/o A-108, Sector one,
Papan Kalan, Dwarika,
Palan Gaon,
New Delhi-45.
- Applicant
(By Advocate: Mr. Basab Sengupta)
Versus
1. The Chairman,
Central Board for Workers Education,
Ministry of Labour & Employment,
Govt. of India,
Jamnagar House,
New Delhi.
2. The Regional Director,
Central Board for Workers Education,
Ministry of Labour,
Govt. of India, Building Centre,
Post Box No.3251,
New Delhi-110013.
3. The Director,
Central Board for Workers Education,
Ministry of Labour & Emp.,
Govt. of India,
North Ambazari Road,
Nagpur-440033.
- Respondents
(By Advocate: Mr. Manjeet Singh Reen)
2 OA NO.3671/2014
ORDER
Hon'ble Mr. V.N.Gaur, Member (A) In this OA the applicant has challenged the letter dated 05.06.2014 issued by respondent no.3 which states that the applicant was engaged as "Labourer work", and sought a direction to the respondents to re-engage him in the job.
2. Brief facts of the case are that the applicant was appointed as a part time daily wage worker in Chairman office, New Delhi w.e.f. 09.12.2003 vide letter of the same date by respondent no.2. By letter dated 25.03.2004, respondent no.2 sent a proposal to respondent no.3 asking for sanction for engaging the applicant on full time daily wages for the office of Chairman, CBWE, respondent no.1. Applicant has placed on record a letter dated 20.11.2003 claiming that the aforesaid proposal was approved by respondent no.2 and therefore, he was a full time daily wage worker. However, the letter dated 20.11.2003 only says that the proposal contained in the letter dated 23.10.2003 (contents of which are not on record) had been approved. It does not say that sanction was given for engaging applicant on full time daily wages. However, it is an admitted fact that the applicant continued to work in the office of Chairman, CBWE till 12.03.2010 when the applicant was disengaged without notice, through an oral order.
3 OA NO.3671/2014
3. The applicant has filed the present OA on 08.10.2014 after a delay of 1280 days. MA No.3158/2014 has been filed by the applicant for condonation of delay. The reason for delay has been stated to be that he sought recourse to RTI Act, 2005 seeking reason for his sudden dismissal, and thereafter approached the first appellate authority, second appellate authority and CIC before he received the required information. The respondents furnished the information vide letter dated 05.06.2014 after the order passed by the CIC on 02.05.2014. The applicant could file the present OA only thereafter.
4. The respondents have opposed the MA citing the judgments of Hon'ble Supreme Court in D.C.S.Negi vs. UOI, SLP (Civil) No.7956/2011, E.Parmasivan and others vs. UOI & others, 2005 SCC (L&S) 125, State of Karnataka vs. S.M.Kotrayya, 1996 (7) SCALE 179 and P.K.Ramachandran vs. State of Kerala and another, JT 1997 (8) SC 189. On merits it was argued that the applicant was engaged to perform work which was not of permanent nature. As there was no sanctioned post in the office of the respondent no. 1, the applicant was engaged as part time daily wager but later he was engaged as full time daily wage worker. There was no law that required a show cause notice to be given to a daily wage worker. The applicant was disengaged by an oral order. There is a post of MTS now sanctioned but it is co- 4 OA NO.3671/2014 terminous with the tenure of the Chairman. A MTS worker is presently working on ad-hoc basis.
5. Learned counsel for the applicant, on the other hand, argued that he was relying on certain judgments of the Hon'ble Supreme Court, which are judgments in rem and in seeking benefit of judgment in rem the question of delay and laches would not be relevant. In this regard he relied on the judgment of Hon'ble Supreme Court in State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, (2015) 1 SCC 347, judgment of Rajasthan High Court in Madar Union Sanatorium and ... vs. M.B.Sathe and ors., (1986) IILLJ 135 Raj. and the order of Mumbai Bench of this Tribunal in Saramma John Mathai vs. Union of India & ors., OA No.147/2013. In view of this line of argument I proceed to examine whether the applicant is entitle to the benefit of any judgment that is in rem.
6. In Arvind Kumar Srivastava (supra) the Hon'ble Supreme court has taken a view that normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending same benefit. However, this principle is subject to well-recognised exception in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up 5 OA NO.3671/2014 after long delay then such employees cannot claim that benefit of the judgment rendered in the case of similarly situated persons be extended to them. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not.
7. In the present case it has been contended by the learned counsel for the applicant that the case of the applicant is squarely covered by the judgment of Hon'ble Supreme Court in Mohd. Abdul Kadir and another vs. Director General of Police, Assam, (2009) 6 SCC 611, which was a judgment in rem. Applicant was, therefore, entitled for benefit of that judgment without the hindrance of delay and laches. Learned counsel has also relied on State of Haryana and others Etc. Etc. vs. Piara Singh and ors. Etc. Etc, 1992 AIR 2130 wherein it was held that ad hoc and temporary employee should not be replaced by another ad hoc or temporary employee. Hon'ble Delhi High Court also in Abhinav Chaudhary & ors. Vs. Delhi Technological University & anr., VII-2015(2) AISLJ 218 has considered the direction contained in Piara Singh (supra) in the context of State of Karnataka vs. Uma Devi, (supra) and held that the principle that an ad hoc or temporary employee should be replaced by another ad hoc or temporary employee and such an employee can 6 OA NO.3671/2014 only be replaced by a regularly selected employee remain intact even after Uma Devi (supra).
8. I have gone through these judgments and considered the contention of the learned counsel for the applicant that the applicant was entitled to the benefit of in rem judgments of the Hon'ble Supreme Court in Piara Singh (supra) and Abhinav Chaudhary (supra) and Mohd. Abdul Kadir (supra). There is no doubt that the law is well settled that an ad hoc or contract or temporary employee cannot be replaced by another ad hoc or temporary or contract employee. However, in respect of casual labours the Hon'ble Supreme Court in Piara Singh (supra) observed thus:
"25. ... ... So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years -- a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job."
9. This view has already been superseded by the Constitution Bench judgment in the case of Uma Devi (supra). The applicant has not claimed any benefit under the judgment of Uma Devi (supra) and his sole argument is that having worked for about 7 years as a full time daily wage worker he could not have been 7 OA NO.3671/2014 disengaged by the respondents without giving a show cause notice and replaced by another ad-hoc MTS employee. I do not find any of the judgments cited by the counsel for the applicant coming to the assistance of the applicant either on the issue of show cause notice or on the proposition that a daily wage worker cannot be replaced by another daily wage worker. This is not to say that the applicant has been able to establish that his services have been replaced by another daily wage worker. Learned counsel for the applicant has drawn attention to the reply furnished by the respondents on 02.12.2012 in response to an RTI application of the applicant wherein it was stated that one MTS in the office of Chairman was engaged on purely ad hoc and temporary basis. It was also stated that the services of the MTS will stand terminated on the same day the present incumbent ceases to be the Chairman of CBWE. According to judgment in Mohd. Abdul Kadir (supra) also, a person is entitled to continuation of employment only for the duration of the scheme under which he has been engaged. The respondents in their counter reply have stated that the MTS sanctioned for the office of Chairman (respondent no.1) is only on co-terminus basis and, therefore, tenure of any MTS employee will come to an end along with the tenure of the Chairman, CBWE. In such a situation the applicant cannot derive any sustenance for his claim from the judgment in Mohd. Abdul Kadir. Learned counsel for the applicant has 8 OA NO.3671/2014 sought to argue about the unreasonableness and illegality of a rule providing for aforementioned co-terminus appointment. However, he has not brought on record the recruitment rules for the post of MTS in the office of Chairman, much less challenging the same to establish the claim of the applicant.
10. In the light of the foregoing discussion, I do not find the case of the applicant supported by any judgment cited by him, in rem or otherwise. The OA is therefore, devoid of merit. For the reason that the applicant has not been able to establish that he is entitled for relief a judgment in rem, he cannot get the benefit of Ashok Kumar Srivastava (supra). There is no justification for condoning the delay. MA filed for condonation of delay is, therefore, dismissed. The OA is dismissed on account of delay and laches as well as on merit. No costs.
( V.N. Gaur ) Member (A) 'sd' 14th December, 2016