Central Administrative Tribunal - Chandigarh
Raj Kumar vs M/O Defence on 31 July, 2018
Author: P. Gopinath
Bench: P. Gopinath
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O.A.060/00591/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 060/00591/2017
Pronounced on : 31.07.2018
Reserved on : 03.07.2018
CORAM: HON'BLE MR.SANJEEV KAUSHIK, MEMBER(J)
HON'BLE MRS. P. GOPINATH, MEMBER(A)
1. Raj Kumar, Son of Gorkha, aged 51 years, working/retrenched
Daily wage workers (Casual Workmen) of Military Farm
Ferozepur Cantt.
2. Ram Karan, Son of Shri Putti Lal, working/retrenched Daily
wage workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
3. Mahesh, son of Shri Ramesh, working/retrenched Daily Wage
Workers (Casual Workmen) of Military Farm, Ferozepur Cantt
4. Giriraj, son of Shri Prabhu Dayal, working/retrenched Daily
wage workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
5. Brij Mohan, son of Shri Guru Parshad, working/retrenched Daily
Wage workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
6. Ram Bahadur S/o Rangi Ram, working/retrenched Daily Wage
Workers (Casual Workmen) of Military Farm, Ferozepur Cantt.
7. Shiv Nath son of Shri Ram Bhoj, working/retrenched Daily
Wage Workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
8. Om Parkash son of Shri Mohan Lal, working/retrenched Daily
Wage Workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
9. Narayan Dass, son of Sh. Sohan Lal, working/retrenched Daily
Wage Workers (Casual Workmen) of Miliary Farm, Ferozepur
Cantt.
10. Jarnail Singh son of Sh. Sher Singh, working/retrenched Daily
Wage Worker (Casual Workmen) of Military Farm, Ferozepur
Cantt.
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O.A.060/00591/2017
11. Tilak Raj, son of Shri Dhayan Singh, working/retrenched Daily
Wage workers (Casual Workmen) of Military Farm, Ferozepur
Cantt.
12. Mirja, son of Sh. Hakku, working/retrenched Daily Wage
Workers (Casual Workmen) of Military Farm, Ferozeur Cantt.
13. Raj Pal, son of Shafi, working/retrenched Daily Wage Workers
(Casual Workmen) of Military Farm, Ferozepur Cantt.
.............Applicant
BY ADVOCATE: Sh. Rohit Seth
VERSUS
1. Union of India through Secretary to Government of India,
Ministry of Defence, South Block, New Delhi.
2. Deputy Director General, Military Farms, Army Head Quarter,
R.K. Puram, New Delhi.
3. Director, Military Farms, HQ, Western Command, Chandi
Mandir.
...........Respondents
BY ADVOCATE: Sh. Ram Lal Gupta
ORDER
BY MRS. P. GOPINATH, MEMBER(A):-
1. Applicants were engaged by Deputy Director Military Farms, Western Command to work as Casual Labourers in various years from January 1991 to 1993. The activity of Military Farm is linked to the deployment of Armed Forces. The farms also comprise of agricultural land. Hence, the labour is engaged for looking after live stock and agricultural land.
2. Applicants admit that some of them are employed through a contractor. Applicants argue that the respondents have been, on one hand, taking the stand that the applicants cannot be granted 3 O.A.060/00591/2017 temporary status, and on the other hand in reply filed in OAs No. 16 to 19 of 2012 it was stated that a fresh seniority list on All India basis is being prepared for considering the case for regularization.
3. The main argument, leading to the prayer taken in the OA filed, is for conferring temporary status and regularization on the ground that they have been working as casual labourers for a long time.
4. We find that the applicants have claimed temporary status and regularization earlier in OA No. 810/PB/1998 and the matter was discussed in elaborate detail in the OA. Further, the applicants cited in above OA are the same as the applicants in this OA before us.
The order dated 23.09.1998 is reproduced hereinbelow:-
1. 20 applicants have joined in the O.A. They are all working as daily wage casual workers at Military Farm Ferozepur. Their dates of engagement have been between the year 1991-1993, details of which are given in para 4(i) of the O.A. They are aggrieved by order at Annexure A-11, vide which finding them surplus, as per latest instruction, their engagement which was continuing has been brought to an end and they been retrenched w.e.f.1.9.1998 with due compensation and one months notice in lieu of wages. They plead that this notice has not been served on them individually but they have come to know the decision taken by respondents. They have prayed for quashing said decision.
2. In para 4(iii), it is mentioned that some of the applicants were sponsored through the employment exchange and applicants no.1 to 3 have been conferred upon temporary status also. In para 4 (viii) (Page-10), however, it is pleaded by them that the only condition the applicants do not fulfill that they had not been sponsored through employment exchange at the time of initial engagement. Existence of Military Farms is pleaded to be inter-linked with the activities of the Armed Forces in which they have their milch cattle and agricultural farms. Since their engagement, they have been performing their duties regularly. Under the 1982 model standing orders (A-
1), after putting in six months service as casual labour, such persons are brought on the regular strength of the establishment and pay is fixed at the minimum of the time scale. A scheme was prepared which was circulated on 07.06.1988, regarding engagement of casual workers, providing that after a minimum of 2 years of casual service, workers become entitled for 4 O.A.060/00591/2017 consideration for regularization. The only condition required is that they should have been employed through employment exchange.
3. They plead that in two cases where casual workers were found to have been working for period more than 6 to 8 years, a direction was issued to deem it, in their case, that they had been sponsored through employment exchange, the applicants claim, that condition of sponsorship through employment exchange, was waived off in their cases. Army Headquarters issued instructions in November, 1985 (A-5), further laying down conditions and terms for employment of casual employees. It provided for grant of temporary status to casual labourers who were in service as on 01.09.1993 and had rendered one year service on that date.
4. The case of the applicants was not considered for regularization or for conferment of temporary status. These instructions were further clarified through letter dated 29.01.1998 (A-6) that temporary status cannot be conferred upon persons who did not fall under that scheme i.e. who were employed after 01.09.1993. Matter regarding strength of man power employed on military farms was reviewed and circulated vide letter dated 07.04.1998 (A-7) which provide for regularization of eligible casual labourers against available Group 'D' posts. Another instruction was issued on 24.04.1998 (A-8) for grant of temporary status on the eligible persons immediately. Further circular dated 28.05.1998 provided for prior taking of sanction for post of labourer and for regularization (A-9). Instructions at Annexure A-10 dated 23.06.1998, took notice of the fact that engagement of labourers was being done for one type or the other and a direction was issued to specify the strength of permanent establishment so that such labourers could be regularized. They provide that affairs of regular nature as per the revised P.E. will be filled up by regularization of the services of labourers by 25.07.1998.
5. They claim that instead of regularizing their services, the respondents have issued circular dated 01.01.1998 to retrench their services and thereafter adopt a contract labour. They claim that if they are surplus then why is the need of employment of labour on contract basis as they are continuing on their respective posts. They have cited the example of workers who have gone to the Hon'ble Supreme Court against the orders of their termination wherein the Hon'ble Court has issued notice and stayed their termination. They have thus prayed for quashing the order at Annexure A- 11, dated 01.09.1998 and to issue directions to respondents to confer temporary status on them and to regularize their service after seeking sanction from the competent authority. Under Policy instruction dated 28.05.1998. They have also prayed for issuing directions to maintain status quo for them as it exists today.
6. After going through the pleadings and the documents relied upon by the applicants and hearing the learned counsel, it is apparent that all the applicants are casual workers in the Military Farm. The claim of the applicants is that there has been a consistent policy of conferring upon them benefits in the shape of temporary status and thereafter regularization, is not 5 O.A.060/00591/2017 incorrect but the interpretation being given by the applicants is found to be not supported by the documents. The policy has been to stop the exploitation of labour which was continuing for a number of years without their being any regular appointment with the fear of being thrown out throughout their life. In view of these facts, finding that casual labourers had been employed by a particular department for more than a decade the Hon'ble Supreme court had given direction in number of cases to frame certain schemes for protecting their tenure or for conferring certain benefits such as temporary status and thereafter regularization of their services. At that time various departments of Government realized that there had been consistent exploitation of labour and employment whether they were actually required or not by the Department. With a view to protect the interest of labour which had been in continuous engagement, a decision was taken to ban all further recruitment of the casual workers in the year 1988. It was then decided that the casual labourers who are working, be considered for grant of temporary status and regularization thereafter.
7. Various schemes have been prepared and enforced for different departments which are mentioned by the applicants also. Applicants before this Tribunal cannot ask for benefits available under the Industrial Disputes Act here but this Act also provides for extending benefits against indiscriminate retrenchment. It was under these schemes that the applicants 1 to 3 have been given the temporary status. The model standing orders issued in 1982, where they/provide for bringing on the strength of permanent establishment all casual workers, have been held to be akin to the grant of temporary status. Though temporary status carries with it more benefits. Such bringing on the strength of permanent establishment confers upon the casual labourers preferential right of re-engagement as compared to fresh labour. It cannot be read to mean anything more.
8. Despite the policy issued in June 1988, the respondent department engaged present applicants as casual labourers. The scheme now mentioned by the applicants is also specific to those persons who were governed under it meaning hereby that temporary status can be granted to those persons who were in service of the respondents on 01.09.1993and had already rendered one year's continuous service up to that date. The documents relied upon by the applicants in fact makes it clear that persons who were not in employment on 01.09.1993 are not entitled to grant of temporary status. Most of the applicants would thus, be not entitled to grant of these benefits. Annexure A-4 issued in January, 1991 only reiterates what has been discussed above regarding OM issued in June, 1988, by respondent no.1. Annexure A-5further clarifies the terms and conditions of casual employees re1terating once again that there is a complete ban on employment of casual labourers and that they could be engaged only for work of casual or seasonal nature. Persons not sponsored through employment exchange were not conferred temporary status. It mentions about 1993 scheme also. Annexure A-6 is in the nature of Clarification that persons who had not been in service on the relevant date under the 1993 scheme, are not to be conferred upon temporary status, Annexure (A-7), is once again a review of military farms with the intention of offsetting the increase in manpower and costs. The 6 O.A.060/00591/2017 decision has been taken after the Fifth Pay Commission Report to reduce the manpower in the Military Farms. Instructions have been issued to work out the required strength of permanent establishment with the clear intention of reducing the same and also the total strength including the engagement of casual workers. Some Military Farms and establishments are to be wound up while skeleton staff in particular trades is to be retained. A decision has been taken that once P.E. is finalized, the same will be manned by regular Group`D' staff only and for this purpose eligible casual labourers will be regularized and no longer casual labourers would be engaged or kept in future against regular group-D vacancies. No Sanction is to be granted for increases of power or creating some new jobs and how that is to be done is set out in these documents. Annexure A-B is in continuation of this policy clarifying that persons on daily wages should not be recruited. Review of engagement of casual workers in a time bound period has been decided upon and to ensure that no more casual workers are engaged for which some steps have been suggested. The earlier decisions to that effect have been reiterated. Annexure A-9 is also an exercise in the same direction as mentioned in the above documents. Annexure A-10 is in furtherance of the decision in Annexure A-4 to A-9. A cut off date has been fixed in this order to work out the man power required, recreation of the same and not to engage casual labourers any further, has to be completed by 25 th July 1998 specifying therein and the details of surplus casual labourers shall be intimated to the headquarters. Regularization of services is also to be completed by this date and disposal of surplus casual labourer will be sought so that there is no employee as casual labourer against regular vacancies. Decision at Annexure A-11 is strictly in accordance with the decision taken in Annexure A-4 to A-10. The applicants have been in the category of persons who have been found to be surplus and thus, the order at Annexure A-11 has been passed that the persons named therein which includes the name of all the applicants with the exception of one person who is mentioned as Roshat at Sr.No.25. but mentioned as Resham in the O.A. that they have been retrenched w.e.f.1.9.1998 with due compensation and one month's wages in of notice.
9. As far as applicants no.4 to 20are concerned, they casual labourers and no fault can be found with these orders. Applicants No.1 to 3 were persons on whom temporary status has been conferred upon. Under the scheme of 1993, they can be disengaged or retrenched with one months notice or salary in lieu of one months notice. Order at Annexure A-11 is thus in accordance with law.
10. The applicants, in accordance with law Bench and part of the order has been reproduced in the O.A. Those were the cases of casual labourers working in M.F. Ambala who had been working here for more than 12 to 15 years and had developed certain rights for grant of temporary status. Condition of sponsorship was not waived off as a general rule but in specific facts of those cases, it was deemed that they have been sponsored properly.
11. Thus, examining the case of the applicants from all aspects as raised by them, and as per the law prevalent this O.A is found to be without any merits and is accordingly dismissed in limine.
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5. We find that in the OA No. 810/PB/1998 cited in pre-
pages, the applicants are the same as in this OA and the subject matter or relief sought was also the same.
6. Military farms, by its very nomenclature appears to undertake farming activity where the requirement of labour is seasonal and hence the system of engaging persons on daily wages initially and contract labour subsequently was followed. And, the Tribunal in its order in OA No. 810/PB/1998 had already noted that the applicants were in the category of persons who have been found to be surplus and retrenched on 01.09.1998 with due compensation and one month's wages.
7. The applicants also admit that they are employees of a contractor. There have been sporadic attempts to regularize but may be, bearing in mind that the 5th CPC recommendations of winding up of military farms which was seriously under consideration. Hence, a system of engaging labour through a contractor was resorted to.
Applicants refer to order in OA No. 754/PB/2010 where the Tribunal had directed the respondents to consider the case of applicants for grant of temporary status and subsequently for regularization by passing a speaking order. This order of the Tribunal is per incuriam as the fact that the same matter was considered by the Tribunal in respect of the same applicants in OA No. 810/PB/1998 does not appear to have been argued or brought to the notice of the Bench.
Hence the said order was passed without full knowledge of the background and facts of the matter.
8O.A.060/00591/2017
8. In OA No. 786 of 2014, also filed by the applicants, the Tribunal directed the respondents to consider their case for temporary status/regularization against sanctioned vacancy as per seniority by passing a speaking order. This order clearly indicated that due to reduction in peace establishment and the guidelines issued by the Vth CPC for reduction of man power in the Government sector, a conscious decision was taken by the respondents to not only reduce the man power and outsource the work, slow down the process of regularization, but also as recent as 2018 take a policy decision to wind up the military farms. 64 vacancies were allotted to Western Command for regularization of service of eligible CLTs/CL in accordance with the seniority list and the case of the applicants was considered and not found feasible for the following reasons:-
(i) As per Apex Court judgement in Uma Devi case, individual should be appointed against regular sanctioned post, thereby taking away the contention of those engaged for purely casual and seasonal work. After 01.09.1998, applicants were engaged under the outsourcing arrangement. Applicants' services were provided by a Contractor and the payment was also made by the Contractor. If applicants have a grievance with the contract arrangement, the remedy lies in the Labour Court.
(ii) The applicants in the OA were not engaged against the sanctioned posts and as they were retrenched on 1.9.1998, they have not completed ten years regular service before 10.04.2006, date of above Uma Devi judgement.
9. Respondents also bring to notice that a similar case OA No. 07/HR/2012 filed by Harvinder Yadav was dismissed by this Bench. The main argument of the respondents is that after the above retrenchment of 01.09.1998, the applicants were not engaged by the respondents and an outsourcing contract system of contract labour 9 O.A.060/00591/2017 was established and followed. The casual labour was supplied by a Contractor and payment was also made by the contractor to the labour. Respondents argue that they also do not have any record of applicants' engagement as such a document was to be maintained by the Contractor to effect payment. However, some other labour numbering 20 who fulfilled conditions laid down in Uma Devi case were regularized in the year 2000. No regularization of casual labour appears to have been made beyond year 2000. And none of the persons regularized as indicated above, are junior to the applicants in this OA. There is no doubt that the applicants were casual labourer.
On outsourcing of work, the Contractor sourced the applicants to work for him and their employer underwent a change. Hence, applicants' status is that of labour supplied by a contractor, to execute the nature of work specified in the contract work. The direct relationship of the applicants is with the contractor and not the respondent.
10. The Government of India, Ministry of Defence has finally taken a conscious decision to close down all military farms by 14.10.2017. Annexure R-7 communicating this decision is produced by the respondents. In the said order, it is clearly stated that while closing the military farms, the following action will be taken:-
(i) Disposal of all cattle
(ii) Transfer of moveable and immovable assets including land equipment, vehicles, buildings and any other infrastructure to the local military authority 10 O.A.060/00591/2017
(iii) Adjustment of combatant and civilian man power in other branches and Directorates of Indian Army in the aegis of MS Branch and AG's branch.
11. Since the farms have been wound up and the cattle disposed as per above order, the cultivation of fodder to feed animals would also not arise. Any regularization made was in compliance of DoP&T instructions to Ministry of Defence produced as R-14 wherein respondent was directed to follow the conditions laid by the Apex Court in the Constitution Bench judgement in OA No. 3595- 3612/1999 Secretary State of Karnataka and Ors. Vs. Uma Devi & Ors. This was not applicable to applicants as since 1998, they were engaged not by respondents but by a contractor to whom work was assigned as per terms of contract. Further, the regularization, if any, on the basis of the above judgement was allowable only if the individual is qualified as per conditions cited in the recruitment rules, had worked continuously for ten years or more, and the initial appointment did not involve any infringement of rules. The applicants according to respondents did not qualify the above three conditions.
If the applicants had any grievance on these conditions, they should have challenged the same. This order has been issued by the Quarter Master General's office at Delhi to the Southern Command, Eastern Command, Western Command, Central Command, Northern Command and South-Western Command. Hence, the order to close military farms is not an isolated decision in respect of Ferozpur Farm but a policy decision to be implemented by all the Army Commands 11 O.A.060/00591/2017 across the country. The powers of the Tribunal to interfere with policy decisions of the respondents are limited.
12. Since a decision has been taken to wind up the military farm establishments and the applicants, according to the respondents are employees of a Contractor and the fact that the Tribunal in OA No. 810/PB/1998 had dismissed the case of the very same applicants in respect of the same prayer as made in this OA, we do not see any merit in this OA or any reason to interfere and the same is dismissed.
No costs.
(P. GOPINATH) MEMBER (A) (SANJEEV KAUSHIK) MEMBER (J) Dated:
ND*