Central Administrative Tribunal - Jaipur
Vikas Jain vs Income Tax Department on 10 May, 2022
1
OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 343/2018
with
MISC. APPLICATION NO. 31/2019,
ORIGINAL APPLICATION NO. 152/2019,
ORIGINAL APPLICATION NO. 126/2019
&
ORIGINAL APPLICATION NO. 372/2017
with
MISC. APPLICATION NO. 70/2019
Order reserved on 26.04.2022
DATE OF ORDER: 10.05.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
OA No. 343/2018 with MA No. 31/2019
1. Mahesh Kumar Sharma son of Late Shri
Ramniwas Sharma, aged about 30 years,
resident of 450, Bhojpura Basti, Shakar Marg, 22
Godam, Jaipur-302006, employed as Casual /
Daily Wager Peon (MTS) (outsourcing), in the
office of Pr. DIT (INV.), Jaipur.
2. Shiv Prasad Sharma son of Shri Satye Narayan
Sharma, aged about 30 years, resident of
Village-Post-Toda-Bhata, Th. Bassi, Jaipur-
303301, employed as Casual / Daily Wager Peon
(MTS) (outsourcing), in the office of DGIT (INV.),
Jaipur.
3. Deepak Kumar son of Shri Nathu Ram, aged
about 25 years, resident of 2512, Harijan Basti,
Amer, Th. Amer, Jaipur, employed as Casual /
Daily Wager Sweeper (MTS) (outsourcing), in the
office of DGIT (INV.), Jaipur.
4. Rajendra Kumar Saini son of Shri Prabhai Lal
Saini, aged about 34 years, resident of Maliyo Ka
Mohalla, Lakda Mandi, Watika, Th. Sanganer,
Jaipur - 303905, employed as Casual/Daily
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OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
Wager Peon (MTS) (outsourcing) in the office of
Pr DIT (INV.), Jaipur.
5. Hajari Lal Meena son of Shri Lohadi Ram, aged
about 29 years, resident of Village-Namolav, Th.
Dausa, Dausa-303303, employed as Casual /
Daily Wager Driver (MTS) (outsourcing) in the
office of Pr. DIT (INV), Jaipur.
6. Shankar Lal Meena son of Shri Jayram Meena,
aged about 34 years, resident of Village-Post-
Chawandiya, Bassi, Th. Jamwa Ramgarh, Jaipur-
303301, employed as Casual/Daily Wager Peon
(MTS) (outsourcing), in the office of Pr. DIT
(INV.), Jaipur.
7. Laxmi Narain Chawla son of Shri Prahlad Chawla,
aged about 39 years, resident of 40, Krishna
Nagar, Gopalpura Bye-pass Road, Jaipur-302015,
employed as Casual / Daily Wager Data Entry
Operator (outsourcing), in the office of DGIT
(INV.), Jaipur.
8. Ramesh Singh Naruka son of Shri Laxman Singh
Naruka, aged about 30 years, resident of Village-
Post-Kerwawal, Th. Malakheda, Dist. Alwar-
301406, employed as Casual / Daily Wager Peon
(MTS) (outsourcing), in the office of (INV.),
Jaipur.
9. Anuj Khandelwal son of Shri Ashok Kumar
Khandelwal, aged about 26 years, resident of
213-A, Ganesh Watika-iii, Kalawala, Watika
Road, Sanganer, Jaipur-303905, employed as
Casual / Daily Wager Data Entry Operator (MTS)
(outsourcing), in the office of (INV.), Jaipur.
10. Kamlesh Kumar Khotiwala son of Late Shri
Ranjeet Kumar Khotiwala, aged about 42 years,
resident of Village-Jhar, Post-Dudoli, Th. Bassi,
Jaipur-303301, employed as Casual/Daily Wager
Peon (MTS) (outsourcing), in the office of (INV.),
Jaipur.
11. Naveen Kumar Atal son of Shri Hanuman
Prasad Atal, aged about 30 years, resident of
Ward No. 3, Raigraon Mohalla, Newai, Tonk-
304021, employed as Casual / Daily Wager Data
Entry Operator (MTS) (outsourcing), in the office
of (INV.), Jaipur.
12. Sonu Dixit son of Shri Mohan Lal Dixit, aged
about 28 years, resident of Brahamano Ka Bass,
Watika, Sanganer, Jaipur, employed as Casual /
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OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
Daily Wager Peon (MTS) (outsourcing), in the
office of (INV.), Jaipur.
13. Naveen Kumar Pipaliwal son of Shri Suresh
Chand Pipaliwal, aged about 30 years, resident of
4139, Top Khana Ka Rasta, O.P. Bazar, Jaipur-
302001, employed as Casual / Daily Wager Peon
(MTS) (outsourcing), in the office of (INV.),
Jaipur.
....Applicants
Shri C.B. Sharma, counsel for applicants.
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Central Board of
Direct Taxes, North Block, New Delhi-110001.
2. Director General of Income Tax (Investigation),
N.C.R. Building, Statute Circle, B D Road, Jaipur-
302005.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
OA No. 152/2019
Mahesh Chand Gurjar Son of Shri Kailash Chand
Gurjar, aged about 35 years, resident of Outside Delhi
Gate, Behind Khas School, Meena Padi, Alwar-301001
Last employed as Casual / Daily Wager Peon (MTS)
(Outsourcing), in the office of Deputy Director of
Income Tax (Investigation), Income Tax Bhawan, Moti
Doongri, Alwar-301001.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to Government
of India, Ministry of Finance, Central Board of
Direct Taxes, North Block, New Delhi-110001.
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OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
2. Principal Director General of Income Tax
(Investigation), Central Revenue Building, Statute
Circle, B.D. Road, Jaipur-302005.
3. Deputy Director of Income Tax (Investigation),
Income Tax Bhawan, Moti Doongri, Alwar -
301001.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
OA No. 126/2019
1. Vikas Jain Son of Shri Sajjan Raj Jain,
aged about 38 years, R/o 4-J P Nagar, Sector-3,
Naka Madar, Ajmer, last employed as Casual
Labour (MTS) in the office of ITO Ward 1(3),
Income Tax Office Ajmer.
2. Rajesh Gora, Son of Shri B.L. Gora, aged
about 37 years, R/O H. No. 194/2, Near Water
Tank, Bhopo Ka Bara, Ajmer, last employed as
Casual Labour (MTS) in the office of ITO Ward
2(2), Income Tax Office Ajmer.
3. Manish Panwar, Son of Shri H.K. Panwar,
Aged about 36 years, R/o 444/36, Naya Bara,
Police Line, Ajmer last employed as Casual
Labour (MTS) in the office of CIT Appeals,
Income Tax Office, Ajmer.
....Applicants
Shri C.B. Sharma, counsel for applicants.
VERSUS
1. Union of India through Secretary to
Govt. of India, Ministry of Finance, Deptt. of
Revenue, North Block, New Delhi-11001.
2. Principal Chief Commissioner of Income
Tax, C R Building, Statute Circle, B D Road,
Jaipur-302005.
3. Principal Commissioner of Income Tax, C
R Building, Opposite Session Court, Jaipur Road,
Ajmer-305001.
4. Manohar Lal, Casual Labour (MTS),
Outsourced Labour, O/o Principal Commissioner
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OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
of Income Tax, C R Building, Opposite Session
Court, Jaipur Road, Ajmer-305001.
5. Pradeep Kumar, Casual Labour (MTS)
Outsourced Labour, O/o Principal Commissioner
of Income Tax, C R Building, Opposite Session
Court, Jaipur Road, Ajmer-305001.
6. Naresh Kumar, Casual Labour (MTS),
Outsourced Labour, O/o Principal Commissioner
of Income Tax, C R Building, Opposite Session
Court, Jaipur Road, Ajmer-305001.
7. Arun Rajoriya, Casual Labour (MTS)
Outsourced Labour, O/o Principal Commissioner
of Income Tax, C R Building, Opposite Session
Court, Jaipur Road, Ajmer-305001.
.... Respondents
Shri Gaurav Jain, counsel for respondent nos. 1 to 3.
OA No. 372/2017 with MA No. 70/2019
1. Deepak Goyal Son of Shri Kishan Chand
Goyal, aged about 29 years, at present employed
as Casual Worker (MTS) (shown as through
service provider) in the office of Income Tax,
Beawar.
2. Sita Ram Solanki Son of Shri Shankar
Lal, aged about 34 years, at present employed as
Casual Worker (MTS) (shown as through service
provider) in the office of Income Tax, Beawar.
3. Ummaid Regar Son of Shri Biram Lal,
aged about 26 years, at present employed as
Casual Worker (MTS), (shown as through service
provider) in the office of Income Tax, Beawar.
4. Gajraj Singh Son of late Shri Lal, aged
about 47 years, at present employed as Casual
Worker (MTS) (shown as through service
provider) in the office of Income Tax,
Kishangarh, Distt. Ajmer.
5. Bundu Khan Son of Shri Peer Khan, aged
about 39 years, at present employed as Casual
Worker (MTS) (shown as through service
provider) in the office of Income Tax,
Kishangarh, Distt. Ajmer.
6. Jitendra Kumawat Son of Shri Sohan Lal
Kumawat, aged about 30 years, at present
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OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 &
OA No. 372/2017 with MA No. 70/2019
employed as Casual Worker (MTS) (shown as
through service provider) in the office of Income
Tax, Kishangarh, Distt. Ajmer.
Address for correspondence:
C/o Deepak Goyal son of Shri Kishan Chand
Goyal, R/o Gopal ji Mohalla, Bhairu Ji Ki Gali,
Beawar, Distt. Ajmer.
....Applicants
Shri C.B. Sharma, counsel for applicants.
VERSUS
1. Union of India through Secretary to
Govt. of India, Ministry of Finance, Deptt. of
Revenue, North Block, New Delhi.
2. Principal Chief Commissioner of Income
Tax, C R Building, Statute Circle, B D Road,
Jaipur.
3. Chief Commissioner of Income Tax, 6,
New Fatehpura, Udaipur-313001.
4. Principal Commissioner of Income Tax,
Central Revenue Building, Ajmer (Rajasthan).
.... Respondents
Shri Gaurav Jain, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member With the consent of learned counsels for the parties, OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 are taken up together for 7 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 disposal as common question of law and facts are involved in the aforesaid cases.
2. For the sake of convenience, brief facts of OA No. 343/2018 are taken up. OA No. 343/2018 has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(i) That the applicants may be permitted to pursue this joint application on behalf of 13 applicants under rule 4(5) of CAT Procedure Rule 1987.
(ii) The impugned order dated 31.12.2015 (Annexure A/1) to the extent the same denied the due wages to the persons who have not gone into litigation, may be declared illegal and the same may be quashed. The respondents may be directed to make payment to the applicant @ 1/30th of the pay at the minimum of the time scale of pay of the group D staff plus dearness allowances per the per day rate prescribed vide order dated 13.12.2017 (Annexure A/2) and applicants allowed with all consequential benefits including the due arrears thereof and also further revision of wages as per the recommendations of 7th CPC.
(iii) That the applicants may also be protected from disengagement/ termination from service. That any other direction, or orders may be passed in favour of the applicants, which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.8
OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019
(iv) That the costs of this application may be awarded."
3 (a). The brief facts of OA No. 343/2018, as stated by the applicants, is that they were initially engaged as daily wages casual worker to work as Casual Computer Operator, Peon/MTS, Driver etc. and are presently working as casual labour in the office of Pr. DIT (Inv.), Jaipur / DGIT (Inv.), Jaipur. Initially they were performing duties directly under the respondents and thereafter they were engaged through service provider agency/contractor. They are performing their duties for 8 hours a day and working satisfactorily. They are doing same job as done by regular employees. Monthly payments are made to them through the contractor. The rates fixed are much below the daily wages rates being paid to the casual labour. The DOPT has issued OM dated 07.06.1988 on the subject of 'Recruitment of casual workers and persons on daily wages Review of Policy' and sub clause (iv) of the said OM, reads as under:-
"Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay of the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day."9
OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 Thus, the applicants state that as they do the same work as regular employees, they are entitled to get the benefits of the said OM. Respondents issued an order dated 09.07.2007 fixing amount of Rs. 164/- per day for casual workers. The same came to be revised to Rs. 222 and thereafter to Rs. 292/- w.e.f 01.07.2008, but the same was given w.e.f. 01.10.2010. Similarly situated persons filed OA No. 531/2011 (Abdul Kadir & Ors. vs. Union of India & Ors.) before Jodhpur Bench of this Tribunal and this Tribunal vide order dated 14.08.2012 allowed the O.A. directing the respondents to pay an amount of Rs. 292/- per day to casual workers w.e.f. 01.07.2008 with all consequential benefits and the said order of Tribunal was upheld by the Rajasthan High Court vide order dated 22.08.2013 in D.B. Civil Writ Petition No. 49/2013 (UOI & Ors. vs. Abdul Kadir & Ors.) and the said issue is no more res integra. Similar controversy has been set to rest by the Hon'ble Apex Court in Civil Appeal No. 213/2013 (State of Punjab & Ors. vs. Jagjit Singh & Ors.).
(b). An order dated 31.12.2015, (Annexure A/1), was passed by respondents in compliance of various 10 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 orders/judgments passed by this Tribunal as upheld by the Hon'ble High Court to pay salary in accordance with the Circular issued by DOPT following the ratio 1/30th of pay in respect of casual workers working in the department of Income Tax in Rajasthan Circle and to extend the benefit of said orders only to those persons who have approached this Tribunal. The applicants had not approached this Tribunal at that relevant time, therefore, they cannot be disallowed the benefits of order dated 31.12.2015. The applicants are similarly situated employees and are also entitled for arrears as granted to other persons. Therefore, being aggrieved by the action of the respondents, applicants have approached this Tribunal for redressal of their grievances.
(c). As far as OA No. 152/2019 is concerned, the only difference is that the applicant has challenged letter dated 24.12.2018 (Annexure A/1 in that OA), whereby directions have been issued by the respondent no. 2 to the contractor i.e. M/s. Raj Manpower, Ajmer Road, Jaipur for discontinuing the services of the applicant w.e.f. 01.01.2019. He was initially engaged as daily wages casual worker to work as Casual Peon on daily 11 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 wage basis and he worked from June, 2012 upto 16.03.2016 and thereafter from 01.11.2016 continuously worked upto 31.12.2018. Rest of the facts are identical to that of OA No. 343/2018. Applicant states that he is similarly situated person as the ones mentioned in orders dated 09.01.2019, 30.01.2019 and 31.01.2019, whereby this Tribunal has protected the services of those casual labours and, therefore, his services cannot be disengaged vide order dated 24.12.2018 (Annexure A/1 to that OA) and, therefore, the said order i.e. Annexure A/1 be quashed qua the applicant.
4(a). After issue of notices, respondents have filed their reply raising preliminary objection stating that the present O.A. is not maintainable as the applicants are neither employees of Income Tax Department, nor they are casual workers directly engaged by the Department. Their services are provided to the Department through service provider, M/s Raj Manpower, 818, Bansi Path, Rani Sati Nagar, Jaipur for performing ancillary work and payment for said work done by them is also made through the service provider as per the agreement entered into by the 12 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 concerned authority/Drawing and Disbursing Officers with the service provider and applicants have not impleaded M/s. Raj Manpower, as party respondent and, thus, in absence of necessary party, the present O.A. deserves to be dismissed.
(b). Since the applicants are not appointed to any post or service by the Government, the matter does not come within the ambit of "Service Matter" as per Section 3(q) of the Administrative Tribunals Act, 1985. Also as per Section 14 of Administrative Tribunals Act, 1985, the same do not cover the grievances of the present applicants. Therefore, the O.A. filed by the present applicants whose services were provided to the Department through service provider/contractor, deserves to be dismissed as not maintainable in view of the judgment of the Hon'ble Apex Court passed in the case of Union of India vs. Chhote Lal, reported in AIR 1999 SC 376 and also by several other Courts including this Bench of the Tribunal.
(c). On facts, respondents state that applicants are currently providing different services as Data Entry Operator, Peon/MTS, Sweeper, Driver as a Casual 13 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 Labour in the office of Income Tax at Jaipur. They are providing services on behalf of a service provider i.e. M/s Raj Manpower, as per the agreement. They are employees of M/s. Raj Manpower, and are never engaged directly by the Department. Respondents further state that in respect of litigation between the Department and Casual Workers, it is submitted that certain casual workers who were directly engaged by Income Tax Department in Rajasthan had directly approached this Tribunal and Hon'ble Rajasthan High Court at Jodhpur and Jaipur and requested for quashing the order of the Income Tax Department dated 31.05.2011 through which the Department had withdrawn granting of wages of casual workers directly engaged by the Department, in accordance with the formula of 1/30th of minimum of pay scale of erstwhile Group 'D' staff, which were being given earlier. In compliance of the Hon'ble Rajasthan High Court's directions and in pursuance of CBDT guidelines dated 16.10.2015 in respect of court cases, the O/o Pr. Chief Commissioner of Income Tax, Rajasthan, Jaipur issued an order dated 31.12.2015 (Annexure R/1) in which daily rates of casual workers engaged by the Department in Rajasthan Region was fixed on 'no 14 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 work no pay' basis at the rate of 1/30th of minimum of pay scale of erstwhile Group 'D' staff plus dearness allowance. The wages as fixed were to be paid only to those casual workers who were directly engaged by the Department and in whose cases Hon'ble Tribunal as well as Hon'ble High Court had specifically directed to do so. The case of the applicants is totally different from the cases of those casual workers who had approached the Hon'ble High Court and Tribunal as the casual workers involved in those cases were the ones who were directly engaged by the Income Tax Department to do certain work but, on the other hand, the present applicants were not directly engaged by the Department and right from day one the applicants were providing services through service provider, M/s. Raj Manpower, for performing ancillary work and payment for the work done by them is also made through the service provider as per the agreement, (Annexure R/2), entered into with the said contractor and the Department. Thus, being employees of the contractor, their claim for benefits of order dated 31.12.2015 (Annexure A/1) is not at all tenable in view of the preliminary objections raised. On merits, respondents state that the outsourcing of services is a 15 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 policy matter of the Government and the applicants are engaged by the contractor/service provider as per Rule 178 of General Financial Rules. It is clear that they are employees of the said company and not of the Department. On this ground itself, the present O.A. deserves to be dismissed. With regard to payment of wages, it is submitted that payment is made to the service provider/contractor as per the agreement entered into with them by the department, which is minimum wages as notified by the Central Labour Commissioner from time to time. Thus, there is no denial of minimum wages to the applicants. Thus, the action of the respondents is quite just and legal and the same is in accordance with law, therefore, the present O.A. deserves to be dismissed.
(d). As far as OA No. 152/2019 is concerned, the respondents adopt the same arguments as made to the earlier O.A. and further state that the claim of the applicant that he is similarly placed casual worker vis- à-vis the casual workers directly engaged by the department is incorrect as the services of the applicant in the present OA has been provided by the service provider in the O/o DDIT (Inv.), Alwar, w.e.f. 16 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 01.11.2016 and he is the employee of the service provider and payment to him was made by the service provider as per agreement entered into by the department. Thus, person engaged by the service provider/contractor to do ancillary work are not similarly placed vis-à-vis the casual workers engaged directly by the department who are working for a number of years. Applicant was engaged as outsourced worker through M/s Raj Manpower and was working with DDIT (Inv.) Alwar w.e.f. November 2016. Since regular MTS employees have already joined in the department and one MTS was also posted with DDIT (Inv.) Alwar, there was no requirement of the outsourced manpower with the DDIT (Inv.), Alwar. Thus, in order to reduce the expenses incurred on outsource services as the applicant was the only outsourced worker at Alwar station of the Directorate, the contractor, M/s. Raj Manpower was intimated vide letter no. 690 dated 24.12.2018 by the respondents not to continue services of four persons including the applicant. Respondents further state that this Bench of the Tribunal in OA No. 206/2016 (Vishvendra Singh & Ors. vs. UOI & Ors.) & OA No. 207/2016 (Bhagwan Singh & 17 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 Ors. vs. UOI & ors.) vide its order dated 30.05.2017 has dismissed the OA' filed by disengaged casual workers and upheld the action of the Department in disengaging them on revaluation and reassessment of work. The order of this Tribunal was challenged by those disengaged workers by way of filing DBCWP No. 8820/2017 and others connected Writ Petitions before the Hon'ble High Court of Rajasthan, Jaipur Bench and Hon'ble High Court vide its order dated 02.06.2017 dismissed the said WPs and upheld the action of the Department. Also D.B. Writ Review No. 254/2017 filed in the case of Bhagwan Singh & Ors. vs. UOI & Ors. has been dismissed by the Hon'ble High Court vide its order dated 24.09.2018 and the SLP No. 45887/2018 filed by Bhagwan Singh Ors. has also been dismissed by Hon'ble Supreme Court vide order dated 02.01.2019. Thus, the present O.A. too deserves to be dismissed as the reliefs claimed in present O.A. are almost identical to that of Shri Bhagwan Singh.
5. The applicants have filed a rejoinder rebutting the submissions of the respondents. They rely on the order dated 26.10.2018 passed in implementation of orders of this Tribunal in OA No. 548/2015 decided on 18 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 01.05.2017, wherein the Tribunal has given a direction to bring back the casual labour from outsourcing through contractor and many persons have been re-engaged as casual labour. The Applicants state that the orders dated 31.12.2015 are applicable in the case of contract/outsource labour also and respondents are unnecessarily trying to confuse and are intending to deny the payment of wages to the applicants.
6. We have heard learned counsels for the parties at length and examined the pleadings minutely along with the judgments/orders cited by the parties.
7. The applicants as well as the respondents reiterated their submissions as stated earlier.
8. The question which requires consideration is whether the applicants who have been appointed through service provider/contractor and not appointed to any post or service by the Government comes within the ambit of service matters as per Section 3(q) of the Administrative Tribunals Act, 1985. 19 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019
9. After hearing the parties and perusing the pleadings, the factual matrix of the case is that the present applicants are currently providing various services as Data Entry Operator, Peon/MTS, Sweeper, Driver, etc. as casual workers in the office of Pr. DIT (Inv.), Jaipur / DGIT (Inv.), Jaipur. They have been appointed by the said service provider/contractor, M/s Raj Manpower and their services are provided to the department by the said service provider who have directly engaged them as per the agreement entered into by the DDO office of Pr. DIT (Inv.), Jaipur with the said contractor. It is clear that there is no master and servant relationship between the applicants and the official respondents as neither they have appointed them nor is their salary being paid by the department as they are the employees of said M/s Raj Manpower. It is clear that M/s Raj Manpower, has also not been made a party respondent though the same is a necessary party.
10. We are in agreement with the arguments made by Shri Gaurav Jain, learned counsel for the respondents that the present Original Application does not fall within the definition of 'service matters' as per 20 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 the provisions of Section 3 (q) of the Administrative Tribunals Act, 1985 which reads as under:-
"3.(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;"
11. As observed by us as the applicants are the employees of a service provider, therefore, it cannot be said that the matter as projected in the O.A. is with regard to the conditions of their services in connection with the affairs of the Union or of any State or of any local or other authority. Apart from this, Section 14 of the Administrative Tribunals Act, 1985, which deals with the definition of Jurisdiction, Powers and the Authority of this Tribunal, which is as under:-21
OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 "14. Jurisdiction, powers and authority of the Central Administrative Tribunal. - (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 1[***] in relation to -
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning -
(i) a member of any All-India Service;
or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or 2 society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub- clause (iii) of clause (b), being a person whose 22 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 services have been placed by a State Government or any local or other authority or any corporation 2[or society] or other body, at the disposal of the Central Government for such appointment.
2 [Explanation. - For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub- section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations 2[or societies] owned or controlled by Government, not being a local or other authority or corporation 1[or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations 1[or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 1[or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court 2[***]) in relation to -
(a) recruitment, and matters concerning recruitment, to any service or post in 23 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 connection with the affairs of such local or other authority or corporation 1[or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-
section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation 1[or society] and pertaining to the service of such person in connection with such affairs."
12. With regard to the prayer of the applicants that they are entitled to be treated at par to those persons who have been allowed the benefit of the order dated 31.12.2015 (Annexure A/1) along with arrears cannot be accepted for the simple reason that the applicants are clearly on the roll of the service provider i.e. M/s. Raj Manpower, who pays them salary, deducts their P.F & ESI and manages all their employees related functions. Also the casual workers involved in the court cases before the Hon'ble High Court as well as that of the Tribunal were the ones who were directly engaged by the Income Tax Department, while the applicants were never directly engaged by the Department. So the case of the applicants is totally different from the cases of casual workers who had approached the Hon'ble High Court and Tribunal. In 24 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 such a situation when the applicants were never engaged by the Department directly, the question of extending the benefit of Department's order dated 31.12.2015 to the applicants does not arise. Thus, we are not in agreement to accept that the applicants are similarly situated to those who have been allowed the benefit of Department's order dated 31.12.2015 (Annexure A/1). Neither do we agree with the stand of the applicants that they are entitled to the benefits as granted to persons vide order dated 26.10.2018 (Annexure A/7) as those employees were working with the Department as Casual Workers since beginning which is not in case of the present applicants. Also in such circumstances, there can be no parity with the daily wage workers whose wages has been fixed by the Department vide order dated 31.12.2015.
13. We are in agreement with the order dated 18.03.2020 passed by this Bench of the Tribunal in the case of Dharam Singh vs. UOI & Anr. (OA No. 176/2019) & other connected OAs; as relied upon by the respondents,; more particularly in an identical case decided by this Bench of the Tribunal vide order dated 31.01.2022 in the case of Poonam Kashyap & 25 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 Ors. vs. UOI & Ors. (OA No. 42/2019), besides several other judgments/orders.
14. As far as OA No. 152/2019 is concerned, besides the main ground that since the applicant has been engaged by the service provider, this Tribunal has no jurisdiction to try and entertain the present OA as discussed above. Besides considering the other judgments, the case of the applicant being similar to Bhagwan Singh decided by this Tribunal in OA No. 207/2016 vide its order dated 30.05.2017 which has been upheld by Hon'ble High Court vide its order dated 02.06.2017 as well as the Review Petition filed before the Hon'ble High Court also being dismissed as well as the SLP filed before Hon'ble Apex Court by Bhagwan Singh has also been dismissed. Thus, the present O.A. also deserves to be dismissed as mentioned above.
15. In the facts and circumstances of the case, we find that the applicants, who are the employee of the service provider, namely M/s Raj Manpower, were neither appointed to any civil service of the Union or on civil post under the Union. In this view of the 26 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 matter, we find that this Tribunal has no jurisdiction to entertain the present Original Application.
16. In view of the discussions made herein-above, we are of the considered view that the present Original Application (OA No. 343/2018) deserves to be dismissed being not maintainable and the same is, accordingly, dismissed. No order as to costs.
17. In view of dismissal of OA No. 343/2018, the services of applicant nos. 1, 8 and 12, which were continued as per the interim directions dated 09.01.2019 stand vacated. Accordingly, M.A. No. 31/2019 in OA No. 343/2018 filed by applicants to stay the effect and operation of the order dated 24.12.2018 (Annexure MA/1) stands dismissed.
18. As OA No. 343/2018 has been dismissed, the OA No. 152/2019 also deserves to be dismissed in the light of the observations made herein-above as well as in view of the order passed in OA No. 207/2016 (Bhagwan Singh & Ors. vs. UOI & Ors.), which has been upheld by Hon'ble High Court as well as by Hon'ble Supreme Court besides other judgments 27 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 mentioned in the above paras. Accordingly, OA No. 152/2019 is dismissed. No order as to costs.
19. So far as OA No. 126/2019 is concerned, the applicants therein are challenging their oral termination w.e.f. 19.02.2019. The applicants state that they were working as MTS with the respondents since 2010-2011 and initially engaged as Data Entry Operator and thereafter since 2012 doing same job but payment is made by Contractor. They too rely on the order dated 26.10.2018 (Annexure A/1) passed by official respondents and state that they are similarly situated and so they are also entitled for similar reliefs. They adopt rest of the arguments as made in OA No. 343/2018. They further state that four private respondents are employed in the office of respondent no. 3 and they are continued in spite of expiry of the contract. In fact, we do not agree with the stand of the applicants that they are entitled to the benefits as granted to persons vide order dated 26.10.2018 as those employees were working with the Department as Casual Workers since beginning which is not in the case of the present applicants. We have heard the parties and observe that the applicants in the present 28 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 OA are not entitled for any reliefs in view of our observations in the above paras as they are not similarly situated employees and in the light of judgments discussed at para 13 & 14 above. Accordingly, Original Application No. 126/2019 is dismissed. No order as to costs.
20. As far as OA No. 372/2017 is concerned, the applicants therein are seeking re-engagement as casual labour/worker and that they be allowed to continue instead of continuing through contractor forthwith applying the ratio of judgment dated 01.05.2017 passed by this Bench of the Tribunal in OA No. 81/2016 (Shubhendu Ojha vs. UOI & Ors.) Respondents have, on the other hand, stated that DOPT OM dated 07.06.1988 is not applicable in their case as applicants have started to perform their duties after 2005 and onwards. They are providing their services through M/s Arjun Security Agency, Ajmer who is responsible for their payments including EPF, Etc. We have heard the parties at length and observed that the cases of the applicants are not similar to that of the case relied upon by the applicants. The applicants in the present O.A. are not entitled for any 29 OA No. 343/2018 with MA No. 31/2019, OA No. 152/2019, OA No. 126/2019 & OA No. 372/2017 with MA No. 70/2019 reliefs in view of our observations made in the above paras as they are not similarly situated employees and in the light of the judgments discussed at para 13 & 14 above. Accordingly, OA No. 372/2017 is dismissed. No order as to costs.
21. In view of dismissal of OA No. 372/2017, MA No. 70/2019, filed by the applicants seeking interim directions to allow the applicants to continue to work on the job on which they were working, till disposal of O.A., is dismissed as infructuous.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/