Central Administrative Tribunal - Jodhpur
Hardayal Singh vs M/O Environment, Forest &Amp; Climate ... on 28 September, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No. 290/00459/2016
Reserved on : 18.09.2018
Pronounced on : 28.09.2018
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
1. Hardayal Singh son of Shri Dalpat Singh, aged about
42 years, resident of Village & Post-Batra Now, Tehsil
Laxmangarh, Distt. Sikar.
2. Prahlad Singh son of Shri Mangal Singh, aged about 44
years, resident of Village-Bhandari, Post Mamroda via
Toliya, Distt. Nagaur.
3. Ajit Singh son of Shri Than Singh, aged about 48
years, resident of Village and Post-Begsar Via Molasar,
Distt. Nagaur.
4. Fateh Mohammad son Shri Abdul Khan, aged about 42
years, resident of Village & Post Jaitsar Via Setrawa,
Distt Jodhpur.
5. Pralad Singh son of Shri Chander Singh, aged about 45
years, resident of Village & Post Kurdaya, Distt Nagaur
6. Ajit Singh son of Bheru Singh, aged about 42 years,
resident of Village & Post Ramasani, Distt. Jodhpur
7. Ghan Shyam son of Shri Hari Ram, aged about 42
years, resident of Village and Post Rawar Via Bhawi,
Distt. Jodhpur.
All the applicants are employed as daily paid casual
labour in the office of Director, Arid Forest Research
Institute, New Pali Road, Jodhpur.
...APPLICANTS
BY ADVOCATE : Mr. J.K.Mishra
VERSUS
1. Indian Council of Forestry Research and Education (An
Autonomous Body of Ministry of Environment, Forests
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and Climate Change, Government of India), P.O. New
Forest, Dehrudun, Uttarakhand-24800 Through its
Director General.
2. The Director, Arid Forest Research Institute, New Pali
Road, Jodhpur-342005.
..RESPONDENTS
BY ADVOCATE: Mr. M.S.Godara
ORDER
The applicants have filed the present OA u/s 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-
(i) That the applicants may be permitted to pursue this joint application on behalf of seven applicants under rule 4(5) of CAT Procedure Rules, 1987.
(ii) That the respondents may be directed to grant the due benefits admissible under various OMs dated 7.6.88 (A/4) OM dated 10.9.1993 (A/5), OM dated 26.2.2016 (A/9) etc. issued by the DOPT in respect of Casual Labour; especially grant of wages @ 1/30th of pay scale group D pay scale with DA, HRA & CCA, per day and other benefits including one paid weekly holidays and consideration of grant of Temporary Status/regularisation, as per their entitlement under the above schemes and allow all the consequential benefits, notionally upto 21.2.2016 and actual benefits from 22.2.2016 and onwards.
2. The brief facts of the case, as stated by the applicants, are as under:-
In the present matter, applicants (seven in number) were initially engaged as daily wage casual labour on the dates mentioned against their names as under:-
1. Hardayal Singh - 1.9.1992
2. Prahalad Singh - 26.10.1993 s/o Chander Singh
3. Ajit Singh s/o - 12.9.1992 3 Sh. Than Singh
4. Fateh Mohammad - 1.9.1992
5. Prahalad Singh - Dec.1991 s/o Sh. Mangal Singh
6. Ajit Singh - 1.9.1992 s/o Sh. Bheru Singh
7. Ghan Shyam - 4.1.1994 The applicants state that they were employed on full time duty and were working for 8 hours per day. The nature of work entrusted to them was the same as that being done by regular employees. Applicant were performing their work satisfactorily, but were illegally terminated on 15.2.1995, therefore, they had approached this Tribunal (except applicant No.4) for direction to restrain the respondents for terminating their service by filing OA No. 31 to 41 of 1995.
The said OAs were dismissed for want of jurisdiction vide order dated 2.8.1995. Thereafter the applicants raised their grievance before the Conciliation Officer-cum- Labour Inspector, Govt. of Rajasthan at Jodhpur and the disputes were registered as 53,52,51, 206, 78, 79 and 54 of 1999 respectively. Separate awards were passed vide order dated 19.4.2002, but on similar terms and similar directions/reliefs to the applicants. The Labour Court had ordered that the applicants be treated as working continuous in service and be reinstated with back wages amounting to 25% of the salary payable to them from 4 24.5.1999 i.e. the date of reference (Ann.A/1). The applicants further state that the respondents had unsuccessfully challenged the said awards in respect of all the applicants except applicant No.6, before the Hon'ble Rajasthan High Court at Jodhpur and the Single Bench dismissed the same vide judgment dated 1.4.2004 upholding the award passed by the Labour Court. The DB Special Appeal was preferred against the judgment dated 1.4.2004 and the same was also dismissed vide common judgment dated 14.9.2004. Pertaining to respondent No.6, the Writ Petition as well as Special Appeal(Writ) came to be dismissed vide judgment dated 14.12.2004 and 10.5.2015 respectively on similar lines. Also SLPs filed against the judgment of the Hon'ble High Court have been dismissed by the Apex Court vide its common order dated 15.1.2016.
The applicants further state that they were paid 25% of salary in pursuance of the above award passed by the Labour Court vide similar order dated 9.2.2016. The applicants were taken back on duty on 22.2.2016 vide similar orders dated 20.2.2016 (Ann.A/3). The applicants averred that the DOPT issued OM dated 7.6.1988 in regard to recruitment of casual workers and persons on daily wager- review of policy and they are governed by the same. 5 The applicants have also referred to DOPT OM dated 10.9.1993 with regard to grant of temporary status and regularisation of casual workers-formulation of a scheme in pursuance of the CAT, Principal Bench judgment in the case of Raj Kamal and Ors vs. UOI and stated that the same be made applicable to them also. They have also referred to DOPT OM dated 1.9.1993 and also OM dated 31.5.2014 in respect of merger of 50% DA with basic pay and state that they are entitled for the benefits of the said OMs. The same was applicable to temporary status casual labour and also to casual workers, who are doing the same work as that of regular worker who are entitled to 1/30th of the pay at the minimum of the time scale of pay of Group-D staff plus Dearness Allowance. They have also referred to DOPT OM dated 12.9.2008 which clarified the position pertaining to grant of corresponding scale of revised pay for casual labours with temporary status. It is their plea that the OM dated 7.6.1988 continues to remain in force and the applicants are entitled to regularisation as per the said OM. It is their further plea that they are fully entitled for grant of wages as per revised rate granted under the 6th CPC.
The applicants further state that similar issue had come up for adjudication before this Tribunal in the case of 6 Abdul Kadir & Ors. vs. UOI and Ors. and the same was set to rest vide common order dated 14.8.2012. The said order was challenged before the Hon'ble High Court of Rajasthan at Jodhpur in DBCWP No. 49/2013 and the same has been upheld and the Writ Petition filed by the Union of India was dismissed vide common judgment dated 22.8.2013. In pursuance to the said judgment, the respondents issued order dated 31.12.2015 which has been passed by the Income Tax Department whereby the rates of wages to persons employed against regular nature of work have been prescribed. It is the plea of the applicants that as their matter is identical to that of Abdul Kadir, therefore, they are entitled to identical relief as given to the persons vide order dated 31.12.2015. The DOPT has also issued OM dated 26.2.2016 whereby some more benefits have been granted to casual labours with temporary status and same should be applied to them.
The applicants further state that they have come to know that there are number of vacancies in Group-D posts presently known at MTS and as a matter of fact, the applicants have been employed against such posts itself. This can also be seen that they are deemed to be continuously working and have now been continued against 7 regular nature of work and they work for more than 8 hours a day, but they have been deprived of their due benefits as admissible to them as per various OMs referred above. They have been paid only Rs. 213/- per day without any allowances or any paid holiday despite working for six days a week, in the name of minimum wages despite the fact that they are employed for full time. Also they are performing all the jobs meant for Multi Tasking Staff but due to revengeful attitude of the respondents they are being forced and harassed by the respondents to enter into litigation for their rights and due wages as given to similarly situated persons and therefore, they are left with no option but to approach this Tribunal for redressal of their grievance.
3. The respondents have filed their reply dated 19.1.2017 after issue of notice. They have raised the plea of maintainability and stated that the applicants are working as daily wagers from the different dates and their working days are also different. Therefore, the OA is not maintainable. Since the applicants have simultaneously prayed for grant of regularisation as well as temporary status, the same can only be considered if the individual is able to establish his own case with supportive documents, 8 but in the present case, no documentary proof is provided by the applicants pertaining to number of days of services put in by them, therefore, OA suffers from mis-joinder of the parties. The respondents have also stated that the present OA is also premature for want of cause of action as the applicants before approaching this Tribunal did not raise any grievance before the respondents, but have directly approached this Tribunal and, therefore, the OA deserves to be dismissed as the applicants have failed to exhaust departmental remedy available to them before approaching this Tribunal. The respondents have also raised the issue that the reliefs claimed by the applicants are multiple in nature as it is not clear as to which relief is being sought by them in pursuance to several Government OMs as there are number of prayers seeking direction under various OMs issued by the Government. Therefore, in the absence of any specific relief, the matter cannot be adjudicated and, therefore, the present OA deserves to be dismissed on this ground also.
The respondents further state that the applicants were initially engaged as daily wagers on need basis and their services were terminated which was subject to judicial review and they were allowed to be reinstated back in 9 service on the same status which they were holding prior to their termination. Thus, in pursuance to the judicial order they were reinstated by different orders as per the earlier round of litigation. Now the applicants have filed the present OA mainly for claiming the benefit of payment @ 1/30th of the pay plus dearness allowance of the regular employee on account that they are working under the respondents but the same is not sustainable in the eyes of law as they are employed as daily wagers for performing casual and seasoned work, which is not regular nature of work. Therefore, their claim for being considered as per similar work and claiming similar benefit as that given to the applicants in Abdul Kadir case cannot be compared as the case of the applicants is not identical to that of Abdul Kadir. These applicants are assigned the work which is purely temporary/casual nature like pruning of the trees, filling the sand in the poly bags in experimental plots/nursery and pouring the water into the small trees/plants etc. As their work is purely temporary and seasonal, they cannot be compared with regular employees. Therefore, the present OA deserves to be dismissed.
4. The applicants have filed rejoinder denying the submissions of the respondents. It is their plea that there is 10 no statutory remedy under service rules pertaining to filing of appeal and, therefore, the objections raised is not sustainable in view of Section 20 of the Administrative Tribunals Act, 1985. Also pertaining to the multiplicity of reliefs, the same has been denied by the applicants as their claim is for grant of due benefits under OM dated 7.6.1988 as supplemented vide OM dated 10.9.1993 which does not show any multiplicity of any relief as the same is complementary and supplementary to each other. It is their plea that they are performing their duties as entrusted to persons working on the post of regular MTS. They are employed for full day and are performing 8 hours duty every day like other MTS. They have worked uninterruptedly earlier to their illegal termination and after their re-engagement from 22.2.2016 onwards. There is a specific finding that they have completed more than 240 days which is evident from the fact that they have also been paid arrears considering them as continuous in service, though it may be 25% of the wages. Therefore, their cases are fully covered as per OM dated 7.6.1988 and 10.9.1993. Also the applicants state that applicant No. 1,3, 4,5 and 6 have completed the one time exception as they have completed 240 days as on 1.9.1993. Therefore, as per 11 the award of the Labour Court, it was very clear that they have completed more than 240 days and as they have been reinstated which clearly shows that they have been working full time without any interruption. Therefore, the relief as prayed for by them deserves to be granted to them.
5. Heard Shri J.K.Mishra, counsel for the applicants and Shri M.S.Godara, counsel for the respondents and perused the material available on record.
6. It is the case of the applicants that they are entitled for minimum wages as per OM dated 7.6.1988. As per Sub- clause-IV of the said OM, they are entitled for wages at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for working 8 hours a day. As per the OM dated 10.9.1993 since they have completed 240 days in a calendar year, therefore, they are entitled for grant of temporary status as granted by CAT-Principal Bench, New Delhi vide its judgment dated 16th February, 1990 in case of Raj Kamal and Ors. vs. UOI and Ors. As the present applicants being exactly identical to the said employees, they are entitled for the similar relief as granted by the Principal Bench in that case. Though the OA Nos. 36/1995 to 41/1995 were dismissed for want of jurisdiction 12 by this Tribunal vide order dated 2.8.1995 but the Writ Petitions filed by the respondents before the Hon'ble Rajasthan High Court were dismissed vide order dated 1.4.2004. Also the DB Special Appeals were also dismissed vide common order dated 14.9.2004 and the SLPs before the Hon'ble Apex Court were further dismissed vide common order dated 15.1.2016. Therefore, the award passed by the Labour Court dated 19.4.2002 holds good and accordingly, the applicants were reinstated with continuity in service and were paid 25% of back wages. Though the services of the applicants were terminated since 15.2.1995, but they were reinstated in service vide order dated 22.2.2016, therefore, they are entitled for all the benefits as per various OMs referred by them and that they may be treated as casual labour doing the same work as that of regular employee. In support of their contentions, the applicants have relied upon the following judgments:-
i) Civil Appeal Nos.7423-7429 of 2018 (Arising out of S.L.P. (Civil) Nos. 19832-19838 of 2017) - Narendra Kumar Tiwari and Ors. vs. State of Jharkhand and Ors.
ii) Amarkant Rai vs. State of Bihar & Ors., 2015 AIR SCW 3080
iii) State of Karnataka & Ors. vs. M.L.Kesari & Ors., 2010 AIR SCW 4577 13
iv) ONGC Ltd. vs. Petroleum Coal Labour Union and Ors., 2015 AIR 2866
v) State of Punjab & Ors.vs. Jagjit Singh & Ors.AIR 2016 SC 5176 In the case of Amarkant Rai, the applicant was working as daily wager as Night Guard in college. He served the post for 29 years. There was no material on record that the appellant was lacking any qualification or was having any blemished record during the employment for over two decades. The Hon'ble Apex Court had held that he was therefore, entitled to be regularised. As per the judgment of M.L.Kesari, the case of appellant was that he had put in more than 15 years of service as daily wager in Panchayat without any protection from court and direction was given to Zila Panchayat to consider his case in accordance with law for regularisation as one-time measure if they fulfil the requirements as mentioned in Para-53 of Umadevi's case.
The said direction was given by the Hon'ble Apex Court as one time measure to find out whether there are any daily wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirement mentioned in Para 53 of Ume Devi's case and if they fulfil such requirements, then their service have to be regularised. In the case of 14 Narendra Kumar Tiwari the appellants were seeking regularisation of service as they were appointed as employees of the State Government and were daily wage or contractual workers on different posts and have put in more than 10 years of service. But since formation of new state of Jharkhand they could not complete 10 years of service on the cut-off date of 10th April, 2006. Therefore, the Hon'ble Apex Court observed that no one can get the benefit of Regularisation Rules which made the entire legislative exercise totally meaningless due to formation of new State of Jharkhand. The Hon'ble Apex Court observed that the Regularisation Rules be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules ought to be given the benefit of service rendered by them. Accordingly, if they have completed 10 years of service they should be regularised unless there is valid objection towards their regularisation like misconduct etc. Pertaining to the case of ONGC Ltd. vs. Petroleum Coal Labour Union and Ors. is concerned, the workmen had completed more than 240 days of services subsequent to the memorandum of appointment issued by the Corporation in the year 1988 in a period of 12 calendar 15 months, therefore, they were entitled for regularisation of their service into permanent posts of the Corporation as per the Act as well as certified standing orders of the Corporation. In the case of State of Punjab vs. Jagjit Singh, the Hon'ble Apex Court considered the principle of 'equal pay for equal work' and in para 54 and 55 has observed as under:_ "54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
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7. The respondents state that the relief claimed by the applicants are of multiple in nature and no specific relief has been claimed individually by the applicants showing exact number of OM and their entitlement on the basis of the said OM of the DOPT. The respondents further state that the applicants have sought the benefits of the said OMs in general without their entitlement for grant of any relief. It is their plea that the applicants cannot be granted relief in a straight jacket formula as they are not fulfilling all the four conditions as required in the case of Secretary, State of Karnataka vs. Uma Devi. The applicants are seeking back door entry for being regularised and also for grant of temporary status. As the case is not identical to Abdul Kadir, therefore, extending benefit of order dated 31.12.2015 as well as OM dated 26th February, 2016 will not suffice. Further, that case is completely different from the case in hand. Also the Apex Court judgment in case of Mohan Pal is very clear pertaining to one time measure as per the OM dated 10.9.1993. Therefore, the applicants do not deserve any relief on the ground of maintainability, limitation as well as multiple reliefs being sought by the present applicants and accordingly, the present OA deserves to be dismissed. In support of their contention, 17 the respondents have relied on the judgment of Secretary, State of Karnataka vs. Uma Devi (3) [(2006) 4 SCC1] and stated that since the applicants are not fulfilling all the conditions as required in Uma Devi's case, their services cannot be regularised and if such appointments are made, the same will be held as illegal.
8. After going through the rival submissions of both the parties, it is clear that the services of the applicants who were initially engaged as daily wage casual labours were terminated from 15.2.1995. Thereafter, they approached the Labour Court and the Labour Court vide its award dated 19.4.2002 ordered to reinstate the applicants and their services were deemed be considered as continuous and they were also paid back wages to the extent of 25% of the salary payable to them from 24.5.1999 i.e. the date of reference. The said award of the Labour Court was challenged before the Rajasthan High Court at Jodhpur and the Single Bench had dismissed the Writ Petitions vide judgment dated 1.4.2004 and the award passed by the Labour Court was upheld. Thereafter the DB Civil Special Appeals were preferred against the judgment of the Single Bench of the High Court and the same were also dismissed vide common judgment dated 14.9.2004. Thereafter SLPs 18 were filed by the respondents before the Hon'ble Apex Court and the said SLPs were also dismissed vide common order dated 15.1.2016. The respondents vide their order dated 9.2.2016 paid 25% of the salary as back wages and applicants' services were reinstated on 22.2.2016 vide similar orders dated 20th February, 2016. Now the applicants are seeking similar benefits as have been granted in the case of DBCWP No.49/2013- Union of India and Ors. vs. Abdul Kadir and Ors. wherein the Hon'ble High Court observed as under:-
"For the facts that the nature of work entrusted to the applicants is the same as entrusted to the regular employees and their working hours are also the same, or to say, minimum 8 hours of day, in our view, they could not have been discriminated against by providing that they would be getting the wages lesser than the other casual workers who had been given temporary status. The CAT had recorded categorical findings that the nature of the duties being performed by the applicants has not undergone a change; and that the applicants have been performing the duties of the regular employees or even more. These findings have not, as such, been put to contention before us, and rightly so. The department has never adduced any material to show that for the applicants, there had been a shortened length of duties or lesser quantum of work than the regular employees or any other difference in the nature of the duties. That being the position, the view taken by the CAT that there was nothing cogent available with the petitioners to reduce or alter the wage structure to the disadvantage of the applicants cannot be faulted at."19
9. Pertaining to the plea of limitation raised by the respondents, it is clear that the present OA cannot be said to be barred by limitation as the applicants were continuous in litigation since 1999 and finally reinstated in 2016 after the Apex Court order dated 15.1.2016 and have approached this Tribunal by filing the present OA on 25.7.2016. Pertaining to the plea that the present OA is not maintainable as raised by the respondents on the ground that the applicants were appointed on different dates and their working days are also different, it is clear that the basic question of all these applicants is with regard to grant of temporary status as the applicant Nos. 1 and 3 to 6 have basically completed 240 days as on 1.9.1993. Therefore, the applicants, as held by the Labour Court, are deemed to be continuous in service which view was upheld by the High Court and Apex Court, therefore, the question of maintainability of OA does not arise as the OA is found maintainable.
So far as the plea raised by the respondents that the OA suffers on the ground of mis-joinder of parties cannot be applied to the present OA as, though no documentary proof of number of days worked by the applicants is annexed to the OA, but it is clear that the order of the 20 Labour Court has been upheld by the High Court as well as by the Apex Court and the applicants are deemed to be in continuous service. So there is no question of OA being dismissed on the ground of mis-joinder of parties.
With regard to the submission of respondents that the present OA is premature and deserves to be dismissed cannot be accepted as the Department was represented at the Labour Court, High Court and also SLPs were filed by them, thus, they were completely aware about the said grievance of the applicants. Also, the question of multiple reliefs raised by the respondents do not help them as the main relief sought by the applicants is for grant of temporary status and rest reliefs are consequential. Therefore, as the reliefs are supplementary and complementary in nature, the plea raised by the respondents on this ground does not survive.
10. Therefore, considering the issue in the facts and circumstances of the present case, since the applicants are deemed to have been continuously working as per the orders of the Labour Court dated 19.4.2002 with their continuity and payment of back wages and which orders have been upheld upto the Hon'ble Apex Court, in such 21 situation, the principle of 'equal pay for equal work' is applicable to the present applicants as per the ratio of the Hon'ble Apex Court in the case of State of Punjab vs. Jagjit Singh and Ors. (supra). Accordingly, it would be just and proper to direct the respondents to consider the case of the applicants for grant of benefits as per various DOPT OMs dated 7.6.1988, 10.9.1993 and 26.6.2016. The applicants may also be considered for grant of temporary status/regularisation as per their entitlement under the above scheme, if otherwise found eligible. This exercise shall be completed within a period of six months from the date of receipt of a copy of this order. Ordered accordingly.
11. The present OA is allowed in above terms with no order as to costs.
(HINA P.SHAH) MEMBER (JUDL.) R/