Central Administrative Tribunal - Delhi
Shri Vijender Singh vs Union Of India on 5 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 3951/2011 with OA 3952/2011 ORDER RESERVED ON: 14.05.2012 ORDER PRONOUNCED ON: 05.07.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) O.A 3951/2011 1. Shri Vijender Singh S/o Shri Phool Singh, H. No. WZ-5, Village Dasgara, New Delhi-12. 2. Shri Sunil Kumar, S/o Shri Harpal Singh, House No. 147, Ext. No.2-C, Nangloi, Delhi. 3. Shri Hukam Singh, S/o Shri Prem Singh, Manglapuri Village, House No.E-56, Palam Colony, New Delhi-45. Applicants. (By Advocate Shri Kunwar C.M. Khan) Versus 1. Union of India Through its Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi-11. 2. The Director General of Works, Central Public Works Department, Nirman Bhawan, New Delhi-11. 3. The Superintending Engineer, Public Works Department, Govt. of Delhi, Maintenance Circle M-33, Bawana Road, Delhi-42. 4. The Superintending Engineer, Public Works Department, Govt. of Delhi, Electrical Maintenance Circle-M-35, 6th Floor, Police Headquarter, New Delhi-02. Respondents. (By Advocate Ms. Latika Chaudhary with Shubham Mahajan for Mrs. Avnish Ahlawat) O.A 3952/2011 Shri Laxman Prasad, S/o Shri Kent, H.No. F-63, Jaitpur Vistar Part-I, Ismailpur Road, Badarpur, New Dehi-44. Applicant. (By Advocate Shri Kunwar C.M. Khan) Versus 1. Union of India Through its Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi-11. 2. The Director General of Works, Central Public Works Department, Nirman Bhawan, New Delhi-11. 3. The Project Manager, CWG M-11, PWD, Govt. of NCT, Delhi, 13th Floor, MSO Building, I.P. Estate, New Delhi. Respondents. (By Advocate Ms. Latika Chaudhary with Shubham Mahajan for Mrs. Avnish Ahlawat) O R D E R
Shri G. George Paracken:
The applicants in O.A. 3951/2011 were before this Tribunal earlier vide O.A 78/1998. The applicant in O.A 3952/2011 who is similarly placed was also before this Tribunal in O.A 264/1998. The other similarly placed persons had also filed O.As 1354/1998 and 1443/1998. All those O.As were heard and disposed of by the Annexure A-1 common order dated 23.07.1999 (in O.A 3951/2011). They were aggrieved by their exclusion from the Scheme as per DO letter No. 38/2/97 RC-X (Pt.) dated 30.04.1997 reiterating the complete ban on engagement of workers on muster roll w.e.f. 19.11.1985. While there was demand by the Unions for the regularization of the workers already on muster roll if they had completed 240 days of service each year in two consecutive years. The applicants in those O.As were working as daily rated Mazdoors under the Superintending Engineer Planning, Flyover Project, MSO Building, New Delhi. They have been performing the duties of Driver and they were paid at the rate of 1/30th of the minimum of the scale prescribed. According to them, the nomenclature of their service was camouflaged as contract employment to overcome the ban on recruitment of workers on muster roll. Even though their engagement was termed as contractual employment, the respondents have conducted trade test for them and they have been declared successful. They have, therefore, demanded that they should be treated at par with the other regular employees and for their eventual regularization. This Tribunal also, after examining the cases in detail, came to the conclusion that work order issued to the applicants therein was camouflaged as they themselves were stated to be contractors as well as executors. While allowing those OAs, this Tribunal had relied upon the judgment of the Apex Court in Lalji Ram Vs. Union of India & Anr. (SLP (C) No. 17385/1984) decided on 28.02.1995. wherein the petitioner was a daily rated casual labourer seeking regularization/temporary status. The Supreme Court held that although he was a daily rated casual mazdoor, he was discharging the duties of a Lorry Driver which is a Group `C post. However, since the post of daily rated casual mazdoor falls in Group `D category, the Supreme Court held that the applicant therein was entitled to claim the protection of the Scheme of regularization and directed the respondents to consider his regularization in Group `D post in accordance with the Scheme. The concluding part of the aforesaid Order of this Tribunal dated 23.07.1999 is as under:
11. I have carefully considered the submissions of all the counsel present for both the sides. The nature of work performed was that of a Driver. There was no third party contractor. In all these cases the applicants are both the contractors and executors. They worked with the vehicle and they are paid their wages, euphemistically known as a contract amount. It is a clear camouflage for employing a daily rated worker as a daily mazdoor for driving a Car regularly year after year. In view of the Apex Courts decision in the case of Lalji Ram (supra) I hold that the applicants are entitled to consideration for temporary status which orders shall be passed by the respondents within a period of four weeks from the date of receipt of a copy of this order in accordance with the Scheme. Thereafter, if there is any post vacant to be filled up the applicants shall be considered along with others. In considering the applicants; either or a Group D post or for a Driver post, the earlier experience of the applicants shall be considered and given weightage. Age relaxation shall be fully provided.
All the OAs are disposed of. No order as to costs. Let a copy of this order be placed in all the above OAs.
2. The Respondents have challenged the aforesaid order of this Tribunal before the Honble High Court of Delhi vide Civil Writ Petition No. 437/2000 and the High Court stayed its operation on the assurance of the petitioners (the respondents herein) that the respondents (applicants in those O.As) shall be allowed to be continued to work as Drivers under their respective contracts. During the course of the pendency of the aforesaid Writ Petition, the respondents have pleaded that similarly placed approximately 100 Drivers have already been regularized by the Department and only 24-25 more of them who are before the Court are left out. The High Court has, therefore disposed of the Writ Petition vide its Annexure A-4 judgment dated 20.07.2010, directing the Department vide order dated 1.9.2007 to find out whether there was any possibility to accommodate respondents (applicants in this OA) also as Drivers in some Scheme or on prospective appointment as the similarly placed Drivers who have been engaged on work charge basis have been accommodated. While disposing the said Petition, the High Court relied upon the judgment in Union of India & Anr. Vs. Mohan Pal Etc. (2002 (4) Scale 216) wherein the Supreme Court has directed the petitioner to examine the aspect if the contract labourer employed after the date on which private respondents were deployed and have been given permanent status in any Department of CPWD, then, on parity, such benefit should also be made available to the private respondents.
3. After duly examining the aforesaid judgment of the Honble High Court dated 20.07.2010, the respondents, vide Annexure A-5 dated 16.12.2010, have decided that the Respondent cannot be absorbed on the post of MLD as no other contract labourer deployed after the date from which the Private Respondent (s) were deployed has been given permanent status in any Department of CPWD. They have also held that the respondents were also not eligible for grant of temporary status in Group `C post as the Scheme for temporary status was only for Group `D casual workers and not for Group `C posts. Thereafter, the respondents have discontinued the service of one of them, namely Shri Vijender Singh, w.e.f. 17.12.2010. Similar orders have also been passed by the respondents in respect of other applicants in this O.A. in due course. They have filed Contempt of Court petitions before the Honble High Court against the aforesaid decision of the respondents but the same was dismissed on 27.04.2011 after some hearing in the matter but with the direction to the respondents to reconsider the case of the applicants in the light of judgment of this Tribunal and its Division Bench and to pass a reasoned order in accordance with law.
4. Thereafter, the respondents have passed identical orders dated 14.06.2011 and 16.06.2011 in respect of all the applicants, conveying their decision that the applicants working against Group `C are not entitled for grant of temporary status under the provisions contained in the Scheme for granting temporary status issued by the DOP&T and, therefore, the Department cannot absorb them on the post of MLD as no other contract labour deployed after the date from which the private respondent has been deployed has been given any permanent status in any of the Department of the CPWD. Further, the applicants are also not eligible for grant of temporary status in group D post as the scheme for temporary status is only for group `D casual workers and not for C posts and they are also not considered for temporary status in group D posts also as no other contract labour deployed after the date from which the Respondent was deployed have been given the permanent status in any of the department of the C.P.W.D.
5. The applicants have challenged the aforesaid orders on the ground that they have already worked for about 20 years with the respondents with sincerity and devotion and there has never been any complaint against them in their performance of the duties of muster lorry drivers. They have also submitted that this Tribunal as well as the Division Bench of the High Court has already held that they were entitled for Group `D post and therefore the respondents should have absorbed them in Group D post giving them preference. In spite of the aforesaid directions, the respondents have not regularized their services but on the other hand their service has been dispensed with. They have also stated that they are now over 45 years of age and have already rendered about 20 years of service with the respondents as Motor Lorry Drivers and not absorbing them earlier in Group C or Group D posts would amount to violation of the High Courts directions. They have, therefore, sought a direction to the respondents to regularize them as Motor Lorry Drivers in their respective departments in terms of the orders passed by this Honble Tribunal, in the interest of justice.
6. The respondents have filed their reply. According to them, the applicants were working on work orders basis issued from time to time. They have also denied the contention of the applicants that the respondents have not complied with the directions of the High Courts order dated 20.07.2010. In this regard, they have relied upon the following part of the aforesaid order of the High Court:
If contract labour employed after the date from which the private respondent (s) were deployed and have been given permanent status in any department of the CPWD, then, on parity, such benefits should also be made available to the Private Respondent (s) and this aspect also be examined by the Petitioner (Union of India) and also passed directions to the petitioner to communicate a reasoned decision to the Private Respondent (s) in this regard. According to them, the competent authorities of the respondents have passed the reasoned and speaking order dated 16.12.2010 strictly in accordance with the aforesaid directions, wherein it has been clearly stated that the applicants cannot be absorbed on the post of MLD as no other contract labourer employed after the date from which the private respondent (s) by them has been given permanent status in any Department of the CPWD and they are also not eligible for grant of temporary status in Group `C as the Scheme for temporary status is only for Group `D casual workers and not for Group `C posts.
7. The respondents have also relied upon the following judgments of the Apex Court in support of their aforesaid contentions:
State of Orissa Vs. Balram Sahu (2003 (1) SCC 250);
State of Haryana Vs. Tilak Raj (2003 (6) SCC 123);
Uttar Pradesh State Electricity Board Vs. Aziz Ahmed (2009 (2) SCC 606); and Official Liquidator Vs. Dayanand (2008 (10) SCC 1.
State of Karnataka Vs. Uma Devi (2006 (4) SCC 1.
8. In Balram Sahus case (supra), the Apex Court disagreed with the Honble High Court of Orissa which had ordered parity of pay to non-muster roll workers, daily wage helpers and casual workers with the regularly employed workmen. The relevant part of the said judgment is as under:
the respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff, for any or all purposes including a claim for equal pay and allowances. Relying upon the judgments in Tilak Rajs case (supra), Aziz Ahemdeds case (supra), Dayanands case (supra) and Uma Devis case (supra), they have submitted that simply performing the tasks or duties as those who have been regularly employed would not entitle the casual/contractual workers for parity of pay with regular employees and the application of principle of equal pay for equal work is misplaced.
9. We have heard the learned counsel for the parties. We have carefully gone through the averments of the applicants as well as the respondents. We have also gone through the various judgments relied upon by the learned counsel for the parties and perused the Departmental records summoned by us in this regard. The admitted facts in this case are that the applicants have been working with the respondents for the last nearly 21 years continuously from the year 1991. The factual findings of this Tribunal in its order dated 23.07.1999 in OA-78/1998 and connected case are not controverted by the respondents before the Honble High Court in Writ Petition (Civil) No. 436/2000 and connected petitions filed by them challenging the aforesaid order of this Tribunal. This Tribunal has held in clear terms that the nature of engagement of the applicants as Driver (Group C post) on contractual basis was nothing but a camouflage and they were really daily rated workers for driving cars regularly year after year. Relying upon the judgment of the Apex Court in Lalji Rams case (supra), this Tribunal further held that they are entitled to be considered for grant of temporary status and directed the Respondents to pass appropriate orders within four weeks from the date of receipt of its aforesaid order. The further direction of this Tribunal to the respondents was that if there are any vacant posts, either in Group `D posts or in the Group `C posts of Driver, the applicants should be considered for appointment against those posts by giving weightate to their experience and further granting age relaxation. The respondents have chosen to challenge the aforesaid order before the Honble High Court of Delhi vide the said Writ Petition. The plea of the respondents before the High Court was that for granting temporary status to the applicants, they should have satisfied the conditions of the Casual Labour (Grant of Temporary Status and Regularization) Scheme issued by the Department of Personnel & Training vide its OM dated 10.09.1993 which came into being with effect from 01.09.1993 and judgment of the Apex Court in Mohan Pals (supra). The High Court fully agreed with the aforesaid submission of the respondents and held that the applicants herein have to fulfil the requirements mentioned in the said Scheme for getting the temporary status. The High Court, therefore, held that the respondents should examine the cases of the applicants in terms of the parameters contained in the Scheme and thereafter grant the benefits to the applicants, if they have fulfilled them. The respondents submission before the High Court was also that the applicants at the relevant time were working as Drivers in the Group `C category and the benefit of the Scheme was available only in Group `D category. Again, while observing from the operative part of this Tribunals order, the respondents have been given the option either to give temporary status to the applicants in Group `D category or to appoint them as Driver against the available vacancies. Thereafter, the High Court made it clear that either the Respondents could absorb the applicant as Drivers and if they fail to do so, they have to be granted temporary status in Group `D category. However, the Honble High Court, on the basis of the submission made by the applicants herein before it, held that if any contract labours employed after the date from which the private applicants were employed and have been given permanent status in any department of the CPWD, then, on parity, such benefit should also be made available to them and that the respondents should examine that aspect also. Finally, the High Court disposed of the Writ Petition with its operative part as under:
We thus direct that the petitioners will carry out the necessary exercise sympathetically taking into consideration the long period of service of the respondents, within a maximum period of three months from today and communicate the reasoned decisions to the private respondents.
10. However, it is seen from the impugned orders passed by the respondents dated 14.06.2011, 16.06.2011 and 20.06.2011 are totally contradictory to the aforesaid order of this Tribunal as the Honble High Court of Delhi. Even though the respondents have stated in their orders that they have considered the cases of the applicants sympathetically, the sympathy remained only in paper and not in action. In any case, the applicants on their merit are entitled to be considered for grant of temporary status and regularization in service in terms of the aforesaid Scheme as held by this Tribunal and affirmed by the Honble High Court.
11. In view of the above facts and circumstances, we allow these O.As. We reiterate that the initial engagements of the applicants on contract basis were nothing but a camouflage but they were daily rated workers/casual labourers and performing the duties of Car Drivers belonging to Group `C category. They should, therefore, be considered in terms of the Casual Labour (Grant of Temporary Status and Regularization) Scheme, 1993 and grant them the temporary status from the dates they became eligible for it. They shall also be considered for regularization in terms of the aforesaid Scheme and grant them from the respective due dates with all consequential benefits. They may also be given due weightage for appointment as Car Drivers against any existing or future vacancies with the respondents.
12. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Sudhir Kumar) ( G. George Paracken ) Member (A) Member (J) SRD