Central Administrative Tribunal - Jodhpur
Janki Lal S/O Shri Hajari Aged 40 Years vs Union Of India Through The Secretary on 1 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.505/2011 &
Original Application No. 506/2011.
Jodhpur this the 1st day of January, 2013.
CORAM :
HONBLE MR. B.K.SINHA, ADMINISTRATIVE MEMBER.
OA No. 505/2011
Janki Lal S/o Shri Hajari Aged 40 years,
Ex. Part Time Gardner, Head Post Office,
Chittorgarh, Resident of 40, Paota Gate,
Chittorgarh.
Applicant
OA No. 506/2011
Kana Ram S/o Shri Mangilal Aged 42 years,
Ex. Part Time Waterman, Head Post Office,
Chittorgarh, Resident of Near Noble School,
Dadhich Nager, Chittorgarh.
Applicant
[Through Advocate Mr. Vijay Mehta]
Versus
1. Union of India through the Secretary, Ministry of Communication (Department of Post), Sanchar Bhawan, New Delhi.
2. Head Post Master, Head Post Office, Chittorgarh.
3. Superintendent of Post Offices, Chittorgarh.
Respondents in both OAs
[Through Advocate Mr. Vinit Mathur, ASGI with Ankur Mathur Advocate]
ORDER
Since both the OAs under consideration have arisen from the same set of grievances and are directed against the same order, they are being disposed of by this common order.
OA 505/20112. This OA is directed against the verbal order of termination of the applicants by the Head Post Master, Head Post Office, Chittorgarh.
2. Relief(s) sought:
The applicant prays that impugned verbal order terminating the services of the applicant and action of Respondent No.2 whereby his services have been arbitrarily terminated may kindly be quashed and the respondents may kindly be directed to reinstate the applicant with all consequential benefits. The applicant was always prepared to discharge his duties but the respondents illegally deprived him so to do and have rendered him unemployed. Any other order, as deemed fit giving relief to the applicant may kindly be passed. Costs may also be awarded to the applicant. Case of the applicant:
2. The applicant was working as part-time Waterman from 1987 in the Head Post Office, Chittorgarh, without there being any written order of engagement. The engagement was made by one Kalu Ram Jeengar, Post Master in Head Post Office, Chittorgarh. He submits that he has marked attendance in the register of staff of Head Post Office from the month of August, 2009 to January, 2010. He was being paid salary of a Group D employee for four hours and money paid receipts in Form ACG 17 was obtained from him in token of receipt of salary. He used to work for 4 hours in the Head Post Office and one and half hours in the office of Superintendent of Post Offices. Annexure A/1 adduced by the applicant is an affidavit of Kalu Ram Jeengar, who had engaged the applicant for the work. The applicant has further produced Annexure A/2, an affidavit filed by one Roop Lal, Post Master affirming that he was engaged from 17.9.91 to 23.2.1996 and from 26.11.96 to 17.4.1999. Annexure A/3 is another affidavit filed by one Narain Lal Balai, Post Master to similar effect. The above affidavits establish that the applicant was discharging his duties from the year 1987 onwards. However, the applicant was not allowed to perform his duties by R2 from 6.7.2011. Annexure A/4 dated 17.5.1989 of the Department of Posts clarified that part time casual labour are casual labour for all purposes. It was argued by the Learned Counsel for the applicant that part time employees also come within the meaning of workman under the Industrial Disputes Act and that no notice or pay in lieu of notice had been given to the applicant prior to his retrenchment. The applicant has worked for more than 240 days every year spreading to 24 years. He has also produced an order dated 5.7.2011 [A5] and order dated 19.11.2010 [A6] to show the reason for his retrenchment. Applicants contention is that these Annexures prohibit engagement of new casual labourers but do not prohibit the continuance of the existing casual labourers. Annexure A/8 is an order of the Department of Posts permitting appointment of casual employees as permanent employees. The applicant submitted a representation to the Respondent No 2 on 7.9.2011 [A/9] stating therein that no opportunity whatsoever had been given to the applicant before termination of his services and the impugned order has been passed in utter violation of the principles of natural justice.
Stand of the respondents
3. The respondents filed a written counter reply opposing the prayer of the applicant. The respondents submit that Department of Posts having a vast network in urban and remote areas in the country no full time employee is justified for basic needs of cleaning, sweeping, drinking water supply etc. as per establishment norms. It was, hence, decided to grant pro-rata allowances on daily basis to the individuals who perform the afore-mentioned duties. On the acceptance of recommendations of the 6th Pay Commission the Group D employees were re-designated as Multi Tasking Staff and their duties have also since been revised. The Ministry of Communication and IT, Department of Posts (PC Cell) vide its OM dated 24.9.2010 revised the duties for Multi Tasking Staff (Group C) in the Secretariat as well as in the attached subordinate offices, post offices/RMS Offices, Speed Post Centers etc. to include watch and ward, caretaker duties, opening and closing of room, general cleanliness and upkeep of Section/unit offices including dusting of furniture, cleaning of building etc all being performed by a single person to economize in manpower. The Department Post (PC Cell) vide its order dated 19.11.2010 directed all the Chief PMGs that since duties of waterman, watch and ward, gardening, cleaning etc. are now part of duties assigned to Multi Tasking staff, the existing practice of engaging casual labourer as waterman, for gardening, watch and ward or any other miscellaneous category of work shall be dispensed with w.e.f. December, 2010. As a result this drawl of water allowances and gardening allowance was discontinued and the services of such labourers have been dispensed with. As per DG P&T letter dated 30.10.1956 a waterman should be provided per 100 employees and Chittorgarh HO is having less than 100 employees. Thus, a part time Waterman is justified and the applicant was being engaged as such. The work of Waterman has been assigned to the Multi Tasking Staff and services casual labourers engaged on sanctioned allowance have been discontinued vide instruction of DG (Posts) dated 19.11.2010. The respondents further contend that there is no sanctioned post of Waterman in the Chittorgarh HO as such there is no question of appointing such a person. The respondents have refuted the contention that the applicant was appointed as Part time Waterman since 1987. They have also refuted the contention in the affidavit of the Post Masters stating that these Post Masters have not issued any appointment orders to the applicant and simply giving an affidavit after retirement will not serve. They have cited a judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi and others delivered ion 10.4.2006 in Civil Appeal No.3595-3612 of 1999 it is held that: When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. It is to be deduced from above that those who have been employed on daily wages or temporary or on contractual basis cannot claim that they have a right to be absorbed in service, since regular appointments could only be made in respect of persons who were appointed in a manner consistent with the requirement of Articles 14 and 16 of the Constitution. They have further stated that the disengagement of part time contingent paid staff does not come within the purview of retrenchment. Moreover, there is no order of appointment in the case of the applicant; as such question of termination will not arise.
Applicants contention in the rejoinder:
4. The applicants filed rejoinder refuting the contentions of the respondents in their reply statement. They have produced Annexure A/11 to show that the applicant Janki Lal was being paid from 1/2007 to 3/2010. The applicant has further produced a copy of the attendance Register for the month of December, 2009 in which the applicant Kana Ram had marked his attendance. The applicants submit that Uma Devis case referred to by the respondents is not applicable to the facts of his case as his OA does not pertain to regularization and giving permanent status to him and their prayer is to quash the termination. In his rejoinder, he has reiterated most of the contentions in the OA.
Facts in issue:
5. After having gone through the documents adduced and upon hearing the arguments of the learned counsels for the parties in both cases, it emerges that sole issue to be decided here is that whether this Tribunal is competent to set aside the order of termination particularly in light of the fact that the service to which he seeks reinstatement does not exist and has been replaced by a cadre of Multi-Tasking staff in which one is required to wear several hats at the same time. Is it an agreed position in law that once a cadre has been replaced by another all those serving therein will stand to be terminated taking no account of the length of service rendered by them and are set to be replaced by contractual employees or it is the duty of the employer to make provision for them before they launch the new scheme? The answer to this issue including its collaterals will unravel the mysteries of the principal issue.
6. In respect to the first of the collaterals that whether the applicants have rendered service as they have claimed and what happens to such service start by taking the facts placed on record by the applicants. The admitted position is that the claim of the applicant that they have been working as watermen, gardeners, watch and ward and in similar other capacities as casual labourers has nowhere been denied by the respondents but rather admitted. However, it has been submitted in the same breath by the respondents in their counter reply that the work load does not justify engagement of full time gardeners or watermen for which a meagre sum has been earmarked. For instance in the case of Janki Lal the applicant was engaged for 2 to 3 hours on daily basis for gardening by the Postmaster Chittorgarh HO for which a sum of Rs. 664/- is sanctioned to him. Since the respondents have already admitted that the engagement of the applicant had been made on oral basis and have denied existence of documents in support of the same the contention of the applicant has to be accepted. The fact that the respondents have not produced the registers where the applicant claim to have marked their attendance or the aquittance rolls the contention of the applicant has to be accepted. Since the respondents admit to have paid they could have easily produced the relevant registers for the period under claim. In Government no payment can be made without receipt unless it happens to be a paltry amount.
7. In this case, a reference had already been made to two cases decided by Jaipur Bench of the Tribunal namely Kamal Kishore Soni Vs. UOI and Ors. (OA No. ) and Kailash Meena Vs. UOI and Ors. (OA No. ). In the case of Kamal Kishore Sohi (supra) the Jaipur Bench of the Tribunal had held in Paragraph Nos. 7, 8 and 9 as under :-
7. Further, with regard to the contention of the applicants that even though they have worked with the contractor and no payment has been made to them till date, the learned counsel for the respondents has categorically stated that the department has made payment of wages in respect of the applicants to the contractor. It is further stated that only 5 applicants have received such payment and other applicants have not received the payment and in case they present themselves before the contractor, such payment can be made by the contract as money stands already deposited by the department in respect of wages of all the applicants. In view of this categorical statement made by the learned counsel for the respondents, the contention of the applicants that the wages for the work done by them during the operation of the contract period has not been made to them, cannot be accepted. In any case, if no wages is received by any of the applicant, it will be open for the applicants to move appropriate application before this Tribunal which will be considered and appropriate order will be passed.
8. Before passing with the matter, it may be observed that as per the stand taken by the respondents, the contract has become effective w.e.f. 01.02.2012 and no grievance has been made before this Tribunal that any of the applicant has been dis-engaged by the contractor or the contractor is paying less wages than being paid to them immediately before commencement of the contract. Thus, the applicants have not been put to any disadvantageous position as yet except that instead of taking work from the applicants by the department, the same is being taken by the department through contract service. As already noticed above, whether such a contract could have been executed or the department had a valid licence and whether the engagement of contract is mere camouflage or whether provisions of Contract Labour (Regulation and Abolition) Act, 1970 has been violated in engaging the services of the casual labour through the contractor are the matters which are to be agitated before the appropriate forum and no before this Tribunal as held by the Honble High Court of Andhra Pradesh in Writ Petition No.14715 of 2005 decided on 03.06.2008 relevant portion of which has been reproduced in the earlier part of this judgment.
9. With these observations, the OAs are disposed of with no order as to costs. In view of the order passed in the OAs, no order is required to be passed in Misc. Applications, which shall stand disposed of accordingly.
8. Subsequent to this, this Bench considered the matter in Jeevan Singh Gehlot and Ors. Vs. UOI & Ors. (OA No. 121/2010 decided on 22.2.2012) and allowed the application despite the fact that the order of the Jaipur Bench have been cited and produced before it. In the case before the Jaipur Bench of this Tribunal considered the case of Kailash Meena and held that since the matter has already been taken up by the Honble High Court of Rajasthan at Jaipur in exercise of its Writ Jurisdiction, the concerned Bench of the Tribunal was not competent to consider the matter and pass any orders. The relevant para 39, 40 and 41 of the said order are reproduced below:-
39. Further, it is not disputed that the order passed by this Tribunal dated 18th March, 2010 has been assailed before the Division Bench of the Honble High Court at Jaipur Bench and the Jaipur Bench of the High Court has passed interim order but no stayed complete operation of the order dated 18th March, 2010 and admittedly, the said Writ Petition is still pending consideration before the Honble High Court. In such eventuality, the relief claimed by the applicants by way of filing these OAs to quash and set aside the policy of the respondents regarding taken the services through Contractor and to allow the applicants to perform the work which they were performing for so many years cannot be granted, since more or less same relief has also been claimed by the applicants in OA No.27/2010 and other OAs decided by this Tribunal on 18th March, 2010 and the same is pending consideration before the Honble Division Bench of the High Court. In these circumstances, when the Honble High Court is seized of the matter involving similar question of facts and law, the Tribunal cannot consider the same afresh.
40. I have also perused the judgments referred to by the learned counsel appearing for the applicants as well as the judgments referred by the learned counsel appearing for the respondents. As observed hereinabove, according to me, the view earlier taken by this Tribunal in OA No.27/2010 and other similar cases is just and proper and therefore, the present OAs are required to be disposed of according to the observations made by this Tribunal vide order dated 18th March, 2010 and there is no need to consider the matter afresh. I am not satisfied with the submissions made on behalf of the applicants to consider the matter afresh on the same issue. The applicant can take all sort of submissions legal as well factual which are taken here in these OAs before the Honble Division Bench of the High Court as the Writ Petition filed against the order dated 18.03.2010 passed by this Tribunal in OA No.27/2010 and other similar matters is pending consideration.
41. Thus, all the OAs are disposed of in the terms of order dated 18.03.2010 passed by this Tribunal in OA No.27/2010 and other similar matters. The order dated 18.03.2010 shall be treated as part of this order.
9. This Jodhpur Bench in the aforesaid OA No. 17/2012 and a batch, has clearly held that once the matter is pending consideration before the Honble High Court at Jaipur, it would be against the judicial ethics for this Bench to pass any orders in respect thereof. Para No. 11 of the order is reproduced below:-
11.This Tribunal is also faced with a choice identical to that of the Jaipur Bench of the CAT as has been disclosed in para 38 of the case of Kailash Meena (supra). The solution to the dilemma has also been provided in the paragraph 39 of the same judgment on the basis of the Sundarjas Kanyalal Bhathija and others vs. the Collector, Thane (supra) that no matter how attractive the proposition to adjudicate ab initio on the issues involved the Bench has to be guided by the collected wisdom of the earlier judgments. This matter is not res integra in view of the judgments referred to by the Jaipur bench of CAT and a plethora of them from the other Honble Apex Court and other Honble Courts. For this matter, we feel that it is not necessary at this stage to draw to find distinctions as between the matter of jurisdiction ab initio and the matter of propriety as the matter is under adjudication of a higher Court without one impinging on the other. We are, therefore, firmly of the opinion that this Tribunal would like to be led by the precedent laid down in the case of Kailash Meena (supra) and take upon itself the task of deciding issues with which the Honble Jaipur Bench of the Honble High Court is seized irrespective of the fact that they involve issues in rem or in personam. Hence, no opinion can be expressed on the issue as well as the other issue agitating by the Learned Counsel for the applicants.
10. However, the Division Bench of this Tribunal had provided some continuity to the applicants, Para 12 and 13 are reproduced below :
12. Having decided the first issue as it has been discussed, the second issue is that should this Tribunal provide some relief to the applicants. The natural inclination would be to say no as the once the main issue cannot be considered by this Tribunal relief would appear out of question. This issue has been considered in the light of the relief sought. Here, it is to be recalled that the first two reliefs sought do not include regularization but a direction to allow the applicants to continue in service as they have been continued. It is to be recalled that the applicants are categorized into three groups as mentioned in para 3 of this order. It has been well proved from the evidence adduced by the applicants that they have continued in the employment of the respondent organization either on temporary basis or on casual basis for the periods varying upto 14 years. They are on a superior pedestal as compared to a person on the streets. The plea of the respondents that all such categories of employees have abandoned their job is not to be believed in this high noon of unemployment. What worries us is that this decision should not become an instrument of wiping out the labour of such employees for the past periods upto 14 years in certain cases. It is simply that this Tribunal precluded from considering the issue in light of the decisions of the Jaipur Bench and the fact that the matter is under consideration of the Honble High Court. Therefore, the following directives are given:
(i) Such employees who continued to be on the rolls of the respondent organization should be allowed to mark their attendance and they may continue discharging their duties till a decision on the subject by the Honble High Court.
(ii) Those employees who willingly wish to join to avail of the employment through the contractors/service providers may be given the first preference in doing so.
(iii) This, however, should not become a pretext for disengaging all the daily wages/ casual employees and no coercion should be exercised in this matter by the respondents.
(iv) There shall be no order as to costs.
13. To the above extent, these OAs are allowed.
11. In consideration of the issues discussed I feel that the above two cases will also be governed by the same order ipso facto. As such, the following directives are given:
(i) The order dated 29.10.2012 of the Division Bench would apply to the instant case of the applicants.
(ii) For any future relief the applicants are directed to approach the Honble High Court at its Jaipur Bench which is seized with the matter at the present juncture of time.
[B.K.Sinha] Administrative Member
jrm
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