Central Administrative Tribunal - Allahabad
Bipin Chandra Tiwari vs Income Tax Department on 21 June, 2023
O.A. No. 1139/2021
(Reserved on 20.6.2023 )
Central Administrative Tribunal, Allahabad Bench,
(Circuit Sitting at Nainital)
ORIGINAL APPLICATION NO.1139/2021
This the 21st day of June, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Bipin Chandra Tiwari (Male) aged about 43 years s/o Shri Kamlapati
Tiwari r/o village Alchauna (Nayana) Post Office- Chafi, District- Nainital.
.......Applicant
By Advocate - Shri Sanjay Bhatt
VERSUS
1. Principal Chief Commissioner of Income Tax (CCIT), Aaykar
Bhawan, 5 Ashok Marg, Lucknow, U.P.
2. Principal Commissioner of Income Tax, Haldwani, District-
Nainital, Uttrakhand.
Respondents
By Advocate - Shri T.C.Agrawal
ORDER
Hon'ble Mr. Justice Om Prakash-VII, Member (J) The applicant has filed this O.A. u/s 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
a) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 9.4.2019 passed by the Principal Commissioner of Income Tax, Haldwani, District- Nainital (contained as Annexure No. 5) to this O.A.
b) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to allow the applicant to work as daily wager and to make payment to the applicant as per the instructions/ direction dated 30.7.2019 (contained as Anneuxre No. II to this O.A.)
c) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay salary to the applicant to the tune as the similarly daily wagers are getting pursuant to the order dated 29.12.2017.
d) Issue any order writ , order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
e) Award the cost of the petition to the applicant.Page 1 of 8 O.A. No. 1139/2021
2. The brief facts narrated from the O.A. are that the applicant was engaged as daily wager in the year 2007. Applicant along with other similarly situated persons filed a Writ Petition No. 199 of 2018 before the Hon'ble High Court of Uttrakhand at Nainital which was disposed off finally vide order dated 21.2.2019 (Annexure No. 4 to the O.A.) with a direction to determine the status of the applicants to decide the controversy. In compliance of the order dated 21.2.2019 passed by the Hon'ble High Court, respondents rejected the claim of the applicants vide order dated 9.4.2019 (Annexure No. 5 to the O.A.). Challenging the validity of the order dated 9.4.2019, Writ Petition No. 1994 (S/S) of 2019 and Writ Petition No. 1997 (S?S) of 2019 were filed by the similarly situated persons but applicant was not party in both the writ petitions. Both the writ petitions were finally decided vide judgment dated 13.10.2020 (Anneuxre No. 6 to the O.A.) directing the respondents to consider the case of applicant for their employment as daily wages casual worker and pay minimum wages/ salary equal to those employees who are working as daily wages casual workers in the said department. The department filed Special Appeal No. 91 of 2021 challenging the order dated 13.10.2020, which too was dismissed on 8.3.2021 (Annexure No. 7 to the O.A.). Thereafter, all the applicants who were parties in these writ petitions have been given benefit as sought by them but applicant is not being permitted to work only on the ground that he was not party in the subsequent writ petitions.
3. Per contra, counter affidavit has been filed by the learned counsel for the respondents, stating therein that applicant was employed by the outsourced agency and there was no employee or master servant relationship between the income tax department and the applicant. He rendered his services to the department under the contract with outsourced services and he was deployed by different outsourcing agencies time to time from year 2013 to 2019. It is further stated that applicant is continuously absent from his work w.e.f. 26.4.2019 and subsequently submitted an application dated 3.5.2019 stating that he is not willing to work further due to his bad health and he is quitting his services. The outsourcing agency is free to assign any work for the task pertaining to office under the administrative control of Principal Commissioner of Income Tax , Haldwani.
4. Heard the learned counsel for the parties.
5. Learned counsel for the applicant has vehemently argued that similarly situated daily wagers were granted minimum wages vide order dated 29.12.2017 and are being allowed to work with the respondents but applicant has not been permitted to work. It is further argued that persons Page 2 of 8 O.A. No. 1139/2021 who filed writ petitions and got order from the Hon'ble High Court were allowed to work whereas applicant is being discriminated only on the ground that he was not applicant in the subsequent writ petitions. Applicant was one of the applicant in the first round of litigation but after order dated 0.4.2019, he suffered mental problem and could not join the subsequent writ petitions but after resuming fitness, he has been requesting for considering his claim in the same line as has been done in the case of other similarly situated persons.
6. Submission of the learned counsel for the respondents is that applicants had rendered his services to the department under the contract through outsourced agencies and he has no master and employee relationship with the department. It is further argued that applicant had submitted an application dated 3.5.2019 stating that he is not willing to work further due to bad health and quitting his service. He has also absented himself from his work w.e.f. 26.4.2019. Hence, case of the applicant is not similar to the persons who have been granted benefits. It is further argued that applicants was not party in the writ petitioners filed subsequently.
7. I have considered the rival submissions of the parties and have gone through the entire record.
8. From perusal of the record, it is admitted fact that applicant has rendered his service in the department through outsourced agencies. Applicant along with other similarly situated persons filed Writ Petition No. 199 of 2018 which was disposed off vide order dated 21.2.2019 directing the respondents to determine the status of the applicants to decide the controversy and in compliance of the same, department rejected the representation of the applicants vide order dated 9.4.2019. Thereafter, similarly situated persons filed Writ petition No. 1993 (S/S) of 2019, Writ Petition No. 1994 (S/S) of 2019 and Writ Petition No. 1997 (S/S) of 2019 which was finally disposed off vide order dated 13.10.2020 with direction to consider the cases of the applicants for their employment as daily wages causal worker. It is made clear that applicant has not joined in the aforesaid writ petitions. Thereafter, all the applicants who have filed aforesaid writ petitions were given benefit. Since , applicant was not party in the subsequent writ petitions has not been given the benefit and was not allowed to work. Thereafter, applicant filed writ petition No. 1432/2021, which was dismissed vide order dated 12.11.2021 with direction to approach Central Administrative Tribunal. Thereafter, applicant has filed the present Original Application before this Tribunal seeking same benefit which were given to the other similarly situated employee. In para 8 of the judgment passed in Writ Petition No. 1997 (S/S) of 2019, Writ Petition No. Page 3 of 8 O.A. No. 1139/2021 1993 (S/S) of 2019 and Writ Petition No. 1994 (S/S) of 2019, it was observed by the Hon'ble High Court that all the writ petitions are disposed off with the direction to the respondents to continue the petitioners as casual workers in the department as they were directly engaged by the department and they shall be paid minimum of wages as were being paid to similarly engaged daily wagers who were engaged prior to 2013. The petitioners are not entitled for regularization of their services as the department has not framed any regularization policy. In case, the department chooses to frame regularization policy for casual workers (Group D employees in future, the petitioners will be at liberty to raise their claim. It is made clear that those who have been engaged through outsourcing will not be entitled to the benefit of this judgment. In the present case, no where it is stated by the applicant that he was not engaged through the outsourced agency whereas it is clearly stated by the respondents in the Counter Reply that applicant had rendered his service through outsourced agencies, which was not denied by the applicant. Applicant has also failed to join in the subsequent writ petitions filed by similarly situated employee and he has slept over of this right. When the benefit was given to the similarly situated employee, he woke up and filed this O.A. before this Tribunal for the same benefit.
9. Hon'ble Apex Court in the case of Union of India Vs. Harnam Singh AIR (1993) SCC page 1367 has observed that "The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or the Tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire.
10. In the case of Capt. Harish Uppal Vs. Union of India and others (JT 1994 (3) SC 126, Hon'ble Apex Court has observed that if the parties choose to sleep over their rights and remedies for an inordinate long time, the court may well choose to decline to interfere.
11. Principal Bench of this Tribunal in O.A No. 980/ 2014 connected with other O.As (Mamta Vs. Govt. of NCT decided on 5 th September, 2014) by passing a detailed order, observed as under:-
"3. In view of the rival contentions raised, the most crucial question that arises for consideration is what is the nature of the post against which the Dhobis get their appointment for discharging the duties of washing clothes of the cadets? From the terms and conditions of the letter of appointment issued to such Dhobis it is crystal clear that the appointments cannot be held to be one against any civil post. On the other hand it clearly indicates that the appointment is purely private payable out of Regimental Fund. Initially these Dhobis were being paid at a particular rate per cadet on the basis of actual number of cadets a Dhobi is required to serve, but later on a monthly salary, no doubt, has been fixed for being paid to such Dhobis. The terms of appointment, no doubt, vest certain control Page 4 of 8 O.A. No. 1139/2021 over such Dhobis on the Commandant of the Academy but nontheless such control cannot impress the post of Dhobis with the character of a Civil post. It is also borne out from the record that each cadet is granted a monthly Dhobi allowance and the said allowance is put into a fund called 'Regimental Fund' under the management of Commanding Officer of the institution. At this stage it would be appropriate to notice some provisions of the Defence Services Regulation which would give an idea as to the characteristic of the Regimental Fund. Under Para 801 of the Regulation Public Funds have been defined as such:-
801 (a) Public Funds - Include all funds which are financed entirely from public money, the unexpended balances of which are refundable to Government in the event of not being devoted to the objects for which granted, and also
(i) unissued pay and allowances;
(ii) Office allowance fund; and
(iii) the estates of deceased men and deserters."
4. Para 801 (b) defines 'Regimental Fund" to mean comprising all funds, other than public funds maintained by a Unit.
5. Rule 820 provides for administration of such Regimental Fund and 820 (a) clearly indicates that all funds other than public funds as defined in Para 801 maintained by a unit, which are financed either wholly or partly from public money. Regulation further provides that the Commanding Officer acts as a trustee in relation to the 'Regimental Fund' and is responsible that the funds are properly applied with special reference to the object of the fund and for the benefit of the personnel or unit as a whole.
6. In view of the characters of the Regimental Fund, as discussed above, we have no hesitation to come to the conclusion that the said fund cannot be held to be public fund by any stretch of imagination and the Dhobis paid out of such fund cannot be held to be holders of civil post within the Ministry of Defence so as to confer jurisdiction on the Central Administrative Tribunal to issue direction relating to their service conditions. It is of course true that the Commanding Officer exercises some control over such Dhobis but on that score alone it cannot be concluded that the posts are civil posts and that payments to the holders of such post is made from out of the Consolidated Fund of India or of any public fund under the control of Ministry of Defence.
7. In the aforesaid premises the contention of Mr. Mahajan, learned senior counsel that the Central Administrative Tribunal has no jurisdiction to go into the question of service conditions of such Dhobis has to be sustained and consequently, the impugned order of the Tribunal has to be set aside. We accordingly, set aside the impugned judgment of the Tribunal and dismiss the OA. This appeal is allowed, but in the circumstances without any order as to costs. Also in the present case, the respondent No.2 assigned the job of house-keeping to the contractors and the payment for contractual work was made to the contractors. No direct payment was made by the said respondent to the applicants herein. In the absence of the contract being declared camouflage, no direct relationship of employer and employee can be found to be established between the respondents No. 1 and 2 and the applicants herein. The applicants cannot even be treated the Page 5 of 8 O.A. No. 1139/2021 employees of the respondents No. 1 and 2 far less the holders of civil posts in connection with their affairs. As far as the judgment of Honble Supreme Court in Union of India and Others Vs. Subir Mukharji and Others (ibid) is concerned, in the said case, Hon'ble Supreme Court could find that the respondents happened to be members of M/s Bandel Handling Porters Cooperative Society Ltd. and there was no denial by the appellants that the work performed by them was of perennial nature. Further in view of the fact that the appellants were working on contract basis continuously or uninterruptedly since 1988, Hon'ble Supreme Court found that the directions issued by Central Administrative Tribunal in its order dated 13.03.1997 as quite fair in the facts and circumstances of the case. In the said case, while refusing to interfere with the order of the Tribunal in the facts and circumstances of the case, their Lordships no where ruled that the Central Administrative Tribunal has jurisdiction over the matter, where the application is filed by the employees of the contractors.
5. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another ( 2004 (6) SCALE 232), it has been held that the judicial precedents need to be referred to and followed with reference to the facts of the case before the Court and also the facts in which the judicial proceedings are laid down. The relevant excerpt of the judgment read as under:-
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context.
These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
Page 6 of 8 O.A. No. 1139/2021Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
As far as the judgment of Hon'ble Calcutta High Court in the case of Awadhesh Singh Vs. Union of India and Ors is concerned, the ratio deci dendi in the same is that in the case of contractual worker either the Central Administrative Tribunal or the Industrial Tribunal have the jurisdiction and when the alternate mechanism is provided in the law, the petitioner could not have invoked the extra ordinary jurisdiction of the Hon'ble Supreme Court. When the Hon'ble High Court refused to entertain the Writ Petition, it was no where held that the employees of the contractor can approach the Central Administrative Tribunal but it was viewed that in the matter of contractual employee either the Central Administrative Tribunal or the Industrial Tribunal had the jurisdiction. In fact, where the department directly engaged somebody on contract basis and not through the contractor, the grievance of contract employee is amenable to the jurisdiction of the Tribunal and in such cases where the work is assigned to the contractor and it is the employee of the contractor who has a grievance, the grievance can be looked into by the Labour Court or Industrial Tribunal under the Central Govt. in terms of the CLRA. Besides, we are also convinced with the plea raised by the respondents that when the applicants rightly approached the Industrial Tribunal for abolition of the contract and regularization of their services for part of the relief i.e. for continuance of their contractual service, they cannot approach the Tribunal. Once the Industrial Tribunal adjudicates the issue of abolition of contract and regularization of the applicants, they could also adjudicate the issue of their entitlement to continue in service. Thus, we find that the Original Application is not amenable to our jurisdiction and is also barred by principle of res sub-judice.
12. In the aforesaid case, it has clearly been observed by the CAT, Principal Bench that where department directly engaged somebody on contract basis and not through contractor, then and then only, the grievance of the contract employee is amenable to the jurisdiction of Tribunal. In the present matter, work is assigned to some other body who is not related to Income Tax Department and applicant was engaged by that body, if there is any dispute regarding payment of their remuneration, same can be redressed or looked into by the Labour Court. CAT has no jurisdiction to entertain the present application filed by the contract labour.
Page 7 of 8 O.A. No. 1139/2021Hon'ble High Court in the aforesaid writ petition has also clearly held that "It is made clear that those who have been engaged through outsourcing will not be entitled to the benefit of this judgment". Hence, this court is also of the view that this Tribunal has no jurisdiction to entertain this O.A.
13. In the instant case, applicant has not been engaged directly by the department and was engaged through outsourced agency, hence this Tribunal has no jurisdiction to entertain this O.A.
14. Considering the facts and circumstances of the case, O.A. is dismissed.
15. There shall be no order as to costs.
16. All pending MAs in the O.A. stands also disposed off.
(Justice Om Prakash -VII) Member (J) HLS/-
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