Patna High Court - Orders
The Union Of India & Ors vs Ramesh Chandra & Anr on 25 April, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE NO.2449 OF 2005
======================================================
1. THE UNION OF INDIA THROUGH THE GENERAL
MANANGER, NORTH EASTERN RAILWAY, GORAKHPUR
2. THE DIVISIONAL RAILWAY MANAGER, NORTH EASTERN
RAILWAY, VARANASI
3. THE ENQUIRY OFFICER, SHRI N. K. PATHAK, THRUGH
DIVISIONAL RAILWAY MANAGER, VARANASI
.... .... PETITIONERS
VERSUS
1. RAMESH CHANDRA, SON OF LATE CHANDRA BHANDHU
YADAV, AT PRESENT RESIDENT OF VILLAGE KHUTAH,
POLICE STATION VIJAYPUR, DISTRICT GOPALGANJ
2. THE REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH. PATNA
.... .... RESPONDENTS
======================================================
Appearance :
For the Petitioners : Mr. Bindhyachal Singh, Sr. Adv.
Mr. Parijat Saurav, Advocate
For the Respondents : Mr. Satish Chandra Mishra, Adv.
Mr. Nurul Hoda, Advocate
Mr. Sudama Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
14 25-04-2014Though Articles 41 and 42 of the Constitution of India, combined together, envisage, inter alia, right to work and provision for just and humane conditions of work, as a Directive Principle of State Policy, the policy of hire and fire was continued, which was disapproved by many judicial pronouncements. No wonder, therefore, that the policy of hire and fire was commented, in Inder Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 2 Pal Yadav & Others vs. Union of India & Others [1985 PLJR (S.C.) 36], as a policy contrary to the scheme of employment postulated by Articles 41 and 42 of the Constitution of India.
2. In order to, therefore, confer status of temporary workers on casual labourer employed on various projects, known as "Project Casual Labour", the Railways introduced a scheme by Circular No. E(NG) II/84/CL/41, dated 01.06.1984. The scheme contemplated conferment of temporary status on casual labourer subject to certain conditions. One of the conditions for conferment of temporary status required that the casual labourer, on the project, ought to have been in the service of the Railways on 01.01.1984. The Supreme Court, in Inder Pal Yadav (supra), noted that the choice of the cut off date, as 01.01.1984, was arbitrary and the said date was, therefore, modified to 01.01.1981 by the Supreme Court in Inder Pal Yadav (supra).
3. By an application made under Section 19 of Administrative Tribunals Act, 1985, which gave rise to O. A. No. 421 of 1990, respondent no. 1, namely, Ram Chandra, approached learned Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 3 "the learned Tribunal"), seeking direction to be issued to the petitioners herein to make an enquiry into the grievance of the applicant-respondent no. 1 for the purpose of his re-engagement. O. A. No. 421 of 1990 was disposed of by order, dated 27.03.1992, with a direction to the Railways to enquire into the matter.
4. Pursuant to the direction, so issued, on 27.03.1992, by the learned Tribunal, the petitioner no. 3 herein held an enquiry into the matter and found that the appointment of applicant-respondent no. 1 herein was illegal and as such, he had no case for regularization.
5. The applicant-respondent no. 1 herein, then, went back to the learned Tribunal by yet another application made under Section 19 of Administrative Tribunals Act, 1985, which came to be registered as Original Application (O. A.) No. 147 of 1997, seeking therein directions to be issued for the reinstatement of the applicant-respondent No.1, in service and regularization of his employment with consequential benefit.
6. The petitioners herein resisted O. A. No. 147 of 1997 by contending, inter alia, (i) that the appointment of the applicant-respondent no. 1 herein, as a casual labourer, was by a person not competent to Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 4 make such appointment; (ii) that the prescribed period of 360 days of continuous employment had not been satisfied; and (iii) the applicant-respondent no. 1 herein (i.e. the application in O. A. No. 147 of 1997) had come to be engaged in the year 1982; whereas the cut off date was 01.01.1981 and the applicant-respondent no. 1 herein was, therefore, not entitled to the benefit of reinstatement and regularization.
7. Notwithstanding the objections so raised by the petitioners herein to the prayer for regularization of the services of applicant-respondent no. 1 herein, the learned Tribunal passed an order, on 03.08.2004, in O. A. No. 147 of 1997, quashing the order, dated 16.09.1996, with a direction to the respondents to consider the case of the applicant-respondent no. 1 for his regularization.
8. Being aggrieved by the order, dated 03.08.2004, aforementioned, passed by the learned Tribunal, this writ petition has been filed by the Railways under Articles 226 ad 227 of the Constitution of India.
9. We have heard learned Counsel for the parties.
10. Learned Counsel for the Railways submits that the learned Tribunal failed to take note of the fact Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 5 that the applicant-respondent No. 1 was appointed by an authority, who was not competent inasmuch as the application-respondent no. 1, was, admittedly, appointed by Divisional Manager, Railways; whereas in terms of the Circular, dated 31.12.1980, a casual labourer could have been appointed by a General Manager or by his approval; whereas no such approval had been obtained.
11. At any rate, contends Mr. Bindhyachal Singh, learned Senior Counsel, that the service of applicant-respondent no. 1 herein cannot be regularized inasmuch as he had not worked, as a casual labourer, continuously for 360 days, which was an essential condition of the Railways' policy/Circular, dated 01.06.1984, aforementioned. Further submission of the petitioners is that the applicant-respondent no. 1 had been appointed in the year 1982 and his appointment was, therefore, in the light of the decision in Inder Pal Yadav (supra), beyond the cut off date of 01.01.1981. In no way, therefore, according to the learned Counsel for the petitioners, a direction for regularization of service of the applicant-respondent no. 1 could have been validly passed by the learned Tribunal.
12. Repelling the above submissions made on behalf of the petitioners, it is submitted, on behalf of the Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 6 applicant-respondent no. 1, that he was appointed before the cut off date, i.e. 01.01.1981.
13. While considering the merit of the rival submissions made before us, it is pertinent to note that by Circular, dated 31.12.1980, North Eastern Railway framed Recruitment Policy for appointment of casual labourer. According to this Recruitment Policy, a casual labourer could have been appointed only by a General Manager or, in any view of the matter, only after obtaining prior personal approval of the General Manager.
14. In the present case, it is the assertion of the Railways that applicant-respondent no.1 had neither been appointed by the General Manager nor was his appointment had been approved by the General Manager. Besides this, there is dispute whether applicant- respondent no.1 had completed 360 days of qualifying service for being treated as a temporary labourer in terms of the relevant scheme, dated 01.06.1984.
15. Yet another question raised by the petitioners herein, as already indicated above, is that the applicant-respondent no. 1 had come to be employed, as a casual labourer, in the year 1982 and, therefore, fell outside the relevant scheme inasmuch as the scheme Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 7 required a person to have been in employment, as a casual labourer, on the cut off date, i.e. 01.01.1981.
16. From perusal of the impugned order, we find that there is no determination of the date of appointment of the applicant-respondent no. 1 by the learned Tribunal nor is there any determination of the question, as to whether applicant-respondent no.1 had been appointed by a competent authority, as a casual labourer, or not.
17. Coupled with the above, there is no determination of the question as to whether applicant- respondent no.1 herein had requisite working experience of 360 days on the relevant date for being treated as a temporary labourer.
18. The learned Tribunal has, thus, not determined if the applicant-respondent No. 1 falls within the ambit of the scheme, which had come into force on 01.06.1984.
19. Since the decision on the points, as indicated above, would be not only very relevant, but essential in the context of the facts of the present case so that a decision on merit can be validly reached and since the learned Tribunal has not answered any of the questions, which had so arisen for determination, we hereby, in the interest of justice, set aside the impugned Patna High Court CWJC No.2449 of 2005 (14) dt.25-04-2014 8 order, dated 03.08.2004, passed in O. A. No. 147 of 1997 and remit the matter to the learned Tribunal for its decision afresh on the questions, which had arisen for determination and have been pointed out in the preceding paragraphs of this order.
20. As the applicant-respondent no. 1 had been knocking on the doors of the learned Tribunal since the year 1990, the decision by the learned Tribunal may be rendered expeditiously and, preferably, within a period of three months from the date of receipt/production of a copy of this order.
21. In terms of the above observations and directions, this writ application shall stand disposed of.
22. No order as to costs.
(I. A. Ansari, J.) S. P. Singh, J.: I agree.
(Samarendra Pratap Singh, J.) Prabhakar Anand/-
AFR