Central Administrative Tribunal - Chandigarh
Kiran Pal And Ors. vs Union Of India (Uoi) And Ors. on 14 August, 2002
Equivalent citations: 2003(2)SLJ241(CAT)
ORDER A.P. Nagrath, Member (A)
1. The applicants, 21 in number, who claim to have been working as Sweeper or Frash have filed this O.A. under Section 19. of the Administrative Tribunals, Act, 1985 with a prayer that the respondents be directed to regularise the services of the applicants and to grant them equal pay for equal work.
2. The case of the applicants is that they were engaged for the work of sweeping or as Frash from various dates including two in the year 1993, one in the year 1996 and others in the years 1997, 1998 and 1999. They have alleged that the department has suddenly changed the nature of their employment by treating them as contractual labour though they were directly engaged by the respondents themselves. Their plea is that to give their employment the colour of contractual appointment, the respondents have surreptiously declared some individuals from amongst the applicants and the other similarly placed as Contractors for varying periods by paying a consolidated amounts to the so called contractors to cover the wages of all labour like the applicants. The respondents are pretending that for the year 1999 onwards the applicants are contractor's labour and have no right to be considered for regularisation in the department.
3. Learned Counsel on their behalf, while referring to various documents annexed to the O.A., submitted that these so called contractors are infact themselves working on daily rates and have been compelled to act as contractors from time to time. He vehemently challenged this action and stated that on the very face of it this is a gross irregularity being committed as even under the Contract Labour (Regulation and Abolition) Act, 1970 only that person can be appointed as a contractor who has been granted a licence as required under Section 12 of that Act. These individuals who have been called as contractors by the respondents had hot possessed any such licence, notwithstanding, the declarations obtained from them by the respondents in the form of pre-receipts that they deputed certain number of employees to work as Frash, Sweepers or Malis during different periods. He also stated that these so called contractors are themselves applicants in the instant case, like one Swarop Chand. In support of applicants' contention, they have filed a copy of the notice, alongwith their replication, which appeared in the Tribune, dated 21.6.2002 and in Dainik Bhaskar of the same date wherein the requirement of labour contractor has been notified by the respondents which specifically lays down a condition that the labour contractor should have a valid licence. The applicants' contention is that they agitated the matter protesting against the department for making efforts to deny them their rights by declaring some of them as contractors: The respondents now appear to be taking a further step to do away with the employment by engaging labour through licenced contractor and thus depriving them of their right of regularisation. The learned Counsel, Mr. D.R. Sharma, placed reliance on (i) ICM Engineering Workers Union v. Union of India, 2001(1) SCT 1043; (ii) Gujarat Electricity Board, Thermal Power Station, Ukai v. Hind Mazdoor Sabha and Ors., AIR 1995 SC 1893; and (iii) Secretary, Haryana State Electricity Board v. Suresh and Ors., 1999(2) SLR (SC) 1 to contend that the legal position is well settled in such a situation and the applicants are to be considered as direct employees of the Principal employer.
4. The applicants have also taken a plea that they are doing regular nature of work of Group 'D' employees but are not being paid the salary of a Group 'D' employee and instead are being paid on daily rates. They claim that their work in all respects is equal to a regular Group 'D' employee and they are entitled to receive regular salary of Group 'D' staff.
5. The respondents have raised preliminary objection regarding jurisdiction of this Tribunal to entertain this application by taking a plea that the applicants are contractor's labour and this tribunal has no jurisdiction to arbitrate on the grievance of the labour employed by a contractor. While the respondents do not deny that prior to 1999, the applicants were working on daily rates directly having been engaged by the department but from 1999 onwards they are stated to be employees of the contractor. Learned Counsel for the respondents specifically drew our attention to Annexure R/l, dated 11.5.2001 by which one Shri Swaroop Chand's request for grant of non-education of tax certificate under Section 194C(4) of the I.T. Act, 1961 has been dealt with. The learned Counsel contended that this goes to show that these applicants were the employees of the contractor only. He further submitted that it was as back as in the year 1990, as indicated in Annexure R/2, dated 25.9.1990, that a decision was taken to employ contract labour for the work of cleaning/sweeping the Range offices. A circular was also issued on 3.6.1994 (Annexure R/3) to all Addl. Dy. Collector by Addl. Collector (P and V) to follow the Govt. of India instructions dated 25.9.90 and to ensure that there should be no case for appointment of casual worker. Thus, the learned Counsel contended that with the issue of such clear instructions, the department could not have continued with the casual labour.
6. We have considered the rival contentions carefully. The preliminary objection raised by the respondents that this Tribunal has no jurisdiction to adjudicate this mater for the reason that the applicants are contractor's employees has absolutely no basis. It is almost a transparent veil placed by the respondents in their unsuccessful attempt to hide the factual situation. One essential requirement for appointing a labour contractor is that such a person must possess a licence as required under Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970. It is not the case of the respondents, that any of the so called contractors through whom they engaged the labourers possessed the licence. The Govt. departments are, expected to act according to law and any action taken in violation of the clearly laid down provisions in any Act rendered such an action illegal and the same is not, sustainable. It is rather unfortunate, as was brought to our notice during arguments, that on the pretext of making payment only to the so called contractor, the applicants have also not been paid their wages for some periods. We have also seen that these so called contractors are also amongst the applicants before us including Swaroop Chand, whose case was cited by the respondents in support of the ir contention that he is a contractor. The notice which has appeared in the Press inviting applications from labour contractors is yet another proof, if any proof was required, to establish that the persons who were being presented as contractors had no valid licence.
7. While referring to the decisions of the Apex Court in Air India Statutory Corporation v. United Labour Union and Ors.; AIR 1997 SC 645=1997(3) SLJ 81 (SC), and Secretary, HSEB v. Suresh and Ors., JT 1999(2) SC 43, Division Bench of Bombay High Court in United Labour Union v. Union of India, reported in 1990 (Vol. 60) FLR 660, dealt with the consequences to follow in the event contract labour is engaged in violation of rule 7 and 12 of Contract Labour (Regulation and Abolition) Act, Citing these the Delhi High, Court has held in CWP No. 1981 of 1997 decided on 29.9.2000, 2001(1) SCT 1043 that in case the contractor has not taken a licence as required under Section 12 of the Act, then the contract labour shall be treated as direct employees of the Principal employer.
8. The plea of the respondents that after Govt. of India instructions dated 25.9.90 casual labour should not have been engaged does not merit any favourable consideration. It is not denied by the respondents that they did engage the applicants on daily wages prior to their being given a colour of contract labour, notwithstanding Govt. of India instructions. It is for them to take suitable action against the officials who violated the instructions and engaged these people on daily rates but so long as they have been engaged and worked, they are required to be treated as such. We have no manner of hesitation in coming to a conclusion that the so called contract is a mere camouflage and a sham and that the applicants before us are the direct employees of the respondents. We deprecate this tendency of manoeuvring the situation against such lowly paid persons to deny them their proper status. We are fortified in this view when we refer to the observation of the Apex Court in "Secretary, HSEB v. Suresh and Ors." relied upon by the applicants. Head notes read as under:
"....Contractor not a licensed contractor under the Act--The so-called contract system was a mere camouflage, smoke and a screen and disquised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Haryana State Electricity Board on the one hand and the employees on the other hand could be clearly visualised-
Workers having worked for 240 days in a year are entitled to be absorbed permanently."
(Emphasis supplied) In this background, we hold that the applicants are the direct employees of the respondents and we reject the plea of the respondents that this Tribunal has no jurisdiction in the matter and we proceed to decide the prayer on its merits.
9. The applicants are working with the department for the last number of years. But, in so far as their prayer for getting equal pay to that of Group 'D' employee is concerned, the same has no merits. A casual labourer cannot be compared with regular employees as the nature of their employment and the content of work are not directly comparable with the regular employee of the department. The number of days for which they are engaged is also relevant factors. We cannot give any direction to the respondents to give them the salary at par with that of regular Group 'D' employee. Such and similarly placed casual labour do become entitled to being accorded 'temporary status' in terms of Govt. of India Scheme dated 10.9.1993 which was circulated vide O.M. No. 51016/2/90-Estt. (C), dated 10.9.1993. But this also does not help the applicants except, may be, applicant No 1 and 2, who were engaged on 5.7.93 and 6.8.93 respectively as Sweepers. Otherwise, the Scheme is only one time affair as has been declared by the Apex Court in its judgment dated 11.3.2002 in the case of Punjab State Electricity Board and Ors. v. Wazir Singh, JT 2002(3) SC 49=2002(2) SLJ 354 (SC).
10. In respect of regularisation, the same can be considered only against regular vacancies. It has not been established before us by the applicants that regular vacancies exist in the department. They have based their claim merely on the ground that they have been working over a long period. Learned Counsel for the respondents stated that with the issue of notification calling for quotations from the labour contractors no further occasion can arise to consider regularisation of the applicants as the work is proposed to be allotted to contractor. We do not find this stand is legally tenable. It is not disputed that the work of sweeping, cleaning and watch and wards has been prohibited under a notification issued by the Ministry of Labour under provisions of Section 10 of Contract Labour (Regulation and Abolition) Act, 1970. In view of such a prohibition is not open to the respondents to resort to a method prohibited under the appropriate law to deny the claim of the applicants. The nature of Job for which the applicants have been working with the respondents is one which cannot be legally assigned to a contractor. In fact, the letter dated 25.9.90 (Annexure R/2) and circular dated 3.6.94, (Annexure R/3) are themselves in violation of the notification prohibiting contact labour in this area of activity. It is open to the department to find alternative means of getting the same work done or to create additional posts in the department for this specific nature of work. In case, the department comes to a conclusion that additional posts will be required to carry out the work presently being done by the applicants and similarly placed persons, the applicants and similarly placed persons shall have the right to be considered for regularisation, alongwith others, against such posts including the posts which may be presently lying vacant as and when the process of filing up the posts is undertaken.
11. In view of the facts and circumstances of the case, we dispose of this O.A. with the following order:--
"The respondents are directed to treat the applicants as their direct employees. The applicants shall be eligible to be considered for regularisation alongwith others, as and when the respondents proceed to fill up the vacant posts or against additional posts if created to meet the requirements of the work of frash and sweeping.
The prayer of the applicants in so far as they seek 'equal pay for equal work' is not found acceptable and is, therefore, dismissed.
The respondents are directed to release the wages of the applicants and such similarly placed persons who have not received their wages for the period they have actually worked but not paid, within a period of one month from the date of receipt of certified copy of this order.
No costs."