Central Administrative Tribunal - Patna
Bimlesh Kumar And Ors vs Railway on 6 September, 2022
-1- OA/050/01045/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/01045/2019
Reserved on: 05.08.2022
Pronounced on:
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
1. Bimlesh Kumar, Son of Late Shankar Singh, Works Engineer (Civil),
(Civil),
IRCON International Limited, District-
District Patna (Bihar) Resident of Care
of Shri K.P. Singh, Road No. 14, Rajeev Nagar, P.O.-
P.O. Keshari Nagar,
P.S.- Rajeev Nagar, District- Patna, Pin Code-
Code 800024 (Bihar).
2. Anuj Kumar, Son of Sri Laleshwar Prasad, Works Engineer (Civil), IRCON
International Limited, Mokama Bridge, District-
District Patna (Bihar) Resident of
QTR No. C/8, Bank Road, Lodipur, District-
District Patna, PIN- 800001 (Bihar).
.... Applicants.
By Advocate: - Shri M.P. Dixit
-Versus
Versus-
1. The Union of India through the Chairman Cum Managing Director,
IRCON International Limited (A Government of India Undertaking),
Ministry of Railway, Corporate Office C/4, District Centre, Saket,
Saket,
New Delhi- 1100017.
2. The Executive Director (Works), Corporate Office, IRCON
International Limited (A Government of India Undertaking),
Ministry of Railway, C/4, District Centre, Saket, New Delhi- Delhi-
1100017.
3. The Executive Director (Project), Corporate Office,Office, IRCON
International Limited (A Government of India Undertaking),
Ministry of Railway, C/4, District Centre, Saket, New Delhi- Delhi-
1100017.
4. The Assistant General Manager/HRM, Corporate Office, IRCON
International Limited (A Government of India Undertaking),
Undertaking),
Ministry of Railway, C/4, District Centre, Saket, New Delhi- Delhi-
1100017.
5. The Manager (MA. SA. PRA.), Office of Chairman Cum Managing
Director, Corporate Office, IRCON International Limited (A
Government of India Undertaking), Ministry of Railway, C/4, District
District
Centre, Saket, New Delhi- 1100017.
6. The Project Director, IRCON International Limited (A Government
of India Undertaking), Ministry of Railway, Sone Annex Bhawan,
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Behind Sone Bhawan, Daroga Prasad Ray Path, District-
District Patna, Pin
Code- 800001 (Bihar).
.... Respondents.
By Advocate
Advocate(s) : -Shri A.K. Mantu
Shri Siddharth Prasad
ORDER
Per S.K. Sinha, A.M:
A.M:- Aggrieved with denial of extension of their contractual appointment beyond 31.12.
31.12.2019 by IRCON International Limited vide order dated 07.11.2019 , the two applicants have jointly preferred this OA praying to quash and set aside the 2nd paragraph ('ख') of the impugned order (Annexure A/13) and to direct the respondents to allow the applicants to continue on the job beyond 31.12.2019 and to pay them the arrears of pay and regularize their services under the respondents.
2. During Admission stage hearing, hearing the Tribunal on 30.12.2019 granted in interim relief to the applicants applicants directing the respondents to extend the period of their contract beyond 31.12.2019 till the next date.. TThe he interim relief has since been continued.
continued
3. Short hort facts giving rise to the OA are that the applicants were appointed on contractual basis as Works Engineer by IRCON International Limited in 2005 for its Bihar project for a period of six months extendable further till completi completion on of the project provided the applicants' services were found satisfactory. The applicants' services vices were later extended and salary alary etc. were also enhanced
-3- OA/050/01045/2019 periodically. The applicants made representation to the respondents in 2012 2012, 2015 and 2017 for regularization of their services in IRCON. However, the respondents vide their order dated 07.11.2019 extended the contractual engagement of applicants only till 31.12.2019 and directed to relieve the applicants from the contractual engagement thereafter.
4. The applicants have pleaded that termination of their the services was illegal and punitive as it was not on account of any fault or shortcoming in performance on their part. The applicants have claimed that their performance was unblemished and because of that their appointment was extended and salary etc. enhanced periodically periodically. There was no adverse report about their performance.. Even ven now several projects of IRCON were going on in Bihar and hence, ence, they had a reasonable expectation of being regularized in IRCON in view of their uninterrupted and unblemished service for 14 years. The respondents' action in discontinuing their appointment was discriminatory as the appointment of twelve other similarly placed employees was extended for varying periods beyond 31.12.2019 vide the same order. The act of respondents was thus in violation of the fundame fundamental ntal rights granted to the applicants under Article 14, 16, 21 and 311 of the Constitution.
5. The respondents in their written statement raised a preliminary objection regarding the maintainability of the OA against
-4- OA/050/01045/2019 IRCON before the Tribunal on the grounds of jurisdiction. The respondents pleaded that IRCON is a company incorporated by the Central Government (Ministry of Railways) under the Companies Act, 1956 and that tthe he IRCON has not been notified under Section 14(2) 14(2) of the A Administrative Tribunal Act, 1985.
1985 Hence, the OA is not maintainable before the Tribunal and any order passed by the Tribunal ribunal will be without jurisdiction. The respondents in support of their contention that IRCON is not notified under Section 1 14(2) 4(2) of the Administrative Tribunal Act, 1985 and hence the Tribunal has no jurisdiction, annexed the order of Hon'ble Allahabad High Court in WP No. 14910(SP) of 2019. While conceding the fact of initial appointment of the applicants on contrac contract basis in April, 2005 and periodic extension of their appointment and revision of pay,, respondents maintained that the extension and grant of pay scale did not confer any right of regularization to the applicants. In support of their contention, tthe respondents relied relied on the judgment of Hon'ble Supreme Court in the case of Uma Devi Vs. State of Karnataka that no policy can be framed for regularization of Contractual employees. They also cited the judgment of Hon'ble Delhi High Court in the case of Som Dutt and Others Vs. GNCT of Delhi and Others that contractual employees cannot be regularized as this would deprive other citizens of opportunity in the selection for that post.
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6. The applicants in their rejoinder submitted that the order of Hon'ble All Allahabad High Court rt was passed without taking all the relevant materials into consideration. The Indian Railway Establishment Rules and Labour Laws (Annexure P/1) lays down the organizational structure of the Indian Railways and para 4 of the Rules mentions that IRCON (In (Indian dian Railway Construction Company) is an attached organization to the Railway Boar Board. Also, the organizational structure of the Indian Railways issued by Railway Board on 16.07.2021 enlists the CPSE/Corporation and Autonomous Bodies/Authorities attached wit with h the Railway Board. As per the organizational structure issued on 16.07.2021 (page 12 of the rejoinder) IRCON is one of the 16 bodies/organizations attached with the Railways. Hence, the IRCON is a part of Ministry of Railwayss which is notified under Section ion 14(2) of AT Act, 1985. Therefore, separate notification for IRCON under the Act is not required.
7. During the admission stage hearing, respondent no. 6 filed MA No. 336/2022 for vacating the interim protection granted to the applicant vide order dat dated ed 30.12.2019 in which the respondents pleaded that because of the interim protection the IRCON was extending the contractual engagement of applican applicants ts beyond 30.12.2019 and raised the issue of maintainability of the OA on the grounds of Tribunal's jurisdic jurisdiction tion on the service matters arising in IRCON.
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8. During the hearing on MA (No. 336 of 2022) for vacating the interim relief, it was noted that pleadings in the OA were complete and the interim stay ha had been continuing since 2019 and so, the OA could be heard for final disposal. During the final hearing, counsel for respondents (Respondent No. 2 to 6) stressed that IRCON International Ltd. was not listed under the AT Act, 1985 and hence hence,, the service matter of employees of IRCON Internati International onal Ltd. Cannot be adjudicated by this Tribunal. Hence, the OA deserves dismissal. In view of the submission of the counsel for respondents it was decided to hear the OA on the limited point of jurisdiction of the Tribunal over the service issue of IRCON IRCON.
9. The counsel for respondents referred to the order of Allahabad High Court in WP (SB) No. 14910 of 2019 wherein it has been held that jurisdiction notification under Section 14 of the Administrative Tribunal Act conferring jurisdiction to the Tribunal on service matters of IRCON has not been issued and hence the CAT has no jurisdiction to decide the service issues of IRCON employees. Learned counsel drew our attention to Appendix Appendix-VI VI under Rule 154 (b) of the Central Administrative Tribunal Rules of Pra Practice, ctice, 1993 providing the department department-wise wise classification of cases and stated that IRCON International Ltd. has not been listed in this Appendix. Section 14(2) of the Administrative Tribunal Act, 1985 provides that the Central Government may, by notificatio notification, bring the
-7- OA/050/01045/2019 organizations/corporations/authorities/societies owned or controlled by the Government under the purview of this Act. The list of such organizations/societies besides the Ministries and Departments of Govt. of India are listed at Appendix VI under nder the CAT Rules of Practice, 1993. Unless an organization or body is listed under Appendix VI the service matters of that organization cannot be considered onsidered by the Tribunal.
10. Shri M.P. Dixit, learned counsel for applicant reiterated the pleadings in the he rejoinder and the OA that IRCON was a wholly owned body of Indian Railways and there was no need for specific notification by the Government. By virtue of its it being a part of the Indian Railway Railways,, the Tribunal has complete jurisdiction to hear the servicee related issues of IRCON.
11. Perusal of Appendix VI of the CAT Rules of Practice, 1993 which is prepared for deciding department wise classification of cases reveals that IRCON International Ltd. is not listed there.. The organizational structure of In Indian dian Railways provided by the applicants at page page-12 12 of the rejoinder shows the 16 CPSEs/Corporations and Autonomous Bodies/ Authorities attached to the Railway Board. Perusal erusal of Appendix VI reveals that out of 16 CPSEs/Corporations PSEs/Corporations only 3, namely, RITES ((Rail Rail India Technical and Economic Services Ltd., RVNL (Rail Vikash Nigam Limited), Mumbai
-8- OA/050/01045/2019 Rail Vikash Corporation have been listed in Appendix VI. Other 13 Units including IRCON are not listed.
12. Learned counsel for applicant has argued that IRCON International Ltd. is incorporated in the list of 16 CPSEs/Corporations/Bodies/Authorities attached to Railway Board Board..
Being wholly owned by Indian Railways there was no need for separate notification in respect of IRCON under the AT Act. Since 3 of the 16 CPSEs/Corporations/Bodies/Authorities attached to Railway Board are listed in Appendix VI, the Tribunal has undoubtedly the jurisdiction to decide the service related issues of these 3 Bodies/Authorities. There is a clear distinction between these three bodies dies and the remaining 13 which have not been notified under the Act. We have no grounds to hold that the notification of these three organizations was on account of some inadvertent error on the part of the Government (Ministry of Railways). We hold that the Government/Ministry of Railways have with due deliberation of various aspects notified only three organizations under the AT Act and not the remaining 13 which include IRCON.
13. Hon'ble High Court of Allahabad vide its order dated 30.07.2019 in WP (SB) No. 14910 of 2019 [Ircon International Limited, New Delhi Vs. Deepak Yadav] while citing various judicial pronouncements on the subject held as under:
under:-
-9- OA/050/01045/2019 " Keeping in view the facts of the case stated hereinabove and the settled legal proposition on the issue of conferring jurisdiction as well as Section 14 of the Act of 1985, we are of the view that the direction given by this Court vide order dated 14.11.2018, in the writ petition No. 32978 (S/S) of 2018, in absence of notification under Section 14(2) 14(2) of the Act of 1985, would not confer a jurisdiction on Central Administrative Tribunal constituted under the Act of 1985, to adjudicate the claim of the respondent against the petitioner and being so, the impugned order dated 16.01.2019 being without jurisdiction urisdiction is nullity. "
14. In view of these facts and the observation of Hon'ble Allahabad High Court, we hold that the Central Administrative Tribunal has no jurisdiction over IRCON International Ltd. The OA has thus been filed before the Tribunal whic which h has no jurisdiction. Hence, the OA deserves to be dismissed and is accordingly dismissed on the ground of jurisdiction. The interim stay granted earlier stands vacated. MAs pending, if any, also stands disposed of accordingly. No order to cost.
[ Sunilil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.