Central Administrative Tribunal - Mumbai
Vilas Raghunath Pawar & 8 Ors. vs M/O Finance on 6 February, 2025
1 OA Nos.701/2017 & 145/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION Nos.701/2017 & 145/2019
Dated this Thursday the 6th February, 2025
CORAM: HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE SHRI UMESH GAJANKUSH, MEMBER (J)
OA No.701/2017
1. Vilas Pawar S/o Shri Raghunath Pawar
Aged 41 years,
R/o Sr. No.20/1 Vijay Nagar Colony No.9,
Dighi Gaon, Pune City, Didi Camp,
Dist - Pune - 411 015
2. Chandrakant Borade S/o. Shri Haridas Borade
Aged 40 years
R/o. Karmveer Krida Mandal Nehru Chowk
Daund, Dist - Pune - 413 801.
3. Shri Santosh Dhide S/o Shri Ashok Dhide
Aged 40 years,
R/o 59, Navi Peth, Pune - 411 030.
4. Laxman Yerapale S/o Vitthal Yerapale
Aged 41 years,
Add C/o Balasao Dasrath Kadam,
Near Samaj Mandir, Serve No.195,
Kadam Chawl, Malwadi, Hadapsar,
Pune City, Pin - 411 028.
2 OA Nos.701/2017 & 145/2019
5. Kishore Dere S/o chandrakant Dere
Aged 52 years,
R/o 417, Kasba Peth, Phadke Haud,
Zambre Chavdi
Taluka-Haveli, Dist-Pune,
Pin - 411 011.
6. Shrikrishna Shirsat S/o Shri Bhagwan Shirsat
Aged 39 years,
R/o Sr. No.110, Ram Tekadi
Hadapsar, Dist-Pune,
Pin - 411 013.
7. Sopan Chivhe S/o Shri Sadhu Chivhe
Aged 32 years
R/o Narayan Peth, Post Bhivadi
Taluka-Purandhar, Dist-Pune,
Pune - 412 301.
8. Pramod Pol S/o Shri Waman Pol
Aged 45 years,
R/o 13, Tadiwala Road,
Behind Sajnabai Bhandari Vidhyalaya
Panmala, Pune - 411 001.
9. Jaipal Chalagala, Aged 32 years,
S/o Shri Devayya G. Chalagala
R/o Sr. No.71 Shrinath Nagar,
Colony No.2, B.T. Kawade Road,
Ghorpadi Gaon, Dist. Pune,
Pin - 411 001. ... Applicants
( By Advocate Shri Jose Pulikkoden)
VERSUS
3 OA Nos.701/2017 & 145/2019
1. Union of India through
Thro, Revenue Secretary,
Ministry of Finance,
North Block, New Delhi - 1.
2. The Chairman, CBDT, North Block,
Ministry of Finance,
New Delhi - 1.
3. The Principal Chief Commissioner of Income
Tax, Pune Region, Aayakar Bhawan,
12, Sadhu Vasawani Road,
Pune - 411 001.
4. Commissioner of Income Tax (Judicial)
Aayakar Bhawan, 12, Sadhu Vaswani Road,
Pune - 411 001. ... Respondents
(By Advocate Shri R.R. Shetty a/w Shri Sachin Patil)
OA No.145/2019
1. Somnath Narayan Kamble
Aged 42,
Address: Type-II, Building No.05
Room No.03, Vishwas Nagar,
Labour Colony, Aurangabad - 431 001.
2. Parshuram Bhaurao More
Aged 42
Address: H.No.4-10-02, Opp Dwarkadas
Patel Wada, Near Nath Mandir,
Aurangpura, Aurangabad - 431 001.
3. Suresh Bhausaheb Jawale
Aged 44
Address Near Gram Panchayat Office,
4 OA Nos.701/2017 & 145/2019
Waluj, taluq - Gangapur
Distt-Aurangabad Pin - 431 133.
4. Shaikh Mujahid Moin,
Aged : 35 years,
Address:Plot No.5, Near Bilal Masjid,
Muzaffar Nagar, N-13, HUDCO
Aurangabad - 431 003.
5. Syed Sajed Maheboob
Aged : 34
Address : Noorjehaa Manzil,
Rajiv Nagar Dhanora Road,
Near Old Water Tank Beed,
Distt;Beed, Pin - 431 122
6. Kamlesh Rajendra Mudiraj
Aged : 34 Years,
Add : H.No.4/10/5 Nr. Shiraj Hotel
Jinsi, Aurangabad Pin - 431 001.
7. Ambadas Bhanudas Padul
Aged 37 years
Add : Post Pimpal Kuntha,
Taluqa Ladsawangi.
Distt Aurangabad Pin - 431 007.
8. Chandrashekhar Kishanrao Thorat
Aged 38 years,
Add : H.No.1-5-6-120
Pradyanagar, Laxmi Colony
Cantonment, Aurangabad - 431 002.
9. Manoj Prabhakar Kathar
Aged : 45 Years,
Address : H>No.4-2-22,
Anguribagh, Babrakawada
Aurangabad - Pin 431 001.
5 OA Nos.701/2017 & 145/2019
10. Mrs. Pritee Laxmikant Kate
Aged : 39 Years
Address : P.No.12, Kapila Housing Society,
Nr. Ramleela Maidan
N-7 CIDCO, Aurangabad - 431 003.
11. Girish Ganpatrao Pandit
Aged 33 Years
Add : C/o Girish Provision Bapunagar,
Nr Buddha Vihar, Sunday Market Rd.
Khokadpura, Aurangabad - 431 001.
12. Mrs. Shilpa Vilas Muley
Aged 45 Years
Add : R.H. No.81, Shantivan, Hariram Nagar,
Beed Bypass, Satara Parisar,
Opp. Surya Lawns, Aurangabad - 431 009.
13. Pravin Devidas Mate
Aged 34 Years,
Add : Pratiksha Niwas Plot No.25
Santoshi Mata Nagar, Near Jadhav Kirana
Shop, Mukundwadi, CIDCO, N-2
Aurangabad - 431 006.
14. Mohmad Ashfaq
Aged - 37
Add: H.No.57, Dilrus Colony,
Aurangabad Pin - 431 001.
15. Santram Eknath Nikam
Aged : 40 Years,
Add : Sakegaon, Post - Pokhari
Tq. Vaijapur, Dist-Aurangabad
Pin - 431 115. ... Applicants
( By Advocate Shri S.D. Joshi )
6 OA Nos.701/2017 & 145/2019
VERSUS
1. Union of India through
Thro, Revenue Secretary,
Ministry of Finance,
North Block, New Delhi - 1.
2. The Chairman, CBDT, North Block,
Ministry of Finance, Government of India
New Delhi - 1.
3. The Principal Chief Commissioner of Income
Tax, Pune Region, Aayakar Bhawan,
12, Sadhu Vaswani Road,
Pune - 411 001.
4. Chief Commissioner of Income Tax
Kendriya Rajaswa Bhawan,
Gadkari Chowk, Old Agra Road,
Nashik - 422 002.
5. Principal Commissioner of Income Tax 1
Aayakar Bhawan
Near Holy Cross English High School,
Aurangabad - 431 002.
6. Principal Commissioner of Income Tax 2
Aayakar Bhawan,
Near Holy Cross English High School,
Auranagbad - 431 002. ... Respondents
(By Senior Advocate Shri R.R. Shetty a/w Shri
Sachin Patil)
7 OA Nos.701/2017 & 145/2019
ORDER
Per: Mr. Shri Krishna, Member (A)
The applicants in OA No.701/2017 have filed this OA in 2017 to seek for the following reliefs:
"8(A) That respondents be directed to consider to regularize the services of the applicants for all intents and purposes.
(B) And restrain the respondents from resorting to outsourcing the work entrusted to being performed by the applicants, involving multi tasking duties through independent contractors at Par with Regular Group 'D' now Group 'C'.
(C) That respondents be directed to release the payment of wages and arrears of the payment of 1/30th of the pay in the relevant minimum Scale PB-1 of Gr D(now called Gr C) w.e.f.
01.01.2006 and with corresponding scale after 7th pay commission in terms of DOP&T OM dated 07.06.1988 and Para 3.5 of Instructions of CBDT vide F.No.30014/41/2015 V&L dated 16th Oct, 2015.
(D) That applicants be held entitled to all consequential benefits, in the interest of justice. That the applicants be held entitled for payment of interest @18% on such delayed release of payments of salary and arrears till the date of payment. (E) That this Hon'ble Tribunal may also pass/grant any other order/relief in favour of the applicants which it may deem fit in the light of the facts and circumstances of the case and in the interest of justice.
(F) That the cost of the application may be allowed in favour of the applicants.
8 OA Nos.701/2017 & 145/2019(G) That filing of Joint Original Application may be allowed in the interest of justice."
2. The applicants in OA No.145/2019 who were 15 in number originally have filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"(A) That respondents be directed to consider to regularize the services of the applicants for all intents and purposes. Reliance is placed upon judgment in OA No.2045 of 2014 of this Hon'ble Tribunal (Division Bench), Bombay (at Nagpur Camp Bench) on 14th Nov, 2018.
(B) That respondents be directed to release the payment of wages and arrears of the payment of 1/30th of the pay in the relevant minimum Scale PB-1 of Gr D(now called Gr C) w.e.f.
01.01.2006 and with corresponding scale after 7th pay commission in terms of DOP&T OM dated 07.06.1988 and Para 3.5 of Instructions of CBDT vide F.No.30014/41/2015 V&L dated 16th Oct, 2015.
(C) and to direct the respondents to continue to pay on daily wage basis till regularisation of applicants is effected instead of outsourcing the work entrusted to being performed by the applicants, involving multi tasking duties through independent contractors which is also in consonance with department's own OM dated 10th Dec, 2018. (Reliance is placed upon Hon'ble Supreme Court in case of Union of India Vs. Mahendra Singh which has dismissed the SLP of Union of India (Special leave to Appeal (C)... CC No.(s)2587/2016 (Arising out of impugned final judgment and order dated 19/03/2015 in DBCWP 9 OA Nos.701/2017 & 145/2019 No.5530/2013 passed by the High Court of Rajasthan at Jodhpur) (D) Declare that the sudden decision to outsource jobs on contract basis which were performed by "we daily wagers on a continuous basis for a substantial period of time", by respondents at Pune and Nasik is against the instruction dated 10th Dec, 2008 issued by department of revenue and is arbitrary and illegal. Reliance is placed upon Hon'ble Supreme Court in case of Union of India Vs. Jeevan Singh and others Petition (s) for Special Leave to Appeal (C)..... of 2016 (CC No.12884/2016) is dismissed and affirmed the Hon'bel High Court of Jodhpur (Arising out of impugned final judgment and order dated 19/03/2015 in DBCWP No.1924/2011 passed by the High Court of Rajasthan at Jodhpur.) (E)That applicants be held entitled to all consequential benefits, in the interest of justice. That the applicants be held entitled for payment of interest @18% on such delayed release of payments of salary and arrears till the date of payment. (F) That this Hon'ble Tribunal may kindly consider to examine the initiation action for Contempts of Court against respondents as Except respondent No.5, none of the respondents 1 to 6 have complied with the directions issued by this Hon'ble Tribunal in OA No.526 of 2018.
(G)That this Hon'ble Tribunal may also pass/grant any other order/relief in favour of the applicants which it may deem fit in the light of the facts and circumstances of the case and in the interest of justice.
(H) That the cost of the application may be allowed in favour of the applicants.
(I) That filing of Joint Original Application may be allowed in the interest of justice.
10 OA Nos.701/2017 & 145/2019Later on, applicant No.5 has withdrawn from this OA under his letter dated 01.12.2019 and therefore only 14 applicants remain in this OA.
3. During the course of the arguments, learned counsel for the applicants in OA No.145/2019, Mr. Joshi submitted that the applicants are not pressing the reliefs claimed at 8(A) and (C) and restricting their prayer for payment of 1/30th of the pay in the relevant minimum Scale PB-1 of Gr D(now called Gr C) w.e.f. 01.01.2006 and with corresponding scale after 7 th pay commission in terms of DOP&T OM dated 07.06.1988 and Para 3.5 of Instructions of CBDT vide F.No.30014/41/2015 V&L dated 16 th Oct, 2015.
4. This is the second round of litigation. Earlier the applicants in OA No.145/2019 have filed OA No.526/2018 which was disposed of by this Tribunal vide order dated 09.08.2018 directing the respondents to consider the representations filed 11 OA Nos.701/2017 & 145/2019 by the applicants and pass a reasoned and speaking order within a period of three months. Accordingly, the respondents passed the impugned order dated 10.12.2018 whereby they have rejected the claim of the applicants for payment of 1/30th of regular employees of MTS. Therefore, the applicants have filed these OAs which were dismissed by this Tribunal vide order dated 01.07.2022. At that time, the applicants have pressed for regularization of their services as well as grant of 1/30 of the pay. For ready reference, findings given by this Tribunal in the order dated 01.07.2022 are extracted herein as under :
"23. The Hon'ble Apex Court has held that equation of posts is not the function of the judiciary, rather it is the function of the executive. The applicants being on contract, in fact makes the comparison with regular employees even more difficult as the regular employees have faced a regular selection process and have been appointed to the said post, whereas applicants/contractual employees have not faced any selection/screening even. It is always heart-rendering to refuse protection to a person who is facing uncertainty even exploitation, but there are other factors which have to be kept in mind. It is a rarity for a contract employee to approach the Court at the inception of his service, to challenge the less pay being received 12 OA Nos.701/2017 & 145/2019 by him. If a legal action is brought at the initial stages, the Court can at least direct that the regular vacancies should be filled up within a short period and/or ensure some beneficial treatment towards such contractuals. Having accepted their fate for so many years and not approaching the Courts earlier makes them ineligible for grant of relief.
24. In the light of the above discussions, I find no merit in these Original Applications, the same are dismissed. Related pending MA Nos.440/2021, 16/2019 & 441/2021 stand closed. No order as to costs."
5. The applicants challenged the above order before the Hon'ble High Court of Judicature at Bombay. The Hon'ble High Court, vide judgement dated 01.08.2023 in Writ Petition No.11265/2022 alongwith Writ Petition No.16119/2022, has remanded back these matters to this Tribunal with the following observations:
"6. As regards the Petitioners' contention of erroneous conversion of status from that of daily wage workers to those working on contract, we find the discussion in the impugned order entirely sketchy. The Tribunal has only stated that, Petitioners have consciously accepted contractual positions, the terms of which expressly put them on notice about the nature of their employment and further that, such employment did not entitle them to regular wages but contractual wages and therefore they cannot seek any relief now. Therefore, the substantial grievance of the Petitioners is dealt in one line reasoning invoking the principles of acquiescence and estoppel. It is the contention of the Petitioners that, they were 13 OA Nos.701/2017 & 145/2019 never put to notice about conversion of their status and there might be internal departmental correspondence with the Contractor, but there is no specific communication to the Petitioners putting them to notice about the conversion of their status. The Tribunal therefore ought to have dealt with this issue as to whether there was a specific communication or whether the Petitioners had implied knowledge of conversion of their status or that in law for conversion of status, specific communication need not be issued. There is no discussion in the impugned order on this aspect. We are referring to these facets not to conclude the issue but stress the fact that the impugned order should have contained discussion on these lines before drawing a conclusion invoking principles of acquiescence and estoppel against the Petitioners.
7. The second issue that is sought to be raised by the Petitioners is that even if Petitioners were to be treated as working on contract basis, Clause-(iv) of the OM dated 7 June 19889 will still apply to them. In support of the proposition, they rely upon the decisions in (i) Union of India Vs. Jeevan Singh and Ors, Special Leave to Appeal(C)of 2016 (CC No.12884/2016) (ii) Union of India Vs. Mahendra Singh, Special Leave to Appeal (C)(CC Nos.2587/2016)and (iii) Shri Surinder Singh and Others Vs. Union of India, AIR 1986 SC
584. Mr. Shetty, the learned Counsel for the respondent- department submitted that this submission is not correct as Petitioners will have to show the employer-employee relationship with the respondent-department. This is also an area in the impugned order where we find the discussion is missing.
8. In view of this position since on these crucial aspects, there is no reasoning, the impugned order has become unreasoned and is therefore required to be set aside for consideration of the matter afresh.
9. The Writ Petitions are disposed by quashing and setting aside the impugned order passed by the Central 14 OA Nos.701/2017 & 145/2019 Administrative Tribunal in Original Application No.701/2017 and in Original Application No.145/2019 dated 1 July 2019. The Original Applications No.701/2017 and 145/2019 filed by the Petitioners are restored to the file of the Central Administrative Tribunal. The Tribunal will consider the applications, as per law, afresh in light of what is stated above.
10. As regards the request of the respondents for additional affidavit is concerned, it is for the Tribunal to consider the request upon hearing both the sides.
11. The learned Counsel for the Petitioners pray that the Tribunal should decide the matter in a time bound period. We permit the Petitioners to make a request to the Tribunal for early hearing of the remanded proceedings. We have no doubt that the Tribunal will keep in mind that the remand was necessary because of lack of reasoning in the impugned order and because of which the Petitioners are prejudiced and accordingly will grant priority of hearing and if feasible dispose of the application within a period of four months.
12. We make it clear that our observations in this order are only to highlight the reasons for remand and we have not concluded the issue on merits."
6. Pursuant to the above directions of the Hon'ble High Court, the matters were taken up for fresh hearing.
OA No.701/2017
7. Learned counsel for the applicant submitted that the applicants are not pressing the relief claimed at para 8'A' to regularize their 15 OA Nos.701/2017 & 145/2019 service. They have restricted their prayer to clause 8'B' 'C' and 'D' of the relief clause seeking the direction to the respondents to restrain them from resorting to outsourcing the work entrusted to being performed by the applicants and to release the payment of wages and arrears of payment of 1/30th of the pay in the relevant minimum scale PB of Group D (now called Group C) w.e.f. 01.01.2006 and with corresponding scale after 7 th Pay Commission in terms of DOP&T OM dated 07.06.1988 and para 3.5 of instructions of CBDT dated 16.10.2015.
8. During pendency for fresh hearing of this OA before the Tribunal, the earlier Advocate Shri Rajeev Kumar has unfortunately passed away and, therefore, the applicants have engaged the present Advocate Shri Jose Pulikkoden. The matter was taken up for hearing.
16 OA Nos.701/2017 & 145/2019
9. Learned counsel for the applicants has filed written notes of arguments. It has been submitted that the applicants were working as causal workers in the office of the Principal Chief Commissioner of Income Tax, Pune for a substantial period of time. In the month of March, 2012, the applicants were called by the respondent No.1 who informed them that they have been instructed to stop making payments to individual casual workers and that they have sought the clarifications from the CBDT with regard to Om No.DOF No.A-
12034/1/2004-Ad.1A dated 4/10-12-2008, wherein it has been stated that the Income Tax Department shall refrain from engaging casual workers. However, the said OM made an exception to those who are already engaged on a continuous basis for a substantial period of time. In the meantime, as a temporary arrangement, the payment shall be made to some specified casual worker who shall 17 OA Nos.701/2017 & 145/2019 distribute it among the other casual workers. It has been submitted that the most junior applicant in this application has worked for at least six years as on 2012, with the most senior having been appointed in 1997. It has been submitted that the applicants being casual workers receiving meagre wages and having served the department for an extended period were left with no viable alternative but to comply with the administration's request. The applicants were compelled to sign certain documents, which upon subsequent examination revealed that they had been improperly and without notice removed from their positions as casual workers. They were then made to work under a contract, having been induced to do so through deception and undue influence. 9.1 Thereafter, having understood the gravity of the situation, the applicants approached the administration who were giving them assurances 18 OA Nos.701/2017 & 145/2019 that the matter was being discussed with the CBDT. However, since no results were coming through, the applicants as a last option, after having exhausted all their remedies, approached this Tribunal to seek justice. It has been submitted that the Hon'ble High Court has directed to decide the issue afresh on the basis of following directions:
i. Whether there was any specific communication with the applicants while they were being terminated as casual workers after working for long continuous years or whether the applicants had implied knowledge of conversion of their status or that in law for conversion of status, specific communication need not be issued.
ii. Without prejudice, the Hon'ble Court also directed to adjudicate as to whether clause
(iv) of the OM dated 07th June, 1988 is applicable to the applicants.
9.2 It has been submitted that as regards, communication of the respondents with the applicants regarding conversion of their status, the answer is in negative. It has been submitted 19 OA Nos.701/2017 & 145/2019 that the respondents have made following submissions:
i. The applicants initially joined as casual workers without being issued formal appointment letters. As a result, the respondents argue that there is no obligation to issue a termination letter to the applicants. However, it is submitted that the principles of natural justice mandate that a casual worker who has served continuously for an extended period should be duly informed of their termination from service. Regarding the applicants' appointment, it is submitted that they were engaged as casual workers based on the needs of the Income Tax Department and through the recommendation of known individuals within the department. The applicants were required to submit their resumes, following which appointment letters were issued. However, due to the passage of time, these appointment letters are no longer in the possession of the applicants. Efforts were made to retrieve these documents from the respondents under the Right to Information Act, 2005, but the respondents have failed to provide them to the applicants.
(ii) It is not in dispute that the applicants were individually paid wages, right from their inception and that it is a documented fact.
The appointment is therefore a fact. There is no back door entry as there was no specific recruitment drive for casual workers then, other than by the word of mouth.
20 OA Nos.701/2017 & 145/20199.3 The applicants have relied on the OM dated 04/10.12.2008 wherein in para 3 it has been specifically stated that though engaging a casual worker was decided to be done only through service providers, it does not apply to casual workers who are already engaged on casual/daily wage basis for a substantial period of time. This fact is also mentioned in para 4 of letter No.HRD/CMD- 1/160/8/2018-19 dated 30.07.2019 issued by the Human Resources Department, Central Board of Direct Taxes. The respondents, therefore, taking advantage of their dominant status, have illegally converted the casual workers to contractual workers causing grave prejudice to the applicants. 9.4 In this regard, the applicants strongly rely on the decision of the Hon'ble Rajasthan High Court dated 19.03.2015 in WP No.5530/2013 wherein a group of Civil Writ Petitions on an identical issue was decided in favour of the petitioners. 21 OA Nos.701/2017 & 145/2019 Based on the High Court's ruling, the Principal Chief Commissioner of Income Tax, Rajasthan, issued an order dated 07.02.2018, directing the Department to directly engage casual workers who had initially been employed directly by the Department but were later outsourced to service providers. This order applied to those casual workers who had been continuously working since their initial engagement by the Department. 9.5 Regarding the payment of 1/30th of the minimum pay scale plus dearness allowance for working 8 hours a day, it is important to highlight that the applicants have been performing the same duties as regular employees for over 10 years. Moreover, they have been working continuously, without any break in service. Their work has not been casual, seasonal or intermittent, which clearly indicates that the tasks assigned to the applicants are of a regular nature, typically 22 OA Nos.701/2017 & 145/2019 carried out by permanent employees. Initially, the applicants were performing duties equivalent to those of Lower Division Clerks (LDC) and following the implementation of the 7th Pay Commission, their duties now align with that of Multi-Tasking Staff (MTS). Despite this, the applicants are only being paid minimum wages as notified by the government, which does not reflect the regular nature of their work.
9.6 The fact that clause (iv) of OM No.49014/2/86 dated 07.06.1988 clearly states unambiguously as under:
"(iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day."
As the above para states the applicants shall always be paid at the minimum of the relevant pay scale without scope of any increment and other benefits to which the regular employees are 23 OA Nos.701/2017 & 145/2019 entitled. The applicants are seeking the benefits of 1/30th pay purely based on the abovementioned OM. This entitlement cannot be considered as "equal pay for equal work" by any standards as the regular employees are entitled for regular increment, leave travel concession and other benefits in view of their regular status. The learned Senior Counsel for the respondents has wrongly raised an issue of 'equal pay for equal work' that will not apply for casual workers and cited various case laws which are grossly misplaced. When the instruction with regard to the wages to the casual workers are clearly set out in the OM, there is no need for any ratios etc., to complicate the matter. 9.7 It has been submitted that the casual workers being part of an unregularized sector are often subjected to various forms of exploitation due to the absence of comprehensive rules and regulations governing their employment. In the 24 OA Nos.701/2017 & 145/2019 light of this, it becomes this Tribunal's responsibility to address this gap in the legal framework, ensuring that the nation's commitment to being a welfare state is fulfilled by safeguarding the rights and dignity of such workers and, therefore, prayed for allowing their prayers in the OA.
10. On notice, the respondents have contested the OA on the ground that the status of the applicants from casual workers to contractual workers changed in 2012 and, therefore, it does not warrant any interference by this Tribunal. It has been submitted that the cause of action arose in 2012 when their status was changed from casual workers to contractual workers. However, no original application was filed at that time and the applicants have approached this Tribunal for the first time in 2017 and, therefore, the OA is 25 OA Nos.701/2017 & 145/2019 barred by limitation on account of delay and laches.
10.1. It has been submitted that the applicant have not challenged GFR -178 and that no appointment orders have been produced by the applicants to substantiate their claim that they were working since 1997. It has been submitted that there is no employer-employee relationship between the respondents and the applicants after 2012 as they are now employees of the contractor. Regarding the claim of the applicants of 1/30th pay of the regular employees, the learned Senior counsel Shri R.R. Shetty has placed reliance on the judgment of Three Judge Bench of the Hon'ble Supreme Court in the case of State of Haryana Vs. Charanjit Singh, (2006) 9 SCC 321 and also on the judgement in the case of State of Madhya Pradesh and Another vs. Pramod Bhartiya and Others (1993) 1 SCC 539. 26 OA Nos.701/2017 & 145/2019 10.2 It has been submitted that the applicants cannot claim the 1/30th of the wages as they do not fulfill the criteria of qualification and they have not come through any regular method of recruitment. It has been submitted that the applicants have come through backdoor entry and cannot claim parity with regularly selected employees in accordance with article 14 and 16 of the Constitution of India. The source of the recruitment of the applicants is different as they have come through backdoor entry. The learned senior counsel further submitted that the applicant have given implied consent when they accepted to work as contractual workers and, therefore, they are barred to contest it now on the principles of estoppel and acquiescence. It has been submitted that the Jabalpur Bench of this Tribunal has upheld the right to appoint the workers on contract basis and, therefore, prayed for dismissal of the OA.
27 OA Nos.701/2017 & 145/2019
11. In his rebuttal learned counsel for the applicants Mr. Jose Pulikkoden submitted that there is no specific communication that the applicants' status was changed or their services have been terminated in the year 2012. Therefore, conversion of status is illegal. He further submitted that contract of 2012 is bad in law in view of OM No.D.O.F.No.A-12034/1/2004-Ad.1A issued through Ad.IA Section dated 04/10/12/2008 on the subject of "Complete ban on engaging Casual Labour in offices under the Department of Revenue" which reiterates the policy guidelines issued by the DoPT from time to time. In para 3, it restrain from engaging any new person on a casual/daily wage basis for carrying out any type of work, even against vacant posts or even in the place of existing casual/daily wage workers. The only exception shall be continuing to engage on casual/daily wage basis those persons who are 28 OA Nos.701/2017 & 145/2019 already being engaged on a continuous basis for a substantial period of time. In para 4 of the OM, it calls for strict compliance stating that any violation of this order will be viewed very seriously. He further contends that the argument of the learned senior counsel that the applicants have approached in 2017 instead of 2012 and, therefore, the OA is barred by limitation on account of delay and laches is not applicable as the matter has been remanded back by the Hon'ble High Court and, therefore, this Tribunal is bound by limitation of High Court to decide the matter afresh and the limit will not apply.
12. Mr. Jose Pulikkoden further submits that there was continuous communication by the Department and CBDT with the office of Director General, HRD as it is clearly from page 48 of the OA and, therefore, it is not correct on the part of the respondents to say that the applicants have 29 OA Nos.701/2017 & 145/2019 given implied consent and, therefore, the principle of estoppel and acquiescence will not apply against the applicants and, therefore, he prayed for the grant of relief to the applicants. OA No.145/2019
13. Learned counsel for the applicants Mr. Joshi filed additional affidavit on 13.12.2024 in support of claim of the applicants.
14. Briefly encapsulated the facts of the case are in brief:
The applicants are daily wage employees/contract labourer in the office of
Principal Commissioner of Income Tax, Aurangabad under the PCCIT, Pune and working for more than 10 years. They were originally engaged by the respondents i.e. Income Tax Department at Aurangabad. However, their status was later on changed in 2012-2013 and they are stated to be engaged through a contractor by outsourcing 30 OA Nos.701/2017 & 145/2019 despite the fact that there were regular need and requirements of the applicants and they continued in the different jobs like Chowkidars, Sweepers, Farash and Waterman etc. Mr. Joshi submits that the applicants were initially engaged as employee of department from the year 2002-2006. 14.1 Shri Joshi drew our attention to DoPT OM No.49014/2/86 Estt(C)dated 07.06.1988 (Annexure A-10) by which the guidelines in the matter of recruitment of casual workers on daily wage basis was issued. Para (iv) of the above OM says that 'Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30 th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. The respondents No.1 issued an OM No.D.O.F.No.A- 12034/1/2004-Ad.1A dated 04.12.2008 on the subject "Complete ban on engaging Causal Labour in offices 31 OA Nos.701/2017 & 145/2019 under the Department of Revenue". In the said OM, it has been stated in para 2 that 'It has come to the notice of the Government that completely disregarding the above instructions, several offices coming under the administrative control of the Department of Revenue have been engaging casual workers, daily wagers, etc. and even continuing such engagement on the basis of orders of Courts or even otherwise. Since most of these persons are being engaged against non-existent posts. It also constitutes a financial irregularity in so far as wages are being paid to persons recruited otherwise than through constitutionally laid down recruitment rules and without duly sanctioned posts. Para 3 of this OM says that 'It is, therefore, decided with immediate effect that all offices coming under the administrative control of the Department of Revenue shall henceforth refrain from engaging any 32 OA Nos.701/2017 & 145/2019 new person on a casual/daily wage basis for carrying out any type of work. Such persons shall not be engaged even against vacant posts or even in the place of the existing casual/daily wage workers. The only exception shall be continuing to engage on casual/daily wage basis those persons who are already being engaged on a continuous basis for a substantial period of time. Needless to mention that this will be subject to the orders issued by DoPT from time to time'. Mr. Joshi argued that this OM was not applicable to the applicants as it was meant for the persons who were engaged against non-existent posts and it was to refrain from engaging any new person on a casual/daily wage basis. He submits that the applicants were already working with the respondents department much before the OM was issued and, therefore, they were required to be continued as the Office Memorandum prohibited engagement of only any new 33 OA Nos.701/2017 & 145/2019 person on daily wage basis. However, the respondents have wrongly invoked this OM to change the status of the applicants from the employees of the department to the casual workers by totally misinterpreting the OM.
14.2 Mr. Joshi drew our attention to page Ns.133 to 138 of the OA (Annexure A-15) by which the respondents themselves have recommended the case of the applicants for absorption in the department against the existing vacancies. He further drew our attention to the letter dated 28.06.2016 in which the Joint Commissioner of Income Tax, Range-1, Aurangabad has recommended the name of 12 casual labours/daily wages for absorption to the Principal Commissioner of Income Tax-1, Aurangabad with reference to letter of the Principal CCIT, Pune's letter No.PN/CC/EST/CMS/2016-17/1749 dated 10.06.2016 and the Principal CIT-1, Aurangabad's letter 34 OA Nos.701/2017 & 145/2019 No.ABD/Pr.CIT/2016-17 dated 27.06.2016 giving therein the date of joining and educational qualification. The Principal Commissioner of Income Tax-1, Aurangabad thoroughly scrutinized the list of 12 persons and out of that 10 names who are applicants in this OA were forwarded which shows their place of work, date of joining and educational qualification. Therefore, the contention of the respondents that the applicants were employees of the contractor falls flat on the ground.
14.3 Mr. Joshi further submits that as per the respondents' own admission in the letter dated 30.06.2016 sent by Principal Commissioner of Income Tax Aurangabad to the Chief Commissioner of Income Tax, Nashik, the names of the applicants were forwarded for absorption against the existing vacancies. This admission on the part of the respondents reveals that the applicants were 35 OA Nos.701/2017 & 145/2019 working against the existing vacancies. Shri Joshi submits that Directorate of Income Tax, Human Resource Development, Central Board of Direct Taxes issued letter dated 30.07.2019 (Anneuxre RR-
2) in which DoPT OM dated 07.06.1988 has been referred regarding the payment of 1/30 th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. In para 4 of the above letter, the the Department of Revenue (DoR) OM dated 10.12.2008 has been referred wherein it has been clarified that it refrains from engaging any new person on a casual/daily wage basis for carrying out any type of work. The only exception was to continue to engage on casual/daily wage basis those persons who are already being engaged on a continuous basis for a substantial period of time. 14.4 Mr. Joshi submits that similar case came up before the Principal Bench in OA No.196/2020 36 OA Nos.701/2017 & 145/2019 [Ms. Venna Verma @Beena & Ors Vs. Union of India through Secretary, Department of Revenue, M/o. Finance, New Delhi & 2 Ors.] wherein the casual labourers engaged from 27.01.2000 to 01.04.2008 who were later on forced to come through contractor. The Tribunal vide order dated 13.04.2023 has directed the respondents to consider and examine the case of the applicants in light of the decision rendered by the Hon'ble High Court at Jodhpur wherein the decision of Coordinate bench of Jodhpur Bench of this Tribunal was upheld thereby passing appropriate orders qua the applicants for grant of salary to the applicants @1/30 of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f the due date(s).
14.5 Shri Joshi further submits that the applicants are better placed than the applicants in the case decided by the Principal Bench as the applicant at serial No.2 was working from 37 OA Nos.701/2017 & 145/2019 24.12.1998. Shri Joshi would further argue that the applicants are continuing in the same job, doing the same work at the same office which they were doing earlier. However, only mode of payment of their wages has been changed but their earlier services cannot be wiped out. He submits that the Directorate of Income Tax, Human Resource Development, Central Board of Direct Taxes vide letter dated 30.07.2019 has advised the field formations that payment of remuneration to casual workers from the head wages may be made by the HODs/Supervisory Officers in accordance with the instructions/directions issued by DoPT vide its OM dated 07.06.1988, OM dated 14.06.2016, the DoPT's opinion issued vide ID No.1347374/CR/18 dated 07.02.2019 and Department of Revenue/CBDT instructions/directions issued vide letter dated 10.12.2008, 16.10.2015, 23.11.2015 and 23.10.2018 and other letters issued on the given subject. 38 OA Nos.701/2017 & 145/2019 14.6 Mr. Joshi further drew out attention to letter dated 31.05.2023 issued by the Directorate of Income Tax, HRD, CBDT (Annexure RR-3) regarding payment of arrears to causal workers engaged in Regional CCAs of Income Tax Department. In para 2.2 of the said letter, it has been directed to all Principal Chief Commissioners of Income Tax (CCA) including the respondents in the OA that 'the causal workers are entitled to wages @ of 1/30th of the pay at the minimum of the relevant pay plus dearness allowance for work of 8 hours a day if the nature of work entrusted to the causal workers and regular employees is the same'. In para 2.3 of the above letter of the HRD, it has been stated that 'However, it has been observed that these instructions have not been followed/implemented uniformly in all CCA Regions. Some CCA Regions such as Mumbai and Kanpur have made payments equal to 1/30th of the pay in 39 OA Nos.701/2017 & 145/2019 relevant pay scale as per 6th and 7th Pay Commission and given arrears thereof to the Causal Workers'. Para 3 of the said letter states that 'in view of the above, it is clarified that the eligible casual workers in your Region may be paid wages/arrears if due as per DoPT OM No.49014/2/86 Estt (c) dated 7th June, 1988 and DoPT OM No.49014/1/2017-Estt(C) dated 4th September, 2019. Further, it is also clarified that the wages equal to 1/30th of the pay plus Dearness Allowance in relevant pay scale as per 6th and 7th Pay Commissions is effective from the date of its applicability.' 14.7 Mr. Joshi submits that this letter clearly establishes that the Cadre Controlling Authority i.e. the Principal Chief Commissioner of Income Tax in Mumbai and Kanpur have already made payment equal to 1/30th of the pay to the causal labourers/workers in the relevant pay scale and, 40 OA Nos.701/2017 & 145/2019 therefore, the respondents cannot discriminate the applicants just because they are posted in Aurangabad/Pune who are similarly placed to the casual workers/daily wages working in Mumbai/Kanpur.
14.8 Mr. Joshi further submits that consistently different benches of this Tribunal have allowed 1/30th payment which has been confirmed by the Hon'ble High Courts and also by the Hon'ble Supreme Court.
15. Learned counsel for the applicant has relied upon the following judgements:
(i) Mahendra Singh & Ors. Vs. Union of India & Ors., Ministry of Finance, Department of Revenue, New Delhi & Ors., Central Administrative Tribunal, Jodhpur Bench, Jodhpur, OA Nos.17/2012 & Ors. decided on 29.10.2012.
(ii) Jeevan Singh Gehlot & Ors. Vs. The Union of India through the Secretary, Ministry of Finance, Department of Revenue, New Delhi & Ors., Central Administrative Tribunal, Jodhpur Bench, OA No.(copy not clear)decided on 22nd February, 2011.
(iii) Union of India & Ors. Vs. Jeevan Singh Gehlot & Ors., D.B. Civil Writ Petition No.1924/2011, High Court of Judicature for Rajasthan at Jodhpur decided on 19.03.2015.
(iv) Udyanand Thakur & Ors. Vs. Secretary, Department of Revenue, Ministry of Finance, New Delhi & Ors., Central 41 OA Nos.701/2017 & 145/2019 Administrative Tribunal, Principal Bench, New Delhi, OA No.2012/2013 decided on 22.04.2014.
(v)Ms. Veena Verma @ Beena & Ors. Vs. Union of India, D/o.
Revenue, M/o. Finance, New Delhi & Ors., Central Administrative Tribunal, Principal Bench, New Delhi, OA No.196/2020 decided on 13.04.2023.
16. Mr. R.R. Shetty, learned senior counsel appearing for the respondents on the other hand has argued that the applicants are hit by estoppel and acquiescence. He submits that initially they were employee of the department till 2012. However, from the year 2013, they have been engaged through a contractor and OA has been filed in 2019. Therefore, after 2013, there is no privity of contract between the contractor and applicants and, therefore, the principle of 1/30 th payment of wages cannot be applied.
17. Shri Shetty placed reliance on the decision of Hon'ble Supreme Court in the case of Chairman & Managing Director, Indian Airlines Vs. Binod Kumar Sinha and Others, (2001) 8 SCC 722. He submits that there 42 OA Nos.701/2017 & 145/2019 is no relationship of master and servant of the respondents with the applicant. He further submits that GFR 178 has not been challenged which was a policy decision of the Government.
18. Mr. Shetty further submits that the Central Board of Direct Taxes, Department of Revenue, New Delhi vide letter dated 16.10.2015 (Annexure A-2) has issued guidelines relating to filing of further appeals in Higher Courts on the issues related to Casual Labours. He submits that in para 3.5 of the above letter, it has been stated that 'if the supervisory officers certify that the particular casual labour is doing same nature of work as assigned to the regular employee, then such causal labour be paid wages equal to 1/30 th of the pay at the minimum of the scale admissible to such employees in light of the DoPT's OM dated 07.06.1988. However, if the casual labour is not assigned same nature of work as assigned to 43 OA Nos.701/2017 & 145/2019 regular employee, then order of the CAT/High Court directing payment of daily wages @1/30th of the lowest of the scale of Group D should be contested in higher Courts. He submits that the applicants have not able to establish whether they were doing the same work which assigned to regular employee.
19. Shri Shetty would further submit that there is no relationship of master and servant. The applicants are not entitled for 1/30 payment. He submits that the judgment of Hon'ble High Court of Rajasthan relied upon by the applicants does not become the law as the Hon'ble Supreme Court has dismissed the SLP by non-speaking order without the leave having been granted. He further submits that there is no prayer by the applicants that they are not employees of the contractor or that the employees of the department as on date.
20. Learned counsel for the respondents has placed reliance on the following judgments: 44 OA Nos.701/2017 & 145/2019
(i) State of Haryana and Others Vs. Charanjit Singh and others, (2006) 9 SCC 321.
(ii) State of Maharashtra and Others Vs. Anita and Another, (2016) 8 SCC 293.
(iii) Kirloskar Brothers Limited Vs. Ramcharan and Others, (2023) 1 SCC 463.
(iv) Rajasthan State Road Development and Construction Corporation Limited Vs. Piyush Kant Sharma and Others, (2021) 12 SCC 411
(v) Bharat Heavy Electricals Limited Vs. Mahendra Prasad Jakhmola & Others, Civil Appeal Nos.1799-1800 of 2019 decision dated 20.02.2019.
(vi) Laxmi Prasad Dubey & Ors. Vs. Union of India, Department of Revenue, Ministry of Finance, New Delhi & Ors., Central Administrative Tribunal, Jabalpur Bench, Jabalpur, OA No.746/2011 dated 26.09.2012.
21. We have heard learned counsels for both the sides at length and perused the pleadings and documents filed on record and also gone through the directions of the Hon'ble High Court of Judicature at Bombay and the case laws relied upon by both the sides.
22. We have gone through the judgments relied upon by the counsel for the respondents and we find that the same are not applicable to the facts of the case at hand. In the case of the Laxmi Prasad 45 OA Nos.701/2017 & 145/2019 Dubey (Supra) decided by the Jabalpur Bench of the CAT the issue related to restraining the outsourcing of the services on a contract basis. It was for this reason that the Tribunal held that petitioners had no rights to stop the respondents from outsourcing their certain services in the interest of economy and efficiency as per GFR-178. The Hon'ble High Court of Madhya Pradesh has upheld the order on the above ground. In this case, under consideration, the applicants are not challenging the outsourcing. They are only challenging payment of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f. the due date(s) which was not the case before the Jabalpur Bench. Therefore, the above decision is not applicable to the fact of the case.
23. In the case of Rajasthan State Road Development And Construction Corporation Limited (Supra) the issue 46 OA Nos.701/2017 & 145/2019 before the Hon'ble Apex Court was to regularize the service of the computer operators who was working for the last three year, which is not the case in the present OA. It was also held in that case that there was no regular sanction post of computer operators in the appellant corporation and that there was no employer employee relationship but in the case at hand it is borne from the record that the Principal Commissioner himself has accepted that the applicant were working since 1998 onwards and recommended their observation. Moreover, the of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f. the due date(s) was not an issue in the above case.
24. In the case of State of Maharashtra & Ors VS. Anita & Ors. (Supra) it was held that when the government had taken policy decision to fill up posts on a contractual basis, the Tribunal and High Court 47 OA Nos.701/2017 & 145/2019 ought not to have interfered with it to hold that appointments were permanent in nature. Facts of the above case are also not applicable as the applicants are claiming only payment of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f. the due date(s) and not permanent observation.
25. In the case of Kirloskar Brothers Limited (Supra) it is the case of a private company and not of a government department in that case it was held that the Principal employer was directed by the Tribunal and High Court to observe them as employees and in that view of the matter the Apex Court has held the employer-employee relationship were not established.
26. In the case of State of Haryana & Ors Vs. Charanjit Singh & Ors. (Supra) which was decided before the judgment before Uma Devi it was held that the persons employed on contract cannot claim equal 48 OA Nos.701/2017 & 145/2019 pay on the basis of equal work. In the case at hand before us, the applicants are not claiming the payment of equal pay for equal work. Therefore, facts of that case are different from the facts of the case consideration.
27. We find that the letter of Central Board of Direct Taxes dated 09/13.05.2013 addressed to all the Chief Commissioners of Income Tax (CCIT)/Director Generals of Income Tax (DGIT) directing them to ensure that none of the Drawing and Disbursing Officers (DDOs) of their region make any payments to the directly deployed casual workers was challenged before the Principal Bench of this Tribunal in OA No. 2012/2013 in the case of Udyananad Thakur & Ors Vs. Secretary, Department of Revenue, Ministry of Finance & Ors. The Principal Bench vide order dated 02.04.2014 was pleased to quash and set aside the above letter. It will be held to extract para 12 of the order.
49 OA Nos.701/2017 & 145/2019
"12. We have heard the learned counsel for the Applicants Shri S.K. Gupta and the learned counsel for the Respondents Shri Rajinder Nischal. There is no dispute that many of the Applicants have been working with Respondents as casual labourers for over 10 years. One of them has been working w.e.f. 03.05.1995. He has put in nearly 20 years of casual service. There are others who have been engaged from the years 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005 and 2006. They are still continuing. By the impugned letter dated 09/13.05.2013, the Respondents-CBDT through the CIT (Vigilance) has only observed the CCIT/DGIT regions continue to ignore DOP&T OMs dated 07.06.1988, 10.09.1993, 12.07.1994 and 11.02.2006 with regard to engagement of casual labourers. The OM dated 07.06.1988 has already been extracted in this order. It deals with guidelines in the matter of recruitment of casual workers on daily wage basis. It also contains the provisions for regularization of services of the casual workers subject to the prescribed conditions. It is vide OM dated 10.09.1993 the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 has been issued. It deals with the procedure for granting temporary status to casual labourers and their regularization in service. OM dated 12.07.1994 has been issued by the DOP&T clarifying the various references received by them regarding the aforesaid OM dated 10.09.1993 regarding grant of temporary status and regularization of casual workers. The OM dated 11.12.2006 deals with regularisation of qualified workers appointed against sanctioned posts in irregular manner in the light of the judgment of the Apex Court in the case of Uma Devi (supra). Therefore, the general statement of CIT (Vigilance), CBDT that the CCITs/DGITs have violated any of the aforesaid Office Memoranda in the 50 OA Nos.701/2017 & 145/2019 case of the Applicants are not factually correct and it has been made without any application of mind. Further, it is seen, as observed earlier, that the Applicants have been working with the Respondents for fairly long time. Suddenly issuing a direction to CCITs/DGITs that they should ensure that none of the DDOs working in this region make any payments to the directly deployed casual workers in contravention of the Government/DOP&T orders and the judgments of the Supreme Court and bringing the Applicants in this OA under the said direction is nothing but arbitrary and illegal. We, therefore, quash and set aside the aforesaid impugned letters dated 09/13.05.2013 and 22.05.2013. We also make the stay granted against the operation of the aforesaid orders given on 11.06.2013 absolute. Further, we direct the Respondents to continue to disburse payments/remuneration/wage/payments to the Applicants against their employment as per the standard terms and conditions prevalent and being followed at present. The above order of the Tribunal has attained by that as it was not challenged by the respondents before the Hon'ble High Court.
28. We further find that the issue regarding disengaging the daily wages/casual employee arose for consideration of the Jodhpur Bench of this Tribunal in OA No. 17/2012 in case of Mahendra Singh & Ors Vs. Union of India & Ors and in OA No. 109/2012 in case of Chandra prakash Rankawat & Ors. VS 51 OA Nos.701/2017 & 145/2019 Union of India & Ors. The Tribunal vide order dated 29.10.2012 as held in para 12 of the order in the case of Mahendra Singh & Ors Vs Union of India & Ors. is held as under :
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 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 up 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 up to 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 52 OA Nos.701/2017 & 145/2019 is under consideration of the Hon'ble 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 Hon'ble 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 to coercion should be exercised in this matter by the respondents.
(iv) There shall be no order as to costs."
29. A similar issue was considered by the Jodhpur Bench of the Tribunal in OA No. 21/2010 in the case of Jeevan Singh Gehlot & Ors Vs. Union of India & Ors. The Tribunal vide order dated 22.02.2011 has held in para 8 and 9 as under:
"8. I find the issuance of advertisement will bring in a private contractor with control issues and may also be costlier to the Government while denying the life and livelihood to the applicants. Then what is the motive behind private 53 OA Nos.701/2017 & 145/2019 participation in the work of the Government? As noted by his Lordship. Justice P.B. Gajendragadkar in his Book law Liberty and Social Justice, that:-
"As soon as the democratic state embarks upon the adventure of achieving the ideals of a welfare state, it inevitably turns to law as its creates ally in the crusade. The function of the democratic state and its role assume wider proportions and cover a much larger horizon and in assisting the state to achieve these over expanding objectives, the function and the role of law correspondingly enlarge and cover a wider horizon... We reach a stage in the progress of the democratic way of life where law ceases to be passive just as democracy eases to be passive and the purpose of law like that of democracy becomes dynamic: and that naturally raises the eternal question about the adjustment of the claims of individual liberty and freedom on the one hand, and the claims of social good on the other. It is a duel which a dynamic democracy has to face and it is in the harmonious and rational settlement of this duel that law has to assist democracy."
9. Therefore, having subjected the applicants and taken work from them for a long period of time even if I have to assume that no legitimate expectation on continued employment could be availed of by the applicants, no Welfare State can at the first place transgress from the applicant whatever rights which would have been avoidable to the applicants with substitution of a private contractor whether it be for cleaning or for some other work on daily wage basis especially or engaging them directly would have retained more control on the functional personnel then can be extracted from a private contractor. In Uma Devi's case 54 OA Nos.701/2017 & 145/2019 (supra) a view was taken that it is not for a State to substitute one set of temporary employees with another set of temporary employees. The contractor cannot be expected nor is there any provision in the advertisement which will indicate that the Contractor could have only employees of a permanent nature. Therefore, quite obviously carrying employees from a contractor and the methodology of outsourcing would be more costly than as the Government will be Principal employer even then when not even continuing the employees as well. Even though the facts and figures have not been produced, what came out during the hearing was that in Jaipur Bench decision the same contractor is engaging all the workmen besides his having supervisory staff to assist him. Therefore the cost of the government will be irrationally high. The question then would be on what principles the respondents had taken decision to outsource for doing the work available with them which will not only result in denial of livelihood to the applicants but will make the outsourcing costlier The reply of the respondents is silent on this point. If the applicants are being sacrificed whether it be in increase of efficiency or diminishment of functional commitment is not reflected in the reply. Therefore, the Court of Justice can only hold that the premises behind Annexure A-1 Advertisement is not rational and legal, it being violative of the cardinal principles of Piara Singh and Uma Devi cases. Therefore, it is declared that the respondent No.2 has no power to issue Annexure A- 1 Notification and deny the livelihood of the applicants in the circumstances aforesaid."
55 OA Nos.701/2017 & 145/2019
30. The Above orders of the Jodhpur Bench were challenged by the respondents before the Hon'ble High Court of Judicature at Rajasthan in Jodhpur. The Hon'ble High Court vide order dated 19.03.2015 has dismissed the Writ Petition. It will be helpful to extract the observation of the Hon'ble High Court herein as under:
" It is a fact admitted that the respondent original applicants are working with the department of Income Tax on casual basis from last several years. Though, by way filing original applications they claimed for regularisation of their services but that was not pressed during the course of hearing. The only claim, thus, made by the original applicants was with regard to their continuance in service. Learned Central Administrative Tribunal by taking into consideration different aspects of the matter arrived at the conclusion that no useful purpose shall be served by removing the original applicants from service to utilise service of the personnels supplied through service providers.
True it is, the Government of India under the office memorandum dated 23.11.2005 desired to curtail unwarranted expenses and further emphasised not to regularise casual labourers, but that cannot be a reason to terminate the original applicants from service who are working casual basis only and not claiming for on regularisation of their service. The continuance of such 56 OA Nos.701/2017 & 145/2019 employees shall in no case put any extra economic burden upon the employer. The persons who shall be employed through service providers shall also be entitled for same remuneration and the service provider too shall claim its commission, therefore, that will in no manner satisfy desire of the petitioner respondent to curtail expenses. On the other hand, removal of the respondent original applicants who are in service of the petitioners from several years shall be quite arbitrary as they will be thrown out of employment without any wrong on their part. The position would have been different if the petitioner would have been going to have regular recruitment against the posts occupied by the original applicants but that is not the case of the petitioner. The petitioner want to remove the original applicants from service just to have labour through contractor with a view to reduce expenditure but that object, as already stated, cannot be served as the applicants too are working on casual basis only.
So far as Rule 178 of the General Finance Rules is concerned, suffice to mention that the mode of utilising services through outsourcing is always available to the petitioners but merely on that count services of the casual labourers already working are not required to be dispensed with. In our considered opinion, the Central Administrative Tribunal, thus, rightly directed the petitioner respondent not to remove the respondent original applicants from service by another substituted employees under any guise or cover."
31. We find that the Principal Bench of this Tribunal has decided a similar issue in OA No. 57 OA Nos.701/2017 & 145/2019 196/2020 in the case of Ms. Veena Verma@ Beena & Ors. Vs. Union of India & Ors. vide order dated 13.04.2023 wherein the principal bench has under:
"7. In the light of provisions of Contract Labour (Regulation & Abolition) Act, 1970 & Rules 1971, Section 5(b) clarifies that if a question arises whether work performed in an establishment is of an intermittent or casual nature, the appropriate Government shall decide that question after consultation with the Central Board or, as the case may be, a State Board, and its decision shall be final. In present case also no such consultation process has been made. Furthermore, an explanation to Section 5 clearly stipulates that for the purpose of this sub-section, work performed in an establishment shall not be deemed to be of an intermittent nature-
(i) if it was, performed for more than one hundred and twenty days in the preceding twelve months, or
(ii) if it is of a seasonal character and is performed for more than sixty days in a year.
No exemption of the provision of Contract Labour (Regulation & Abolition) Act, 1970 & Rules 1971 to the respondent has been produced on record in terms of Section 31 of the 1970, Act.
8. In present case, clause-4 of terms and conditions of order dated 13.09.2019 (Annexure-A-1), impugned herein, states that "After completing the above mentioned engagement period, if concerned charge gives its requirement, the daily 58 OA Nos.701/2017 & 145/2019 wager may be engaged again. Otherwise the services of the daily wagers will automatically be terminated after completion of above engagement period."
9. Hence, work performed cannot be said to be intermittent or seasonal character nature so as to deny the benefit to the applicants.
10. In the light of the aforesaid analysis, it is also noticeable that in the case of Abdul Kadar and Ors. vs. Union of India and Ors., OA No.531/2011 decided on 14.08.2012 by Jodhpur Bench of this Tribunal, it was held as under:
"After having given thoughtful consideration to the rival submissions and having examined the record, We are unable to find any jurisdictional error in the order impugned so as to consider interference in the writ jurisdiction.
As noticed above, by the orders dated 2/1 7 11.2008 (not clear) and 18.10.2010, the petitioners consciously provided for fixation and enhancement of daily rates of the wages for the casual labourers. The orders did not draw any distinction in the Casual workers holding temporary status and other casual workers. As noticed, the department had consciously issued earlier the memorandum dated 07.06.1988 providing that where the nature of the work entrusted to the casual labourers and regular employees be the same, the casual labourers would be paid @ 1/30 of the pay at the minimum of the relevant pay scale plus dearness allowance for a work of 8 hours per day.59 OA Nos.701/2017 & 145/2019
For the facts that the nature of work entrusted to the applicants is the same as entrusted to the regular employees and their working hours are also the same, or to say, minimum 8 hours of day, in our view, they could not have been discriminated against by providing that they would be getting the wages lesser status. The CAT has recorded categorical findings that the nature of the duties being performed by the applicants has not undergone a change: and that the applicants have been performing the duties of the regular employees or even more. These findings have not, as such been put to contention before us, and rightly so. The department has never adduced any material to show that for the applicants, there had been a shortened length of the duties or lesser quantum of work than the regular employees or any other difference in the nature of the duties. That being the position, the view taken by the CAT that there was nothing cogent available with the petitioners to reduce or alter the wage structure to the disadvantage of the applicants cannot be faulted at.
While concluding, we may observe that the order as passed by the CAT and this order relate only to the question of wages of the applicants while working as the casual workers and the subject matter of these petitions is not related to any other issue. Therefore, it is always open for the parties to otherwise take recourse to the appropriate proceedings in accordance with law in regard to other legal rights/obligations.60 OA Nos.701/2017 & 145/2019
Subject to the observations foregoing, these writ petitions stand dismissed. No costs.
11. Conclusion:
In the light of the above detailed analysis and ratio, the respondents are directed to examine and consider the case of the applicants and unilateral action of the respondents in reducing the wages of the applicant. Therefore, the impugned order dated 13.09.2019 and 09/10.10.2019 [Annexure A-1 (colly.)] are quashed and set aside. Respondents are directed to consider and examine the case of the applicants in the light of the decision rendered by the Hon'ble High Court at Jodhpur wherein the decision of Coordinate Bench of Jodhpur Bench of this Tribunal was upheld thereby passing appropriate orders qua the applicants for grant of salary to the applicants at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f. the due date(s). The said exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. OA is disposed of in aforesaid terms. No order as to costs."
32. The above order of the Principal Bench has not been challenged by the respondents. Since the applicant are similarly placed to the applicants in the case of Ms. Veena Verma@ Beena & Ors. (Supra) decided by the Principal Bench. we don't find any reasons to take a different view which 61 OA Nos.701/2017 & 145/2019 has been consistently taken by the Jodhpur Bench which has been duly upheld by the Hon'ble Bench of Rajasthan and followed the Principal Bench of the Tribunal which has been implemented by the respondents.
33. At this stage, it is relevant here to consider the argument addressed by the learned counsel for the respondents in respect of acquiescence. It is the contention of the learned counsel for the respondents that after the change of their status, they have been paid every month through the contractor and, therefore, there is no relationship of master and servant exist between the applicants and the respondents. In this regard, it is suffice to say that payment made in the accounts of the applicants either by the department or at the instance of contractor, the said act was/is a unilateral act of the respondents. The applicants, being the low paid 62 OA Nos.701/2017 & 145/2019 employees, have no bargaining power but to accept wages received in their accounts. Facts further reveals that inspite of change of the modus operandi of payment of wages, the respondents department through their Office Memorandums take note of the cases of the applicants' service conditions at various level and in internal departmental correspondence and, therefore, the contention raised by the learned counsel for the applicants is not tenable.
34. It is also contended that there was a delay in approaching before this Tribunal as there was no relationship of master and servant since the year 2012. In the present cases, the applicants have approached this Tribunal in the years 2017 and 2019 raising their grievance and this Tribunal passed the final order. The said order was subject matter of challenge before the Hon'ble High Court of Bombay and the Hon'ble 63 OA Nos.701/2017 & 145/2019 Bombay High Court remanded these cases to this Tribunal to decide on merits. Under these facts and circumstances of the case, the plea raised by the respondents in respect of delay appears to be hyper technical and, therefore, the aforesaid contention is also rejected.
35. Therefore, we find force in the submission of the learned counsel for the applicants that the applicants are entitled for payment of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance w.e.f. the due date(s). However, the difference of arrears of 1/30 payment is restricted to three years prior to the date of the filing of these OAs.
36. The Original Applications are allowed to the extent indicated above and the respondents are directed to comply with the above orders within a period of two months from the date of 64 OA Nos.701/2017 & 145/2019 receipt of the certified of this order. Pending MAs, if any, stand closed. No order is to cost.
(Umesh Gajankush) (Shri Krishna)
Member (J) Member (A)
ma/dr.
Digitally signed by Milan Jackson Alphanso
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