Central Administrative Tribunal - Delhi
Sunder vs M/O Railways on 23 May, 2023
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Item No. 31 (C-4)
O.A. No. 526/2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 526/2017
This the 23rd day of May, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1. Sunder
S/o Sh. Randhir, Aged 25 Years
R/o 209, Railway Jhuggi Camp
A-Block, Near Cement Siding, Shakur Basti,
Delhi worked as Cleaner
2. Vicky
S/o Sh. Suresh Aged 27 Years
R/o 228, Railway Jhuggi Camp A-Block, Near Cement
Siding, Shakur Basti, Delhi
worked as Cleaner
3. Sonu
S/o Sh. Subhash Aged 30 Years
R/o 112,B-Block, Cement Siding, Shakur Basti, Delhi
worked as Cleaner
4. Sanjay
S/o Sh. Mahavir Aged 22 Years
R/o Village Pilana Rohtak Worked as Cleaner
5. Shyam Lal
S/o Sh. Kishori Lal Aged 40 Years
R/o 234 C, Cement Siding, Shakur Basti,
Delhi Worked as cleaner
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Item No. 31 (C-4)
O.A. No. 526/2017
6. Vikas
S/o Sh. Balwan Singh Aged 23 Years
R/o WZ-32/14, Block-K, Mangol Puri Delhi worked as
Cleaner
7. Sonu
S/o Sh. Sardare Aged 30 Years
R/o H.No. 1130, Village- Barhana
Tehsil Berry, Distt. Jhajjar, Rohatak,
worked as Cleaner
...Applicants
(By Advocate: Mr. Amit Srivastava)
Versus
1. Union of India
Through its Secretary
Ministry of Railway
Rail Bhawan
New Delhi
2. Northern Railway
Through its General Manager
Baroda House New Delhi.
3. Aruna Enterprises.
Through its Owner
At 3198/15, Gali No. 1
Sangtrashan, Paharganj,
New Delhi-110055
...Respondents
(By Advocate: Mr. Piyush Gaur for R1&2, None for R3)
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Item No. 31 (C-4)
O.A. No. 526/2017
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):-
The claim of the petitioners is that they have been performing sweeping and cleaning duties in the organization of the respondents since the year 2011 onwards. However, their claim for regularization has not been considered. Aggrieved by the denial of the benefit of regular service, they have approached this Tribunal by way of the instant O.A. seeking the following relief(s):-
"a) direct the respondent No.1 and 2 to grant the status to the petitioners of government employees and direct their regularization in the Railways Department;
b) Direct that Notification dated 9.12.1976 being applicable on the petitioners and that they are entitled to the same benefits as granted in Air India Statutory Corporation Vs. United Labour Union 1997 9 SCC 377;
OR
c) Direct the Central Labour Commissioner to conduct an inquiry about the perennial nature of jobs of the petitioners in accordance with the judgment in National Federation of Railway Porters, Vendors and Bearers Vs. Union of India 1995 (Supp) 3 SCC 152 followed in Air India Statutory Corporation Vs. United Labour Union 1997 9 SCC 377;
d) Direct the abolition of contract labour and absorption of the petitioners as a consequence thereof as held in Air India Statutory Corporation Vs. United Labour Union 1997 9 SCC 377;
c) Pass any other order which the Hon'ble Court may deem fit in view of the facts and circumstances of the case." 4 Item No. 31 (C-4) O.A. No. 526/2017
2. Briefly, taking us through the background and history of the case learned counsel for the applicants argues that most of the applicants have been working on a continuous basis since the year 2011. However, under the garb of their engagement through a middleman, the Northern Railways have denied them their legitimate due of regularization in accordance with the relevant policy. He claims that policy of engaging sweeping and cleaning staff on contract basis is impermissible under the law and could not have been resorted to by the Indian Railways. Learned counsel supports his arguments by referring to the judgment of the Hon'ble Supreme Court in Air India Statutory Corporation Vs. United Labour Union and Ors. dated 06.11.1996. He particularly draws attention to the following observations of the Hon'ble Supreme Court:
"Since the appellant did not abolish the contract system and failed to enforce the notification of the Government of India dated December 9,1976, the respondents came to file writ petitions for direction to the appellant to enforce forthwith the aforesaid notification abolishing the contract labour system in the aforesaid services and to direct the appellant to absorb all the employees doing cleaning, sweeping, dusting, washing and watching of the building owned or occupied by the appellant-establishment, with effect from the respective dates of their joining as contract labour in the appellant's establishment with all consequential rights/benefits, monetary or otherwise, The writ petition was allowed by the leaned single judge on November 16,1989 5 Item No. 31 (C-4) O.A. No. 526/2017 directing that all contract workers be regularised as employees of the appellant from the date of filing of the writ petition. Preceding thereto, on November 15, 1989, the Government of India referred to the Central Advisory Board known as While Committee under section 10(1), which recommended to the Central Government not to abolish the contract labour system in the aforesaid services. Under the impugned judgment dated April 3, 1992, the learned judges of the Division Bench dismissed the appeal. Similar was the fate of other appeals. Thus these appeals by special leave."
"In the light of the above principles and discussions, we have no hesitation to hold that the appropriate Government is the Central Government from the inception of the Act. The notification published under Section 10 on December 9,1976, therefore, was in exercise of its power as appropriate Government. So it is valid in law. The learned Solicitor General is not right in contending that the relevant factors for abolition of the contract labour system in the establishment of the appellant was not before the Central Advisory Board before its recommendation to abolish the contact labour system in the establishment of the appellant. The learned Attorney General has placed before us the minutes of the Board which do show the unmistakable material furnished do indicated that the work in all the establishments including those of the appellants, is of perennial nature satisfying all the tests engrafted in Section 10(2) of the Act. Accordingly, on finding the work to be of perennial nature, it had recommended and the Central Government had considered and accepted the recommendation to abolish the contract labour system in the aforesaid services. Having abolished it, the Central Government was denuded of its power under Section 10(1) to again appoint insofar as the above services of the Mohile Committee to go once over into the self-same question and the recommendation s of the latter not to abolish the contract labour system in the above services and the acceptance thereof by the Central Government are without any legal base and, therefore, non est. The next crucial question for consideration is: whether the High Court was right in directing enforcement of the notification dated December 9,1976 issued by the Central Government ? Before adverting to that aspect, it is necessary to consider the relevant provisions of the Act."
3. He argues that once the Hon'ble Supreme Court had categorically held that the government organizations cannot engage labour on contract for the purpose of sanitary duties, the respondents were obliged to treat the present applicants 6 Item No. 31 (C-4) O.A. No. 526/2017 as regular employees and then regularize them after a specified period in accordance with the provisions of the policy. Learned counsel submits that annexed to his O.A. are copies of the attendance register to establish that the applicants have been working in the Northern Railways and attending to their duties on a regular basis. He also draws attention to the information obtained under the Right to Information Act and submits that the copies identity cards he has annexed also establishes that the applicants have been performing house-keeping duties
4. Learned counsel argues that under the Contract Labour (Regulation and Abolition) Act the respondents were obliged to determine the claim of the applicants by considering that the duties they are performing are permanent and perennial in nature. Since contract labour for the purpose of sweeping, dusting and washing has been prohibited since long the action of the respondents is in contravention to the law as upheld by the Hon'ble Supreme Court in the above quoted case. He also relies upon the judgment of Shanker Mukherjee Vs. Union of India 1990 7 Item No. 31 (C-4) O.A. No. 526/2017 (Supp) SCC 668 and National Federation of Railway Porters, Vendors and Bearers Vs. Union of India 1995 (Supp) 3 SCC 152 However, copies of the said judgments have not been produced before us.
5. Learned counsel for the respondents (R1 and R2) draws attention to the averments made in the counter reply and submits that the O.A. should have been dismissed outrightly. Employer employee relationship does not exist in the present O.A. He also questions the jurisdiction of this Tribunal to interfere in this matter claiming that the applicants were never a part of the Indian Railways nor were they ever engaged by them. Therefore, their claim is misplaced.
6. We have heard the counsel for the parties and also gone through the pleadings on record. We have also carefully gone through the judgment relied upon by the learned counsel for the applicants.
7. While appreciating the arguments put forth by the learned counsel for the applicants, we would like to quote an 8 Item No. 31 (C-4) O.A. No. 526/2017 extract from the judgment being relied upon by the applicants to highlight as to what was the issue before the Hon'ble Supreme Court:-
"The pivotal question for consideration is : on abolition of the contract labour by publication of a notification in the Gazette under sub-section (1) of Section 10, what would be the consequences ? It is seen that so long as the contract labour system continues, the principal employer is enjoined to ensure payment of wages to the contract labour and to provide all other amenities envisaged under the Act and the Rules including provisions for food, potable water, health and safety and failure thereof visits with penal consequences."
8. Here the issue is not of engagement of contract labour by the Railways. The respondents had entered into a contract with one Aruna Enterprises. Identity cards of the applicants, copies of which have been annexed to the O.A., have been issued by this Aruna Enterprises which introduces itself as " Government housekeeping and pest control under license from the Indian Railways". It is undisputed and clear that all the applicants were engaged by the said Aruna Enterprises, who had further issued them the identity cards.
9. The engagement too appears to be for a limited period because the validity of these identity cards are till various 9 Item No. 31 (C-4) O.A. No. 526/2017 dates of the year 2015 and 2016. Further, the attendance register also does not in any way establish that this is the attendance register of the respondents. A bare reading of the relevant extract as expressed in para 8 of the O.A. also indicates that this Tribunal does not enjoy jurisdiction as far as the Contract Labour Act or direction to the Labour Commissioner is concerned, and this is one of the reliefs being prayed for.
10. We are of the considered view that in the light of the facts and discussion detailed above, there is not even an iota of evidence to establish the claim of the relief preferred in the O.A. We reiterate that the jurisdiction of this Tribunal on the subject of the O.A. is also questionable. Therefore, without any hesitation we hold this O.A. to be misplaced and accordingly, dismiss it.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/dd/