Central Administrative Tribunal - Ernakulam
P G Baiju vs The Secretary Ministry Of Information ... on 31 August, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00375/2021
Wednesday, this the 31st day of August, 2022.
CORAM:
HON'BLE Mr. JUSTIE K.HARIPAL, JUDICIAL MEMBER
P.G.Baiju, Aged 61 years, S/o. P.S.Gopalan,
Makeup Artist (Retd.), Doordarshan Kendra,
Thiruvananthapuram, H.No.C-2/3394, Ammu,
Kedaram Road, Chalakuzhy, Pattom.P.O.,
Thiruvananthapuram-695 004. - Applicant
[By Advocate : Mr.R.Sreeraj]
Versus
1. Union of India, represented by its Secretary,
Ministry of Information and Broadcasting, New Delhi-110 001.
2. The Director General, Doordarshan Kendra,
Prasar Bharathi Corporation, New Delhi-110 001.
3. The Deputy Director General,
Doordarshan Kendra, Kudappanakunnu,
Thiruvananthapuram-695 043. - Respondents
[By Advocate : Mr.N.Anilkumar, SCGC]
The application having been heard on 25.08.2022, the Tribunal on
the 31.08.2022 delivered the following:
O.A. 375 of 2021 2
ORDER
Aggrieved by Annexure-A21 order of the 3rd respondent declining his application for granting pensionary benefits reckoning his service from 1987 onwards, the applicant has moved this Tribunal seeking to quash Annexure-A21 proceedings besides seeking declaration that he is eligible and entitled for regularisation of his service as Makeup Artist from December 2003 and other pensionary benefits. The applicant also seeks a direction to the respondents to reckon his service as regular Makeup Artist from December 2003 and grant him pension and other retiral benefits, and for a direction to the respondents to issue Vigilance Clearance Certificate facilitating speedy release of the pension and other retiral benefits.
2. Admittedly, the applicant was a Makeup Assistant in Doordarshan Kendra, hereinafter referred to as 'DDK', Thiruvananthapuram. He was engaged on casual basis from March, 1987. He is a physically disabled person with 50% disability due to post-polio residual paralysis of both lower legs. According to the applicant, the schemes followed by the respondent regarding O.A. 375 of 2021 3 regularisation of casual workers are favourable for his regularisation. When a vacancy arose consequent to the transfer of BV. Rao, Makeup Artist, from Thiruvananthapuram, he staked claim for the same but it was not considered. Aggrieved, the applicant filed O.A. 461 of 1999 before the Tribunal. But it was reported that it was a mutual transfer in whose place one Honey Mol Kuriakose was posted, and thus O.A.461/1999 was dismissed. Later, he raised claim on the post of Honey Mol Kuriakose, when she proceeded on maternity leave. But by the time the matter was considered, her maternity leave period was expired. This Tribunal made clear that he should be considered for appointment in a future vacancy. While so, a vacancy arose in Thiruvananthapuram consequent to the shifting of a post of Makeup Assistant from DDK, Panaji to Thiruvananthapuram. Then again he raised his claim, by the time one Sathidevi also contested for the post and ultimately, by Annexure-A6 order the 3rd respondent found that the applicant is entitled to be considered since Sathidevi had crossed maximum age. Against that order, Sathidevi approached the Ministry of Information and Broadcasting (I&B) and obtained a favourable order, Annexure-A9. O.A. 375 of 2021 4 When Anneure-A9 was not implemented, she moved this Tribunal with O.A.No.560/2005 seeking implementation of the order whereas the applicant moved O.A.No.661/2005 challenging the proceedings. By a common order, this Tribunal allowed OA.560/2005 and dismissed O.A.661/2005. The applicant challenged both the orders before the High Court with W.P.(C) Nos.12012 and 16043 of 2010. Meanwhile, it is the common case that under a special drive the respondents decided to regularise the services of Smt.Sathidevi with a rider that she should withdraw all court cases. Then Smt.Sathidevi moved the High Court with an I.A. in the said Writ Petitions, seeking to withdraw O.A.560/2005, which was disposed of by Annexure-A10 judgment. The applicant claims that the observations made by the Division Bench of the Hon'ble High Court in Annexure-A10 crystalises his claim that he stood regularised. He has explained that he was constrained by pressing personal circumstances and weakened by the unequl bargaining power to accept Annexure-A8 order of appointment. According to the learned counsel, that cannot constitute plea of waiver or invite the bar of estoppel. The applicant claims that even prior to Annexure-A8 order and subsequent thereto, O.A. 375 of 2021 5 regular deductions were made from his salary towards GPF, CGHS etc, and thus he was made to pay huge amounts, about Rs.10,19,074/-. He retired from service on 30.05.2020. He claims that since he was posted in the vacancy arose in December 2003, he is entitled to get pension under the scheme in force prior to 01.01.2004. Despite all the above, he has not been considered for granting of pension, neither under the old scheme or under the NPS. Aggrieved by the same, he moved Annexue-A19 representation. By A20 order dated 23.02.2021, this Tribunal directed the respondents to consider and dispose of the same within three months. Accordingly, Annexure-A21 was passed, however declining his claim for pension. He is aggrieved by the same.
3. The 3rd respondent filed a reply statement on behalf of all the respondents seeking to dismiss the application. According to him, the applicant has never been regularised in service. He is not a civil servant nor an employee of the Prasar Bhrathi, so that he is not entitled to claim pensionary benefits either under the old scheme or under the NPS. The claim that he was engaged as a Makeup Assistant with effect from 27.03.1987 is not disputed. He was O.A. 375 of 2021 6 engaged as an adhoc employee. Even from 07.02.2005 onwards, he was engaged as a Makeup Assistant and continued as such till 30.05.2020. During the entire career, the applicant remained as an adhoc employee and his service was never regularised. From Annexure-R1 order itself it is clear that his appointment was purely on adhoc basis, which has never been regularised. After Annexure- A5 order a review petition was filed and by Annexure-R2 order dated 12.07.2022, even though the Review Petition was dismissed, the Tribunal made clear that the respondents are liable to regularise the service of the applicant only subject to the superior claim for regularisation/adhoc appointment of any other person. This order has not been made mention in the Original Application. After having accepted Annexures A7 and A8 orders, now the applicant cannot maintain that his appointment was on regular basis. He has never been appointed on regular basis, even though some amounts were deducted from his salary by the respondents. Even after regularisation of Sathidevi on 07.02.2005, the applicant continued in service by virtue of an interim order obtained from the High Court dated 16.05.2005 in O.P.No.35955/2000. Even thereafter he O.A. 375 of 2021 7 continued his service on adhoc basis. In 2011, a disciplinary proceeding was initiated against the applicant on a complaint of sexual harassment, which was pending till the date of his disengagement. In other words, his service has never been made permanent. Amounts were deducted from his salary considering him under the NPS only. The documents produced by him do not suggest any contribution made by the employer towards GPF. During the period March 2005 - May 2020, a total amount of Rs.5,99,835/- was deducted from his salary, out of which Rs.1,64,572/- has been paid to him on 02.08.2021 and the process of returning the balance amount is in progress. If adhoc employees continued in service beyond three years without any break for technical reasons, the benefit of all kind of leave admissible to temporary employees will be given to them. The proposal for earned leave encashment of Rs.1,32,397/- has already been forwarded to the PAO, Chennai, but it was returned for want of Vigilance Clearance. Now the disciplinary proceedings is closed since there is no provision in the CCS(CCA) Rules to proceed against a casual or adhoc employee. The revision under Sections 11(1) & (2) of Prasar Bharati Amendment Act is not applicable to O.A. 375 of 2021 8 him; Annexures 15, 16 and 17 were issued, considering him under the NPS; but on later developments it was realised that he was never regularised, that he was never a Central Government employee or an employee under the Prasar Bharathi. So, he is not entitled to get any relief claimed for. The amounts due to him shall be returned at the earliest.
4. I heard the learned counsel on both sides in detail. The learned counsel for the applicant reiterated the contentions. He wanted to make this Tribunal believe that the appointment made by the respondents in 2005 has to be understood as regular one since at that time a direction issued by the Tribunal was in force mandating the respondents to regularise his service. By then a regular post was available by transfer from DDK, Panaji, naturally, then the claim of the applicant also came up along with that of Sathidevi. But Sathidevi was found ineligible since she had crossed maximum age. As Sathidevi raised some objections with the Ministry, pending clarification, Annexures A7 and A8 were issued on adhoc basis. Referring to Annexure A10 judgment of the Hon'ble High Court, the learned counsel submitted that the High Court also proceeded as O.A. 375 of 2021 9 though the applicant was a regular employee. The respondents also made regular deductions from the salary of the applicant as evident from Annexure-A12 series, Annexure-A13 etc. after having made GPF deductions and other deductions from his salary. Now the respondents want the applicant to be thrown to the streets without making any payment. According to the learned counsel, there is an indirect admission that such deductions were made towards the NPS. Now the applicant is in a financially bad situation. He is in hospital. Still amounts due to him are not being paid. Instead, the respondents are hanging on technicalities. The learned counsel reiterated that the applicant is entitled to get the benefit of the old pension scheme. At the same time, he said that the order of adhoc appointment has to be understood as regular appointment in view of Anneure-A10, that there was no rival claimant and therefore the pleas of the applicant are genuine.
5. On the other hand, the learned Standing Counsel for the respondents 1 to 3 pointed out that now the disciplinary proceedings initiated against him stands closed; it was initiated at the instance of a lady news reader, who had raised allegations of sexual harassment O.A. 375 of 2021 10 against him who later committed suicide; the department also took the view that the disciplinary proceedings are not maintainable against an adhoc employee. According to the learned Standing Counsel, amount in lieu of leave encashment alone is due, which can be disbursed at the earliest.
6. Regarding the declaration sought, the learned counsel said that the applicant was never appointed on a regular basis, that he had continued as an adhoc employee throughout his career, till he was disengaged on 30.05.2020. After having accepted Annexures A7 and A8 orders, which were not challenged by him, now he cannot contend that it was a regular appointment. On the date of passing Annexure-A6, Sathidevi, who was senior to the applicant, had a superior claim, which is evident from Annexure-R2 order of the Tribunal in the Review Application. But this order has not been brought to the notice of this Tribunal. Later, Sathidevi's claim was found genuine. According to the learned counsel, the observations made by the High Court in Annexure-A10 cannot be taken into account since the applicant was never regularized. According to him, such an observation is per incurium. There is nothing on record to O.A. 375 of 2021 11 say that Annexure-A7 was accepted under protest. An employee could be regularized only following Annexure-A18 office memorandum. Annexure-A6 is the process. Question of merger of Annexure-R3 with Annexure-A10 does not arise. Summing up, the learned Standing Counsel submitted that the applicant is not entitled to get any relief, that whatever amounts due to him shall be disbursed to him at the earliest.
7. Before going in to the rival contentions, sequences of events, shorn of unnecessary details, can be set out. The applicant was working as a Makeup Assistant in the DDK from 1987 onwards recruited purely on adhoc basis. On the basis of the Annexures A1 and A2 guidelines formulated by the Doordarshan a casual artist can be regularized, if he falls within the parameters. Indisputably Smt.Sathidevi was senior to him as Makeup Assistant, who also had commenced employment on adhoc basis in 1986. When a post of Makeup Artist was shifted from DDK, Panaji to DDK, Thiruvananthapuram, both the applicant and the said Sathidevi staked claim, finding that Smt.Sathidevi had crossed maximum age, her claim was declined and the applicant was found entitled to be O.A. 375 of 2021 12 considered. Sathidevi claimed that she is entitled to get the benefit of age relaxation owing to the fact that she belongs to Other Backward Community. The matter was taken up with the Ministry. Meanwhile, Annexure-A8 order was passed appointing the applicant purely on adhoc basis, which he accepted with an open mind. Thereafter, the Ministry clarified that Smt.Sathidevi is entitled to get age relaxation. Since she was having superior claim, she was naturally found entitled to be appointed before the applicant. When delay occurred in implementing Annexure-A9 order, Sathidevi approached this Tribunal for implementing the same; at the same time, the applicant also moved for quashing Annexure-A9. Both the O.As were heard together and the claim of Smt.Sathidevi was upheld by the Tribunal; as a necessary corollary the application moved by the applicant was dismissed. Both orders were taken up before the High Court in two Writ Petitions. The applicant also obtained interim order from the High Court, by virtue of it, he continued as Makeup Artist on adhoc basis.
8. Meanwhile, a special drive was launched by the Ministry for regulrising Artists working on adhoc basis and Smt.Sathidevi was O.A. 375 of 2021 13 found entitled to be regularized. That order contained a rider that all the Court cases should be withdrawn by the beneficiary. Accordingly, Sathidevi, who was the 4th respondent in the Writ Petition moved an application before the High Court seeking leave to withdraw OA 560/2005 filed by her before the Tribunal, which in fact stood allowed. The High Court considered the petition and observed that no case filed by Sathidevi was pending, that the O.A. preferred by her was already finalised in her favour, so that such a rider does not stand against her right to be regularized. The Division Bench proceeded as if the applicant was already regularized in service.
9. The documents produced by the applicant show that during March to June 2005 certain amounts were deducted from his salary towards the GPF. Similarly, amounts are shown deducted on a regular basis from May 2007 onwards till February 2018. He was disengaged on 30.05.2000, on attaining the age of superannuation.
10. The core issue is whether the applicant was a regular employee in the DDK, Thiruvananthapuram. Even the learned counsel has no case that orders have been issued regularising his services. All the same, it is to be stated that the 3 rd respondent had O.A. 375 of 2021 14 found in principle, more than once, that he is entitled to be regularized. But subsequent turn of events clearly indicate that he was never regularized in the post of Makeup Artist, despite the fact that amounts were deducted from his salary from May 2007 onwards.
11. The prayer for declaration has two limbs. The first limb is that he is entitled for regularisation under the old pension scheme with effect from 2003. I have no doubt that such a claim has no legs to stand upon. Even though the applicant had commenced his service in 1987, he has not been appointed to any regular vacancy either prior to 31.12.2003 or subsequently. The mere fact that a post was shifted from DDK Panaji to DDK, Thiruvananthapuram in December, 2003 does not give rise to any support for his claim that he is entitled to get the benefit of the old pension scheme. On his own showing, he has not been appointed against a regular vacancy at any point of time. The second limb is to grant him pension and other retiral benefits. As the first part of the claim has already been found against, the claim for declaration that he is entitled to get the benefit of the old pension scheme falls to the ground.
O.A. 375 of 2021 15
12. It has to be reiterated that the applicant has never been appointed on a regular basis by the respondents. At the same time, there are inumerable circumstances to presume that even the respondents had acted as though the applicant was appointed on regular basis. On more than one occasion, the 3 rd respondent had reiterated that he is entitled to be regularized. This Tribunal also held that he is entitled to be regularized, subject to the superior claim of others. As noticed earlier, Smt.Sathidevi had superior claim over him. It was upheld by the Ministry and later she was regularized on 23.09.2015.
13. Secondly, deductions have been made from his salary on a regular basis from May 2007 onwards. There are also reasons to believe that the applicant was allotted residential accommodation. Moreover, regularization was given to Smt.Sathidevi on 23.09.2005 under the special drive which would not have affected the regularization of the applicant. In that way, there was no hurdles in regularising the services of the applicant when Smt.Sathidevi was absorbed or immediately thereafter.
O.A. 375 of 2021 16
14. There are reasons to believe that even the respondents were proceeding as though, the applicant was working on a regular basis notwithstanding the fact that no formal order of appointment regularising his services was issued. Consequent to the shifting of a post from Panaji there was one post to be filled up on regular basis. After the appointment of Smt.Sathidevi under the special drive scheme, there was no rival claimant also.
15. It is also interesting to note that even the learned counsel who represented the 4th respondent in the Writ Petition, Smt.Sathidevi had proceeded as though the applicant was regularised in the post, whose submission has been recorded by the High Court in paragraph 6 of Annexure-A10. Thus High Court also proceeded as if the applicant was a regular employee. Whatever be the interpretation on the observation of the High Court, in fact it was a misconception. Even the applicant cannot be heard to say that he was formally regularised.
16. Positive inferences are possible from the reply statement of the respondents that amounts are deducted from the salary of the applicant taking him falling under the NPS, notwithstanding the fact O.A. 375 of 2021 17 that no employer contribution was made towards the provident fund. To top it all, Annexure-A15 to A17 official memoranda take the case of the applicant a long way, he has been repeatedly asked to submit filled up registration form for allotment of PRAN under the NPS. In Annexure-A17 an ultimatum has been given stating that if not complied within given time, appropriate action will be initiated against him.
17. In other words, after the regularisation of Smt.Sathidevi, there was no legal impediment in the regularisation of the applicant; there was an open vacancy; there was no rival claim and entitlement of the applicant was beyond dispute. Subsequent conduct of the parties also clearly indicate that he was being treated as a regular employee. Therefore, there is considerable force in the submissions of the learned counsel that the applicant should be understood to have been regularized.
18. The immediate question is the date from which he was regularized. It may be true that the deductions have been made from May 2007 onwards. But the services of Smt.Sathidevi was regularized only with effect from 23.09.2015. Therefore, there is no O.A. 375 of 2021 18 legal impediment in holding that atleast from 23.09.2015 the applicant should be deemed to have been regularized. Held accordingly.
19. The applicant is therefore entitled all the benefits flowing from his deemed regularization on 23.09.2015. Whatever benefits flowing from such a course shall be granted to him.
20. The learned Standing Counsel has submitted that the entire amounts due to the applicant shall be paid at the earliest. Now the Vigilance clearance has been accorded after closing the disciplinary proceedings initiated against him. Therefore, all the monetary benefits shall be paid within two months from the date of receipt of a copy of this Order.
The Original Application is allowed as above. No costs.
Dated this the 31st August, 2022.
JUSTICE K.HARIPAL JUDICIAL MEMBER ds O.A. 375 of 2021 19 Applicant's Annexures Annexure A-1: True copy of the O.M.No.2(3)/86-SI dated 9.6.1992 Annexure A-2: True copy of the O.M.No.4(1)/94-SI dated 5.7.1994 Annexure A-3: True copy of the letter No.2(6) / 97/AI/DKT dated 14.8.1997 issued by the 3rd respondent to the applicant Annexure A-4: True copy of the letter No.2(6) / 99/AI/DKT/525 dated 13.5.1999 issued by the 3rd respondent to the applicant Annexure A-5: True copy of the order dated 23.8.2001 in O.A.No.573/2001 on the file of this Hon'ble Tribunal Annexure A-6: True copy of the Office Memorandum No. 36/1/2003- SI(A) Part-I dated 22.9.2004 issued by the 2nd respondent to the 3rd respondent Annexure A-7: True copy of the Offer of Appointment No.2(6)2004-AI/DKT/390 dated 4.2.2005 issued by the 3rd respondent to the applicant Annexure A-8: True copy of the order of appointment No.12(1)2005- AI / DKT/ 100 dated 16.2.2005 issued by the 3rd respondent to the applicant Annexure A-9: True copy of the Order No. MP/36/1/2003 SI(A)Part-
(1)465 dated 7.6.2005 issued by the 2nd respondent Annexure A-10: True copy of the common judgment dated 19.8.2015 in W.P.(C)Nos.12012 and 16043 of 2010 on the file of the Hon'ble High Court of Kerala Annexure A-11: True copy of the representation dated 23.8.2017 submitted by the applicant to the 2nd respondent Annexure A-12: True copies of the pay slips of the applicant for the month of March 2005, April 2005 and May 2005 Annexure A-13: True copy of the statement showing GPF contribution by the applicant from March 2005 to February 2018 Annexure A-14: True copy of the OM No. 27(2) 2020-A1/DKT/521 dated 5.11.2020 Annexure A-15: True copy of the OM No.68(18) 2018 19/AC-
1/DKT/227 dated 4.4.2019 issued by the 3rd respondent O.A. 375 of 2021 20 Annexure A-16: True copy of the communication No.68(18) 20118- 19/AC-I/DKT dated 14.6.2019 issued by the 3rd respondent Annexure A-17: True copy of the communication No.68(18) 20118- 19/AC-1/DKT dated 15.7.2019 issued by the 3rd respondent Annexure A-18: True copy of the OM No.57 / 04 / 2019-P&PW(B) dated 17.2.2020 issued by the Government of India, Department of Pension and Pensioners Welfare Annexure A-19: True copy of the representation dated 1.10.2020 submitted by the applicant to the 2nd respondent Annexure A-20: True copy of the final order dated 23.2.2021 in O.A. No. 562/2019 on the file of this Hon'bleTribunal Annexure A-21: True copy of the Speaking Order F.No.73(1)(5)2019- AI/DKT/1194 dated 5.5.2021 issued by the 3rd respondent Respondents' Annexures Annexure R-1: True copy of the appointment letter dated 16.02.2005. Annexure R-2: True copy of the order of review in RA 6 of 2002. Annexure R-3: True copy of the order dated 29.03.2010 of this Hon'ble Tribunal.
Annexure R-4: Truecopy of the Prasar Bharati, DG:Doordarshan dated 16-12-2003.
Annexure R-5: True copy of the PrasarBharati, DG:Doordarshan dated 07-06-2005.
Annexure R-6: True copy of the deductions made from his pay and allowances ********