Central Administrative Tribunal - Ernakulam
Friday vs Union Of India on 19 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
OA No.949/2011
Friday, this the 19th day of July, 2013.
CORAM
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1 V.K.Rajamma, W/o Gopidas
Part-time Sweeper, Nehru Yuvakendra Sangathan,
M.L.Road, Kottayam - 686001
R/o Poothottathil Hous, Mulamkuzhy,
Collectorate PO - 686002.
2 Vally A
W/o Late Kumaran
Part-time Sweeper
Nehru Yuvakendra Sangathan
Vazhichery P.O
Alappuzha, 688 001
Residing at Kudilil Chira House, Karalakam
Thathampally P.O, Alappuzha - 688 013
3. K.K Raju
S/o Late V.A Krishnan
Part-tme Sweepers
Nehru Yuvakendra Sangathan,
Idukki (District)
Thodupuzha- 685 584
Residing at Kallungal House
Kolani P.O, Thodupuzha - 685 584
4. A.P Pathumbai
W/o.Muhammed Ali
Part-time Sweeper
Nehru Yuvakendra Sangathan
Lakshadweep - 682 555
Residing at Athampappepura, Kavarathi
Lakshadweep - 682 555
5. T Omana
W/o.Late C Vijayappan
Part - time Sweeper
Nehru Yuvakendra Sangathan, Pattom P.O
Thiruvananthapuram - 695 004
Now residing at Padmavilasam
T.C 2/1350, Pattom P.O
Thiruvananthapuram - 695 004
6. S Padmakumariamma
D/o Late P Saradamma
Part-time Sweeper
Nehru Yuvakendra Sangathan
S.N College Junction, Kollam - 691 001
Residing at Panicker's Vila, Kannimel Cheri
Kavanadu P.O, Kollam - 691 003 Applicants
(By Advocate Mr. V.Manoj Kumar)
Vs.
1. Union of India
Represented by its Secretary
Ministry of Youth Affairs & Sports
Room No.4C
Wing, Sasthri Bhavan
New Delhi - 110 001
2. The Director General and Joint Secretary
to Government of India
Nehru Yuvakendra Sangathan
Ministry of Youth Affairs and Sports Core IV
IInd Floor, Scope Minar, Lexmi Nagar
District Centre, New Delhi - 110 092
3. The Zonal Director
Nehru Yuvakendra Sangathan Kerala Zone
Pattom P.O, Thiruvananthapuram - 695 004
4. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan
M.L Road, Kottayam - 686 001
5. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan, Vazhikery P.O
Alappuzha - 688 001
6. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan, River View
Thodupuzha (Idukki District)-685 584
7. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan
Kavarathi Lakshadweep - 682 555
8. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan, Pattom P.O
Thiruvananthapuram - 695 004
9. The District Youth Co-ordinator
Nehru Yuvakendra Sangathan,
S.N College Junction
Kollam - 691 001 Respondents
(By Advocate Mr.Millu Dandapani, ACGSC )
This Application having been heard on 12.7.2013, the Tribunal on
19.07.2013 delivered the following:
O R D E R
HON'BLE DR.K.B.S.RAJAN, MEMBER(J) Background: Earlier, a Single Bench of this Tribunal while considering this case, expressed "I am unable to follow the decision of the Co-ordinate Bench of this Tribunal in TA 08/09". On account of this divergent view by the two benches, the case was referred to Hon'ble Chairman and on his direction, this Bench has now considered this case. It is appropriate that the decision in TA 08/09 and the view of the Single Bench in this present case are first explained before considering the case both on legal and factual aspects.
2. TA 08/09 was filed by one of the employees of the Respondent Organization for payment of due wages. Prior to this petition, the applicant therein had already filed two writ petitions No. 6662/2005 and 19454 of 2005 for the same relief and the said Writ Petitions were disposed of by the Hon'ble High Court of Kerala directing the respondents to consider the claim of the petitioner. However, the claim of the petitioner having been rejected, the decision of the administration was challenged vide a writ petition, which got transferred to the CAT and numbered as TA 08-09. The case of the petitioner in the said TA No. 08/09 was that she was appointed as a part time sweeper in the office of the 5th respondent (District Youth Coordinator, Nehru Yuva Kendra Collectorate Campus, Pathanamthitta) and the extent of area for cleaning came to more than 100 sq. m. (The contention of the respondents was, however, that the applicant was only a 'casual part time sweeper'). There is difference in remuneration for a casual part time sweeper and part time sweeper, the former being paid at the rate prescribed by the State Government and the latter governed by the provisions of GO(P) No. 3000/98/Fin dated 25-11-1998 which works out to Rs 1250/- per month as against the rate of Rs 600/-. The Tribunal took into account the recommendation made by the District Welfare Coordinator in his letter dated 4th February, 2005 wherein it was stated that the total sweeping area of the office including the courtyard comes more than 100 sq. meters. Accordingly, the TA was allowed, the rejection letter of the respondents under challenge in the said TA was quashed and set aside and the respondents were directed to take steps to disburse the wages with arrears. Annexure A-10 refers. It was this decision that has been relied upon by the applicant in the present OA.
3. The facts of the present case filed by six applicants succinctly are as under:-
The applicants are all part-time Sweepers working under the respondent department and they allege that they are deprived of pay and allowances on par with their counter part doing similar work under the Government of Kerala. They contend that they are eligible for pay at the rate sanctioned by the State Government to their employees. They are now getting a meager amount of Rs.1000/- per month though they are sweeping an area of more than 100 Sq.Meters. It is stated that by Annx.A1, it was decided that all the part-time sweepers of all Kendras in Kerala State will be paid at the rate sanctioned by the State Government to the Sweepers in Kerala Govt Offices by communication dated 9.10.1990. According to the applicants, by G.O(P) No.3000/98 Fin. Dated 25.11.1998, Part-time Sweepers/Cleaners whose are of work is above 100 Sq.Mtrs and below 400 Sq.Mtrs are entitled for Rs.1250/- plus D.A (Annx.A4). Accordingly Annx.A5 was issued by the respondent No.3 stating that the part-time Sweepers shall be given Rs.1250/- for cleaning an area above 100 Sq,Mtrs and below 400 Sq.Mtrs. On 14.1.2004 vide Annexure A-6, 3rd respondent requested R-2 to release sufficient funds to pay wages at the rate of Rs.600/- per month to the applicants. The applicants represented against the said order but in vain. They were constrained to file WP(C) No.16297 of 2005 before the Hon'ble High Court of Kerala. The Hon'ble High Court disposed of the W.P(C) directing the 2nd respondent to consider the request of the applicants and to take appropriate decision thereon expeditiously. The respondents by Annexure A-8 communication dated 26.7.2005 intimated that the wages are being released as per GO(P) dated 28.7.2004 of Govt of Kerala w.e.f October 2003. The applicants filed another WP(C) No.25809 of 2005 before the Hon'ble High Court of Kerala which was disposed of by judgment dated 2.2.2006 directing the 3rd respondent to ascertain the exact area which is swept by the applicants and take a fresh decision. It is further averred that one K.K.Thulasi, who was working as Part-time Sweeper in the office of the District Youth Coordinator, Pathanamthitta and sweeping an area of more than 100 Sq.Mtrs, approached this Tribunal through TA No.8/2009. A Coordinate Bench of this Tribunal allowed the TA. It is averred that the applicants are also similarly situated and are rendering unblemished services as Part-time Sweepers in different offices of the respondents.
4. On the basis of the decision of the Tribunal in the aforesaid TA 8/09, the applicant had sought for the following relief:-
"8(a) Call for the records leading to the issue of Annexure A-12 series representations and pass final order and to direct the second respondent to make payment of remuneration at revised rate as per Annexures - A3 and A-4 to the applicants with retrospective effect within a time limit fixed by this Hon'ble Tribunal.
(b) Direct respondents 2 to 3 to take necessary steps to regularize the service of the applicants with immediate effect.
(c) Direct the respondents to disburse the arrears of wages of the applicants from the date of their joining with reasonable interest.
(d) Direct the 1st respondent to give necessary direction to the 2nd respondent to dispose Annexure A-12 series representation positively in the matter of revised payment.
(e) Award cost and incidental to this application "
5. The respondents contested the OA by filing reply. They submitted that the applicants are not appointed against sanctioned posts, therefore they cannot be regularized. The applicants are only paid consolidated remuneration on monthly basis as decided from time to time. They further added that any order issued by the Kerala State Government except on wages is subject to applicability and acceptability of the same by the Central Government organizations. Nehru Yuva Kendra is an autonomous body under the Ministry of Youth affairs and Sports. The respondents are governed by the rules and regulations approved by the government of India. Therefore, the orders of the State Government which is applicable to offices under the control of State Government cannot be made automatically applicable to the respondents. The respondents stated that the Asst. Engineer, CPWD/LPWD Kavaratti/NYK has certified the sweeping area for applicant as 89.08 Sq.Mtrs. for applicant No.2, 217.58 Sq.Mtrs. for applicant No.3, 71.39 Sq.Mtrs., 110.00 Sq.Mtrs for applicant No.4, 223.00 Sq.Mtrs for applicant No.5 and 132.60 Sq.Mtrs for applicant No.6. They submitted that wages are already being paid as per State Govt GO dated 28.7.2004. They contended that so far as the applicability of the judgment and its compliance for a similarly situated person is concerned, it was in personam and not in rem.
6. The applicants filed rejoinder. They submitted that by Annx.A22, GO (P)No.361/2005 Fin dated 2.8.2005, it was clarified that if the sweeping area gets reduced and comes below 100 Square Mtrs the remuneration of the existing part-time sweeper who is already in receipt of Rs.1250+D.A need not be reduced. Only when the post is filled up by a casual sweeper, payment will be Rs.600/- per month. In GO(P) dated 12.12.2007 it was clarified that if the building is exclusively used for housing of Govt office, the entire plinth area of the building including staircase, varandha and toilets need to be considered for the calculation of sweeping area.
7. While comparing the case of the applicant in this OA and that in the said T.A. No. 8/09, the Hon'ble Single Member had observed as under:-
"10. As per para 14 of Annexure A-3 G.O (P) No.3002/19/Fin dated 25.11.1998 the part time contingent employee should do half a day's work. The applicant in TA 08/09 was engaged for two hours in two spells of 09.30 to 10.30 hrs in the forenoon and 16.00 to 1700 hrs in the afternoon. Therefore, the moot question is whether she can be termed as a part time contingent Sweeper as defined in the Government Order of State of Kerala. While GO(P) No.3002/19/Fin dated 25.11.1988 revised the wages of casual Sweepers, GO(P) 3000/98/Fin dated 25.11.1988 is issued revising the remuneration of part time contingent employees. The issuance of two Gos indicates that there are two categories of Sweepers in State Government i.e; casual Sweepers who are paid hourly wages and part time contingent employees who work for half a day.
11. Based on 6th CPC recommendations the erstwhile group D cadre itself is done a way with and in its place a new Multi Skilled Staff in the pay band of 5500-20200/- is introduced with a minimum grade pay of Rs.1800 as in the case of LDC. Simultaneously accepting 6th CPC recommendations Government of India instructed all Central Government departments to dispense with the services of casual workers as erstwhile Group D staff now elevated to Group C in Pay Band 1 are expected to do any work in the office as part of multi tasking.
12. In TA 08/09 the Tribunal has accepted the contention of the applicant therein that she is a part time Sweeper. She was not put to strict proof by calling for a copy of her appointment order.
13. In view of the foregoing, I respectfully submit that I am unable to follow the decision of the co-ordinate Bench of this Tribunal in T.A No.08/09. This is due to the fact that the applicant in TA 08/09 is treated as a regularly appointed part time Sweeper against a sanctioned post and relief granted accordingly.
14. In my opinion the two Government Orders viz; G.O (P) No.3002/19/Fin dated 25.11.1988 applicable to casual Sweepers on payment of wages and GO(P) 3000/98/Fin dated 25.11.1988 which revised the remuneration of the Part time contingent employees under Government of Kerala need to be interpreted to consider the applicability of the same to the applicants in this O.A. The terms of engagement of the applicants will be a relevant factor for such interpretation as this calls for guidelines on engagement of casual workers as enumerated in DOPT O.M No.49014/II/86/Estt(C) dated 07.06.88 and Ministry of Labour O.M No.50302/16/86-WC (M.W) dated 23.08.1988 to be looked into. The issue has wider ramification especially since 6th CPC does not recommend utilization of Part-time casual labourers, the matter may be placed before the Hon'ble Chairman for constituting an appropriate Bench."
8. Counsel for the applicant argued that the case is identical to that of in TA No. 8/09 and the Division Bench had upheld the claim of the applicant therein. The applicants are part time sweepers and that their remuneration would be governed by the provisions of the Annexure A-22 order, which provides that even if the area of sweeping is less than 100 sq.mtrs if the part time sweepers were already working and paid the higher rate of Rs 1,250/-, the same be continued during the currency of the engagement of the incumbent. In the case of the applicants, all the applicants had joined the services long back and have been continuing in the same status, their wages should, therefore, be in terms of Annexure A-22 order and should also, in future, be in accordance with the rates of the stage of Government as and when revised.
9. Counsel for the respondents stated that the applicants are governed by the rules of the respondents and the rate of wages need not fluctuate depending upon the revision of such wages by the State Government.
10. Arguments were heard and documents perused. The following questions are involved -
(a) Whether the character of engagement of the applicants falls under 'casual part time sweeper' or 'part time sweeper'. If they fall under the category of "part time sweeper", their remuneration would be higher than that of a casual part time sweeper.
(b) Whether the area covered by the applicants in sweeping is more or less than 100 mts.
(c) Whether the provisions of Annexure A-22 (referred to in (d) above) would apply to the applicants in case the area covered by them for sweeping is less than 100 sq.m.
11. In so far as (a) is concerned, it is to be examined as to who are treated as part time sweepers and who, casual part time sweepers. Annexure A-22 issued by the State Government spells out the difference. If the area covered for sweeping is 800 sq.m or more, then the same justifies a full time post of sweeper. If the area covered is in the range of 100 to 800 sq. m, the engagement would be of part time contingent sweeper. If the area covered for sweeping is less than 100 sq.m, in that event, engagement of casual sweeper is justified. Thus, if the respondents adopt the rates as in Annexure A-22, then it is this norm that is to be followed.
12. The applicants in para 4(a) to (f) of the OA, held themselves out as Part time sweepers. The Register of Attendance annexed at Annexure A-13 reflects their class as PTS. Various certificates/communications issued by the respondents annexed at Annexure A-14 to A-19 refer the applicants as 'part time sweepers' only and the entire correspondence relating to the wages revolves round 'part time sweepers'. The respondents have also reflected in the very first sentence of their counter that the applicants were working as Part Time Sweeper. There is no whisper in the reply that the applicants are casual part time sweepers. The only contention is that they were not engaged against any sanctioned post. Thus, the provisions of those orders which relate to payment of wages to the Part time Sweepers would be applicable to the applicants herein, subject to any conditions relating to area of sweeping. Question at (a) is answered accordingly.
13. In so far as the area covered for sweeping by the applicants vide (b) above, in the reply details have been given, as per which the area covered by some of the applicants is more than 100 sq.m while that by some falls within 100 sq.m. The applicants do not challenge the same but contend that the provisions of order at Annexure A-22 would apply. One of the provisions of the said Annexure A-22 contained in para 11 of the said order at Annexure -22 is - "If, on fixation, the sweeping area reduces from above 100 sq.mtrs, to below 100 sq.mtrs, the remuneration of the existing part time sweeper, if he is getting Rs 1250 p.m. P,lus DA shall not be reduced. He shall continue to get what he was getting. Here also, the next vacancy in the post should be filled up by a casual sweeper only, by paying Rs 600 per month."
14. Admittedly, all the applicants have been working for decades by now and all were in the pay roll of the respondents at the time of issue of A-22 order i.e. 2nd August, 2005. Hence, in the case of the applicants, the area of coverage is not that material in so far as remuneration is concerned since they fall under the category of those already in service should continue to be paid higher rate of wages. Thus, answer to question ) above is answered in affirmative.
15. Thus, the findings of the Tribunal with reference to the applicants' case is as under:-
(a) The applicants come under the term 'part time sweepers' (also called part time contingent sweepers) and not casual part time sweepers. Even if they sweep the area less than 100 sq.mtrs, they are, for the purpose of remuneration covered under the term 'existing part time sweeper' as contained in Annexure A-22..
(b) The applicants are covered by the terms of State Government order at Annexure A-22 for the purpose of wages as adopted by the Respondents in their resolution as contained in Annexure A-5. That the rates would be as applicable to the State Government has been approved vide Annexure A-5 dated 10-06-2003 which inter alia states, "In the meeting of Zonal Directors held at NYKS HQ on 11-13th April, it was decided that the PART TIME SWEEPERS BE PAID WAGES AS PER RATES APPROVED BY THE CONCERNED DISTRICT ADMINISTRATION."
16. Accordingly, the OA is allowed. Respondents are directed to release the wages of the applicants at the rates as contained in Annexure A-4 read with the order at Annexure A-22 and also follow, in future, the State Government orders on the subject matter of payment of wages in accordance with the provisions of Annexure A-5 order dated 10-06-2003 until there is any modification to the above said order.
17. As the applicants (No. 1 to 5) had been agitating for their wages since 2005, they are entitled also to the arrears from the date of issue of Annexure A-22 order. In so far as A-6 is concerned, arrears would be paid one year prior to the date of filing of the OA (or if there had been earlier application before the Tribunal or High Court, a year before the date of such filing).
18. This order shall be complied with, within a period of six months from the date of communication of this order. No costs.
(K.GEORGE JOSEPH) (Dr.K.B.S.RAJAN) Member (A) Member (J) aa.