Central Administrative Tribunal - Bangalore
S Venkatesh vs Archoelogical Survey Of India on 12 September, 2022
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OA.No.170/00117/2016 CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0117/2016
DATED THIS THE 12TH DAY OF SEPTEMBER, 2022
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sri. S. Venkatesh,
S/o Swaminathan,
Aged about 43 years,
R/at Hampi Power House,
Hospet Taluk, Bellary District,
Presently working as Casual Labour,
In Archeological Survey of India,
Archeological Department,
Kamalapur- Hampi, Hospet Tq.,
Bellary District. ....Applicant
(By Advocate- Shri B.S. Venkatesh Kumar)
Vs.
1. The Director General,
Archeological Survey of India,
Janapath Road,
New Delhi-110 011.
2. The Director General,
Archeological Survey of India,
Bangalore Circle,
Kendriya Sadan, Vth Floor,
"F" Wing, 17thMain,
Koramangala,
Bangalore-560 034.
3. The Superintendent of Archaeologist,
And Appellate Authority,
Archeological Survey of India,
Bangalore Circle, Kendriyasadan,
Vth Floor, "F" Wing, 17th Main,
Koramangala,
Bangalore-560 034.
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4. The Assistant Superintendent of Archaeologist,
Archeological Survey of India,
Kamalapur- 583 221.
Hospet Taluk, Bellary District. ...Respondents.
(By Shri N. Amaresh, Senior Panel Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief:
a) To issue a direction to respondents to consider the representations dated 06.02.2015 and 13.02.2015 and to consider granting Temporary Status to the applicant and giving all consequential benefits including the monitory benefit from 12.03.2011.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was working as a Casual Labour Employee at Archeological Survey of India, Kamalapur-Hampi Museum. He was appointed in the year 1986 as a Casual Labour Employee. However, till today the respondents have not given the Temporary Status to the applicant service, although he has given several representations to the respondents.
b) Applicant has served for more than 28 years of service in same department and completed 240 days of service in every year, hence, the applicant is entitled for grant of temporary status. 3
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c) The applicant also gave representation to the 3rd Respondent-
Superintendent, requesting for payment of bonus and arrears from 1986 and arrears of pay from 01.04.1998 to 01.06.2001.
d) The respondents have given the temporary status to 35 members of casual labour employees who were similarly placed. However, as a discriminatory attitude the respondents have not considered the representation given by the applicant though the applicant is eligible for grant of temporary status.
3. The respondents filed their written statement wherein they have averred as follows:
a) The applicant is working as a casual employee. He was appointed in the year 1986 at ASI, Kamalapur, Hampi Museum. He is not entitled for temporary status because he has not completed 240 days for the inclusion of his name in the eligibility list for conferment of temporary status as per DOPT's OMs dated 08.04.1991 and 10.09.1993.
b) A casual labour is entitled for grant of temporary status under the O.M. No. 51016/2/90-Estt (C) dated 10.09.1993, when he has completed 240 days of service in a year or more as on 10.09.1993. The office of the Regional Director (South), Bengaluru constituted a committee comprising of Officers and staff of Bangalore circle and o/o RD (South), besides 02 representatives of the C.L. Union concerned, to verify the Muster Rolls and prepared the list of eligible Causal Labourers who fulfilled the required conditions. It was seen that Sri S. 4 OA.No.170/00117/2016 CAT/Bangalore Bench Venkatesh (applicant) had not worked for 240 days in any of the years, as can be seen from the following details:-
Period No. of days worked
1986-87 06
1987-88 206
1988-89 194.5
1989-90 168
1990-91 99
1991-92 95
1992-93 105
1993-94 141
4. After hearing both the parties, the present Original Application was disposed of, vide order dated 29.11.2018 by this Tribunal wherein the following order was passed:-
"The issue is in a very small compass. Consequent to our order, the respondents and the applicant together verified the records and found that in 1988 the applicant had worked for 243 ½ days. Therefore, he will squarely be covered within the scheme. Therefore eligible for temporary status in accordance with the scheme. 5
OA.No.170/00117/2016 CAT/Bangalore Bench OA allowed to this limited extent. Benefits to be granted within one month next. No order as to costs".
5. This order of the Tribunal was challenged in Writ Petition No. 30249/2019(S-CAT) before the Hon'ble High Court of Karnataka at Bengaluru. The Hon'ble High Court disposed of the said Writ Petition vide its order dated 19.01.2021 with the following observations:-
"4. Learned counsel for the parties have fairly submitted before this Court that the matter be remitted back to this Tribunal to ascertain whether the employee has completed 240 days or not.
5. Keeping in view the prayer jointly made by the learned counsel for the parties before this Court, the matter is remitted back to the Tribunal and the Tribunal shall grant an opportunity of hearing to the petitioners as well as to the respondent. The Tribunal after verifying the record of the department shall give a categorical finding whether the employee had worked for 243 days or not and, therefore, shall be free to pass appropriate orders in accordance with law.
6. It has also been pointed out while the matter was being argued that the employee in fact has approached the Central Government Industrial cum Labour Court seeking similar relief of regularization and the aforesaid aspect has not been dealt with by the Tribunal.
7. The parties shall be at liberty to raise all possible grounds before the Tribunal and the Tribunal shall pass a detailed speaking order within a period of three months from today."6
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6. Accordingly, the matter was re-heard. The respondents filed an application under Section 151 of CPC submitting copies of documents providing abstract details of muster rolls which indicated the number of days the applicant had worked year wise as under:-
Period No. of days worked 1987-88 202 1988-89 196.5 1989-90 145.5 1990-91 91.5 1991-92 94.5 1992-93 108.5 1993-94 207
7. This abstract of number of days worked for each financial year was based upon the details provided vide Annexure-R3 vide which a Search Committee had been formed under the Chairmanship of Sri. Shaji John, ALIO for tracing and verifying the Muster Rolls pertaining to Shri S. Venkatesh (applicant herein). The details of the dates and days for which the applicant had worked as a casual labourer were provided date wise vide Annexure A1 for the years 1987-88 to 1993-94.
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8. In the counter affidavit filed by the applicant, the applicant made the following submissions:-
a) The applicant denied that he was pursing the same remedy in CR No. 12/2015 before the Hon'ble Central Government Industrial Tribunal cum Labour Court, Bangalore. He stated that case has been filed on behalf of the ASI Daily Wagers Employees Union. He had not signed the vakalath nor authorised the Union to take up the case on his behalf.
In fact, he also denied that he had accepted the membership of the said Union. He was not pursuing the alternate remedy as alleged by the respondents.
b) The respondents have averred that the applicant has not worked for 240 days in any of the financial year 1987-88 to 1993-94. However, the concept of 'financial year' is an invented one in this case by the respondents. The applicant has worked for more than 243 ½ in the year 1988. Under the 1993 scheme for Regularization issued by DOPT, para 4(i) of the scheme does not state anywhere that an employee should work for at least 240 days in a financial year. It only states that temporary status would be conferred on all causal labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days.
9. Heard learned counsels for the parties and perused the pleadings made by them.
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10. A perusal of the documents submitted by the applicant shows that he had not signed the members list of the union members submitted for renewal for the year 2015-16 as well as for the year 2020-21. He has also categorically denied that he was a member of the ASI Daily wagers employee union and also denied that he was pursuing any alternate remedy before the Central Government Industrial Tribunal cum Labour Court.
11. A careful perusal of the scheme on the Casual Labourers for grant of Temporary Status and Regularization Scheme of Government of India, 1993 as notified by the Ministry of Personnel, Public Grievances and Pensions indicates the following provisions":-
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993."
2. This Scheme will come into force w. e. f. 1.9.1993
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D' posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
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(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D' posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D' official including DA, HRA and CCA
(ii) Benefits of increments at the same rate as applicable to a Group `D' employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group `D' employees will be allowed.
(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
(vi) After rendering three years' continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D' employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D' employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Ad- hoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional 10 OA.No.170/00117/2016 CAT/Bangalore Bench benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
12. A careful perusal of provisions under para 4 (i) of the scheme, indicates that under the scheme "Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week)". It is nowhere stated under the scheme that the period of one year has to be the financial year.
13. As per the data made available by the respondents themselves, as a part of the record of the committee which had examined the Muster Rolls and given a detailed report, the total number of days worked by the applicant in the calendar year 1988 comes to 243 ½ days. This therefore exceeds the requirement of being engaged for at least 240 days in a year in the year 1988.
14. It is also not in dispute from the records that the applicant was in employment on the date of issue of this OM i.e. 01.09.1993. As per the pleadings made by the applicant which have not been refuted by the respondents, the applicant has been in employment as a casual labour since 1986 till date.
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15. Keeping in view the facts noted above, the applicant is entitled to be covered under the scheme for Grant of Temporary Status and Regularisation Scheme of 1993. He is also entitled to all other benefits given under the Scheme right from the date of grant of Temporary Status.
16. Accordingly, the OA is allowed and the respondents are directed to grant the status of Temporary Status to the applicant and also consider granting him all consequential benefits as entitled to him under the scheme under law.
17. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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