Central Administrative Tribunal - Jabalpur
Kamod Kumar Jharia vs M/O Communications on 24 July, 2024
1 O.A.No. 200/00019/2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00019/2011
Jabalpur, this Wednesday, the 24th day of July, 2024
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
1. Kamod Kumar Jharia, S/o Shri S.P. Jharia, Aged about 43 Years,
R/o Sahu House, Shri Ram Nagar, Jabalpur (M.Ρ.) 482 003.
2. Devi Prasad Kushwaha, S/o Shri M.L. Kushwaha, Aged about 45
Years, R/o H.No.40, Ghamapur Chouraha,Jabalpur (M.P.)- 482 001
3. Vinod Garg S/o Shri M.L. Garg, Aged about 48 Years, R/o
EWS/82, Dhanwantari Nagar, Jabalpur - 482 001 (Μ.Ρ.)
4. Munni Kumar Lodhi S/o Shri G.P. Lodhi, Aged about 48 years,
R/o C/o HRO, RMS, Jabalpur Division, Jabalpur - 482 001 (Μ.Ρ.)
5. Surendra Kumar Namdev S/o Shri Dhaniram Namdev,
Aged about 43 Years, R/o C/o HRO,RMS,
Jabalpur Division, Jabalpur - 482001 (Μ.Ρ.) -Applicants
(By Advocate -Ms. Shrunkhla Darekar)
Versus
1. Union of India, Through it's Secretary, Department of Posts,
Ministry of Communication & I.T., Dak Bhawan, Sansad Marg, New
Delhi 110 001.
2. Chief Post Master General (In-charge), M.P. Circle, Dak Bhawan,
Bhopal 462 012.
3. Post Master General, Indore Postal Region, G.P.O. Campus,
Indore 452 001.
4. Superintendent, Railway Mail Services, Jabalpur Division, H.P.O.
Campus, Jabalpur - 482 001.
5. Head Record Officer, R.M.S., Jabalpur Division,
H.P.O. Campus, Jabalpur - 482 001. - Respondents
(By Advocate -Shri Manish Chourasia)
(Date of reserving the order:- 07.03.2024)
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2 O.A.No. 200/00019/2011
ORDER
By Kumar Rajesh Chandra, AM;
Through this Original Application the applicants are claiming not to disengage the services of the applicants as Annexure A-4 & A-5 are not applicable for the applicants.
2. The facts in brief of the case is that the applicants are working with the respondents and are posted in H.R.O., R.M.S., Jabalpur Division, Jabalpur. The applicant No.1 was engaged on 11.03.1988, whereas applicant No.2 has been engaged on 16.12.1986 followed by applicant No.3 on 17.02.1986. Further applicant No.4 was engaged on 12.03.1988 and the applicant No.5 was engaged on 11.03.1988. That ever since their appointment in the year 1986/1988, applicants are continuously working with the respondents with utmost satisfaction of superior authorities. At no point of time, applicants were called for any departmental enquiry, etc. Suffice to say that the services of applicants with the respondents are unblemished. That, despite being rendering services from the year 1986/1988 till date, no steps were taken by the respondents to grant temporary status to these persons or in the matter of regularization of services of the applicants. That, at this juncture, it is pertinent to mention that for part-time and full time casual Labour employees or all daily wages employees in the Post Office or in the Railway Mail Services (R.M.S.) or in the Page 2 of 8 3 O.A.No. 200/00019/2011 administrative offices under different designations like casual Labour, contingency paid staff, daily wages, daily rated Mazdoors or outsiders were directed to be treated as casual labours. Further, it has also been observed that in the matter of recruitment to Group-D post, a preferential priority to these employees should be given. Further, in the light of the direction of various courts and in consultation with Ministry of Law/Finance & Personnel, a Scheme was also directed to be formulated in the year 1989. Copies of relevant documents are filed as Annexure-A/1. Some of the similarly situated persons who are being engaged in M.P. Division, Bhopal, were granted temporary status in pursuance to the directions issued by this Hon'ble Tribunal in Ο.Α.Νο.252/95, a copy of order dt. 14.03.1997 granting temporary status to the casual Labour employees is filed as Annexure-A/2. Some of the similarly situated persons who approached this Tribunal secured an order dated 18.03.2002 wherein the Tribunal has disposed of the petition with a directions to the respondents to grant benefits as per DOPT Scheme, 1989, a copy of order dated 18.03.2002 passed in O.A.No.222/95 is filed as Annexure-A/3. The applicants are also similarly situated persons as figured in Annexure A/2 & A/3.
3. Respondents in their reply have submitted that in RMS Jabalpur, there were 24 posts identified as part-time Page 3 of 8 4 O.A.No. 200/00019/2011 sweeper/farash/waterman, out of these, 5 were discontinued due to closure of SPOs, Rewa, Piparia and Chhattarpur. Out of remaining 19 posts, 9 persons are engaged on these posts as on 01.12.2010. Three part- time casual labours were given temporary status of Group D w.e.f. date shown against each as below:-
(I). Shri Ram Gopal- CSO/HRO, Jabalpur vides SRM Memo No. B3/PT/casual labour/JB/Ch 11 dated 08.08.2000.
(ii). Shri J.P. Patre- RH Bhusawal- No. B3/PT/casual labour/JB/Ch II dated 08.08.2000.
(iii). Shri Raju Prasad Kushwaha- RH Jharsuguda vide SRM, JB Dn.
Jabalpur No.B1/WP/15050/05/JB/08 dated 31.07.2008.
4. The remaining 9 were still working as part-time casual labour till 01.12.2010 for their respective duty hours ranging from 1 hrs to 05 hrs. According to G.I. Department of Post letter dated 17.05.1989, all daily wagers working in post offices or RMS Offices or administrative offices under different designation (mazdoor, casual labour, contingent paid staff, daily wages, daily rated mazdoor and outsider) are to be treated as Casual Labour. Those casual labours who are engaged for a period less than 8:00 hrs a day should be described as part-time casual labour. The respondents further submitted that this Hon'ble Tribunal in OA No. 222/95 by order dated 18th March, 2002, (Raju Prasad V/s Union of Page 4 of 8 5 O.A.No. 200/00019/2011 India & others) has directed that as per the guidance of DOPT 1989 the Part-time, casual labour who have worked for minimum requisite days had to be given Gr. D temporary status. The SRM, MP Dn. Bhopal vide his memo dated 14.03.1997 has conferred temporary status to 12 part time casual labours of their division but in Jabalpur division only three full time casual labours where given temporary status of Gr. D and 9 presently working as part-time casual labour since 1986/88 have not been conferred with temporary status of Gr. D in accordance with DOPT guidelines. During the current review, in connection with the instruction of letter under reference it is observed that these 9 part-time casual labours have been given appointment order as 'part-time", "part-time sweeper" by the HRO/SRO long back but they have not observed the appointment formalities (like notification, calling the applications from employment exchange, preparing tabulation sheet etc.) hence, they are not treated as regular appointee. Therefore, the orders for their disengagement were issued by the Department on 07.01.2011.
5. The rejoinder has not been filed by the applicant in this Original Application.
6. Heard the learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
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7. The main contention of the applicant is that the claim for regularisation of the applicants were not considered and that they were left without being regularised, to face economic hardship.
8. It is true that the Government of India has formulated a scheme for casual labourers for grant of temporary status and regularization of service. The scheme was applicable to casual labourers working in the Government of India and its subordinate offices on the date of issue of the order. The scheme envisages temporary status to all casual labourers in employment on the date of issue and who had rendered a continuous service of at least 240 days in a year.
9. In the pleadings, the undisputed period of engagement for applicant No. 1 is 3:30 Hrs, for which he was paid Rs. 371/- per month. The period of work for applicant No. 2 was 5 hours per day and a consolidated amount of Rs. 111/- was being paid to him. The applicant No.3 worked for four hours daily, for which he has been paid a consolidated allowance of Rs. 111/- per month The applicant No. 4 worked for 2 hours daily and was being paid 210 Rs. Per month. The applicant No. 5 worked for four hours daily and paid Rs. 424/- per month. The fact that for other periods during which the applicant stated to have been engaged directly with the respondents could not be established by the applicant. The Page 6 of 8 7 O.A.No. 200/00019/2011 engagement of the applicants according to the respondents was to do piece-work as laid down in Rule 418 of Chapter 9 of the P&T Manual Vol.II on Contract basis for which payments were made by ACG.
10. Therefore, no employee employer relationship subsists. The applicants rendered their services as a petty contractor. As such no relationship of employer and employee in law subsists between the principal employer and contractor. Contractor labour is not prohibited for work of an occasional or seasonal nature. No notification was issued under Sec.10 (1) of the Contract Labour (Abolition & Regulation) Act, 1970 (for brevity CLRA). Section 10 CLRA Act reads as under:
"10. Prohibition of employment of contract labour-
1) Notwithstanding anything contained in this Act, the appropriate Govt may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment;
2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Govt shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant facts, such as
(a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;Page 7 of 8 8 O.A.No. 200/00019/2011
(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ considerable number of whole time workmen.
Explanation - If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate government thereon shall be final."
11. In the instant case, undisputedly, the applicant along with others worked as petty contractors. They received monthly payment from the principal employer. The applicants could not produce any documents to show employer-employee relationship between the parties. No industrial dispute appears to have been raised. No notification seems to have been issued for abolition of Contract Labour, under Sec.10(1) of the CLRA Act, 1970. The applicant failed to establish the fact that the work assigned to them was of perennial nature.
12. Therefore, in view of the above legal position and facts before us, we are of the considered opinion that the applicant failed to establish any case for interference by this Tribunal and this O.A devoid of any merit is liable to be dismissed.
13. Accordingly, the Original Application is dismissed without any order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
rn/-
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