Andhra Pradesh High Court - Amravati
B. V. Ramana Murthy vs The Ap Transco on 24 January, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.2483 of 2019
ORDER:-
The present Writ Petition is filed seeking to declare the impugned action of the respondents in rejecting the case of petitioners for absorption without properly verifying the Service Certificates vide Lr.No.SE/ O/ E1.R/ DE.T/ ADM/ POSSESSION/ JAO/ F.No.49/ D.No.2870/18, dated 28.09.2018 and passing the impugned order, as highly illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India apart from contrary to the judgment made in W.P.No.8249 of 2010, dated 20.02.2018 and consequently set aside the same by directing the respondents to absorb the petitioners with LDC's or any other equivalent posts with all other benefits.
Heard Smt.Akella Padma, learned counsel for the petitioners and Sri Metta Chandra Sekhar Rao, learned Standing Counsel for APSEB appearing for the respondents.
The brief facts of the case as culled out from the affidavit filed in support of the Writ Petition may briefly be narrated for better appreciation of the petitioners' case. The 1st petitioner worked as contract labour from 01.07.1991 to 31.03.1998 through M/s Sailaja Engineering Construction, Narsapur and further continued upto November, 2000. The 2nd petitioner worked as contract labour from 01.05.1996 to 10.10.2000 through the same contractor. Several contract works were entrusted by erstwhile A.P. State Electricity Board (APSEB) which was bifurcated into A.P. Transco & A.P. Genco and later 2 NJS, J W.P.No.2483 of 2019 transformed into different companies viz., APEPDCL, APSPDCL and APNPDCL and Central Power Distribution Company of Andhra Pradesh Limited. Claiming that they are entitled for absorption as contract labour under the scheme laid down vide B.P.Ms.No.36, dated 18.05.1997 of the erstwhile APSEB, the petitioners approached the erstwhile Common High Court of Andhra Pradesh at Hyderabad by filing W.P.No.14241 of 2002. The said Writ Petition was allowed vide order, dated 11.03.2003 and the respondents therein were directed to consider the petitioners' case for absorption in terms of the said B.P. However, the case of petitioners was rejected by orders, dated 12.09.2003 on the ground that they were not on rolls as on 18.05.1997.
Aggrieved by the same, the petitioners filed W.P.No.20539 of 2003 and W.P.No.20465 of 2003 respectively, which were allowed by an order dated 29.09.2004. Against the said orders, the respondents filed W.A.No.1606 and W.A.No.1842 of 2004 and the same were disposed of by orders dated 25.11.2004 inter alia, observing as follows:-
"Para 7: BP.Ms.No.36 was issued by the Board only to provide employment opportunities to the contract labour in the regular service of the Board provided they fulfilled the requisite condition. Therefore, every effort should be made to ensure that the benefit only goes to the eligible contract labour and not the others who try to enter the protection of BP.Ms.No.36 by resorting to illegal methods. Though the learned Single Judge having no other material to come for a definite conclusion had drawn the inference, but at the same time it does not preclude the authorities from reconsidering the issue as to whether the respondent had in fact worked as contract labour with reference to the documents and further enquiry if any conducted by the authorities in this regard to 3 NJS, J W.P.No.2483 of 2019 reach the object sought to be achieved by BP.Ms.No.36. Under those circumstances, we do not find any ground to interfere with the order of the learned Single Judge.
Para 8: Accordingly, the Writ Appeals are disposed of subject to the above observations, The appellants are directed to consider the case of the workmen and pass appropriate orders within a period of eight (08) weeks from the date of receipt of a copy of this order. No costs."
Against the said orders, the petitioners carried the matter by way of appeal to the Hon'ble Supreme Court. The Hon'ble Supreme Court vide orders, dated 04.03.2005 in Special Leave to Appeal (Civil) Nos.4142-4146/2005) disposed of the same in the following terms:-
"Learned counsel for the petitioner submits that he has valid certificate as required under Notification to show that on the relevant date, namely, 18.05.1997 he was working with the contractor in the project concerned and that he is entitled to the benefit of Notification. If that be so as provided in the impugned judgment of the Division Bench itself it is open to him to show the certificate to the authorities concerned and convince them."
Thereafter, the petitioners filed W.P.No.20049 of 2005 challenging the order, dated 18.07.2005 passed by the respondents rejecting the petitioners' case on the ground that no fresh material was placed. The said Writ Petition was disposed of vide orders, dated 26.10.2007, wherein the learned Single Judge while observing that the respondents cannot be blamed for not considering the cases of petitioners, however was pleased to grant one more opportunity to the petitioners to establish their case that they were on rolls as on 18.05.1997 and directed them to file a detailed representation along with the documents to 4 NJS, J W.P.No.2483 of 2019 show that they were on rolls with the contractor as on 18.05.1997 and the respondents therein were directed to consider the cases of petitioners based on the said documents to be produced by them and pass appropriate orders thereon, within a period of four (04) weeks from the date of receipt of a copy of this order.
Pursuant to the said orders, the 4th respondent passed orders on 19.03.2009 once again rejecting the case of the petitioners. Challenging the same, the petitioners filed W.P.No.8249 of 2010 which came to be disposed of by the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad by orders dated 28.02.2018. The learned Single Judge allowed the Writ Petition and the relevant portion of the order reads as follows:-
"As rightly contended by the learned counsel for petitioners, the order impugned is liable to be set aside on the sole ground non-application of mind to the issue involved more particularly when specific direction was issued in the earlier round of litigation by the learned Single Judge followed by Division Bench. Hence, order impugned is set aside and matter is remitted to 4th respondent to examine whether petitioners were working on 18.05.1997 based on the certificate submitted by them as observed by the Division Bench in W.A.No.1606 of 2004 and batch dated 24.11.2004. A decision shall be taken by duly considering material on record and in terms of the directions issued in the earlier material on record and in terms of the directions issued in the earlier material on record and in terms of the directions issued in the earlier round of limitation. It is also open to the petitioners to place any material in support of their claim. Material, if any, shall be placed before the competent authority within a period of two weeks from the date of receipt of copy of this order and within four weeks thereon 4th respondent shall take appropriate decision in the matter."5
NJS, J W.P.No.2483 of 2019 Thereafter, the 4th respondent passed separate orders, dated 28.09.2018 once again rejecting the cases of petitioners for absorption for the reasons set out in the said order. Aggrieved by the same, the petitioners are constrained to challenge the same, in the present Writ Petition, on various grounds.
The learned counsel for the petitioners while reiterating the contentions raised in the Writ Petition, inter alia, submits that the petitioners were denied absorption of their services without verification of the documents submitted on their behalf in a proper perspective. While drawing the attention of this Court to the Certificate, dated 07.08.1997 of the concerned Assistant Divisional Engineer, Construction and Operation, APTRANSCO Limited, Narsapur she submits that Form-XV, dated 10.10.2000 issued by the Contractor M/s Sailaja Engineering Constructions would also support the case of the petitioners that they were working as contract labour as on 18.05.1997 and therefore they are entitled for absorption in terms of B.P.Ms.No.36, dated 18.05.1997. She submits that the material on record would clearly disclose that the petitioners were working as on 18.05.1997 as contract labour with the above said contractor for execution of works relating to the respondent Company and therefore the reasons assigned in the impugned order to the effect that the contract labour cannot work two different works at the same point of time is misconceived. She contends that once the competent authority i.e., Assistant Divisional Engineer 6 NJS, J W.P.No.2483 of 2019 had certified that the petitioners were engaged as contract labour for the works relating to the respondent Company as is evident from the pages 59 and 77 of the material papers, the stand taken that the Service Certificate of the contractor is not countersigned by the concerned Assistant Divisional Engineer/Assistant Engineer is of no consequence. The learned counsel submits that the authorities instead of examining the case of petitioners as directed by the Hon'ble High Court on the earlier occasions, in true letter and spirit, had bent upon to pass rejection orders only to deprive the petitioners of their valid claims, on untenable grounds. She submits that the impugned order is liable to be set aside on the ground of non-application of mind and the Writ Petition be allowed, directing absorption of the petitioners, by setting aside the order dated 28.09.2018.
On the other hand, the learned Standing Counsel strenuously contended that the arguments advanced by the learned counsel for petitioners are not tenable. He submits that the authorities concerned have scrupulously considered the material i.e., Service Certificates, dated 10.10.2000 issued by the Contractor and as the same were not countersigned by the concerned Assistant Divisional Engineer/Assistant Engineer, the same were not taken into consideration. He also submits that the nature of work mentioned in the said Service Certificate is different from the work as mentioned in the Certificate dated 07.08.1997 of the Assistant Divisional Engineer and therefore the 4th respondent had rightly observed that the petitioners cannot be expected to be present in respect of two different 7 NJS, J W.P.No.2483 of 2019 works, at the same time. He also submits that B.P.Ms.No.36, dated 18.05.1997 was withdrawn in the year 2006 and the petitioners' cases for absorption in terms of the said B.P, cannot, therefore be considered. He also submits that the petitioners have not submitted any concrete material to establish that they were working as contract labour as on 18.05.1997, though the Hon'ble High Court granted liberty to them in the orders passed in the earlier round of litigation. He submits that the respondents have passed orders in strict obedience to the orders passed by the Hon'ble High Court and therefore the allegation of non-application of mind is absolutely baseless and untenable. Making the said submissions, the learned Standing Counsel submits that the Writ Petition is devoid of merits and seeks dismissal of the same.
This Court has considered the submissions of the respective Counsel and perused the material on record.
The orders passed in the Writ Petitions filed by the petitioners on the earlier rounds are borne out by record and a reading of the same goes to show that the petitioners were granted liberty to submit the documents in support of their case that they were working as contract labour as on 18.05.1997 and the respondent authorities were directed to examine the same. Though in the impugned order one of the reasons stated for rejection of petitioners' cases is that Service Certificate is not countersigned by the concerned Assistant Divisional Engineer/Assistant Engineer, the Certificate dated 07.08.1997 which was countersigned by the concerned Assistant Divisional 8 NJS, J W.P.No.2483 of 2019 Engineer would clearly establish that the petitioners were engaged as contractor labour in respect of the works entrusted to M/s Sailaja Engineering Constructions and pages 48 to 72 of the material papers discloses the details of the respective petitioners and in the relevant column No.5 extracted for ready reference, it is stated as follows:
"Whether the works executed relates to the then A.P.S.E. Board as on 18.05.1997 - Yes"
It may also be appropriate to extract the Certification/Endorsement of the Assistant Divisional Engineer, Construction and Operation, AP TRANSCO Limited, Narsapur which reads thus:-
"It is certified that the particulars furnished by the contractor at columns 6 to 12 of the format have been duly verified with reference to the agreements. The contract labour as stated to have been engaged by the contractor furnished by the contractor at columns 2 to 5 of the same format. It is to confirm that the check measurements is in respect of L.S. Agt. No.4/1997-98 covered in the statement has been done on 07.08.1997."
In the light of the above certification/endorsement, the order of rejection on the premise that the Service Certificate, dated 10.10.2000 of the concerned Contractor is not countersigned by the concerned Assistant Divisional Engineer, holds no water.
Further, the nature and location of or work described at Sl.No.3 in the Service Certificate of the Contractor contains broad description, which relates to construction, operation and maintenance works connected to APSEB. The nature of work 9 NJS, J W.P.No.2483 of 2019 done at Sl.No.4 of the Tabular Form in the said Certificate refers to erection of poles, stringing, paying out of conductor, erection of Transformers and other works connected to H.T and L.T Lines and sub-stations etc., and construction of inner fencing wall for structural yard at sub-station, Mogaltur (33/11 KV SS) vide L.S. Agreement No.4/97-98 would definitely fall within the ambit of works entrusted to the contractor. Therefore, the view taken in the impugned order with reference to nature of works and that "a contract labour cannot work two different works at the same point of time" cannot be countenanced. The other submission of learned Standing Counsel that the petitioners' cases cannot be considered as B.P.Ms.No.36 has been withdrawn, cannot be appreciated. As seen from the impugned order, the said B.P was withdrawn vide E.O.No.276 dated 04.10.2006 on the premise that there are no eligible candidates. The case of petitioners stands on a different footing and the earlier orders passed in their favour would clearly go to show that, in the event, they succeed in establishing that they were working as contract labour as on 18.05.1997, their cases shall be considered for absorption.
In the present case, the material on record, as observed earlier, would establish that the petitioners were working as contract labour as on 18.05.1997 and rejection of their cases without appreciation of material in a proper perspective amounts to non-application of mind.
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NJS, J W.P.No.2483 of 2019 For the afore going reasons, the rejection proceedings dated 28.09.2018 are set aside. The respondents are directed to absorb the petitioners in any suitable post, within a period of eight (08) weeks from the date of receipt of a copy of this order.
In the result, the Writ Petition is allowed, in part, to the extent indicated above. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________ NINALA JAYASURYA, J Date: 24.01.2022 IS 11 NJS, J W.P.No.2483 of 2019 HON'BLE SRI JUSTICE NINALA JAYASURYA Writ Petition No.2483 of 2019 Date: 24.01.2022 IS