Central Administrative Tribunal - Bangalore
M. Balu And Ors. vs Union Of India (Uoi) And Ors. on 5 June, 2002
Equivalent citations: 2003(1)SLJ64(CAT)
ORDER
B.S. Raikote, Vice-Chairman
1. This application was earlier disposed of along with O. A. Nos. 1890 of 1995 39 and 94 to 98 of 1996 vide Judgment and order dated 7th April, 1998 by dismissing the application as not maintainable. Being aggrieved by the said order, the applicants had preferred writ Petition No.19138 of 1998 and writ Petition Nos. 20017 to 20023 of 1998 (S-CAT) before the High Court of Karnataka. It appears that on the basis of the concession made at the bar that this Tribunal had been entertaining applications against Prasar Bharati Broadcasting Corporation of India'('Corporation' for short) the order of this Tribunal has been set aside and the matter is remitted to this Tribunal for fresh decision in accordance with law. In other words., the Hon'ble High Court did not express any opinion on the issue as to the jurisdiction of this Tribunal, against Prasar Bharati. Therefore, arguments were heard both on the jurisdiction of this Tribunal, as well as on the merits. First we propose to deal with the jurisdiction of this Tribunal.
2. The applicants were the employees of AM India Radio and Doordarshan prior to the constitution of Prasar Bharati Broadcasting Corporation of India under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 thereinafter referred to as the 'P.B. Act' for Short). They were appointed as helpers and it is their case that for the last 6 years their services were taken as Lighting Assistants and they are discharging the duties of Lighting Assistants and, therefore, a direction be issued to Prasar Bharati to regularise their services as Lighting Assistants, with effect from the dates their services were taken as Lighting Assistants. We take note from the records of this case that this O.A. is filed on 10.07.1996. During the pendency of this O.A. the Prasar Bharati came to be established by the Central Government with effect from 23.11.1997 under Section 3(1) of the P.B. Act. As a result of the P.B. Act Doordarshan ceased to be a Government department and it came under the Corporation. Under Section 3(2) of the P.B. Act, the Corporation shall be a body corporate having perpetual succession and common seal with power to acquire, hold and dispose of the property or enter into a contract and it has also the power to sue and be sued in the same, name. Under Sub-section (4) of Section 3 the power of general superintendence and management of the Corporation vests in a Board called Prasar Bharati Board. From this provision it is crystal clear that Prasar Bharati is an autonomous body constituted under the P.B. Act. Under Section 16 of the P.B. Act all property and assets which immediately before the appointed day vested in the Central Government for the purpose of Akashvani or Doordarshan or both, shall stand transferred to the Corporation on such terms and conditions as may be determined by the Central Government and the book value of such property and assets shall be treated as the capital provided by the Central Government to the Corporation. Under Clause (b) of Section 16 all debts, liabilities and obligations incurred by the Central Government immediately before the appointed day in connection with the purposes of Akashvani or Doordarshan or both shall be deemed to have been incurred by the Corporation and under Sub-section(c) any money due to the Central Government in relation to the Akashvani or Doordarshan or both shall be due to the Corporation. In other words, all the assets and liabilities of Akashvani or Doordarshan or both stood transferred to the Corporation. Under Section 16(d) it is further provided as under:
"(d) all suits and other legal proceedings instituted or which could have been instituted by or against the Central Government immediately before such day for any matter in relation to the Akashvani or Doordarshan or both may be continued or instituted by or against the Corporation", (emphasis supplied) From the reading of the above provision it is further clear that all suits and other legal proceedings pending against the Central Government before the appointed day may be continued or instituted by or against the Corporation, From all these provisions it is clear that the Corporation is an independent autonomous Corporation and the employees transferred to the Corporation would be the employees of the Corporation. Under Section 11 of the P.B. Act it is provided that it shall be lawful for the Central Government to transfer, by order, any of the officers or other employees of Akashvani or Doordarshan to the Corporation subject to certain conditions. We think it appropriate to extract sub-sections 1,2,4 and 5 of Section 11which read as follows:
"Transfer of service of existing employees to Corporation.
11.(1) Where the Central Government has ceased to perform any functions which under Section 12 are the functions of the Corporation, it shall be lawful for the central Government to transfer, by order and with effect from such date or dates as may be specified in the order, to the Corporation any of the officers or other employees serving in the Akashvani or Doordarshan and engaged in the performance of those functions;
Provided that no order under this sub-section shall be made in relation to any officer or other employee in the Akashvani or Doordarshan who has, in respect of the proposal of the Central Government to transfer such officer or other employee to the Corporation, intimated within such time as may be specified in this behalf by the Central Government, his intention of not becoming an employee of the Corporation.
(2) The provisions of Sub-section (1) shall also apply to the members of the Indian Information Service, the Central Secretariat Service or any other service or to persons borne on cadres outside Akashvani and Doordarshan who have been working in Akashvani or Doordarshan immediately before the appointed day.
Provided that where such member intimates, within the lime specified in Sub-section (1), his intention of not becoming an employee of the Corporation but to continue on deputation, he may be allowed to continue on deputation in accordance with such terms and conditions as may be prescribed.
xxxx xxxx xxxx (4) An officer or other employee transferred by an order under Sub-section (1) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, subject to the provisions of Sub-section (5) and (6), be governed by such regulations as may be made as respects remuneration and other conditions of service including pension, leave and provident fund and shall come to be an officer or other employee of the Corporation unless and until his employment is terminated by the Corporation. (5) Every officer or other employee transferred by an order made under Sub-section (1) shall, within six months from the date of transfer, exercise his option, in writing, to be governed......" (Emphasis supplied)
From the above provisions it is clear that the officers of the then Akashvani or Doordarshan could be transferred to the Corporation only after seeking their intention of becoming an employee of the Corporation, and after exercising such option when an officer or employee is transferred by an order of the Central Government, such employee or officer shall, on and from the date of transfer cease to be an employee of the Central Government and becomes an employee of the Corporation. It is stated on both sides that such an option has not been sought from the applicants. If that is so, the applicants continue to be the employees of the Central Government since they are not yet absorbed in the Corporation by seeking necessary option in terms of Section 11. Thus, the applicants being the Central Government employees can maintain this application and the Corporation is expected to defend the litigation, pending on the appointed day, in view of Section 16(d) of the P.B. Act. In view of these statutory provisions in the P.B. Act, we have no hesitation to hold that this Tribunal has jurisdiction to entertain this application.
The matter can be viewed from different angle also. As long as the applicants, who were the employees of Akashvani and Doordarshan, are not absorbed in the Corporation, their services in the Corporation shall be taken as on deputation only. Though Prasar Bharati is an autonomous statutory body constituted under the P.B. Act, from reading of other provisions of the P.B. Act we find that the Corporation is controlled by the Central Government either directly or indirectly. As we have already noted above, the assets of the Central Government used for the purpose of Akashvani and Doordarshan are required to be treated as the capital provided by the Central Government to the Corporation under Section 16(a) of the P.B. Act. Under Section 21 of the P.B. Act, the Corporation shall prepare an annual confidential statement for each year indicating the sums required from the central Government to meet other expenses and such statement shall be sent to the Central Government for its approval. Under Section 21(2) the accounts of the Corporation are required to be audited by the Comptroller and Auditor General of India and the Corporation is exempted from payment of tax under the Income Tax Act, under Section 22. Under Section 23, the Central Government may issue necessary directions from time to time to the Corporation in the interest of sovereignty, unity and integrity of India and security of the State or preservation of the public order and a copy of such directions issued from time to time are liable to be laid before each house of the Parliament. Under Sub-sections (1) and (2) of Section 31 annual report regarding the activities of the Corporation shall be caused to be laid before each house of the Parliament. Under Section 32(1), the Central Government is competent to make Rules by notification for carrying out the provisions of the Act and such Rules are required to be laid before both the houses of Parliament under Section 34 of the Act. In substance, as we have stated above, the Corporation is no doubt an autonomous and independent body with a right to sue and be sued but it is under the control of the Central Government. If that is so, whenever the services of a person holding the civil post under the Central Government are placed at the disposal of such Corporation, this Tribunal has jurisdiction in view of Section 14(1)(b)(iii) of the Administrative Tribunals Act, 1985 ('A.T. Act' for short), while considering Section 14(1)(b)(iii) of the A.T. Act, in O.A. No. 58 of 2001 and connected cases, vide Judgment and order dated 2.05.2002, this Tribunal, by following the Judgment of the Central Administrative Tribunal, Delhi Bench in C.P.Mathur v. Union of India and Ors., (1992) 21 ATC 185, has held that under Section 14(1)(b)(iii) this Tribunal has jurisdiction regarding the service of a person placed at the disposal of any Corporation or Society 'owned' or 'controlled' by Government of India. In this view of the matter, we are of the considered opinion that this Tribunal has jurisdiction regarding the Central Government employees deputed to the Corporation which his under the control of the Central Government. Since the applicants are not yet absorbed in the Corporation, they are to be taken only on deputation or deemed deputation to the Corporation. Since the Corporation is controlled by the Central Government, we hold that this Tribunal has jurisdiction to entertain the present application. We hasten to add that after the Central Government employees absorbed in the Corporation this Tribunal ceases to have jurisdiction regarding the service matters unless the Corporation is notified under Section 14(2) of the AT. Act. Likewise regarding the service of an employee directly recruited by the Corporation also this Tribunal would not have jurisdiction unless the Corporation is notified conferring jurisdiction on this Tribunal. This aspect wehave already explained in our earlier Judgment in O.A.Nos.837 of 2001 etc., dated 1st February, 2002 and O.A.No.58/29001 dated 2.05.2002.
4. Coming to the merits of the case, we find that this application is filed for a direction to the respondents to absorb and regularise the services of the applicants as Lighting Assistants in the pay scale of Rs. 1400-2300 with all financial and other consequential benefits.
5. The applicants contend that though they were appointed as Helpers in Group-D cadre in the pay scale of Rs. 800-1150, but their services were utilised as Lighting Assistants in Group-C cadre from the years 1987, 1989 and 1990 etc. They further contend that when the services of the applicants are taken as Lighting Assistants instead of Helpers, the applicants are entitled to be absorbed as Lighting Assistants. They further contend that the applicants are eligible to be absorbed as Lighting Assistants, since the educational qualification of matriculation is common to both the Lighting Assistants and Helpers. Therefore, the services of the applicants could have been absorbed as Lighting Assistants. The applicants further submitted that earlier they had approached this Tribunal for their absorption as Lighting Assistants in O.A. No. 1839 of 1995 and 1847 to 1853 of 1995 and this Tribunal vide Judgment and order dated 12th March, 1996 disposed of the said applications by directing the applicants to make a fresh comprehensive representation to the department and after filing such representation the department should dispose of the same within a period of three months. Accordingly, the applicants made a representation, but the department has disposed of the same by the impugned order dated 5.07.1996 vide AnneXure-A4 rejecting the claim of the applicants. In these circumstances the applicants now are approaching this Tribunal for a declaration that the applicants are entitled to be absorbed as Lighting Assistants. The learned Counsel appearing for the applicants reiterating what is stated in the pleadings of the O.A. submitted that applicants are entitled to be absorbed as Lighting Assistants since the applicants have been discharging the duties of Lighting Assistants since the year 1987 till Annexure-A4 dated 5.07.1996 was issued directing different Kendras not to take the assistance of Helpers as Lighting Assistants, they further contended that in fact one of the officers of the Department recommended for consideration of the case of the applicants fpr absorption as Lighting Assistants if the applicants had worked as Lighting Assistants vide Annexure-A5 dated 17.02.1995. The learned Counsel for the applicants submitted that the applicants are entitled to be absorbed as Lighting Assistants since they fulfilled the eligibility qualification of Lighting Assistants. He further contended that not absorbing the applicants as Lighting Assistants and not paying them salary of Lighting Assistants would be discriminatory and violative of Articles 14 and 16 of the Constitution of India. He also submitted that the Hon'ble Supreme Court has observed in its Judgment reported in Doordarshan Cameramen's Welfare Association v. Union of India, AIR 1990 SC 1387, that the services of helpers were used as Lighting Assistants due to the introduction of ENG cameras. In the light of this observation and also on the basis of the fact that the applicants were actually working as Lighting Assistants, the applicants are entitled to the reliefs as prayed for. The Counsel for the applicants further submitted that when the casual artists are being absorbed as Lighting Assistants as per the directions of the Principal Bench of this Tribunal, there is no reason why the applicants' services should not be absorbed as Lighting Assistants.
6. By filing reply statement, the respondents have denied the case of the applicants. They have contended that the applicants were appointed as helpers only in the pay scale of Rs. 800-1150 and they were discharging the duties of helpers. If that is so, they are not entitled to be absorbed as Lighting Assistants. They further submitted that in the letter dated 10.01.1996 vide Annexure-A3 the duties and responsibilities of Lighting Assistants and Helpers are entirely different as per the Doordarshan Manual. Moreover, the posts of Lighting Assistants are being abolished in phased manner, since the work of Light Assistants diminished with the advent of ENG equipments. They further submitted that creation of some posts of helpers, in lieu of Lighting Assistants, were Cor the purpose of carrying/shifting of lighting equipments which is part of the duties assigned to the Helpers. Wherever lighting work is involved, either the services of Lighting Assistants or the services of the Engineering Assistants are taken. Some times services of some of the casual Lighting Assistants were also utilised. In the circumstances, the applicants being Helpers are not entitled to be absorbed as Lighting Assistants. They further contended that reliance on Annexure-A5 is untenable. That was only a correspondence between one authority and the other for consideration of the representation of the applicants and nothing more. Therefore, absolutely there is no merit in the application. Learned Counsel for the respondents submitted that the decision taken by the Directorate vide order dated 5.07.1996 Annexure-A4 does not call for any interference. It is specifically stated in Annexure-A4 that the applicants being Helpers with different qualifications and experience are not entitled to be absorbed as Lighting Assistants. The respondents have also filed a job chart showing the jobs assigned to both the Lighting Assistants as well as Helpers to show that the duties discharged by these two officers are entirely different. They submitted that as per the job chart it is the duty of the Helper/Khalasi to help the Technician in the maintenance of equipments, shifting of equipment/furniture. Only because such helper helps the technician the Helper does not become a Lighting Assistant. As per the job chart, the duties of the Lighting Assistant is, to operate different types of lighting equipments used on outdoor location for shooting TV films. It is his duty to assist the cameraman in loading and unloading of film cameras and storage and maintenance of equipment under his charge. Thus the duties of the helper and Lighting Assistants are entirely different with different pay scales. The Counsel for the respondents further submitted that as per the hierarchy for promotion, the Helper, according to the Rules is entitled to be promoted as Technician which is a Group-C post and Senior Technician etc., whereas the Lighting Assistant holding Group-C post is entitled to be promoted as Cameraman Grade-Ill etc. Even the promotion channels of Helpers and lighting Assistants are entirely different. He also submitted that the qualification required for Lighting Assistant is different from that of Helper. The Lighting Assistant is required to have 3 years experience of lighting in stage, films or television which is not required for Helper/Khalasi. Therefore, the case of the applicants that all these helpers fulfil the eligibility for absorbing as Lighting Assistants is not correct. Accordingly, he submitted that the application is liable to be dismissed. He also submitted that the observations of the Hon'ble Supreme Court in 1997 SC 1837 would not help the case of the applicants. He also relied upon the Judgment of the Supreme Court in University Grants Commission v. Kedarnath Ram and Ors., 1995 SCC (L&S) page 200, in support of his contention that the applicants are not entitled for absorption as Lighting Assistants, in the same way the Nurses cannot be absorbed as Doctors to whom such Nurses assist. Accordingly, he submitted that the application is liable to be dismissed.
7. On the basis of the pleadings of both parties as well on the basis of the arguments addressed at the bar the short point that arises for consideration would be whether the applicants who are appointed as Helpers/Khalasis are entitled to be absorbed and regularised as Lighting Assistants.
8. The fact that the applicants were appointed as Helpers/Khalasis is not disputed. It is also not disputed that the post of Khalasi/Helper is Group-D post with pay scale of Rs. 800-1150 and the post of Lighting Assistant is Group-C, a higher post, with the pay scale of Rs,400-2300. It is also not in dispute that different job chart is provided by the Doordarshan regarding the duties of helpers/Khalasis and Lighting Assistants. In the application at paragraph 6.3 the applicants themselves have extracted the job chart provided to the Helper/Khalasi and Lighting Assistants as under;
Helper/Khalasi :
Helper/Khalasi primarily perform following duties in addition to any other work assigned to them by their superiors from time to time:
1. Helping SEA/EA/Sr. Technician/Technician in the maintenance of equipments.
2. Maintaining cleanliness of equipments and Technical furniture in technical areas.
3. Shifting of equipment/furniture.
4. Helping technical operations staff in lighting telecine audio, air-conditioning equipment, maintenance and installation work.
5. Locking/opening of technical area in presence of the shift-incharge.
6. Working as Camera dolleyman/cableman in studio OB sports.
7. Laying cables and providing other manual help in installation of MM links during OB/ENG coverage.
Lighting Assistants :
1. "Operation of different types of lighting equipment used on outdoor location for shooting TV films and carrying out any associated duties assigned to him.
2. Assistance to Cameramen in loading and unloading of film cameras.
3. Storage and maintenance of equipment under his charge.
4. Any other related duties which may be assigned to him time to time."
It is also admitted by the applicants in paragraph 6.2 that educational and other qualifications required for Lighting Assistant are :
(i) Matriculation or eqivalent qualification. (ii) Three years experience in lighting in stage films or Television.
The respondents have brought to our notice that the educational qualification required for helper is only 5th standard. Having regard to these two different types of duties to be discharged with different pay scales with different qualification, in our opinion, it is not possible to accede to the request of the applicants that there should be a direction to the respondents to absorb them as Lighting Assistants. As per the job chart of Helper/Khalasi which we have extracted above, it is clear that is the duties of helpers to help the Technician and senior Technician in the maintenance of equipments, maintenance of cleanliness of the equipments and shifting of the equipment/furniture. It is also the duty of the helper to help the technical operation staff in lighting, telecine audio, air-conditioning equipment maintenance and installation work. It is also their duty in locking/opening of technical area, in the presence of the shift incharge, and work as camera dolleyman/cableman in studio/ OB spots. It is also their duty to help the technician in laying cables and providing other manual help in installation of MW links during OB/CNG coverages. From the above job chart it is clear that helpers are required to assist the Technician in operating, lighting and camera equipments. Whereas as per the job chart of Lighting Assistants it is the duty of such Lighting Assistants to operate different jobs of light equipments use for outdoor location for shooting TV films and to carry out any associated duties assigned to them. Lighting Assistants are also required to help cameraman for loading and unloading film cameras and storage and maintenance of equipment etc. Having regard to different job charts it is clear that the duties of Helper and the Lighting Assistants are entirely different. Only because sometimes some of the duties overlap would not make the helper a Lighting Assistant in any sense of the term. Moreover for the purpose of appointment as Lighting Assistant one is required to pass matriculation and he should necessarily have three years experience in lighting in stage, films or television which is not required for a Khalasi/Helper. Therefor, some times the services of Helper is taken as Lighting Assistant would not make the Helper as Lighting Assistant. Being Helper in the department, it is the duty of such Khalasi/Helper to assist the Technician and other officials in the discharge of their duties. Except their statement, the applicants have not produced any material to show that in fact they discharged the duties of Lighting Assistants as such. Even assuming that some time they worked as Lighting Assistants, they would not be entitled for regularisation as Lighting Assistants. The Hon'ble Supreme Court considered a similar issue in University Grant Commission and Ors. v. Kedarnath Ram and Ors., (supra). From the facts of the said Judgment it is clear that some'of the Assistant/Helpers claimed emoluments equivalent to Mechanics on the ground of equal pay for equal work alleging that they were doing the same work as that of Mechanics, The High Court being of the opinion that if such helpers could not have helped Mechanics unless they knew the job of Mechanics and accordingly directed payment of the pay scale equivalent to that of Mechanics to the Helpers. This Judgment of the High Court was reversed by the Hon'ble Supreme Court by observing as under:
"5. We do not agree with the reasons given by the High Court for equating the pay scale of the petitioners with that of the Mechanic. It is suffice to say that if that reasoning is accepted, the nurses will have to be paid the same salary as is paid to the doctors whom they assist........"
In the above Judgment the Supreme Court pointed out that even if some Nurses discharged the duties of Doctors thereby the Nurses do not become doctors so as to claim the pay scale of Doctors. On the same analogy even if the Helper/Khalasis discharged the duties as Lighting Assistants for some time in some exigencies, they do not automatically become Lighting Assistants. Therefore, such helpers are not entitled to be absorbed as Lighting Assistants with higher pay scale at Rs. 1400-2300. As contended by the department, the promotion channel both for the Helpers and Lighting Assistants is different. For the post of helper (Group-D) the next promotional post is Technician (Group-C) and thereafter Senior Technician etc. Whereas for the post of Light Assistant (Group-C) the next promotional post is Cameraman Grade-Ill etc. Under the circumstances it is not possible for this Tribunal to accede to the contention of the applicants that there should be a direction to the respondents to absorb/regularise their services as Lighting Assistants. The fact also remains that on the basis of the letter dated 1 Oth January, 1996 vide Annexure-A3 and the impugned order dated 5th July, 1996 vide Annexure-A4 there was a clear direction to all the Kendras not to take the assistance of helpers in the lighting work. Moreover, as stated by the respondents the post of Lighting Assistant is a vanishing cadre due to the introduction of ENG cameras. In the circumstances it is not possible to direct the respondents to regularise the services of Helpers as Lighting Assistants. The post of Helper is required in all the installations of Doordarshan Kendras whereas the work of Lighting Assistants is not required due to the introduction of ENG cameras, as contended by the respondents. Precisely on the basis of these reasons only the impugned order vide Annexure-A4 dated 5th July, 1996 has been issued while considering the representation of the applicants as directed by this Tribunal vide the earlier order of this Tribunal dated 12.03.1996 in O.A. Nos.1839/1995 and 1847 to 1853 of 1995 vide Annexure-A1. Having gone through the entire order of Annexure-A4 we do not find any infirmity in the said order calling for our interference. Moreover, the applicants cannot bank upon the letter written by one of the officers to officer vide Annexure-A5 dated 17.02.1995. That was only a letter for considering the representation of the applicants for absorption as Lighting Assistants and nothing more. Moreover the said letter vide Annexure-A5 clearly states that the post of Light Assistant is a dying cadre and whenever there was extreme emergency during outdoor shooting the assistance of casual lighting assistants is taken. Having regard to these circumstances, in our opinion, the applicants are not entitled to the reliefs prayed for.
10. For the above reasons we pass the order as under:
ORDER O.A. is dismissed. But, in the circumstances, without costs.