Central Administrative Tribunal - Madras
K Govindarajan vs M/O Labour on 25 June, 2025
1 OA 958/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00958/2019
Dated, the 25th day of June, Two Thousand Twenty Five
CORAM :
HON'BLE MR.M.SWAMINATHAN, MEMBER (J)
&
HON'BLE MR.SANGAM NARAIN SRIVASTAVA, MEMBER (A)
K. Govindarajan,
S/o. P. Kuppuswamy,
Working as Electrician, ESIC Hospital,
K.K.Nagar, Chennai-600 078 ... Applicant
By Advocate .. M/s.Row & Reddy
Vs
1. Union of India,
Owing Employees State Insurance Corporation,
Rep. by its Secretary/Chairman, ESIC Standing Committee,
Ministry of Labour, Shram Shakthi Bhavan, New Delhi-110 001.
2.The Director General,
Employees State Insurance Corporation,
Panchdeep Bhawan, CIG Road, New Delhi-110 002
3.The Medical Commissioner, ESI Corporation,
Panchdeep Bhawan, CIG Road, New Delhi-110 002.
4.The Dean,
ESIC Model Hospital Medical College and PGIMSR
K.K.Nagar, Chennai - 600 078.
5. The Deputy Director (Administration),
ESIC Model Hospital Medical College and PGIMSR
K.K.Nagar, Chennai - 600 078. ... Respondents
By Advocate ... Mr.C.V.Ramachandramurthy
2 OA 958/2019
ORDER
(Pronounced by Hon'ble Mr.Sangam Narain Srivastava, Member(A)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"(i) to set aside the order bearing ref. No. 512A/12/2011/Vol.III (Electrician) d. 17.07.2019 passed by the 4th respondent in dispensing with his services w.e.f 20.07.2019 as malafide, arbitrary and contrary to the order dt. 16.05.2017 passed in O.A. No. 99 of 2013 and;
(ii) to set aside the order bearing Ref. No. C-18/11/6/2015/Med-VI(integ) dt. 26.09.2018 passed by the 2nd respondent in rejecting the request of the Applicant for regularisation on the ground that there is no vacancy for the post of Electrician and;
(iii) to direct the Respondent Corporation to regularise the services of the Applicant with effect from 05.10.2004 the date on which the Medical Superintendent made a recommendation to the 2nd respondent with all other consequential benefits including the monetary benefit and;
(iv) to count the service rendered on daily wages basis by the Applicant for the purpose of pension, terminal benefits and all other benefits and;
(v) to pass such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, award costs and thus render justice."
2. The brief facts of the case as stated by the applicant are as follows:
The applicant has been working in the Respondent Corporation since 11.07.1996 as an Electrician with deliberate breaks in service. On 01.04.1991, when the ESI hospital which was originally under the control of Govt. of Tamil Nadu, was taken over by the Respondent Corporation there were two vacancies of Electrician. When the respondents called for application from employment exchange, the applicant, after due selection process was appointed on daily wages basis with deliberate breaks in service and his services continued as such till 26.01.2013. While so, the Medical Superintendent of the Respondent Corporation, vide letter dated 3 OA 958/2019 05.10.2004 recommended to the 2nd respondent for the regularisation of the applicant's services. When there was no response, the applicant filed OA 99/2013 for regularisation of his services as an Electrician and the said OA was allowed after taking into consideration that in the case of a similarly placed person Ramesh Chander before the Principal Bench of CAT, with a direction that the applicant may be considered for the post of Electrician on regular basis, in case if there is a regular vacancy exists.
In response, the respondent initially passed an order dated 19.08.2017 stating that there is no possibility for regularisation as there was no vacancy but the said also was withdrawn on 30.08.2017. A contempt petition in CA No. 84/2018 has been filed by the applicant against the respondents wherein the respondents filed a status report enclosing a copy of the order dated 26.09.2018 rejecting the applicant's request for regularisation on the ground that the work of Electrician has been entrusted to an outside agency. When statutory notice was ordered by this Tribunal on 02.07.2019, the respondents passed an order dated 17.07.2019 terminating the services of the applicant on the alleged ground that the contractual appointment comes to an end on 20.07.2019. The applicant in support of his case has relied upon the judgment of the Hon. Apex Court in the case of Jaggo Vs. Union of India & Ors dated 20.12.2024 reported in 2024 INSC 1034. Being aggrieved, the applicant has filed the present OA seeking the afore said relief.
3. After notice, the respondents have entered appearance through 4 OA 958/2019 their counsel and filed their reply statement refuting all the averments made in the OA except those which are admitted on facts. 3.1 The respondents submitted that two Electrician posts were though in existence and two Electricians were working at the time of taking over of the hospital by the ESI Corporation, one Electrician was repatriated to his parent department of Govt. of Tamil Nadu and another Electrician died while in service before absorption i.e. prior to 01.10.1995, the date from which the absorption of employees was put into effective. After taking over the hospital, to fill the existing vacancy of one post of Electrician, as directed by Headquarters office, the recruitment process had been completed by following the prescribed procedure and for the relaxation of age and educational qualification the applicant's representation had been forwarded to the Headquarters office for the approval of the Standing Committee of ESIC. As per the direction of Ministry of Labour, Govt. Of India dt. 10.02.2010, the Headquarters office re-examined the representation of the applicant and came to the notice that some posts such as Sweeper, Chowkidar, Barber, Tailor, Plumber, Carpenter & Gardner etc are part time/full time as per ESIC Norms published in 2002 and the work of Electrician was already allotted under ARM Agency. Further, relaxation in age and qualification was granted on the request of the petitioner in order to make him eligible for applying for the post. This was never promised to the applicant that he will be offered/appointed as a permanent employee. 5 OA 958/2019 3.2 The respondents further submitted that in compliance of order dt. 16.05.2017 of this Tribunal in OA 99/2013, speaking order was issued on 19.08.2017 and the same was withdrawn and a fresh letter dated 30.08.2017 was given by the Dean, ESIC Hospital, Chennai. But the same was not ratified by the Headquarters office for the reason that, the Dean is not the competent authority. Hence, the reasoned Speaking Order dated 26.09.2018 was issued by the Director General, ESIC HQ, vide F.No.C-18/11/6/2015 Med-VI (Integ) in respect of the case OA No.99/2013. Because appointment/creation of vacancy by the Corporation under ESIC (General) Regulations 1950, shall be made by the Director General or by such other officers as may be authorized in this behalf by the Standing Committee.
3.3 The respondents further submitted that on 20.07.2017, this Tribunal has issued a notice in respect of Contempt Application, CP No.84 of 2018 in OA No.99 of 2013 filed by Sh.K.Govindarajan. With regard to the Contempt case, it is submitted that, the Status Report has been filed on 11.12.2018 before this Tribunal with the request to close the contempt case which is pending before the Tribunal. Further, on the direction of this Tribunal, 2nd Status Report on 12.09.2022 has also been filed. In fact, officers also appeared before this Tribunal on 07/08/2019 and also present on 18.09.2019 as per the directions this Tribunal. Later their presence was dispensed with.
3.4 The respondents further submitted that Headquarters office vide 6 OA 958/2019 letter dt. 04.07.2019 clarified that the Applicant Shri. K Govindarajan may not be engaged on contract basis directly by ESIC in future. However, ESIC may not have any objection, if any contractual agency to whom ARM services have been outsourced, is willing to employ. Shri. Govindarajan and further deploy him for providing services in ESIC hospital, KK Nagar or any other subject to the condition that his services are graded as satisfactory. Hence they prayed for dismissal of the OA.
4. Heard M/s.Row & Reddy, learned counsel for the applicant and Mr.C.V.Ramachandramurthy, learned Standing counsel for the respondents, gone through their submissions and perused the material placed on record.
5. This is a second round of litigation. The applicant had filed OA 99/2013 seeking regularisation and in the said OA this Tribunal passed the following order:-
"5. On a perusal of the case of the applicant, it is seen that the Director General, ESIC had ordered deemed sanction of all the posts which were available at the time of taken over of the ESI, Hospital by the ESIC, including one post of Electrician which was available in the said Hospital at that time. As the post of Electrician is indispensable in view of the exigencies of service viz., maintenance of two Operation Theaters with uninterrupted power supply and to take care of the electrical appliances attached to the costly equipments, it is necessitated to engage a part time Electrician on daily wages basis since 1997 after observing due formalities like sponsorship from the Employment Exchange, due selection by interview board, in the absence of Recruitment Rules. Accordingly, the applicant was engaged with a break of three to four days on each completion of 88 days of continuous spell. Due to ban on recruitment, the said post could not be filled on regular basis. In view of the full time requirement of Electrician and considering the long period of sincere service rendered by the applicant, the case of the applicant was recommended from the status of part-time to Temporary Electrician on time scale. This is evident from the letter dated 5.10.2004 of the Joint Director which was annexed at A.4 at page 96 in the Typed set of papers.7 OA 958/2019
Likewise, in the 176th Meeting of Standing Committee held on12.10.2007, the applicant was granted relaxation in the age for recruitment on regular basis as an Electrician. Also, it is seen from the Agenda of 185th Meeting of the Standing Committee held on 29.1.2010, relaxation in respect of his educational qualification for appointment to the said post was approved. On the basis of the approval, Ministry of Labour and Employment was requested to accord its approval for the said relaxation.
6. Apart from the above, since ESICH is an Industrial Establishment as per Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, Sec.3 of the Act states that a workman who is in continuous service for 480 days in a period of two years shall be made permanent. The term continuous service includes "non-employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer. As per this provision, the applicant qualifies for permanent status. Taking into account of the fact that the KK Nagar Hospital has grown into Post Graduate Teaching Institution with massive building structure and with costly and sophisticated medical equipments and state of the art Operation Theaters are to be installed, the ongoing IT oriented services, with frequent power cut manageable by Generators, it is considered appropriate to have one post of Electrician as Hospital employee is necessity of the day even though the maintenance is likely to be outsourced, the applicant's case was strongly recommended to revisit the issues and approval/advice in regularization him either from the date of selection namely 22.8.2008 or from the date following the approval of the Standing Committee accorded for relaxation of age and educational qualification by the Joint Director in his letter dated 29.11.2011. According to the said authority the same will also dispose of the genuine aspiration of the poor incumbent who has been /is sincerely associated to this Hospital phenomenal growth since 1996.
7. It is also seen one Ramesh Chander who also appointed as Electrician on daily wages basis at ESI Hospital, Basaidarapur, New Delhi from the year 1991, apprehending termination of his services filed OA before the Principal Bench which gave a direction to the respondents therein to consider appointing Ramesh Chander as Electrician on regular basis, if any vacancy exists and if he is found suitable for such regularization. It is to be seen that in the case of Ramesh Chander also relaxation was given in respect of age and educational qualification.
8. Upon hearing the submissions of the respective parties and also taking into account that the applicant has been associated with the Hospital for its phenomenal growth ever since his appointment in the year 1996 and also the fact that his case was relaxed in terms of age and educational qualification by the authority concerned, I am of the view that the applicant may be considered for the post of Electrician on regular basis, in case if there is a regular vacancy exists. An appropriate order to be issued within a period of two months from the date of receipt of a copy of this order."8 OA 958/2019
6. In compliance of the order of this Tribunal in OA 99/2013 the respondent ESIC passed an order dated 30.08.2017, the relevant portion of the same is extracted as under:-
Subsequently, ESIC Hqrs office, New Delhi by letter No. A-11/11/1/2015- Med.VI dated 18/04/2016 sanctioned one post of Electrician on need basis (Full Time/Part Time) only. Whereas the CAT Madras has ordered to consider the applicant for the post of Electrician on regular basis, In case if there is a regular vacancy exists.
In view of the above and the order of the Hon'ble CAT (Madras Bench), it is observed that there is one sanctioned post of Electrician, on need basis (FT/PT), but no regular vacancy of Electrician in this Hospital. Hence, the request of Shri. K. Govindarajan to consider his appointment in the ESIC Hospital, K. K. Nagar, Chennai, on regular basis, is not feasible and not considered from our end. However, the letter No. A-11/11/1/2015-Med. VI dated 18/04/2016 is issued by ESIC Hqrs office, New Delhi and the regularization of the services of part time/daily wages/contractual/services on need basis needs a major policy decision and could not be decided in isolation by this office. Hence the matter is being referred to ESIC Hqrs office, New Delhi for their clarification/direction on this issue.
7. Aggrieved by the said order, the applicant filed a Contempt Application in CA No.84/2018 on 19.03.2018. On 26.09.2018 the Director General, ESIC passed the following order:-
"Shri K.Govindarajan was working as contractual employee in ESIC Hospital, K.K.Nagar since 11/07/1996. He continued to work as contractual electrician for years together on term of 88 days followed by break of 2-3 days. He intended to get appointed in ESIC as regular electrician.
2. Due to non-affirmative response to his request for regular appointment, he filed OA 310/2013 before Hon'ble CAT Chennai bench. While deciding the said OA vide its order dated 16/05/2017, Hon'ble CAT directed the concerned authority of ESIC to consider the application of the petitioner for his appointment on the post of electrician on regular basis, if there is a regular vacancy existing. It was directed to pass an appropriate order for the above in light of the facts that the applicant has been associated with the Hospital for its phenomenal growth ever since his appointment in the year 1996 and also the fact that his case was relaxed in terms of age and educational qualification by the authority concerned.
3. As per directions of Hon'ble CAT, I have examined the facts related to the case. The petitioner is seeking regularization of his service citing case of Shri Ramesh Chander who was appointed as electrician on 28/07/2004 in ESIC Hospital 9 OA 958/2019 Basaidarapur after working as contractual/daily wager employee from 6/1/1991 to 27/7/2004. Shri Ramesh Chander was appointed in ESIC as a special case. Prior to 2002, there was no sanctioned post of regular electrician in ESIC and only one post was created with approval of Director General conveyed this office vide HQrs letter No. A-12(11)-1/94-DM (HQ) dated 25/2/02. It is also important to note that the Corporation in its 159th meeting specifically relaxed age and qualification criteria to enable Shri Ramesh Chander to appear in selection process for appointment of electrician through open advertisement.
4. The above decision for giving above special relaxation to Shri Ramesh Chander was based on order of Hon'ble CAT Principal Bench New Delhi in ОА 1481/1991, in which ESIC was directed to consider appointment of the applicant as electrician if he is found suitable for such regularization in all respects as per applicable RRs and regular vacancy exists.
5. Claiming himself placed similarly to Shri Ramesh Chander, the applicant Shri Govindarajan has cited approval of the Standing Committee of Corporation in its 176th meeting (held on 12/10/2007) relaxing upper age limit and 184th meeting (held on 7/12/2009) approving relaxation in education/qualification to Shri Govindarajan for appointment to the post of electrician. He has quoted the authority of Hors ESIC letter No. A-11/11/1/2015-Med-VI dated 18/04/2016 conveying sanctioned strength of ESIC Hospital KK Nagar. Sl. 7 of Category "Other Staff"
provides authorized strength of "One Full Time/ Part Time" Electrician on need basis along with other support staff.
6. In this regard it significant to mention the decision of Hon'ble Constitution bench of the Supreme Court in civil appeal No. 35953612/1999 (Circulated under DOPT OM No. 49019/1/2006-Estt (C) dated 11/12/2006) in the case of Secretary State of Karnataka and Ors. Vs. Uma Devi and others, in which it has been reiterated that any public appointment has to be in terms of the Constitutional scheme. ESIC, being a statutory body formed under provisions of ESI Act 1948, is duty bound to recruit its employees by following the norms laid down for public employment.
7. It is also important to note that ESIC completely outsources the Annual Repair & Maintenance Activities along with other servicers like Security and Housekeeping, therefore, no process for recruitment of regular electricians has taken place in ESIC for past more than a decade in absence of regular vacancy.
8. Correctly interpreting the above-mentioned guidelines of HQrs, Dean, ESIC Medical College & Hospital Chennai, being appointing authority of Group 'C' employees, appropriately passed an order dated 23/08/2017 stating that the appointment of Shri Govindarajan cannot be considered due to non-availability of regular vacancy of electrician.
9.Issuance of revised order dated 30/08/2017 by Dean, ESIC Medical College & Hospital Chennai cannot be ratified as the same has been passed by Dean at her level without any approval of Competent Authority at HQrs ESIC. The directions and policy of ESIC to outsource AR&M, Housekeeping, and Security Services are decades old and established. It is also public fact that in absence of regular vacancy, ESIC has not issued any advertisement for recruitment of regular electricians in the past so many years for any of the ESIC institution, therefore, the applicant couldn't apply for the same despite being granted age and qualification relaxation. In light of the above mentioned facts the decision of Dean to refer the case to HQrs for clarification may be treated as superfluous and non-ratifiable. However as regards availability of regular vacancy with reference to the sanctioned strength mentioned 10 OA 958/2019 in HQrs ESIC letter dated 18/04/2016, the above provision is to be read with other relevant guidelines in this regard. It is clarified that the sanctioned strength is to be treated guideline for quantum of contractual staff for outsourced services in question by the respective controlling authority.
10. In light of above facts and non-availability of regular vacancy, the request of Shri Govindarajan to consider him for appointment as regular electrician as no merits and cannot be acceded to.
8. Considering the order dated 26.09.2018, the Contempt Application was closed by this Tribunal, vide order dated 06.11.2023 treating that the compliance had been made to the Tribunal's order. Subsequently by order dated 17.07.2019, the applicant's contractual services were terminated. Aggrieved by the orders dated 17.07.2019 and 26.09.2018, the applicant has filed the present OA seeking quashing of the said orders and directing the respondents to regularise his services w.e.f 05.10.2004, the date on which he was recommended for temporary status.
9. We observe that in OA 99/2013 there was a categorical direction by this Tribunal to consider the applicant for the post of Electrician on a regular basis in case if a regular vacancy exists. This order has not been appealed against by the respondents and has become final. Therefore, in case there was a regular vacancy in existence, the applicant was to be appointed on regular basis. The order of the Dean, ESIC Hospital, K.K.Nagar dated 30.08.2007 states that ESIC Headquarters office, New Delhi by Letter No.A-11/11/1/2015-Med.VI dated 18.04.2016 sanctioned one post of Electrician on need basis (Full time/Part time). This sanctioned post of Electrician was not considered as regular vacancy and 11 OA 958/2019 therefore the appointment was not offered to the applicant. The Dean, however, referred the matter to the Headquarters as regularisation of services of Part time/Daily Wages/Contractual services on need basis requires policy decision and could not be decided in isolation by his office. The Director General, ESIC, vide his order dated 26.09.2018 while mentioning the case of one Shri Ramesh Chander who was appointed under similar circumstances after allowing age and educational qualification relaxation in view of the CAT, Principal Bench order, as a special case in compliance to the CAT, Principal Bench's order was offered regularisation, did not permit regularisation of the applicant stating that the Hon. Supreme Court in the case of Umadevi has stated that any appointment has to be in terms of the Constitutional Scheme. Another reason mentioned by the Director General for not approving regularisation to the applicant is that ESIC completely outsources annual repair and maintenance activities along with other services like security and house keeping and therefore no process of recruitment of regular Electrician has taken place in ESIC for more than a decade in absence of regular vacancy. It is further mentioned in this order that there was no regular vacancy of Electrician and that the HQrs ESIC letter dated 18.04.2016 has to be read with other relevant guidelines in this regard and that the sanctioned strength is to be treated as a guideline for quantum of contractual staff for outsourced services in question by the controlling authority.
12 OA 958/2019
10. Time and time again both the Dean, ESIC Hospital, KK Nagar and the Director General, ESIC have tried to justify non-availability of a regular vacancy by giving reasons which do not have legs to stand on. Admittedly, there is a sanctioned post of Electrician at the KK Nagar ESIC hospital which has remained vacant. It would be interesting to see the letter dated 18.04.2016 vide which the sanction strength of ESIC Model Hospital was conveyed. The relevant columns referring to other staff is reproduced as under:-
OTHER STAFF 6 Security/Sweeping/Cleaning (House keeping) 130 (On contract 7 Barber/Tailor/Carpenter/Plumber/Electrician/Gardener 1 each on need basis (FT/PT) From the above, it is clear that the post of Electrician was not one which was to be given out on contract basis. It is further observed that the applicant has been serving as a Full time Electrician from 1996 to 2017 when his services were dispensed with. In such circumstances and also the fact that we are talking of a 400 bed hospital with several operation theatres, blocks & labs, etc., it has to be held that the post which has been in continuous operation as a requirement of the organisation is an engagement of substantive nature for a long uninterrupted period, for which reason it has to be held that their duties were neither sporadic nor project based but permanent and integral to the daily functioning of the respondents themselves.13 OA 958/2019
11. Therefore, in our considered view, there existed a regular vacancy of Electrician which has been operated for a long time and there was the requirement of post as per the sanction order dated 18.04.2016, and hence there was no reason to deny regularisation to the applicant whose case was recommended earlier, and relaxation in age and educational qualification was approved. It would also amount to discrimination on the part of the respondents if under similar circumstances, they treat the case of Mr.Ramesh Chander (OA.No.1481/1991 CAT, Principal bench) as a special case to give appointment and deny the same to the applicant who is similarly placed.
12. In any case, the only thing open to the respondents, once they have accepted the order in OA 99/2013 and not taken it up in appeal, was to allow regularisation if there was a vacancy in existence which as per the letter dated 18.04.2016 was available. Denying the same to the applicant on the basis of policy of outsourcing cannot be justified. Here, it would be appropriate to reproduce the observations of the Hon. Supreme Court in the case of Jaggo Vs. Union of India & Ors., (2024 INSC 1034) dated 20.12.2024 as under:-
"21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.14 OA 958/2019
13. We, therefore, have no hesitation in quashing the orders dated 26.09.2018 & 17.07.2019 and accordingly the orders dated 26.09.2018 & 17.07.2019 are quashed and set aside. The respondents are directed to grant regularisation to the applicant with all consequential benefits w.e.f the date of order of this Tribunal in OA 99/2013, i.e., 16.05.2017. The said exercise shall be carried out within a period of two months from the date of receipt of a certified copy of this order.
14. The OA is allowed. No order as to costs.
(SANGAM NARAIN SRIVASTAVA) (M.SWAMINATHAN)
MEMBER(A) MEMBER (J)
MT 25.06.2025