Central Administrative Tribunal - Delhi
Md. Faiyazuddin vs Ministry Of Communications And It on 8 July, 2015
Central Administrative Tribunal Principal Bench OA No. 702/2011 Order Reserved On: 12.01.2015 Order Pronounced On: 08.07.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) 1. Md. Faiyazuddin, S/o Gayasuddin R/o Peeragarhi H.No.33, New Delhi 2. Ram Kanwar, S/o Sh. Tek Chand, R/o VPO Kair, H.No.278, New Delhi-110043 3. Sanjay Kumar, s/o Sh. Mukundi Lal, C.B. 39 Naraina, New Delhi-110028 4. Surinder Singh, S/o Bhorn Singh, R/o Village & PO Badli, Tehsil Bahadurgarh, District Jhajjar, Haryana 5. Sri Bhagwan, s/o Sh. Lile Singh, r/o vill. PO Galibpur, New Delhi-110073 6. Babban Yadav, s/o Sh. Dev Narain Yadav, r/o B-54, Madhu Vihar, Uttam Nagar, New Delhi-110059 -Applicants (By Advocate: Shri U.Srivastava) VERSUS 1. Ministry of Communications and IT, Through its Secretary, Dak Bhawan, Sansad Marg, New Delhi-110001 2. Director General Posts & Chairman Postal Services Ministry of Communications & IT, Dak Bhawan, Sansad Marg, New Delhi-110001 -Respondent (By Advocate: Shri Himanshu Upadhyay) ORDER Dr. B.K. Sinha, Member (A):
The short controversy involved in the instant OA under Section 19 of the Administrative Tribunals, 1985 is that what would be the impact of the clarification dated 20.12.2010 upon this case.
2. The facts of the case, in brief, are that the applicants, numbering six, were appointed as Chowkidar, Waterman, Mali etc. on part-time basis since 1994 and 1996 after having been enrolled with the employment exchange and on the basis of their recommendations. It is claim of the applicants that they have been continuously working since then. However, instead of regularizing them, their services were terminated w.e.f. 01.12.2010 orally. The applicants approached this Tribunal by filing OA No. 702/2011 with the plea that as having served the respondent-organization for 14 years, they have become age barred in respect of other government employments and since they were appointed on the basis of their names being forwarded by the employment exchange, they could not be dubbed as backdoor entries. The applicants further pleaded that in any case, part-time worker is a Workman under Section 2(s) of the Industrial Disputes Act, 1947, thus they were entitled to protection of Section 25-F of the Industrial Disputes Act, 1947, and that no notice was served on them nor were they paid compensation in lieu of the said notice before terminating their services, as such their termination was void ab initio. The OA was dismissed by the Tribunal vide its order dated 05.07.2011 holding that if the applicants claim to be workman and wished to avail benefit of Industrial Disputes Act, 1947, then they would have to approach the Labour Court and this Tribunal could not deal with the issues raised under Industrial Disputes Act, 1947. The Tribunal observed that since the applicants had worked with the respondents for 14 years, it would not give them any legal right to claim regularization more so because duties of chowkidars, mali, waterman etc. have been assigned to Multi Tasking Staff, and the services of casual workers were not required any more. The applicants filed Review Application No. 09/2012, which was also dismissed by the Tribunal vide order dated 21.01.2012 on the ground that it would tantamount to sitting in appeal over their own orders. The applicant challenged the said order dated 05.07.2011 in WP(C) No. 5214/2012 wherein their Lordships vide order dated 27.08.2012 remanded the matter back to the Tribunal with the following directives:-
The learned counsel for the petitioner states that he is not pressing the issue with regard to the compliance of the Industrial Disputes Act, 1974 inasmuch as that is a matter to be looked into by the Labour Court. However, he states that he is seeking the benefit of the clarification dated 20.12.2010 which could not be shown to the Tribunal at the time of the order dated 05.07.2011 was passed in OA 702/2011 inasmuch as the same was not available with the petitioner. The clarification has come subsequent to the termination of the services of the petitioner, which took effect from 01.12.2010. When this clarification was placed before the Tribunal at the stage of the review application, the Tribunal refused to look into it on the ground that it ought to have been placed in the first instance. We feel that this clarification needs to be looked into by the Tribunal. As a result, we set aside the order dated 05.07.2011 as also the order dated 21.01.2012. Of course, we make it clear that we are not setting aside the finding of the Tribunal that insofar as the plea under the Industrial Disputes Act is concerned, that ought to be against before the Labour Court. The Tribunal shall consider the impact of the clarification dated 20.12.2010 and give a decision on merit.
3. Learned counsel appearing for the applicants has argued that the respondents had issued the order dated 19.11.2010 to streamline the work entrusted to the casual labourers with the following directives:-
(i) No Casual Labourers shall be engaged in the Administrative Offices, i.e., CO/RO/DO/PAO w.e.f. 01st December 2010.
(ii) The work of sweepers and scavengers should be combined or the same may be outsourced wherever feasible.
(iii) Since duties of waterman, watch and ward, gardening, cleaning, etc. are now part of duties assigned to Multi Tasking Staff, the existing practice of engaging Casual Labourer as waterman, gardener, watch and ward or any other miscellaneous category shall be dispensed with w.e.f. 01st December 2010.
4. The applicants were removed from the service in the manner as discussed earlier. Subsequently, a clarification dated 20.12.2010 was issued which was within the knowledge of the respondents, but had been brought to the notice of the Tribunal at the time of hearing of the OA. The applicants submitted that the clarification dated 20.12.2010 did not imply termination of the services of the existing casual workers, it rather emphasized that no casual labourer be appointed after 01.12.2010. In this regard, the applicants have relied upon the order dated 14.09.2012 in OA No. 888-HR-2011 (Dalbir Singh vs. Union of India & Ors.) passed by Chandigarh Bench of this Tribunal. The applicants have further relied upon the decision of the Honble Apex court in Divisional Manager, New India Assurance Co. Ltd. vs. Shankaralingam, AIR 2009 SC 309 on the point that part-time worker is a workman in terms of Section 2(s) of the Industrial Disputes Act and is, thus, entitled to benefit of continuous service under Section 25(b) and protection of Section 25-F thereof.
5. The plea of the respondents, on the other hand, has been that the matters relating to the domain of the Industrial Disputes Act ought to be adjudicated by the Labour Court and this Tribunal would not have the jurisdiction. It has been further pleaded that there was a complete ban on engagement of casual labourer w.e.f. 1.9.1993, reiterated in 1997 as per OM dated 4.2.1997. It is submitted that the concerned employees were engaged in utter disregard of the instructions on the subject and the Postal Director had to issue instructions on 19.11.2010 that no casual labourer was to be engaged in administrative office w.e.f. 1.12.2010 and, therefore, services of all casual labourers would have to be dispensed with.
6. The respondents have further submitted by means of additional affidavit that the Assistant Director General (GDS, PCC), Department of Posts, Government of India, vide letter dated 08.1.2011, held that interpretation of order dated 19.11.2010 was not in conformity with the policy decision on the issue and copy of the same was also communicated to the Chief Postmaster General, AP Circle, Hyderabad. It has also been strongly contended that the order dated 19.11.2010 was for both to discontinue the existing casual labourers, except sweepers/scavengers and also not to engage causal labourers w.e.f. 01.12.2010. The respondents have referred to letter dated 08.01.2013 which clarifies the existing policy of Ministry of Communication and IT, Department of Posts dated 19.11.2010 intimating that the interpretation of AP Circle had been incorrect and not in conformity with the policy decision. This policy is being followed in the entire department and in a uniform manner.
7. We have carefully examined the pleadings of the parties as also the documents submitted by them and also listened oral submissions made by their respective counsels. The issue, which is to be dealt with, has already been defined in the opening paragraph of this order. Therefore, we commence our inquiry with the examination of clarification dated 20.12.2010. For the sake of clarity, the said circular is being extracted as under:-
Government of India Ministry of Communications Department of Posts (Pay Commission Cell) Dak Bhawan, Sansad Marg, New Delhi-1100116 No.4-4/2009-PCC Dated: 19 November 2010 SUB: REVIEW OF INSTRUCTIONS ON ENGAGEMENT OF CASUAL LABOURERS IN THE LIGHT OF THE GUIDELINES ON OUTSOURCING.
Attention of all concerned is invited to this Directorates OM No.1-20/2008-PCC dated 24th Sept.2009 containing revised duties of Multi Tasking Staff Group C and letter No.1-10/2009-PCC dated 07th Sept.2009 on guidelines and terms and conditions on outsourcing Secretary (Posts)s D.P. letter of even number dated 29th October, 2010 on engagement of casual labourer may also be referred to.
2. The Department of Posts while designation the erstwhile Group D as Multi Tasking Group C Staff has prescribed interalia that watch and ward/caretaker duties and general cleanliness and upkeep of section/unit/office including dusting of furniture, cleaning of building rooms &n fixtures, gardening will also be the duties of Multi Tasking Staff Group C in addition to duties already entrusted them.
3. In view of the revised duties assigned to the Multi Tasking Staff, there is a need to streamline the work entrusted to the casual labourers engaged in the Department of Posts, the Competent Authority has ordered the following:-
(i) No Casual Labourers shall be engaged in the Administrative Offices, i.e., CO/RO/DO/PAO w.e.f. 01st December 2010.
(ii) The work of sweepers and scavengers should be combined or the same may be outsourced wherever feasible.
(iii) Since duties of waterman, watch and ward, gardening, cleaning, etc. are now part of duties assigned to Multi Tasking Staff, the existing practice of engaging Casual Labourer as waterman, gardener, watch and ward or any other miscellaneous category shall be dispensed with w.e.f. 01st December 2010.
The above instructions should be followed in letter and spirit without any deviation. A compliance report of the above aspects may also be sent to this office for information of Secretary Posts) by 31st December, 2010 positively as per the proforma attached with this letter.
Sd/-
(Surender Kumar) Assistant Director General (GDS/PCC)
8. The contention of the applicants is that the directives of Chief Post Master, AP Circle, were clear and unmistakable that the distinct staff would not be dispensed with and the intention of the circular was that no contingent or casual labourer was to be appointed after 01.12.2010 and therefore, in terms of this clarification, termination of services of the applicants was against the spirit of OM dated 26.01.2010. We also take note of the contents of circular dated 04.02.1997 issued by the Government of India, Ministry of Communications, Department of Posts, on the subject of engagement of casual labourers, the opening para of which provides that there is a complete ban on creation or recruitment of casual labourers in the entire department. Yet casual labourers were being engaged. For the sake of clarity, the order dated 04.02.1997 is being extracted as under:-
As you are aware that there is a complete ban of creation and recruitment of Casual Labourers in the entire Department including the Civil Line at all levels. Instructions in this regard have also been issued from time to time. Inspite of this, it has come to the notice of the Directorate that some Circles still appoint Casual Labourers, Casual Drivers etc. on their own and then ask for creation of posts in order to regularize the services of these Casual Labourers.
After the judgment of Honble Supreme Court in 1987 to regularize the services of the Casual workers, the Department had issued instructions from time to time not to deploy any Casual Labourers without the experts approval of the Directorate but some of Circles Officers even after issue of instructions are appointing Casual Workers on their own. All the Circle Offices are, therefore, requested not to appoint any Casual Labourers, if absolutely necessary, may be referred for approval of this Directorate. All such proposal should have the express approval of the IPA concerned. Engagement of Casual Labourers in anticipation of approval of the Directorate is also totally prohibited. Heads of Circles will be held personally responsible for violation of these instructions.
These instructions may be brought to the notice of all concerned immediately for necessary action. This position continued. In the meantime, a decision was taken by the Government on the basis of the recommendations of the Sixth Pay Commission that all Group D posts were abolished and replaced by Multi Tasking Group C staff. This decision was also to be implemented in respect of the Staff of the respondent-department. The respondents vide their OM dated 19.11.2010 issued instructions that no casual labourers shall be engaged in the Administrative Offices w.e.f. 1.12.2010. We further take note of the fact that the respondent-department vide its order dated 8.1.2013 has applied its mind to the aforesaid order dated 19.11.2010 and was constrained to record as under:-
3. In the light of the above as also mentioned clearly in Para 2 of the order dated 19.11.2010, a need was felt to streamline the work entrusted to the casual labourers engaged in Department of Posts and the Department took the decision and passed orders as under:-
(iv) No Casual labourers shall be engaged in the Administrative Offices, i.e., CO/RO/DO/PAO w.e.f. 01.12.2010.
(v) The work of sweepers and scavengers should be combined or the same may be outsourced wherever feasible.
(vi) Since duties of waterman, watch and ward, gardening, cleaning, etc. are now part of duties assigned to Multi Tasking Staff, the existing practice of engaging Casual Labourer as waterman, gardener, watch and ward or any other miscellaneous category shall be dispensed with w.e.f. 01st December 2010.
4. Thus, it was intended by virtue of issue of order dated 19.11.2010 not only to discontinue the existing casual labourers except sweepers/scavengers but also not to engage casual labourers effective from 01.12.2010. This order was, however, not intended to discontinue the engagement of full time casual labourers conferred with temporary status in accordance with the regularization scheme.
5. Thereby, the interpretation of the order taken by the AP Circle is not conformity with the policy decision on the issue. With a view to have uniformity in the entire Department, a copy of this communication is being sent to AP Circle for corrective action.
9. From the above, it is apparent that the relevant instructions dated 20.12.2010 had been taken note of by the respondent-department and found to be without any basis. The communication dated 20.12.2010 was only a clarification and once it has been found by the Department to be incorrect, no court of law can enforce the same. We are also to take note of the decision relied upon by the applicants in the case of Dharamveer vs. Union of India & Ors. (OA No. 1603/2013) decided on 28.05.2014 where this Tribunal while relying upon the judgments of Apex Court in UPSC vs. Girish Jayanti Lal Baghela & Ors., AIR 2006 SC 1165, National Fertilizers Ltd. & Ors. vs. Somvir Singh, AIR 2006 SC 2319, Secretary State of Karnataka & Ors. vs. Uma Devi & Ors., (2006) 4 SCC 1 and State of Uttar Pradesh & Anr. Vs. Kaushal Kishore Shuykla, (1991) 1 SCC 691 held that since the appointment of the applicant as part-time casual labourer being purely on temporarily basis, without having followed the procedures for such employment, there was no ground to interfere with the order of termination. For the sake of clarity, we extract the relevant portion of the order as under:-
9. The Honble Supreme Court in Union Public Service Commission vs. Girish Jayanti Lal Baghela and Ors. reported in AIR 2006 SC 1165, held that appointment to any post under the State can only be made after a proper advertisement inviting applications from eligible candidates and holding selection by a duly constituted selection committee. In para 10 of the judgment, Their Lordships observed as under:-
10.The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. This position has been reiterated in OA No. 1618/2013 (Anil Kumar vs. Union of India) and OA No. 1604/2013 (Surender Kumar Vs. Union of India & Ors.). Moreover, we also take note of the fact that the Group D posts do not exist any longer after the promulgation of Multi Tasking Staff. As per DoP&T OM dated 05.02.2015, the appointment of Multi Tasking Staff is to be made by the Staff Selection Commission. For the sake of clarity, the said OM is being reproduced as hereunder:-
No.AB-14017/6/2009-Estt (RR) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated the 5th February, 2015 OFFICE MEMORANDUM Subject: Recruitment to Multi Tasking Staff in Pay Band-1, with Grade Pay of Rs.1800/-- Sending of requisition to Staff Selection Commission.
This Department vide OM of even number dated 12.5.2010 and reiterated vide OM dated 21st October, 2013 had issued instructions to all the Ministries/Departments that they have to intimate their requirements for Multi Tasking Staff (Non-Technical) in PB-1 Grade Pay Rs.1800/- to the Staff Selection Commission. The Ministries/Departments were also advised to take action simultaneously for framing Recruitment Rules for these posts in accordance with the Model RRs already circulated vide OM dated 30.4.2010.
2. It is once again reiterated that the posts of MTS are required to be filled up only through SSC as per the instructions of this Department. All Ministries/Departments may send their requirements as well as the requirements of their attached/subordinate offices also, for MTS (PB-1 Grade Pay Rs.1800/-) to the Staff Selection Commission so that the Commission could initiate action for recruitment. The Staff Selection Commission is likely to issue advertisement on 1.8.2015.
3. Action pending, if any, may simultaneously be taken for framing of Recruitment Rules for these posts in accordance with the Model Recruitment Rules already circulated.
Sd/ (Mukta Goel) Director (E-I) Tel:23092479 Therefore, after 2010, no regularization can take place against Group D post and the only mode of appointment to the post of MTS is to be made by the Staff Selection Commission and is deemed as a Group C post in Pay Band-1 with Grade Pay of Rs.1800/-.
10. In view of the afore discussions, we have no option but to arrive at the conclusion that there is no merit in the contention of the applicants. We have also considered the impact of OM dated 20.12.2010, as directed by the Honble High Court upon the instant OA and found that the same has no force as already having been set aside as incorrect by the department and in view of the Multi Tasking Staff scheme, there is no possibility whatsoever to allow the reliefs being sought in the instant OA. The OA is, therefore, dismissed without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/