Central Administrative Tribunal - Ernakulam
A.Musthafa vs Administrator on 24 June, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.1108/2012
Wednesday this the 24th day of June 2015
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
A.Musthafa,
S/o.Sayed Koya,
Sweeper,
Office of the Assistant Engineer (Electrical),
Electricity Sub Division, Kilthan Island.
Residing at Attabiyoda House, Kilthan Island. Applicant
(By Advocate Mr.P.V.Mohanan)
Versus
1. Administrator,
Union Territory of Lakshadweep,
Kavaratti 682 555.
2. The Executive Engineer (Electrical),
Union Territory of Lakshadweep,
Kavaratti 682 555. Respondents
(By Advocate Mr.S.Radhakrishnan)
This application having been heard on 11 th June 2015 this Tribunal on
th
24 June 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER Applicant's contention is that he commenced service as part time Sweeper in Electricity Department on 1.8.1978 on daily wages as casual labourer. He was made Sweeper on 8.9.1998 on casual basis. The applicant was not paid 1/30th of the pay at the minimum of the Pay Scale + Dearness Allowances in the time scale of pay recommended by the Central Civil Service Revised Pay Rule 1997 and 2008 respectively. The applicant had been paid Rs.75/- per day from 1.8.1978 and Rs.200/- from 1.1.2006 onwards despite the direction rendered in Annexure A-7 OM dated 7.6.1988. The relief sought by the applicant are as under :
1. To declare that the applicant is entitled the wages at the rate of 1/30th of pay at the minimum of the pay scale + Dearness Allowance from the date of the employment as envisaged in OM No.49014/2/86-Estt. (C) dated 7.6.1988 (Annexure A-6) and in terms of the judgment rendered by the Apex Court reported in AIR 1986 SC Page 584 (Surinder Singh v. Union of India)
2. to direct the respondents to fix and disburse the pay of the applicant at the rate of Rs.2550/- + DA (unskilled) in the scale of pay of Rs.2550-3200/- as stipulated in CCS (Revised Pay) Rules, 1997 and Rs.5200 + GP Rs.1800/- + DA in the scale of pay of Rs.5200-20200/- with Grade Pay of Rs.1800/- as recommended by CCS (Revised Pay) Rules, 1008 with all consequential benefits.
3. Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice.
2. The respondent states that the applicant was engaged as Sweeper on part time basis in the Electrical Sub-Division at Kiltan during the period from 1.8.1978 b� 7.9.1998. Thereafter the applicant was engaged for full day on daily wages to attend other similar miscellaneous duties in addition to sweeping work from the period 8.9.1998 to till date and paid the wages at the rate fixed for unskilled labourers under Minimum Wage Act, 1948, as applicable in the islands and mainland from time to time by order F.No.36/27/88-Gen. Dated 8.9.1998.
3. The applicant had filed O.A.No.237/2011 for a direction to regularize his service with effect from 1.8.1978 or to grant him temporary status in accordance with the 10.9.1993 scheme. In that he had sought to be regularized as a :
(i) Sweeper with due pay and all consequential benefits with effect from 1.8.1978.
(ii) Confer Temporary Status with effect from 1.9.1993 and afford him all benefits due thereunder.
4. The said O.A was dismissed on limitation and merit with non-acceding of the claim of the applicant for regularization of the services as part time casual labour on the ground that the Ministry of Personnel scheme for grant of temporary status to casual labour did not refer to full time or part time casual labourer but only casual labourer simplicitor.
5. In the light of the order in the aforesaid O.A marked as Annexure R-1(b) respondents submit that the present O.A is barred under Order II Rule 2 and the attempt of the applicant is to improve the order passed by this Hon'ble Tribunal. The respondent submits that the law laid down in Surinder Singh and another v. The Engineer in Chief, C.P.W.D., and others (AIR 1986 SC 584) is no more good law. They rely on (2007) 1 SCC 408, Indian Drugs and Pharmaceutical Ltd. v. Workman, Indian Drugs and Pharmaceutical Ltd. In that case the Apex Court held :
'if the Court/Tribunal direct that a daily rated or ad hoc casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done. Regularization can only be done in accordance with the Rules and not dehors the Rules. The Rule of recruitment cannot be relaxed and the Court/Tribunal cannot direct regularization of temporary appointees dehors the Rules, nor can direct continuation of service of a temporary employee (whether called a casual, ad-hoc or daily rated employee) or payment of regular salary to them.'
6. Heard both sides. In Indian Drugs and Pharmaceutical Ltd. v. Workman, Indian Drugs and Pharmaceutical Ltd. (2007) 1 SCC 408, it has been held that a daily rated or casual worker is only a temporary employee and has no right to the post or to be continued in service, to get absorption far less of being regularized and getting regular pay. The Apex Court held that no direction can be given that a daily wage employee should be paid salary of a regular employee. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay and that no direction can be issued to absorb the respondents or to continue them in service or pay them salaries of regular employees. A daily rated or casual worker is only a temporary employee. The distinction between temporary and permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. In State of Haryana v. Tilak Raj and others (2003) 6 SCC 123 the court held that no direction can be given that a daily wage employee should be paid salary of a regular employee. The Supreme Court has also discussed 'equal pay for equal work' and held that 'persons employed on daily wages cannot be equated with regular workmen for the purpose of their wages nor can they claim the minimum of the regular pay scale of the regular employee. If a minimum wage is prescribed for such workers, the respondents would be entitled to it, if it is more than what they are being paid.'
7. In Harbans Lal v. State of Himahcal Pradesh 1989 (4) S.C.C. 459 and Ghaziabad Development Authority v. Vikram Chaudhary (1995) 5 SCC 210 it was held that daily rated workmen were entitled to be paid minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees in regular service. The Hon'ble Supreme Court further held that a scale of pay is attached to a definite post and in case of a daily wager, he holds no posts and therefore cannot claim any comparison with regular and permanent staff for any or all purposes including a claim for equal pay and allowances.
8. The applicant refers to Department of Personnel O.M.No.49014/2/06- Estt. Dated 7.6.1988 para (iv), wherein it was stipulated that where the nature of work entrusted to the casual workers and regular employees is the same, the casual worker may be paid @ 1/30 th of the pay at the minimum of the relevant pay scale plus DA for work of 8 hours a day. Para (v) of the same order states where the work done by casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour/U.T whichever is higher as per Minimum Wages Act, 1948. The applicant was engaged as Sweeper on part time basis on 1.8.1978 and thereafter engaged full time on the ground that there is enough work for engaging them for full day to attend other similar miscellaneous duties in addition to the sweeping work of the department concerned from 8.9.1998 (Annexure R-1). Administration engaged the part time Sweepers on full time basis on payment of daily wage @ wages fixed for unskilled labour under Minimum Wage Act, 1948. Hence the applicant was made fully aware of the terms of his engagement on full time basis on the basis of daily wages fixed for unskilled labour under the Minimum Wages Act, 1948. The nature of work entrusted to the applicant is not the same as entrusted to full time Sweepers/regular employees, as the applicant has been assigned miscellaneous duties in addition to sweeping work in order to engage him on full time basis. Work assigned to regular employees is not miscelleneous duties. Further, by assigning miscellaneous duties the nature of duties performed by the applicant has undergone a change vis-a-vis permanent Sweepers. The emphasis in the O.M relied on by the applicant is the similarity of nature of work entrusted to full time casual labourers vis-a-vis permanent employees as engaged by the Department to do identical work. This similarity has not been established by the applicant. Therefore, in principle the applicant's claim for payment in the scale of pay applicable to regular appointees is not justified.
9. In the background of the aforesaid legal principles laid down by the Apex Court the relief prayed by the applicant in the O.A has no merit. The O.A is accordingly dismissed.
(Dated this the 24th day of June 2015)
P.GOPINATH U.SARATHCHANDRAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp