Delhi District Court
C.P.W.D. Mazdoor Union (Regd.) vs Central Public Works Department on 31 August, 2019
IN THE COURT OF SH. YASHWANT KUMAR: DISTRICT &
SESSIONS JUDGE, PATIALA HOUSE COURTS, NEW DELHI
PPA - 192/16
(Old PPA No. 53/13)
CNR No. DLND010005022013
C.P.W.D. Mazdoor Union (Regd.)
Through: B.K. Prasad - General Secretary
Room No. 95, Barrack No. 1/10
Jam Nagar House, New Delhi
...... Appellant
Versus
1. Central Public Works Department
Through : Executive Engineer, CDivision
CPWD, I.P. Bhawan, New Delhi
2. Estate Officer
Central Public Works Department
CDivision, CPWD, I.P. Bhawan
New Delhi
3. The Director General (Works)
Central Public Works Department
Nirman Bhawan, New Delhi
..... Respondents
JUDGMENT
Appeal U/s 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, hereafter referred to as 'the said Act' is preferred against the eviction order dated 30.10.2013 passed by Estate Officer/respondent No.2, hereafter referred to as 'the impugned order', in respect of the public premises No. 95, Barrack No. 1/10, Jam Nagar House, New Delhi, hereafter referred to as 'the premises in PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 1 / 15 question'.
2. Briefly stated, the facts relevant for the disposal of the appeal are that on 29.01.1980, the appellant Union was registered by the Registrar of Trade Unions vide its registration No. 2562. The appellant Union was allotted accommodation i.e. E26, Raja Bazar, SectorIV, DIZ Area, New Delhi for its official use. Thereafter, due to project development over the site from where the Union was functioning, another new office accommodation i.e. the premises in question was allotted vide its letter dt. 17.12.2004. A notice dt.13.12.2012 was served upon Sh. B.K. Parsad, Advocate, CPWD Majdoor Union whereby the Estate Officer was of the opinion that the appellant was in unauthorized occupation of the public premises i.e. the premises in question as the appellant union was allotted space by the office of Engineerinchief CPWD as the union was recognized at that time. CPWD Directorate vide letter No. 9/7/2012/ECX dt. 19.10.2012 had intimated that after notification of CSS (RSA) rules 1993 by the DOP&T, the appellant union became unrecognized and till date the said union was unrecognized. Accordingly, the appellant was requested to vacate the premises in question within seven days of issuance of the said notice. The appellant union was again requested to vacate the premises in question vide the letter/notice dt.21.03.2013. Thereafter, the advocate for the appellant union vide letter/reply dt.25.03.2013 to the said letter / notice dt. 21.03.2013 replied that the PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 2 / 15 matter pertaining to vacation of premises is already subject matter of CM No. 20020/2012 filed in CWP No. 7335/2011 pending before the Division Bench No. 2 of the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in W.P. (C) 7335/2011, CM APPL.20020/2012 on 29.04.2013 ordered that respondent shall not unilaterally evict the respondent's union from the premises, except in accordance with law. However, the Estate Officer passed the eviction order on 30.04.2013. Thereafter, the appellant union filed appeal bearing PPA no. 16/13 before the then Ld. District & Sessions Judge, New Delhi. The then Ld. District & Sessions Judge, New Delhi vide his judgment dt. 06.06.2013 set aside the order dt. 30.04.2013 with the directions to the Estate Officer to pass a fresh speaking order as per law after giving due opportunities to the parties. In compliance of the order dt. 06.06.2013 passed by the then Ld. District & Sessions Judge, New Delhi, again the proceedings were initiated by the Estate Officer and finally on 30.10.2013, the impugned order was passed by the Estate Officer against the appellant.
3. Aggrieved thereof, the appellant has preferred the present appeal on the grounds among others that in terms of the order dt. 06.06.2013, the Estate Officer was supposed to allow the appellant to put forward its defence but the respondent No.2 arbitrarily and mala fidely acted under the instructions of respondent No.3. On 24.09.2013, the petitioner moved an application before Estate Officer praying therein to PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 3 / 15 reject eviction petition/ proceedings as the petitioner is not an unauthorized occupant in the premises and Public Premises Act is not at all applicable. The respondent no. 2 issued the notice of the application to other side who filed its reply but the respondent no.2 chose not to decide the application regarding maintainability of the eviction petition and continued with the eviction proceedings. Hence, the appellant had to file Writ Petition No. 6680/2013 before the Hon'ble High Court of Delhi but it could not be heard on 28.10.2013 due to short of time and the said writ petition was adjourned to 31.10.2013 but on the said date the Hon'ble Judge was on leave and the same was adjourned to 17.12.2013. Therefore, issue could not be decided or heard by the Hon'ble High Court. The respondent No.2 passed the impugned order under the PP Act, as such, the appellant decided to withdraw the said writ petition No. 6680/2013 so that all the points taken in the writ petition along with other points may be raised in the appeal and accordingly the application for withdrawal of the said writ already filed in the Hon'ble High Court before filing of this appeal. On 28.10.2013, two applications were filed by the appellant before the Estate Officer but the same were not disposed off by him and despite repeated requests the documents were not supplied till date and the impugned order was passed in haste. The appellant pointed out all those irregularities and conduct of the Estate Officer to the Hon'ble Minister and respondent No. 3 but no heed was paid by them. The question of recognition under Code of Discipline or under CCS (RSA) cannot be linked with the question of cancellation of PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 4 / 15 allotment. In the order dt. 24.11.2005, it is nowhere stated that the allotment of the premises stand cancelled, hence, the finding of the Estate Officer is contrary to the record and material available. No petition for eviction is filed by CPWD and even no such copy of petition is supplied to the appellant despite written request. The recognition granted to the union/appellant has not been cancelled till date and even no show cause notice regarding derecognition and cancellation of the allotment is issued by the respondent which is admitted position between the parties. The allotment is not cancelled, no show cause notice was ever issued by CPWD before cancellation (not done till date) and no acknowledgment of service of allotment letter or cancellation of allotment is placed on record and no copy supplied to the appellant. The entire action of the respondent No. 2 is absolutely illegal, arbitrary, unconstitutional and contrary to the principle of natural justice and respondent no. 2 acted under the instructions of respondent no. 3. The case of cancellation of allotment of accommodation cannot be linked with the issue of recognition which is still pending before the division bench of the Hon'ble High Court of Delhi.
4. The respondents have not filed reply to the appeal u/s 9 of PPA. However, opposed the present appeal.
5. I have heard the Ld. counsel for the appellant and the respondents, gone through the written synopsis filed by the Ld. Counsel for the parties and also perused the record as well as the PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 5 / 15 impugned order.
6. Ld. Counsel for the appellant argued that the appellant union was registered by the Registrar of Trade Union. In 1985, the appellant union was allotted accommodation i.e. E26, Raja Bazar, SectorIV, DIZ Area, New Delhi vide letter dt.01.02.1985. The appellant union vide the letter dt.17.12.2004 was requested to vacate the said premises and to occupy alternate accommodation i.e. the premises in question. Since 2004, the appellant union is occupying the premises in question. There is no mentioning of rent or licence fee in the said two letters. Ld. Counsel for the appellant referred the judgment dt.06.06.2013 of the then Ld. District & Sessions Judge, New Delhi District, New Delhi and stated that the then Ld. District Judge set aside the order dt. 30.04.2013 with the direction to pass a fresh speaking order as per law after giving due opportunities to the parties. Thereafter, letter was issued by the Estate Officer for hearing to be held on 23.07.2013. The CCS (RSA) Rules came in force in 1993. The appellant challenged notification of respondent in Hon'ble High Court and Hon'ble Division Bench passed the order dt.23.03.2010 and the said writ petition was disposed off on 23.03.2010. Ld. Counsel for the appellant referred Section 2(g) of the PP Act and stated that the appellant is not unauthorised occupant as per the PP Act. The appellantunion moved an application before the Estate Officer which was discussed in the letter dt.24.09.2013. The PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 6 / 15 Estate Officer did not give any finding on the objection in regard maintainability of the PP Act. The Estate Officer has failed to comply with the directions dt.06.06.2013 issued by this court and proper opportunity of defence has not been provided to the appellant by the Estate Officer. Application for opportunity to lead evidence had not been disposed off and respondent No. 2 did not take some of the applications on record. The Ld. Counsel for the appellant has also argued that the other reasons and grounds mentioned in the appeal may also be treated as his arguments.
7. Ld. Counsel for the respondents argued that the appellant union was given ad hoc recognition, which has also been admitted by the appellantunion. They are governed by CCS (RSA) Rules. This is not a civil case but a summary procedural case. As per section 2(e) of Public Premises Act, any premises belonging to Government, is admittedly a public premises. Appellant-union also admitted that it was given by the Government. The appellant-union admitted that their Union is not recognized as per CCS (RSA) Rules. Thus, t he appellant-union is not an authorised society/union. Members of the appellant-union also attended the hearing on 23.07.2013. On 27.08.2013, the Estate Officer gave comprehensive discussion regarding the recognition of its union as per CCS (RSA) Rules. So many opportunities were given to the appellant-union to submit the documents of recognition of their union. It has never challenged the Rules. Process given u/s 4(1) of the said Act was not challenged. The appellant has to show under what circumstances, it is occupying the PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 7 / 15 premises in question. The appellant-union filed writ petition challenging the order dt.31.03.2011 by which the appellant-union was to get verified its membership under CCSA rules. However, no stay order has been passed by the Hon'ble High Court of Delhi. The respondent cannot stop the proceedings for a long time in waiting the outcome of the order from the Hon'ble High Court. The appellant union is governed by CCS Rules. The impugned order is a speaking order. Ld. Counsel for the respondent, in support of her arguments, relied upon the judgment in the case of Union of India versus S.M. Aggarwal and 31 Ors., 1995 II AD Delhi 293 of Hon'ble High Court of Delhi.
8. Vide copy of judgment dt.23.03.2010 in W.P.(C) 23024/2005 titled "CPWD Mazdoor Union (Regd.) versus Union of India & Ors." passed by the Hon'ble High Court of Delhi, placed on record, the Hon'ble High Court held that "the contention of petitioner that the CCS (RSA) Rules are ultra vires to the Constitution as the same discriminate between the similarly situated employees i.e. industrial workers of Railways and Defence are kept out from its applicability, the stand of respondent is that from the very beginning there are separate rules for industrial workers of Railways and workers employed in Defence Installation of Ministry of Defence. It may be noted that Defence is altogether different. Their nature of duties are also different. CCS/RSA Rules are applicable to remaining Central Government employees. There is no legal bar in having different set of rules for different Government organizations specially having regard to the nature of duties of employee and functions of different establishments. Under these circumstances, it PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 8 / 15 cannot be contended that there is any discrimination as is alleged". The Hon'ble High Court of Delhi further observed that "It may be noticed that issue of 'recognition' is still pending. Petitioner has not yet given the necessary information as required vide impugned letter dated 25 th November, 2005. Rule 9 of aforesaid Rules give power to the Government for relaxation. Further, Rule 10 of the aforesaid Rules provides as under: -
"10. Interpretation If any question arises as to the interpretation of any of the provisions of these rules or if there is any dispute relating to fulfillment of conditions for recognition it shall be referred to the Government, whose decision thereon shall be final."
The Hon'ble High Court further held that "Considering the above, we are of the view that present petition is premature at this stage. It is appropriate if the petitioner makes a representation to the Government in this regard pointing out the conditions in the aforesaid Rules which according to petitioner are offending in nature. If any such representation is made by the petitioner, the respondent will dispose of the same within three months from the date of receipt of the same. If, thereafter, petitioner has any grievance, petitioner will be at liberty to approach this court. Petition stands disposed of accordingly".
9. Vide the proceedings / minutes of hearing dt. 28.10.2013, the applicants have submitted vide their application that the matter is sub judice before the Hon'ble High Court vide writ petition no. 6680/2013 PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 9 / 15 challenging the proceeding of Estate Officer and the next date of hearing is 31.10.2013, but they have clarified that there is no stay in this case. Hence, the application was dismissed. A representation / letter dt. 24.07.2013 was addressed to the Chief Minister of Delhi to get the CPWD Majdoor Union recognized. However, vide the noting of the Additional Secretary, Office of Chief Minister of Delhi, it was informed that the said union was to get itself recognized under CCS(RSA) Rules within one year of issue of orders issued by DOPT. However, they were given additional six months period to prove 35% of minimum strength but they failed to do so hence their union was considered as unrecognized. Therefore, their allotment was treated automatically cnacelled and it was ordered that the office has no alternative, therefore, get the office evicted from the said union.
10. The Estate Officer, Station HQ, Delhi Cantt., in his order dt.30.10.2013, observed that the court of Estate Officer assembled on 23.07.2013, 27.08.2013, 24.09.2013, 17.10.2013 & 28.10.2013. The department time and again submitted that the said Majdoor union led by Sh. B.K. Prasad is in unauthorized occupation as union has failed to comply to the provisions of CCS (RSA) rules. The department submitted the copy of office memorandum issued by the Ministry of Labour & Employment dated 18.09.2006 (indicating that since CPWD employees are civilian Govt. employees hence CCS (RSA) rules are to be followed). The department submitted that the rules 1993 have statutory backing notified in exercise of powers conferred under PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 10 / 15 provisions of article 309 of the Constitution of India. The Department also submitted letter dt. 06.03.2009 which was duly endorsed to the General Secretary, CPWD Majdoor union vide which it was found that none of the Union/ Associations of CPWD have been recognized under CCS (RSA) rules 1993 till the date of issue of office memorandum. Accordingly, sufficient opportunities have been given (vide dated 23.07.2013, 27.08.2013, 24.09.2013, 17.10.2013 & 28.10.2013) to the CPWD Majdoor union led by Sh. B.K. Prasad to submit documents if any in their support that they are recognized under the said rules. The union has failed to submit any documentary evidence in their support after giving so many opportunities. The matter of cancellation of allotment was not challenged by the CPWD Majdoor Union on the judgment of Ld. District Court, New Delhi. The Estate Officer further observed that CPWD Majdoor union has been given various opportunities to submit documents if any in their support to establish that their union is recognized under the CCS (RSA) rules and they are authorized occupants of the premises. The CPWD Majdoor Union led by Sh. B.K. Prasad, in the opinion of the Estate Officer has failed to discharge their onus of proving that they have complied to the provisions of CCS (RSA) rules and they are the authorized occupiers of public premises under some valid permission from the competent authority. In this case the competent authority is CPWD being the owner/custodian of the said premises. The Estate PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 11 / 15 Officer also considered and decided as under : "I accordingly hold that the CPWD Majdoor Union led by Sh. B.K. Prasad is an unauthorized occupant of the public premises in question w.e.f. 24.11.2005 and direct them to vacate the said premises within 15 days (Fifteen Days) of publication of this order. I further direct that in the event of refusal or failure of the respondent to vacate the said public premises by the stipulated date, they shall be physically evicted from the said public premises, in terms of the Act.
Department seeks and is granted liberty to initiate proceeding for recovery of rent at the damage rate from the CPWD Majdoor union for the period of unauthorized use/occupation of the said public premises in terms of the Act."
11. The appellant union filed an application for allowing it to lead evidence and decide pending applications before the Estate Officer. However, as per Estate Officer file, there is an endorsement on the said application that it was received on 30.10.2013 at 03.00 pm. The said application was treated to be not maintainable as the eviction order had already been passed. The appellant also moved an application for direction before the Estate Officer, which was also treated as not maintainable as the eviction order had already been passed before the said application was received.
12. As per C.P.W.D. Manual Vol. III, for certain matters like PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 12 / 15 grant of leave, membership of Trade Union etc., the employees in the workcharged establishment are regarded as "Industrial" staff and governed by Industrial Laws of the country as are applicable. It further provides that the F.R.s and S.R.s are also applicable to the workcharged staff. Ministry of Law have opined that workcharged employees in the C.P.W.D are Civil Servants in terms of Articles 311 of the Constitution. The Central Civil Services (Recognition of Service Associations) Rules, 1993, cover all Central Government Employees (including Industrial Workers), to whom the CCS (Conduct) Rules, 1964 apply, excepting industrial employees of the Ministry of Railways and workers employed in Defence Installations in the Ministry of Defence. The question whether the Associations/Unions recognized under the aforesaid Rules may be allowed to form Federation, has been under consideration. After careful consideration, it has now been decided by the Government vide G.I. Deptt of Per. & Trg., No. 2/14/98JCA, dt.03.07.2002 that the administrative Ministries/Departments may consider granting recognition to Federations with the approval of the Ministerincharge subject to the condition that the affiliated Unions/Associations are recognized under the aforesaid 1993 Rules.
13. Perusal of record and the proceedings of the Estate Officer in the present case reveals that as per letter No. 9/7/2012ECX dt. 19.10.2012, the CPWD Majdoor Union was recognized only on adhoc basis by the Ministry of Urban Development prior to notification of CCS (RSA) Rules 1993 by the DOP&T. The said letter dt.19.10.2012 further PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 13 / 15 mentions that two unions viz. All India CPWD Employees Union and CPWD Mazdoor Union have challenged the CCS (RSA) Rules 1993 in the Hon'ble Delhi High Court. Writ Petitions filed by these unions are still pending in the Hon'ble Delhi High Court. No stay has been granted by Hon'ble High Court in this matter. Therefore, in terms of revised CCS (RSA) Rules, these Unions are not recognized as on date and are, hence, not eligible for allotment of any office accommodation.
14. The appellant has admitted itself ad hoc recognition. Opportunities were given to the appellant before the Estate Officer but it has not filed any document in support of its case. The appellant has not proved on record before the Estate Officer its authorisation to use and occupy the premises in question. The Hon'ble Delhi High Court, in the case of Union of India versus S.M. Aggarwal & 31 Ors, 1995 II AD Delhi 293, observed that "it is therefore for the occupant to show that he is not in unauthorized occupation of public premises. In spite of various opportunities, no record of any nature was produced by the shopkeepers and they did not even file any answer to the show cause notice. If it was a case tried in a civil court then the Judge would have straightway struck out the defence of the shopkeepers for having failed to file written statement in spite of adjournments having been granted for the purpose". The respondents are governed by rules and the Estate Officer has followed due procedure regarding the proceedings held before it. In view of the facts and circumstances of the case, the rules and judgments discussed above and the documents on record, I am of the considered PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 14 / 15 opinion that the appellant is in the unauthorized occupation of the premises in question. The impugned eviction order dt.30.10.2013 has been passed after giving proper opportunities to be heard to both the parties before the Estate Officer, which is also the compliance of the order dt.29.04.2013 passed in the aforesaid case of CPWD Mazdoor Union (Regd.) W.P.(C) 7335/2011 (supra) i.e. the respondents shall not unilaterally evict the petitioner's union from the premises except in accordance with law. Thus, I do not find any infirmity in the impugned order dt. 30.10.2013 passed by the Estate Officer qua the unauthorized occupation. Accordingly, this appeal is dismissed in above terms. The Estate Officer record along with the copy of this order be sent back to the Estate Officer and thereafter the present appeal file be consigned to record room. Digitally signed by YASHWANT YASHWANT KUMAR KUMAR Date: 2019.08.31 18:09:19 +0530 Announced in the open Court (YASHWANT KUMAR) on 31st day of August, 2019 District & Sessions Judge, PHC, New Delhi PPA -192/16 CPWD Mazdoor Union vs Central Public Works Department & Ors. Page No. 15 / 15