Central Administrative Tribunal - Allahabad
Jawahar Lal vs Central Excise & Customs on 12 January, 2022
OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This is the 12th day of January 2022
ORIGINAL APPLICATION NO. 330/00305 of 2014
With
ORIGINAL APPLICATION NO. 330/00491 of 2014.
HON'BLE MR. TARUN SHRIDHAR, MEMBER (A)
HON'BLE MS. PRATIMA K. GUPTA, MEMBER (J)
1. Jawahar Lal S/o Late Munni Lal
2. Anil Kumar S/o Late Bulaki Lal
3. Shyam S/o Late Basant Lal
4. Ratan Kumar S/o Late Laxman Prasad
5. Kamlakar Pandey S/o Late Jagdish Narayan Pandey
6. Dhruv Kumar S/o Late Mohan Lal
7. Santosh Kumar S/o Late Mohan Lal.
8. Jiya Lal S/o Late Chaitu Ram.
9. Mohd. Irfan S/o Mohd. Lukman.
10. Vijay Kumar S/o Late Pyare Lal
11. Sunil Kumar Sonkar S/o Late Lal Chandra Sonkar.
12. Anwar Ali S/o Sikandar Ali.
13. Ratnakar Pandey S/o Late Jagdish Narayan Pandey.
14. Satya Narayan S/o Late Ram Chandar
15. Om Prakash S/o Late Bhai Lal
16. Ajay Kumar S/o Lalji Yadav
17. Shankar Kumar S/o Late Mahavir.
18. Ram Kumar S/o Late Parau
19. Rajesh Kanaujia S/o Pyare Lal
20. Swami Prasad Verma S/o Late Rajaram.
21. Ramji Nishad S/o Late Chhedi Lal.
22. Chandr Shekhar Yadav S/o Lal Bahadur.
23. Abhishek Kumar Kanaujia S/o Sri Amrit Lal.
24. Subhash Chandra Kushwaha S/o Rajendra Kumar Kushwaha.
25. Chandra Shekhar S/o Ram Dular.
26. Anil alias Pankaj S/o Raja Ram.
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27. Kailash Singh Yadav S/o Kishori Lal Yadav.
28. Jaswant Kumar S/o Late Sharda Prasad.
29. Narendra Kanaujia S/o Pyare Lal Choudhary
30. Anuj S/o Late Jawahar Lal Yadav.
31. Sudhir Kumar Gupta S/o Late Mahesh Prasad Gupta.
All applicants are working as Casual Labour in the office of
Commissioner, Central Excise & Service Tax, 38 M.G. Marg, Civil
Lines, Allahabad.
...............Applicants in OA No. 305/2014
Advocates for the Applicants : Mr. P.K. Mishra/Shri Praveen
Kumar/Shri S.K. Om
VERSUS
1. Union of India through Secretary, Government of India M/o Finance
Department of Revenue, Central Board of Excise & Customs, New
Delhi.
2. Chief Commissioner, Customs Central Excise & Service Tax,
Lucknow Zone, 7-A, Ashok Marg, Lucknow.
3. Commissioner, Central Exicse & Service Tax, 38 M.G. Marg, Civil
Lines, Allahabad.
.................Respondents in OA No. 305/2014
Advocate for the Respondents : Shri Manoj Kumar Sharma
With
ORIGINAL APPLICATION NO. 330/00491 of 2014
1. Niketan S/o Late Ram Khilawan, R/o 515, Shivkuti, Allahabad.
2. Anisullah, S/o Zahirullah, R/o 183, Rajapur, Muir Road, Allahabad.
............Applicants in OA NO. 491/2014
Advocates for the Applicants : Mr. P.K. Mishra/Shri Praveen
Kumar/Shri S.K. Om
Versus
1. Union of India through Secretary, Govt. of India, M/o Finance
Department of Revenue, Central Board of Excise & Customs, New
Delhi.
2. Chief Commissioner, Customs Central Excise & Service Tax,
Lucknow Zone, 7-A Ashok Marg, Lucknow.
3
3. Commissioner, Central Excise & Service Tax, 38, M.G. Marg, Civil
Lines, Allahabad.
.........Respondents in OA No. 491/2014
Advocate for the Respondents : Shri Chakrapani Vatsyayan
ORDER
DELIVERED BY HON'BLE MS. PRATIMA K. GUPTA, MEMBER (J) Through OA no 305/2014, the applicants have sought following reliefs:-
"(i) To issue a writ order or direction in the nature of certiorari quashing the order dated 6/9.9.2013 (Annexure No.1) passed by respondent No.1.
(ii) to issue a further writ order or direction in the nature of mandamus commanding the respondents to regularize the service of all the applicants who have completed 10 years of service forthwith and the remaining applicants may be granted temporary status with retrospective effect.
(iii) To pass any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(iv) To grant all the consequential reliefs for which the applicant is entitled for.
(v) To award the cost of the present OA in favour of the applicant".
And in original application No. 491/2014 relief sought is as under:-
4"(i) To call for the record and issue a writ order or direction in the nature of certiorari, quashing the termination order of the applicants.
(ii) To issue a further writ order or direction in the nature of mandamus commanding the respondents to reinstate the applicants as casual labour and assign them temporary status, retrospectively, after completion of 206 days and thereby regularize their services in terms of circular dated 1.5.2007.
(iii) To pass any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(iv) To grant all the consequential reliefs for which the applicant is entitled for.
(v) To award the cost of the present OA in favour of the applicant.
2 Both these Original Applications have identical facts and common questions of law, therefore, with consent of parties are being heard together for the sake of convenience facts of OA No. 305/2014 are reproduced.
3. Brief facts leading to this OA are that the applicants were employed as Casual Labour with the respondents' organization on different dates, since 1992. The applicants have been working continuously without any break since they were appointed, they are in employment even today, except that in 2004 they were shifted under a contractor. Through this OA the Applicants are seeking grant of Temporary Status.5
4. The learned counsel for the applicants would argue that a similar matter was agitated before the Hon'ble High Court of Madras. In pursuance of order passed by the Hon'ble High Court, the respondents came out with the scheme in 2015, which is annexed at page 333-A and it is stated to be still vogue. The scheme of 2015 is reproduced as under:-
"F. No. C18013737/2009-Ad II-B Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs.
Ground Floor, Hudco Vishala Building Bhikaji Cama Place, R.K. Puram New Delhi, dated 28th July 2015.
To, The All Cadre Controlling Authorities Under Central Board of Excise & Customs (By name as per Annexure -1) Subject: Grant of temporary status and regularization of Casual Labourers who has been engaged continuously for long period and not covered under the scheme of 1993 - Formulation of a scheme in pursuance of the Madras High Court dated 29.09.2011 in WP No. 20664/2011 in case of a Murugan and 6 others Vs. Union of India and others.
Sir, In pursuance of the Madras High Court order dated 29.09.2011 in WP No. 20664/2011 in case of A. Murugan and 6 others Vs. UOI and others, it has been decided to formulate a scheme for grant of temporary status and regularization of their services who had been engaged continuously for long period and not covered under the Scheme of 1993.
You are requested to furnish details of the causal labourers who had been engaged continuously for long period and not covered under the scheme of 1993 in the enclosed proforma with a written 6 undertaking to the Board immediately for taking further necessary action.
Yours faithfully Sd/- Illegible (Rajpal Singh) Under Secretary to the Govt. of India".
5. The learned counsel for the applicants draws our attention to the letter dated 19.05.2013 written by Commissioner, Central Excise, Allahabad (Annexure A-9). The said order is quoted below in verbatim for easy reference:-
"OFFICE OF THE COMMISSIONER. CENTRAL EXCISE & SERVICE TAX: 38. M.G. MARG. CIVIL LINES .ALLAHABAD C.NO.II(3)140-Esttl/TS//20 Dated: 19.05.2013 To, The Under Secretary (Ad.IV), Government of India, Central Board of Excise & Customs, North Block, New Delhi, Sir, Subject; Temporary status to Dally wages workers- regarding. In the above context, this is to Inform you that this office is in receipt of some applications from the Casual Labours/Dally wages workers who are working in this office for the last 10 to 12 years or more, for regularization/granting temporary status to them. It is also brought to your kind notice that as a policy of the Central Government since 2004 this office is not employing directly casual labours/dally wage workers rather they are being providing to this office through some contractors. Prior to 2004 this office was directly taking the services of the casual labours. There are some casual labours who were earlier engaged directly by this office and now they are engaged through the contractors.
2. As per Casual Labourers (Grant of Temporary Status and Regularization Scheme of Government of India, 1993, which inter- alla provide that temporary status should be granted to the 7 persons - recruited as daily wages basis in the Central Government offices who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in case of offices observing 05 days working a week).
3. It is also worth to mention here that there are certain decision of Hon'ble Supreme Court i.e. (i) Secretary, Haryana State Electricity Board Vs. Suresh and other etc.etc. - AIR 1999 Supreme Court 1160 ( Para 15 to 20 refers - copy enclosed as Ann. 'A'), (ii) M/s. Delhi International Airport Pvt. Ltd,; Vs. Union of India & other - 2011 STPL(LE)4515 SC(copy enclosed as Ann. 'B')etc. wherein it has been held that even a daily wager/casual labour who are working through contractors are entitled for this benefit subject to fulfillment of certain conditions. Various Benches of the CAT and some High Courts have been taking the view that the scheme is an ongoing affairs.
4. In some of the cases the temporary status has been granted by this office as per order of Hon'ble CAT, Hon'ble High Court in terms of DOPT, New Delhi's O.M, 51016/2/90-Estt. dated 10.09.1993 [Casual Labourers (Grant of Temporary Status and Regularization Scheme of Government of India, 1993]
5. From the above, it is evident that since the aforesaid casual labourers have rendered their 10 to 12 years services in the Department, therefore, considering the above facts the Hon'bie High Court/CAT have directed the Department to consider their representations suitably. Accordingly, after accepting the Hon'bie Court's/CAT's decisions, the Departmeitt4ias-coflsrdered the representations of the aforesaid casual labourers and they were given temporary status by the Department as they have fulfilled conditions as laid down in the aforesaid DOPT's O.M. dated 10.09.1993. The details of some of them are given below:-
(a) In pursuance of the Hon'bie High Court's Order dated 14.11.2005 in Civil Misc. Writ Petition No. 54525 of 2000 and the acceptance of the same by the Department, vide thisoffice Estt. Order dated 24.12.2005 issued by the Additional Commissioner(P&V), Central Excise, Allahabad, 8 Shri Ranieet Sjjgh Yadav has been bestowed with temporary status in terms of the DOPT's O.M. 51016/2/90-
Estt.(C) dated 10.09.1993 from the date he joins his duties as a daily wager in the Department; (copy enclosed as Ann.'C');
(b) In pursuance of the Hon'bie High Court's Order dated 21.05.2004 in Special Appeal No.388 of 2004 and the acceptance of the same by the Department (C.No.V(a)(l8) Legal- 16/04/3733 dated 02.08.2004, vide this office Estt Order No.82/2004 dated 02.09.200 issued by the Additional Commissioner(P&V), Central Excise, Allahabad, Shri Shailendra Kumar Sharma has been bestowed with temporary status in terms of the DOPT's O.M. -- 51016/2/90- Estt.(C) dated 10.09.1993 from the date he joins his duties as a daily wager in the Department; (copy enclosed as Arn.'D');
(c) In pursuance of the Hon'bie High Court's Order dated 14.09.2004 in Civil Misc. Writ Petition No. 54526 of 2000 and the acceptance of the same by the Department, vide this office Estt Order No. 107/2004 dated 17.,12.2004 issued by the Additional Commissioner(P&V), Central Excise, Allahabad, Shri Rajesh Bahadur Singh has been bestowed with temporary status in terms of the DOPT's O.M. 51016/2/90-Estt.(C) dated 10.09.1993 from the date he joins his duties as a daily wager in the Department; (copy enclosed as Ann.'E);
(d) In pursuance of the Hon'bie Central Administrative Tribunal, Lucknow Bench, Lucknow's Order Dated 15.10.99 .in O.A. No.99/1995 and acceptance of the Commissioner of Customs, Lucknow same as communicated vide C.No.VIII (25)120/Review/99/10084 dated 30.12.99, vide Estt. Order dated 10.01.2000 issued by the Deputy Commissioner, Customs Division, Lucknow S/Shri Rajendra Kumar (Sweeper) S/0 Kalloo Ram, Sudhir Kumar (Sweeper) S/O Shri Jawahar Lai and' Jhagroo Prasad (Mali) S/O Shri Ram Avtar have been ordered to be placed on Temporary Status with accruing financial and other benefits as contained in 9 the DOPT's O.M. 51016/2/90-Estt.(C) dated 10.09.1993 with immediate effect; (copy enclosed as Ann.'F'),
(e) In pursuance of the Hon'bie Central Administrative Tribunal, Lucknow Bench, Lucknow order dated 12.01.200l on Original Application No. 31/A/2001 and the acceptance of the same by frig Commissioner of Customs, Lucknow communicated vide his office C.No.VIII(25)120- Review/99/2698 dated 07.06,2001, Vide Estt. Order No. 1/2001 dated 15.06.2001 issued by the Deputy Commissioner of Customs, Gorakhpur, the six daily. wagers namely S/Shri Somnath Chaterjee S/o Vishwanath, Om Prakash S/o Ram Chandra Mishra, Brij Narayan S/o Gajai, Shri Panney Lal S/o Ram Pyare Gupta, Radheyshyam S/o Khaderu and Shri Mahesh Kashyap S/o Ram Lai have been granted temporary status with such benefits as contained in the DOPT's O.M. 5I016/2/90-Estt.(C) dated 10.09.1993; (Copy enclosed as Ann.'G'); and
(f) In pursuance of the Hon'ble Central Administrative Tribunal, Lucknow Bench, Lucknow's OA 2407/2002 dated 01.11.2002 (copy enclosed) and Additional Commissioner (P&V), Central Excise, Allahabad letter C.No.II(3)292- Estt./93/Pt.5436' dated 29.07.2005, vide Estt. Order dated 11.08.2005 issued by the Assistant Commissioner, Central Excise Division, Varanasi, Shri Om Prakash Singh Yadav has been bestowed with temporary status in terms of the DOPT's O.M. 5l016/2/90-Estt.(C) dated 10.09.1993 from the date he joins his duties as a daily wager in the Department; (copy enclosed as Ann.'H');
6. The office of the Central Excise & Service Tax at Allahabad is situated at 38, M.G. Marg, Civil Lines, Allahabad. In this building Central Excise Commissionerate Headquarter office Allahabad, Central Excise Division, Allahabad-I and Central Excise Division-II, Allahabad are situated in the same Revenue Building. This building consists of ground floor, 1st floor and Ilnd floor - having total open area 89415 Sq. feet and covered area of 92576 Sq. feet. The entire house keeping of the office premises like cleanliness, gardening, waterman, chowkidar etc. requires lot 10 of regular man power which are presently outsourced through contractor. As stated above, prior to 2004 this office was directly taking the services of the casual labours. There are some of the casual labours who were earlier engaged directly by this office and now they are engaged through the contractors. At present about 40 (forty) casual workers are regularly engaged in the work of house keeping of this office. Out of these forty casual workers about twenty (20) are engaged as casual worker in this office for the last ten years and they have rendered services of at least 206 days in a year and they deserve to be conferred temporary status as per O.M. dated 10.09.1993.
7. For general house keeping services this office has no regular staff. With the implementation of recommendation of the 6^ Pay Commission the Sepoy and Hawaldar which were hither to Group 'D' staff have been considered as Group 'C and on account of this, this office has no option but to get the services of housekeeping outsourced of these casual labour through contractor regularly. 'The services of about twenty casual workers which were earlier engaged by the office directly were continued through contractor because they were very laborious, punctual and honest workers' dedicated to their work and now they have completed more than ten years of their service as a casual workers in this office. After rendering such a long period of service as a casual worker in this office they have no other alternative but to continue, as a casual worker in this office. These casual workers are paid, wages as pirate notified by the Ministry of Labour of the State Government, which is so meager that it is very difficult for them to cope up even the minimum requirement of their family and their condition always remains hand to mouth. Therefore, granting temporary status these workers is justified legally and also from humanitarian point of view.
8. Therefore, in view of the above, it is requested that permission may be granted for conferring temporary status to the casual workers who have completed more than 10 years of continuous satisfactory service as a casual workers as per 11 norms contained in DOPT's OM No. 51016/2/90-Estt. (C) dated 10.09.1993".
6. The learned counsel for the applicants would also argue that despite the said recommendation of Commissioner Central Excise, Allahabad the respondents have passed the impugned order dated 06.9.2013 which is annexed at page 22 of the OA, which reads as under:-
"F. No. A 12034/58/2013-AD III (B) Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs New Delhi dated the 6th September 2013 To, The Commissioner, Central Excise & Service Tax 38 M.G. Marg, Civil Lines, Allahabad 211001.
Subject: Temporary status to Daily wages workers regarding.
Sir, I am directed to refer to your letter C. No. II (3) 140- Estt./TS/2012/8136 dated 18.7.2013 on the subject cited above and to say that a proposal was sent to DOP&T seeking clarification about regularization of 438 casual labourers with temporary status and casual labourers without temporary status. DOPT clarified that the casual labourers without temporary status cannot be considered for regularization as they were not covered under any of the guidelines issued by them in this regard. Hence the request of granting temporary status to casual labourers who have rendered their 10 years or above services without temporary status cannot be acceded to.
Yours faithfully (Rajpal Singh) Under Secretary to the Govt.of India 12 Tele Fax No. 26162834.
7. The learned counsel for the respondents vehemently argues and refers to Para 11 of the counter reply wherein he states that the applicants after 2004, though are continuing with the respondents but they are now employed through contractor and therefore, they are not directly employed with the respondents.
8. We have heard Shri Pradeep Kumar Mishra, learned counsel for the applicants and Shri M.K. Sharma, learned counsel for the respondents.
9 It is not disputed that the applicants are continuing with the respondents since 1992 which is almost 20/30 years now, they are not being regularized because they have been shifted under the contractor. It is also stated in the counter reply itself that there is no iota of complaint in respect of functioning of the applicants, rather they have been working with utmost devotion in their duties and to the best of the satisfaction of the respondents.
Applicants, in fact, were engaged by the respondents have been working with them on regular basis without any break.
10. This is a fit case where the veil between the respondents and the applicants should be lifted and it is to be seen whether the employment through contractor would amount to extreme hardship to the applicants. It is a fact that the applicants are being paid from the Govt. exchequer though indirectly. It can be concluded that the umbilical cord is intact. It is also a fact that the COMMISSIONER CUSTOMS AND EXCISE Allahabad had written to the Respondents' Department of Revenue way back in 2013 recommending the cause of the applicants for grant of temporary status and the same was rejected by the Department of Revenue stating that the applicants services could not be 'REGULARISED' for the reasons stated 13 therein. It is needless to say that the cause of the applicants was recommended for "GRANT OF TEMPORARY STATUS' and not for regularization. The communication of the Commissioner Excise is self explanatory, still it would be appropriate to refer to relevant paras to highlight some parts of this communication:-
"Para 3. It is also worth to mention here that there are certain decision of Hon'ble Supreme Court i.e. (i) Secretary, Haryana State Electricity Board Vs. Suresh and other etc.etc. - AIR 1999 Supreme Court 1160 (Para 15 to 20 refers - copy enclosed as Ann. 'A'), (ii) M/s. Delhi International Airport Pvt. Ltd,; Vs. Union of India & other - 2011 STPL(LE)4515 SC(copy enclosed as Ann. 'B')etc. wherein it has been held that even a daily wager/casual labour who are working through contractors are entitled for this benefit subject to fulfillment of certain conditions. Various Benches of the CAT and some High Courts have been taking the view that the scheme is an ongoing affairs. Xxx Para 6 xxxxx There are some of the casual labours who were earlier engaged directly by this office and now they are engaged through the contractors. Xxxx Para 8 xxxx Therefore, in view of the above, it is requested that permission may be granted for conferring temporary status to the casual workers who have completed more than 10 years of continuous satisfactory service as a casual workers as per norms contained in DOPT's OM No. 51016/2/90-Estt. (C) dated 10.09.1993".
11. We feel that though the services of the applicants have been outsourced, they are performing their duties even today, without any complaint whatsoever with devotion and from the counter reply it is seen that the respondents have not denied that there is no scheme in existence for grant of temporary status. Therefore, it can be concluded that the schemes are still in vogue. It is also seen in the judgment of the Hon'ble Madras High 14 Court in Writ Petition No. 20664/2011 that the respondents have granted temporary status to the applicants in 2015. In compliance of the order passed in the aforesaid petition, the persons who had been engaged continuously for long period and not covered under the 1993 scheme have been granted the temporary status. While the present applicants in these OAs were in fact fully covered by the 1993 scheme, when their case was recommended by the Commissioner Excise Allahabad in 2013. As it is a fact that the applicants in the present OAs had completed more than 10/15 years even in 2004 before they were shifted under the contractor and that the applicants have served the respondents for more than 20/30 years and accordingly some of them may be nearing the age of superannuation.
12. In the light of peculiar facts of these two OAs, for the reasons stated above, these OAs are allowed and impugned order dated 6/9.9.2013 is quashed. Respondents are directed to grant temporary status to the applicants with retrospective effect under the scheme of "Grant of Temporary Status and Regularization Scheme of Government of India, 1993" with all consequential benefits for which the applicants are entitled within a period of 3 months on receipt of certified copy of this order. It is made clear that the order passed in these OAs shall not be a precedent. No order as to costs.
(PRATIMA K GUPTA) (TARUN SHRIDHAR)
Member (J) Member (A)
Manish/-