Central Administrative Tribunal - Cuttack
Kamala Kanta Mahal vs Doordarshan on 2 May, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH Original Application Nos, 260/00296/2020 & 206 /2021 Raeccread are FE Ba Fe 3 Recwriieeari cc:
Besereed or 2S 4 SOS Ss PPOMGLTTOR ct OF:
CORAM:
Hon'ble Mr. Pramod Kumar Das, Member {Admn.} ort Kartala Kanta Mahal, aged 39 years, S/o Ramakanta Mahal, At Kalldashpur, P.O. Bhimpura. Via- Motigan], Dist: Balasore.
At present working as a High skilled Casual Worker at the Office of the Additional [Nree tor, Doanordarshan Maintenance Centre, HPY Salesore, At/P.0. Bhimpura, Via-Motiganj, Dist: Balasare. Pin- 755003, seve Applicant In both the QAs.
For the Applicant: Mr. PA Satrathy, Counsel
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oe pene . Union of India represented through the Secretary, Ministry of Information are Broadcast ing, Shastri Bhawan, Ne sy Delhi LiG ai.
Director General, Door Darshan, Copemicus Marg, Mandi Delhi, PON-LTG GOT.
Additional Director, G sereral ik} Rast Zone, All india & % Doon Darshan, Udava Shankar Sarani, Gold Green, Kolkata-
SE tare Dev eye oS, PV OAT DEY He {. Station Director, Door Darshan Kendra, AtfPO. Sainik Schoal, Bhubaneswar, Dist Khurida. PIN-?7S 7 O17.
» ras 2S Oa Bi DOO G RGAE SOG Heo =. Assistant Engineer, (In-Charee Additional Director, Engineer), ST Balasore, DoorDarshan, At/PO- Bhinepura, Motigan} "Dis t Balgsore, PIN 756003, weRespondents in both the QAs 2 For the Respondents: Mr. 5.8. Mohanty, Counsel in QA 296/202 0 Ms. SB Das, Counsel in OA 206/202 O RD ER Pramod Kumar Das, Member( A}:
aince both the matters Sled by the same applicant are interlinked and intertwined, although these two cases were heard one after the other, for the sake of clarity and convenience, this common order is passed, which would govern both the cases.
DA No, 296 (2020 é The applicant has filed this OA alleging inter alia stating therein that he has been in continuous engagement on casual basis under the respondents at PLPOT,, Balasore wef 01.04.2002. Since he had completed a4) days in a calendar year, he was entitled to be eonferred with temporary status in terms of DOPT OM dated 10.09.1993, But instead of comerring temporary status and consequential regularization, the respondents iegally and arbitrarily prevented him from discharging the duties wef 15.05.2020, as he was discharging since 01.04.0002 even without giving any opportunity of being heard. it is Stated thet he has Spe submitted representation an 20.05.2026 against such disengagement followed by Advocate's notice dated 29.05.2020, which did not yield any Cy reault, Hence, in this OA, he has prayed far the follawing reliefs:
"3} ° PASS appropri inte orders directing the 'the service cf x Py) > with : yarprear y dues, h} To pass such other orders.
2{f) Resgendents Med their counter opposing the stand and prayer made by the apn s x licant In the OA. According to the respondents, the applicant was never engaged against a sanctioned post. He was a casual worker engaged purely on need basis on payment of remuneration as S per the norms xed by the labour commissioner and due te paucity af fund he has not been engaged. The Respondents have also disputed the stand of the applicant relating to completion of more than 240 days in a year. Further, it is submitted that as per DoP&T QM dated 10.00.1993 temporary Status is conferred an such of the casual laboruers who were in employment as an the date of issue of the said OM and rendered OPMPEA PERRET OR ve think eases pe pete COMmMinuous service af least one Wha? WhO Sy reaNs 3 must have been In engagement for a period of at in the case of offices observing 6 days week) which condition fs got Pat ga FEST CORON wee, ae paves Seder rap Noah we;
oe veined ae 7 ts nae trom cat peg he wre a i Sat ot on pean nen, we renge we rs Lo rye condidons stipulated in the said MoPST Ais nw CHTESENtation was rejected Yes Nespandents have prs ye: et QA being devoid af any merit is Hable "
# {ii}. Applicant has alse fled rejoinder stating that even after curiplebion of Lo years of service he has forcibly been prevented form discharging is duty wie 20.05.2020 in the name of non availability of adequate funds, without following due procedure af Rules and without complying with the principles of natural justice which is bad 1 law. Hence he has peayed for granting the relief prayed for in this QA.OA No. 206/2021
3. During the pendency of the aforesaid DA No. 296 of 2020, the applicant has Hed this QA No. 206 of 2021 seeking the relies as under:
"a) To pass appropriate orders by sett lated i? O20 2i passed by the Assis stant t Engi ineer, Head HRY Balasore and direct the De partme vent tal Respondents te grant service benefits and arrear CUES fo the applic ant as admissible © as per Goverament Clroulsr for Cssiy 5 ON No Mey SO & ESS b} To pass an order directing the Departmental respondents to regulariae ¢ Orel ® applicant as he is working in the department more than {8 years without any interruption.
OP c}) Toe pass such other orders /directions..
SU. Respondents department fave Sled counter in which while reiterating the factual matrix of the counter fled in the OA 296/2020, as noted above, have submitted that the applicant's engagement was not made through any Employment Exchange or afer following due process of recruitment rules. Similariy situated employees had earlier approached is Tribunal with similar grievance In TA No. 06/2013 and QA SS8/2019 and this Tribunal afer examining the details of the matter dismissed the cases on O20L.2019 (Anns. 8/1) and O4.03.2021 (Anne R/2)} respectively, It has been contended that In the DoPST Circular, it has been clearly provided that temporary status can be conferred on casual workers only on falling the conditions provided therein that they are in casual employment as on the date af conmmencement of the scheme and have to render continuous service of at least 240 days fn a year. The applicant dees not fulfll any of the condition as he was neither in employment in 1903 nor had remlered continuous service of 240 days in OSTA & 2 a calendar year. Further, it is contended that besides the above, the DaP&T OM 1993 has no application to the case of the applicant as the same is not an ongoing scheme. In this regard, they have placed reliance an the decision of the Hen'ble Supreme Court In the case of UOF Vs. Mohan Pal etc. (Civil Appeal No. 3199, 3176, 3178 and 3179 of 2001 and Peg SRO yb S iy everas ef gad week THO Se oe Biss of BOU2 disposed of an 2.04.
i _ Therefore, the DoPAT Scheme not applicable te the case of the applicant. The respondents have also placed reliance on para 36 of the decision of the s Hon'ble Apex Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi, AIS 2006 8C 1806, th justify their stand that the appointment of the applicant even on such casual de hors rules and mandate under Article 14 of the Constitution of India. Accordingly, respondents have prayed for dismissal ofthe OA.
3fii) Applicant has filed rejoinder in which applicant has denied the stand of the respondents that he was not in a engagement « against any sanctioned post or has not completed 241) days of service In a calendar year. According to the applicant, he was In engagement as casual worker for more than 18 years, which includes 240 days of continuous service 18 a calendar year for at least 10 years. No document has been produced by < the respondents ta justify that he had not completed 240 days fn a calendar year So far as non-applicabllity of the circular af 1993, it is submitted by the applicant that his case for regularization should have been cormshiered as per the principle laid down by the Hon'ble Apes Court in the case of State of Rarnataka & Ors. Vs. U active of any j ar, Accardingly, the applicant has tried to hustify that the rejection af his representation was bad in law and, therefore, he pm entitled fo the relief claimed in the DA.
4 in course of hearing, Lal) Counsel for the applicant has submitted that the applicant is In engagement on casual basis since 2002 and also he was Rs, 12600/- per month through banking meade has not been disputed hy the respondents. Through the payment, which he has received, Ld. Counsel fer the applicant has tried to justify the completion of 240 days af work Ina calendar year and, accordingly, it has been submitted that since the applicant had completed 24{) days ina calendar year for which he has been pald remuneration af Rs. 12600/- per month and conferment of temporary status is without any reference to the availability of vacancy, the applicant is entitled to conferment ef temporary status and cunsequential benefits flowing therefrom. It has heen contended that the 2b ia 4] OA No BAVOOIIG IIA & QUE respondents rejected the claim of the applicant without considering the ee foe a rv rv 'oad irne $ Pee pe We w cad an pot pes Pac aad at Pp ti fanaa tad wee, pee an ee re es we v pnt, a
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pene tn £y tent r iy is proper perspective, thereby making the arder of rejection as unsustainable. The next limb o niiccnt was perennial casual basis fustifies the availabilty of the vacency and regular appointment of the applicant in accordance with the observation af the Hon'ble Apex Court in the case of Umea [evi (supra} more so when such congdnuance was not on the strength of the arder of the court.
disengagement of the applicant was also without giving him any e Heres, apportunioy in compliance with the principles of nati ural just the Ld. Counsel for the applicant waciferously argued that throwing the applicant out of his engagement would tantamount to curtailing his right to Hf anc livelihood enshrined in Article 21 ofthe Constitution of India and, therefore, the impugned order being bereft of any merit, (he same is Hable to be quashed with direction to the respondents for bis regularization.
5S. In order te strengthen Nis arguments, Ld. Counsel for the respondents has submitted that mere payment af remuneration would ee NOTIGSIORN & AOS ox nat justify the completion of 240 days ina calendar year and as per law it is for the applicant to establish by producing evidence that he had in fact completed 240 days ina year when as per the record he did not complete 240 days of service In any of the years. It has been relterated that neither the OM of the DoP&T ner the decision in the case of Uma Devi is applicable to the present case. The remumerstion was paid to the apmicant out af the contingent fund and when funds were not available, the engagement of the applicant was dispensed with. Ld Counsel for the resparmdents has emphatically submitted that the engagement of the applicant was not against any sanctioned past nor was he engaged through a valid selection process. Therefore, the applicant is not entitled to the relief claimed in the OA and both the OAs are Hable to be dismiss 6 The applicant has not produced any plece of evi substantiate that he had carmpleted 240 days of service In a calendar year except stating that the payment of remuneration to justify that he had completed 240 days of service. The payment does nut show the days of werk for which such payrrrent has been made. This Tribunal is reminded by the decision of the Hon'ble Apex Court in the case af Manager, Reserve Bank of India, Bangalore v. 8. Mani and Ors, (2003(5) SUC 10 0} 38 EEA No SSG HY E9S wherein three-Judges Bench of this Hon'ble Court held that the ininal days ofservice, Tribune's view that the burden was on the employer was bo ea } sg x Syase eS ne PR :
held te be srromeous. Murther, the Hon'ble Amex Court ir Municipal Corporation, Faridabad v. Siri Niwas (2004 (8) SCC 195 34, ony way Se Meee eee BAS ays. Sage de ; vay ghey eS w Nave relterated that the burden was on the workman to Show that he ak oft vorking for more than 240 days in the preceding one year pring to his alleged retrenchment. But the applicant, in the present case, has filed ta rect that he had substantiate by praducing any evidence to the eff lar year. Secondly, if is necossar ny fe note fete eens.
that admittedly the applicant was not in enmyployment as on 10.09.1993 when the OM was issued. Therefore, even if itis taken for argument sake that the applicant had completed 240 days of service ine year after his angagement an casual basis since GLO 2002, the question arises for consideration as to whether the 1993 circular is an ongoing scheme and an the strength of the same the applicant can eet the benefit af the DoPAT UM dated 10.09.1993. Not reich exercise is needed to answer the above case of 9 Vs. Mohan Pal err, aged eegyerses db x aoe fyq hie saints since the Hon'ble Agex court in the (Civil Appeal No. 3169, 3176, 3178 and 3179 of 2001 and 3182 of 2007 dispased of on 29.04.2002) have held that the Scheme of 1993 is not an ongoing scheme. On perusal of the record, it is also found that similarly situated employees came up before this Tribunal claiming temporary Rs ween ~ & on 'a eecey otyekeadie .
status based on DoP&T GM and this Tribunal after exarmining details of east Bo ota les oye IO "SR MEER PORE TS Pen celeene athe claimpin TA Ne. 6/2018 and OA SAB /2O19. In view of the above, the claim of the applicant for grant of temporary stat based an 1993 circular falls flat.
Now, the case of the applicant is to be examined as to whether any m, right is accrued on the applicant for his regularization in pursuance of the order of the Hon'ble Apex court in the case of Uma Devi {supraj. In this connection, the relevant paragraph of the decision is quoted hereunder:
"dt. One aspect needs to be clarified. There may be cases where irregular appointments (iat fHegal appointments} as explained in SV. NARAYANAPPA {supra}, RN. NANJUNDAPPA {supra}, and BN. NAGARAIAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts right have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts ar of tribunals. The question of regularization of the services of such employees may have to be considered on merits In the light of the principles settled by this Cort in the cases above referred to and in the Hight of this ludement. In that contest, the Union of India, the State Governments and their instrumentalities shoul take steps to regularize as a one time measure, the services af such irr larly ay worked for ten years ar more in but not under caver of 6 ard ar Sof tel Jbunals an should fu rther ensure that regular recruiiments | » Mf thase vacant sanctioned posts that require to be fled up, I cases where temporary employees or daily wavers are being now enloy od. The pracess neest be set in motion within six months frary this date. We also clarify that regularization, tf any already made, but not subjudice, need not be reopened based an this falgment, but there should be ne further bypassing of the constitutional requirement and regulariging or making permanent, those not duly appointed as per the cunstitutional scheme."
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8LI Sr in the case of State of Karnataka Vs. ML Kesari, 201000) QUE SC 982, the Hon'ble Apes Court has held that one time exercise should consider all dally-wage/adhoc/those employees whe had put in 10 years of continuous service as on 10.04.2006 without availing the protection of any interim orders of courts or tribunals and DoP&T had also issued OM No. d9014/7/2020 ~Estt(C) dated O7 10.2020 reiterating the above aspect,
9. "Thus, the decision of the Hon'ble Apes Court is clear fo the extent that there may be cases where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued te work fort Ys iA Na 2SOUANITRE AGG & as years or more but without the intervention af orders of courts or pf hunals as an 10.04.2006, guestian of regularization of the services of wepe NS Nan = to be considered. In the instant ;
e such empluyees may have applicant admittedly joined on casual basis on 4 US2002 and, thus, he had not completed 10 years of service as on 104.2006, No material has been produced by the applicant to establish that his ENVAREMENL was against any sanctioned post. Therefere, on examination of the case of the applicant vis a vis the decision of the Hon'ble Apex Court, there is ne iota of doubt that the case of the applicant daes not fal Iowithin the four varners af the decisions of the Han'ble Apex Court in the cases refiyred to above. Insofgr as his prayer of the applicant in OA No. avo /ed2d for direction to the respondents to allow Him ts discharge his duties in his precious contractual engagement is concerned, it is the speciiic stand of the respondents that a contractual appointment comes ta an end at the end of the contract, if it were an cHgdgement or appaininent on daily WEES or casual basis, the same wold come fo an end when if discontinued and, in the instant case, owing fo Non-existence of work and non-availability of fund and the closure of the HTPY, Balasore. wet SLUGS 1, the engagement of the a pphcant is not possible. In view of the
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