Central Administrative Tribunal - Delhi
Md. Faiyazuddin vs Ministry Of Communications And I.T on 5 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.702/2011 M.A. No.501/2011 New Delhi, this the 5th day of July, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) 1. Md. Faiyazuddin, S/o Gayasuddin, R/o Peeragarhi H.No.33, New Delhi-110041. 2. Ram Kanwar, S/o Shri Tek Chand, R/o V.P.O. Kair, H.No.278, New Delhi-110043. 3. Sanjay Kumar, S/o Shri Mukundi Lal, C.B. 39, Naraina, New Delhi-110028. 4. Surinder Singh, S/o Shri Bhorn Singh, R/o Village & P.O. Badli, Tehsil Bahadurgarh, District Jhajjar, Haryana. 5. Sri Bhagwan, S/o Shri Iile Singh, R/o Vill.P.O. Galibpur, New Delhi-110073. 6. Babban Yadav, S/o Shri Dev Narain Yadav, R/o B-54, Madhu Vihar, Uttam Nagar, New Delhi-110059. .. Applicants (By Advocate : Ms. Amita Gupta) Versus 1. Ministry of Communications and I.T., Through its Secretary, Dak Bhawan, Sansad Marg, New Delhi-110001. 2. Director General Posts & Chairman, Postal Services Board, Department of Posts, India Ministry of Communications and I.T., Dak Bhawan, Sansad Marg, New Delhi-110001. .. Respondents (By Advocate : Ms. Ruby Sharma with Shri Himanshu Upadhyay) ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) This OA has been filed by 6 applicants who have challenged their termination with effect from 1.12.2010 and have sought a direction to the respondents to reinstate them with full back wages and all consequential benefits.
2. It is submitted by the applicants that they were enrolled with the Employment Exchange and were appointed as Chowkidar, Waterman or Mali etc. on part-time basis since 1994 and 1996 respectively. They have been continuously working since then and at times were made to work for 12 hours without any extra remuneration or wages etc. as is evident from letter dated 16.5.2010 (Annexure A-10). They had been requesting the authorities to regularize their services. However, instead of regularizing them, their services were terminated with effect from 1.12.2010 orally.
3. It is submitted by the counsel for the applicants that all the applicants have become age barred in the meantime and would not get any other job. They have their families to support and have worked with the respondents for more than 14 years. Since they were registered with the Employment Exchange it cannot be termed as back door entry, therefore, there is no justification to terminate their services. In any case, part-time worker is a Workman under Section 2 (s) of the Industrial Disputes Act, 1947, thus applicants were entitled to protection of Section 25-F of the Industrial Disputes Act, 1947. No notice was served on the applicants nor they were paid compensation in lieu of the notice before terminating their services as such their termination is void ab initio. Counsel for the applicants thus prayed that the OA may be allowed.
4. Respondents on the other hand have opposed the maintainability of the OA on the ground that this Tribunal has no jurisdiction to look into the allegations with regard to violation of Section 25-F of the Industrial Disputes Act, 1947. In case they are claiming benefit of I.D. Act, they must approach the Labour Court.
5. On merits they have specifically stated that there was a complete ban on engagement of casual labourers after 1.1.1993. It was reiterated in the year 1997 that without the specific approval of the Directorate, the appointment of casual labour cannot be made as per letter dated 4.2.1997. Despite the above instructions, the applicants were engaged in New Delhi West Division which was in violation of statutory instructions on the subject and the Postal Director had issued instructions on 19.11.2010 to streamline the work entrusted to causal labour and ordered that no casual labour should be engaged in the Administrative Offices w.e.f. 6.12.2010, therefore, services of all the casual labour were dispensed with.
6. They have placed reliance on the judgment of Honble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Ors. reported in 2006 (4) SCC 1 and have stated that the applicants have no right to continue as causal labour, the OA may, therefore, be dismissed.
7. We have heard both the counsel and perused the pleadings also.
8. It is now settled law that if applicants claim to be workman and wish to claim benefit of Industrial Disputes Act, 1947, then they have to approach the Labour Court. This Tribunal cannot deal with the issues raised under Industrial Disputes Act, 1947.
9. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in the case of Chandrakant Tukaram Nikam & Others Vs. Municipal Corporation of Ahmedabad and Another reported in AISLJ 2002 (2) SC 389. In the said case it was held as follows:-
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3 ) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 which can be called sister enactments to Industrial Disputes Act and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided their constitute industrial disputes within the meaning of Section 2 (k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
Similarly in Krishan Prasad Gupta Vs. Controller, Printing & Stationery reported in 1996 (32) ATC 211 it was held as follows:-
In view of the provisions of Section 14, 28 and 19 of the Administrative Tribunals Act, 1985, the jurisdiction of the Industrial Tribunal, Labour Courts or other authorities, under the Industrial Disputes Acts or Authority created under any other corresponding law remains unaffected.
Therefore, violation of Section 25-F of the Industrial Disputes Act, 1947, or non-issuance of notice or compensation in lieu thereof can neither be challenged nor entertained by this Tribunal.
10. The only contention raised by the counsel for the applicants is that the applicants have now become overaged and have families to support. They were appointed after they were sponsored by the employment exchange and have already worked for more than 14 years with the respondents, therefore, their services could not have been terminated. All these points have already been discussed by the Honble Supreme Court in the case of Uma Devi (supra) wherein it has been held as under:-
When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
11. It has further been held by the Honble Supreme Court as follows:-
While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
12. From above, it is clear that simply because applicants have worked with the respondents for 14 years, it does not give them any legal right to claim regularization. Counsel for the applicants could not show us any legal right in support of applicants claim to be reinstated as casual workers especially when respondents have explained that there was total ban on engagement of causal workers from 1.9.1993 onwards and their engagement itself was contrary to the instructions issued by the department. It is also relevant to note that the duties of chowkidars, mali, waterman etc. have been assigned to Multi Tasking Staff, therefore, the services of casual workers were not required any more. In these circumstances if services of applicants who were working as casual labour part-timers were to be dispensed with effect from 1.12.2010 it calls for no interference.
13. In view of above, the relief, as claimed by the applicants, cannot be granted. The OA is accordingly dismissed. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh