Central Administrative Tribunal - Delhi
Bir Singh vs The Post Master on 5 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2110/2013 Reserved On:28.11.2014 Pronounced On:05.12.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Bir Singh R/o H.No.73, Majra Shamshabad Palwal, District Faridabad, Haryana-121102. Applicant By Advocate: Shri Rajiv Mangla. Versus 1. The Post Master, Main Post Office Palwal City, District Faridabad, Haryana-121102. 2. The Superintendent of Post Office, Faridabad Division, Faridabad, Haryana-121001. 3. The Director, Postal Services, Uydog Vihar, Gurgaon, Haryana-122001. 4. The Chief Postmaster General, Haryana Circle, Ambala, Haryana-133001. ..Respondents By Advocate: Shri Amit Anand. ORDER
G. George Paracken, Member(J) The grievance of the Applicant is that he has been arbitrarily and maliciously terminated from service w.e.f. 24.07.2011 after rendering 26 years of long service as a Chowkidar, that too, without even a show cause notice.
2. The brief facts: According to the Applicant, for the last 23 years from the year 1988 he was made to work as a part-time Chowkidar but extracting work for 15 hours daily from 5.00 P.M. to 8.00 A.M. uninterruptedly. He has also stated that after such long duration of service, when his service was terminated, he was not even given a notice so that he could make a representation against such action. According to him, on 24.07.2011, the Respondents simply told him that the post of Chowkidar which he was holding was abolished and he need not come for work from the next date. However, they assured him that he will be adjusted/transferred to some other post as he was a pre-01.01.1993 appointee and in terms of the letter dated 18.07.2011 of Respondent No.4, the services of the part-time workers engaged on or before 1993 were not dispensed with but they were to be utilized on other jobs. The said letter reads as under:-
Department of Posts, India Office of the Chief Post Master General, Haryana Circile, Ambala-133001.
MOST URGENT IMMEDIATE To
1. The Director Postal Services, Gurgaon-122001.
2. All Sr./Supdt. Post Offices/RMS.
3. Supdt., PSD, Ambala.
4. Director of Accounts (Postal), mbala.
5. S.E.( C) Postal, Ambala.
6. Asstt. Director (Staff), Circle Office, Ambala.
7. OS/Staff Clerk, Circle Office, Ambala.
No.Staff/70-2/Casual Labourers/2008 dated at Ambala the 18.07.2011 Sub: Regarding immediate stoppage of the practice of engaging part time workers as Chowkidars, Madam/Sir, I am directed to refer to last para (iii) of this office letter of even No. dated 03.12.2010 on the above cited subject and to say that no part time workers to be engaged as Chowkidar under any circumstances. In this matter the Secretary (Posts) vide her D.O. letter No.4-4/2009-PCC dated 12.07.2011 has directed that in case such part time workers have been engaged on or before 01.09.1993, their services may not be dispensed with but utilized on other jobs.
Immediate compliance report should be sent by FAX.
Yours faithfully, Sd/-
(B.P. Pande) Assistant Director, Postal Services (Staff), Haryana Circle, Ambala-133001.
Endt. No.A-2/Casual Labourers/2011 dated at Faridabad the 18.07.2011.
Copy for information and necessary action to:
1. Postmaster, FBD, Hr.121001.
2-42. All SPMS FBD.
43-44. All Post (West)/SP(P)East.
45-46 O/c..
Sd/-
Supdt. Post Offices Faridabad Division, Faridabad-1210..
3. The Applicant has also submitted that the Respondent No.1, vide its letter dated 04.08.2011 to the Respondent No.2 had intimated that he was working as a part-time Chowkidar before 01.10.1993 and as a supporting document, it has enclosed the inspection report dated 24.12.1990 wherein it has been shown that the establishment of the office concerned of SPM, LSG (Standard)-1, PAs-10, Postman-8, Grade D-4, EDSV-1 EDDA( R )-3 and P.T. Chowkidar-1. However, when the Respondents have not re-engaged him, he made oral as well as written representations. In his representation dated 09.05.2012, he stated that as he has been working as a full time Chowkidar for over 26 years he should be reinstated and posted in that capacity, keeping in view his uninterrupted and unblemished service. As the Respondents have not taken any action, he sent an application under the Right to Information Act, 2005 on 29.09.2012 to the Respondents seeking information as to what proceedings have been taken by them in respect of the said representation. As there was no response to the said application also, he has filed this Original Application seeking direction to the Respondents to reinstate him in service and to treat him as full time Chowkidar and to pay him the pay allowances as admissible to other full time Chowkidars.
4. Respondents have filed their reply stating that in view of the judgment of the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others 2006 (4) SCC 1, the requests of the persons who got employed, without following the regular procedure or through back door on daily wages, approaching courts, seeking directions to make them permanent, cannot be entertained. They have also stated that the Applicant was engaged on casual basis and he was not recruited by following any procedure laid down in the Recruitment Rules. Hence, he has no locus standi to file the present OA. They have also stated that the Applicant was engaged as contingent paid part-time Chowkidar in Palwal Sub-Post Office in account with Faridabad NIT HO under Faridabad Division. However, no record pertaining to his engagement in Palwal Post Office is available to ascertain whether he was engaged before 01.01.1993 or not as the said Post Office was set ablaze during the anti-reservation agitation in the year 1990 and all its records got destroyed. Further, they have stated that the service of the Applicant was dispensed with in compliance of the directions of the Chief Postmaster General, Haryana Circle Ambala issued vide the aforesaid letter No.Staff/70-2/Casual Labour/2008 dated 18.07.2011.
5. We have heard the learned counsel for the Applicant Shri Rajiv Mangla and the learned counsel for the Respondents Shri Amit Anand. In our considered view the Respondents have dealt with the case of the Applicant in a callous, indifferent and arbitrary manner. The sudden dispensing of his services on the basis of the letter of the Chief Post Master General dated 18.07.2011 was absolutely illegal and wrong. The said letter categorically states that the service of the part-time workers who have been engaged on or before 01.01.1993 should not be disengaged and they should be utilized on other jobs. Contention of the Applicant is that he has been working as a Chowkidar for about 26 years from the year 1988 and he was posted with the Palwal Sub-Post Office. But the submission of the Respondents is that they could not confirm the date from which he was working as Chowkidar with the said Post Office as the same was set on fire during the anti-reservation movement in the year 1990. However, the Applicant has the documentary proof that the Palwal Sub-Post Office had the sanctioned post of a part-time Chowkidar as per the Inspection Report of that office dated 24.12.1990. Even though the Applicant has provided the said document, the Respondents were not even prepared to look at it and suddenly dispensed with his service by oral order. They have also not bothered to trace the record relating to the engagement of the Applicant after 1990. In our considered view, such callous and indifferent manner in which the applicant who served the Department for 26 years has been disengaged deserves to be deprecated. Even in the case of Uma Devi (supra), the Apex Court has held that an employee who has worked for more than 10 years should not be disengaged in such arbitrary manner. The relevant part of the said judgment reads as under:-
7. In Civil Appeal Nos.3595-3612 of 1999 the respondents therein who were temporarily engaged on daily wages in the Commercial Taxes Department in some of the districts of the State of Karnataka claim that they worked in the department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the department, entitled to all the benefits of regular employees. They were engaged for the first time in the years 1985-86 and in the teeth of orders not to make such appointments issued on 3.7.1984. Though the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation. These respondents thereupon approached the Administrative Tribunal in the year 1997 with their claim. The Administrative Tribunal rejected their claim finding that they have not made out a right either to get wages equal to that of others regularly employed or for regularization. Thus, the applications filed were dismissed. The respondents approached the High Court of Karnataka challenging the decision of the Administrative Tribunal. It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularization within a period of four months from the date of receipt of that order. The High Court seems to have proceeded on the basis that, whether they were appointed before 01.07.1984, a situation covered by the decision of this Court in Dharwad District Public Works Department vs. State of Karnataka (1990 (1) SCR 544) and the scheme framed pursuant to the direction thereunder, or subsequently, since they have worked for a period of 10 years, they were entitled to equal pay for equal work from the very inception of their engagement on daily wages and were also entitled to be considered for regularization in their posts.
XXX XXX XXX
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or 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 Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
6. The Punjab and Haryana High Court in CWP No.20521 of 2012 (O&M) Union of India and Others Vs. Ganga Ram and Another decided on 12.10.2012 has also held that once the Respondent No.1 therein (the employee concerned) had completed more than 10 years of service as on 11.05.2005, he was certainly entitled to be considered for regularization in compliance of the directions of the Apex Court in Uma Devis case (supra). The relevant part of the said order reads as under:-
CWP No. 20521 of 2012 (O&M):The Tribunal after considering the submissions made by respondent No.1 and objections raised by the petitioners, allowed the O.A. and held that respondent No.1 who has been working for more than 8 hours a day is to be treated as full-time Chowkidar and he is entitled to wages of full-time Chowkidar. It has been held that the issue with regard to treating such part-time Chowkidars as full-time Chowkidars is covered by number of decisions of the Tribunal in the case of Rattan Chand Versus Union of India and another (O.A. No.822/HP/1998 decided on 15.5.2000) ; Puran Chand Versus Union of India and another (O.A. No.1084/HP/1994 decided on 29.10.1996) and Narain Singh Versus Union of India and another, (O.A. No.861/CH/1999 decided on 25.4.2000) and accordingly the petitioners were directed to grant wages of casual full-time Chowkidar to respondent No.1 and the arrears were restricted to three years prior to the filing of the O.A. Learned counsel for the petitioners could not controvert the aforesaid legal position. In view of the fact that respondent No.1 has been working for more than 8 hours a day as Chowkidar of the petitioner Department, he is entitled to the wages of casual full-time Chowkidar. Thus, in our opinion the Tribunal has rightly granted the said benefit to respondent No.1 while restricting his claim to three years. Learned counsel for the petitioner hotly contested the second direction issued to the petitioners by the Tribunal, i.e. to consider the case of respondent No.1 for regularization in terms of the Instructions dated 11.12.2006 based on the judgment in Umadevi's case (supra) against the sanctioned post whenever available as per his seniority. The learned counsel argued that the appointment of respondent No.1 as part-time Chowkidar was irregular, therefore, keeping in view the observations made by the Supreme Court in para 44 of the judgment in Umadevi's case (supra), he could not have been considered for regularization. However, it has not been disputed that all those casual workers who had been appointed before 1993 had been conferred with Temporary Status and later on were regularized on completion of 10 years of service as Group `D' employees according to the instructions dated 11.12.2006. However, respondent No.1 cannot be granted the said benefit because he was appointed in the year 1995, but it is a matter of fact that when the Instructions dated 11.12.2006 came into existence, respondent No.1 had completed more than 10 years of service and according to those Instructions the petitioners are required to consider his case for regularization against the vacant available posts. It has been found by the Tribunal that respondent No.1 though was appointed as Part-time Chowkidar, but he is entitled to full wages being full-time casual worker. Therefore, in our opinion, such type of worker is to be considered for regularization on completion of 10 years of service. In the facts of the present case it cannot be said that the appointment of respondent No.1 was irregular. It has not been disputed before us that such appointments are being made by the petitioners in their Post Offices at various places. Respondent No.1 has been working in the petitioner Department since 1995 against the sanctioned post. It is not the case of the petitioners that no post of Chowkidar is available with the petitioner Department. It is also not the case of the petitioners that respondent No.1 was not qualified for appointment on the said post. Once respondent No.1 has completed more than 10 years of service as on 11.5.2005, he is certainly entitled to be considered for regularization in view of the Instructions dated 11.12.2006 issued by the petitioners in compliance with the directions given by the Supreme Court in Umadevi's case (supra). Respondent No.1, who is a poor person and working as Chowkidar for the last more than 17 years, cannot be denied the benefit of regularization on the ground that his appointment was irregular, particularly when there is no such material on the record. At no point of time the petitioners had ever written to respondent No.1 that his appointment was irregular. Only to defeat his claim for regularization, such plea has been taken by the petitioners so that respondent No.1 may not get the benefit of full-time Chowkidar despite the fact that he has been continuously working as night Chowkidar with the petitioner Department. In view of the above, we do not find any illegality in the impugned order passed by the Tribunal while granting the aforesaid two relief to respondent No.1.
No merits. Dismissed.
7. Another aspect of this case is that the Applicant was engaged as a Chowkidar (Night Watchman). It is not understood as to how the Applicant could have been designated as a part-time Chowkidar when he was the only Chowkidar holding the said post. The Respondents have also not denied the fact that the duty time of the Applicant was 5.00 P.M. to 8.00 A.M. (15 hours).
8. The Chandigarh Bench of this Tribunal in OA No.360/HP/99 Moti Ram Vs. UOI and Others decided on 15.05.2000 held that a Chowkidar who has been performing duty for 16 hours every day could not be treated as a part-time Chowkidar and directed the Respondents to treat him as a full time Chowkidar and to pay him the pay and allowances payable to full time Chowkidar. Again, the same Bench in OA No.109-HP of 2012 Tabe Ram Vs. U.O.I. & Others decided on 31.03.2012 held that the Applicant therein was engaged as Chowkidar but terming him as a part-time employee is unjustified. The relevant part of the said order reads as under:-
8. We have heard the learned counsel for the parties and carefully gone through the record. After perusal of the various decisions rendered by this Bench from time to time, it is found that the respondents have taken the same plea while disputing the working hours of the chowkidars and the plea of residence of the Sub Post Master near the post office or his residence within the office premises and this Court has held that since the applicants were performing the duties during the whole night they cannot be termed as part time and once they are not part time employees, they are governed by the scheme of 1991 which is applicable to those who were employed on 29.11.1989. In the present case, the applicant was admittedly engaged as chowkidar on 8.3.1989 and since he has been working as such and performing night duty it can safely be presumed that the applicant has been performing the duties for the whole night and therefore, he cannot be termed as part time chowkidar. Therefore, once he is not termed as a part time chowkidar, he is entitled to be treated as full time casual chowkidar, held to be entitled to the same benefits for grant of temporary status and thereafter for his consideration for regularisation with all the benefits as have been given to similarly situated persons who have approached this Tribunal and will be covered under the orders passed in their cases vide Annexure A/15 dated 29.7.2011.
9. We order accordingly as the case of the applicant is found to be squarely covered by these Judgments. Consequently, the concerned respondents are directed to pass appropriate orders while treating the applicant as full time Chowkidar from his initial date of engagement and consider his case for grant of temporary status with all financial and other consequential benefits as have been given to other similarly situated persons, within a period of three months from the date of receipt of a copy of this order. So far as the regularisation of the applicant is concerned, his case may be considered as per his seniority amongst the temporary status casual labourers as per rules and law.
10. With these observations and directions, this O.A. stands disposed of accordingly with no order as to costs.
9. The Madras Bench of this Tribunal has also considered similar issue in OA No.342/2012 A. Raju Vs. The Union of India represented by Sr. Superintendent of Post Offices Tirunelveli and Another and decided on 19.04.2013. The Applicant therein also was working as a (night Watchman) from 06.10.1998 till 31.12.2010. He was thrown out of employment with effect from 01.01.2011 by oral order of the Respondents. It was also found that the Applicant therein has rendered 22 years of service as Chowkidar and he has been denied work without any reason. The Tribunal has, therefore, directed the Respondents to reinstate him in service with immediate effect with continuity of service with full back wages and other attendant benefits. The Respondents were also directed to regularize the service of the Applicant as Group D that is from the date of initial appointment, i.e., 06.10.1988 as MTS and grant him all consequential benefits. The Tribunal has also allowed cost of Rs.10,000/- (Rupees Ten Thousand) to be paid to the Applicant.
10. This very same Bench has also considered the same issue in TA No.57/2012 Shri Kali Charan and Another Vs. The Union of India and Another decided on 03.11.2014. The Applicants therein were also working as Chowkidars and they were also terminated after several years of their service on the basis of the letter dated 28.12.2010 issued by the Chief Post Master General, Delhi Circle, New Delhi. The Bench considered the submission of the Respondents that as regards part-time workers are concerned, it was enjoined upon all concerned that in no case, Casual Labourers were to be engaged for regular duties or against the Casual Labourers who have vacated their work due to death or otherwise and the engagement of part time workers as Chowkidars, in house keeping maintenance like sweeping, scavenging, gardening should also be stopped forthwith, especially the contengencies paid Chowkidars, who are oftenly engaged for extended hours of duty during the night. In the said case, the justification given by the Apex Court in Uma Devis case (supra) was considered for disengagement of such persons. However, after detailed consideration in the matter, the Bench allowed the OA with cost. The operative part of the said order reads as under:-
8. We have heard Applicants who appeared in person and the learned counsel for the Respondents Shri T.C. Gupta.
9. In our considered view the disengagement of the applicants from their service as Part-Time Malies are absolutely arbitrary and illegal. It is seen that the Respondents have stopped them performing their duties on oral orders based on Respondents letter dated 28.12.2010 extracted elsewhere in this order. It only says that a review was to be undertaken as to examine whether currently engaged Casual Labourers were recruited by due process of selection as per DOP&T guidelines. It further says that in no case Casual Labourers were to be engaged for regular nature of duties or against the Casual Labourers who vacates the work due to his death or otherwise. It has also been reiterated in the said letter that engagement of part time workers as Chowkidars, in house keeping maintenance like sweeping, scavenging gardening should be stopped forthwith, especially the contingencies paid Chowkidars, who are oftenly engaged for extended hours of duty during the night. The aforesaid letter is not applicable in the case of the Applicants. It is borne out of the record that the Applicants were appointed against the two vacant posts of Part-Time Malies. Secondly, their initial engagement was not against the rules or the DOP&Ts guidelines. In other words, they are not any kind of back door entries. The Respondent No.2 has duly notified those vacancies to the local employment exchange and the employment exchange in turn had forwarded 5 names against the requisite number of vacancies of two. The Respondent No.2 has thereafter, made a proper selection and appointed the Applicants as Part-Time Malies against the vacant posts. It is most unfortunate that in spite of their appointment after regular selection process against the vacant posts, the Respondents shown their appointment as purely on temporary and ad hoc arrangement for 90 days. But since the actual position was that their appointment was against the vacant permanent posts, they continued to work uninterruptedly for 20 years i.e. from 27.01.1995 to 27.12.2010. The Respondent No.2 has not even bothered to review the case of the applicants to find out whether they have been recruited by following due process of selection or not as required under their letter dated 28.12.2010.
10. We also do not find that the order of the co-ordinate Bench of this Tribunal in Md. Faiyazuddins case (supra) is not applicable in this case. In that case, they were seeking protection under Section 25F of the Industrial Disputes Act, 1947. Moreover, the case of the Applicants therein was not that they were appointed against clear vacant posts of Part- Time Malies, that too after due process of appointment. On the other hand, we observe that the Applicants in this case have been appointed as Part-Time Malies against the vacant and notified posts. Therefore, they should have been appointed as such and not in any other manner as done by the Respondent No.2 in their case. Moreover, we find that the Respondents have applied the judgment of the Apex Court in the case of Uma Devi (supra) out of context in this case without any application of mind. The said judgment talks about Casual Worker engaged not based on a proper selection as recognized by the relevant rules or procedure. In the present case, the Applicants have been selected after due process. The selection of suitable candidates for the erstwhile Group D posts including Part-Time Malies was used to be made from among the candidates requisitioned from the Employment Exchange and it was a proper selection procedure.
11. We, in the aforesaid facts and circumstances of the case, allow this OA. We are also constrained to hold that since the initial appointments of the Applicants as Part-Time Malies were against the existing notified vacant posts based on proper and recognized procedure, they were regular appointments. We, therefore, set aside the action of the Respondents disallowing the Applicants from performing their duty as Part-Time Malies w.e.f. 27.12.2010. Consequently, we direct that the Respondents shall reinstate the Applicants as Part-Time Malies with retrospective effect from 27.12.2010 and treat their earlier service as regular. But in the facts and circumstances of the case, they will not be entitled for any back wages/arrears of wages from the initial engagement to 27.12.2010. However, for the loss of livelihood from the period from 27.12.2010 and for the litigation expenses, the Respondents shall pay a lump-sum amount of Rs.25,000/- (Rupees twenty five thousand only) each of the Applicants. The aforesaid directions shall be complied with immediately but in any case within a period of one month from the date of receipt of a copy of this order.
11. In the above facts and circumstances of the case, we are also of the considered view that the services of Applicant Chowkidar (night Watchman) could not have been treated as on part time. It is not the case of the Respondents that while the Applicant was working on part-time basis because there was another part-time Chowkidar also who was sharing his duty for half time. Therefore, since the Applicant has been working for the last 26 years as Chowkidar from 5.00 P.M. to 8.00 P.M. everyday, he could not have been treated and paid as a part-time Chowkidar. The post of Chowkidar being the lowest post in the Government offices/departments, the holders of those posts should have not been exploited in such manner. Another aspect of the case is that there is no dispute that the post of the so called Part Time Chowkidar was sanctioned. The Applicant himself has produced documentary proof to the effect that the said post was sanctioned. Even otherwise, when a person was performing the duty of Chowkidar for several years, it cannot be said that there was no sanctioned post. It is for the Government to sanction the posts when required and to abolish them, when not required. We, therefore, hold that the disengagement of the Applicant citing the judgment of Uma Devis case (supra) was arbitrary and illegal. We also cannot subscribe to the submission of the Respondents that since the Palwal Sub-Post Office was burnt down in the year 1990, the service rendered by the Applicant from 1988 will get obliterated altogether. The Respondents have also not tried to get any collateral evidence such as statement of the persons who have been working along with him in the said Post Office in the year 1988. In such circumstances, when the exact date of engagement of the Applicant in the year 1988 is not available, they may treat the date of his appointment from the middle of that year, i.e., 01.06.1988. 12. In the result, the Applicant succeeds and the OA is allowed with the following directions:-
(i) The Respondents shall reinstate the Applicant as Chowkidar in service immediately with continuity of service with effect from 01.06.1988 with full back wages and attendant benefits. They shall work out uptodate difference in pay and allowances and pay the same to the Applicant.
(ii) They shall also regularize his service as Chowkidar from the aforesaid date.
(ii) In the facts and circumstances of the case, the Respondents shall pay the cost of litigation to the tune of Rs.10,000/- (Rupees ten thousand only) to Applicant.
(iv) The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
13. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh