Central Administrative Tribunal - Delhi
While Working As Regular Syce Gp D Post In ... vs Union Of India (Through Secretary) on 21 September, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3222/2011 with O.A.No.411/2012 Friday, this the 21st day of September, 2012 Honble Shri G George Paracken, Member (J) Honble Smt. Manjulika Gautam, Member (A) OA-3222/2011 Ex-Farm Syce Shri Chetan (P No.5226) s/o late Shri Chhotey aged about 71 years Superannuated w.e.f. year 2000 on attaining age of 60 years While working as Regular Syce Gp D post in Equine Breeding Stud (EBS), Babugarh Cantt under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence r/o Village & Post Bichhlota Distt. Ghaziabad (UP) ..Applicant (By Advocate: Shri V P S Tyagi) Versus 1. Union of India (through Secretary) Ministry of Defence South Block, New Delhi 2. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block III, R K Puram New Delhi 3. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (UP) ..Respondents (By Advocate: Shri D S Mahendru) OA-411/2012 Shri Vijay Pal about 45 years s/o Shri Khem Chand presently working in Gp D post against sanctioned grade of Beldar as Farm Labourer in EBS Babugarh Babugarh Cantt under QMGs Branch AHQ Ministry of Delhi r/o Village Habispur Bigas Post Babugarh Cantt. Distt. Ghaziabad (UP) ..Applicant (By Advocate: Shri V P S Tyagi) Versus 1. Union of India (through Secretary) Ministry of Defence South Block, New Delhi 2. The Director General of RVS (RV-1) QMGs Branch AHQ, IHQ of MOD (Army) West Block III, R K Puram, New Delhi 3. The Controller General of Defence Accounts Ulan Batar Marg Palam Delhi Cantt. 4. The Controller of Defence Accounts (Army) Belvadier Complex Meerut Cantt. (UP) 5. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (UP) ..Respondents (By Advocate: Shri D S Mahendru) O R D E R (ORAL)
Shri G George Paracken:
Both the OAs, O.A.No.3222/2011 and O.A.No.411/2012, have been listed together. Therefore, they are heard together and are being disposed by this common order.O.A.No. 3222/2011
2. According to the applicant, he was initially engaged as daily wager / casual worker in the year 1965 and he was paid out of the contingency fund. Later on, his continuance in service as a casual worker was governed by the Ministry of Personnel, Public Grievances & Pensions (Deptt. of Personnel & Training) O.M. No.49014/2/86.Estt. (C) dated 7.6.1988 and the same is extracted below:
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) OM No. 49014/2/86 Estt.(C) dated 7th June, 1988.
Subject: Recruitment of casual workers and persons on daily wages Review of policy.
The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgement of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
i) Persons on daily wages should not be recruited for work of regular nature.
ii) Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised. If considered necessary.
iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/3oth of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
v) In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
vi) The casual workers may be given one paid weekly off after six days of continuous work.
vii) The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
viii) In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance.
ix) Where work of more than one type is to be performed throughout the year but each type of work does not justify a separate regular employee, a multifunctional post may be created for handling those items of work with the concurrence of the Ministry of Finance.
x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post.
xi) If a Department wants to make any departure from the above guidelines, it should obtain the prior concurrence of the Ministry of Finance and the Department of Personnel and Training. All the administrative Ministries /Deptts. Should undertake a review of appointment of casual workers in the offices under their control on a time-bound basis so that at the end of the prescribed period, the following targets are achieved:-
a) All eligible casual workers are adjusted against regular posts to the extent such regular posts are justified.
b) The rest of the casual workers not covered by (a) above and whose retention is considered absolutely necessary and is in accordance with the guidelines, are paid emoluments strictly in accordance with the guidelines .
c) The remaining casual workers not covered by (a) and (b) above are discharged from service.
2. The following time limit for completing the review has been prescribed in respect of the various Ministries/Deptts:-
a) Ministry of Railways 2 Years b) Department of Posts, Department of 1 Year Telecommunications and Department of Defence Production c) All other Ministries / Deptts./Offices 6 months
3. Subsequently, the Ministry of Personnel, Public Grievances & Pensions (Deptt. of Personnel & Training), vide OM No.49014/4/90 Estt. (C) dated 8.4.1991, issued revised instructions regarding regularization of services of casual workers in Group D posts. According to the said OM, keeping in view of the fact that the casual employees belong to the economically weaker section of the society and termination of their services will cause undue hardship to them, it was decided, as a one time measure, in consultation with the Director General Employment and Training, Ministry of Labour, that casual workers recruited before 7.6.1988 and who are in service on the date of issue of those instructions, are to be considered for regular appointment to Group D posts, in terms of the general instructions, even if they were recruited otherwise than through employment exchange and had crossed the upper age limit prescribed for the post, provided they are otherwise eligible for regular appointment in all other respects. The said O.M. is also extracted as under:-
Subject: Regularisation of services of casual workers in Group D posts-Relaxation of employment exchange procedure and upper age limit.
The undersigned is directed to refer to this Departments OM No. 49014/4/77-Estt.(C) dated 21st March, 1979 where in the conditions for regularisation of casual workers against Group D posts were prescribed. The policy with regard to engagement and remuneration of casual workers in Central Government offices has been reviewed from time to time and detailed guidelines in the matter were issued vide OM No. 49014/2/86- Estt.(C) dated 7th June, 1988.
2. Requests have now been received from various Ministries/Departments for allowing relaxation in the conditions of upper age limit and sponsorship through employment exchange for regularisation of such casual employees against Group D posts, who were recruited prior to 7.6.88, i.e., date of issue of guidelines. The matter has been considered and keeping in view the fact that the casual employees being to the economically weaker section of the society and termination of their services will cause undue hardship to them, it has been decided, as a one time measure, in consultation with the Director General Employment and Training, Ministry of Labour, that casual workers recruited before 7.6.88 and who are in service on the date of issue of these instructions, may be considered for regular appointment to Group D posts, in terms of the general instructions, even if they were recruited otherwise than through employment exchange and had crossed the upper age limit prescribed for the post, provided they are otherwise eligible for regular appointment in all other respects.
3. It is once again reiterated that recruitment of casual workers in Central Government Offices may be regulated strictly in accordance with the guidelines contained in this Departments OM No. 49014/2/86- Estt. (C) dated 7.6.88. Cases of neglect of these instructions should be viewed very seriously and brought to the notice of the appropriate authorities for taking prompt and suitable action against the defaulters.
4. Ministry of Finance etc. are requested to bring the contents of this OM to the notice of all the appointing authorities under their respective administrative control.
Sd/- M. S. Bali Deputy Secretary to the Government of India
4. Pursuant to the aforesaid office memorandum, the respondents have issued letters of regularization of service in respect of several casual labourers, including the applicant, who was working as Syce at the relevant time. Applicants service was regularized w.e.f. 16.9.1993. Later on, he superannuated from service. The respondents did not give him the pensionary benefits on the ground that he did not complete 10 years of qualifying service. According to him, the respondents were wrong in not determining his qualifying service for pension as they did not count 50% of his casual service for the purpose of calculating the qualifying service for pension.
5. However, his grievance in this OA is that he has also not been paid the weekly offs and ad hoc bonus as per the provisions of OM dated 7.6.1988 but in similar cases, this Tribunal has ordered for such payments and the respondents have already implemented such orders. Hence, he has filed this OA seeking the following reliefs:-
(a) Direct the Respondents to accord the similar and identical benefits, monetarily by making payment of arrears of paid weekly off remaining unpaid for the period the applicant has worked as daily wager admittedly w.e.f. 1980 to Sept. 1993 prior to his substantive Absorption in Gp D post of Beldar as per provisions of DOP& OM dt. 7.6.88 regarding payment of Arrears of paid weekly off remaining unpaid on par by extending directions of Honble Tribunal order which has been implemented in similar cases.
(b) Pass any order or directions as deemed just & proper in the facts and circumstances of this case with award of the cost in favour of the applicant against the Respondents.
6. The applicant has relied upon the Annexure A-4 office memorandum No.51016/2/98-Estt. (C) dated 10.9.1993 granting temporary status and regularization of casual workers. By the said memorandum, a scheme has been formulated for the regularization of casual labourers known as casual labourers (grant of temporary status and regularisation) scheme of Government of India, 1993. It came into force w.e.f. 1.9.1993. By the said scheme the temporary status have been conferred on all casual labourers who were in employment on the date of issue of the said O.M. and who had 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 in the case of office observing 5 day week). On granting the temporary status, the casual labourers are entitled for some benefits including counting of 50% of the service rendered under temporary status for the purpose of retirement benefits, after their regularization. The said O.M. reads as under:
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993."
2. This Scheme will come into force w. e. f. 1.9.1993.
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and 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 the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
I) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA.
II) Benefits of increments at the same rate as applicable to a Group `D employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
III) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
IV) Maternity leave to lady casual labourers as admissible to regular Group `D employees will be allowed.
V) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
VI) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D employees, provided they furnish two sureties from permanent Government servants of their Department.
VII) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Adhoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
7. The applicant has also submitted that the respondents have taken steps to grant the benefits of the aforesaid OM dated 10.9.1993 in the cases of many other similarly placed persons. He has, therefore, relied upon the decision of the Chandigarh Bench of this Tribunal rendered on 8.10.2002 in the case of Savita Rani & others v. Union Territory, Chandigarh & others (OA-274/CH/2002 and OA-363/CH/2000) and contended that when a judgment of a court has been implemented and has attained finality, denying similar benefits to other who are similarly situated is discriminatory.
8. The respondents have filed their reply stating that as per record, the applicant worked with them in the capacity as a daily wager from 1980 to 15.9.1993 and w.e.f. 16.9.1993 his service was regularized. They have rejected his claims firstly on the plea that the OM dated 7.6.1988 is applicable only to casual labourers but he was not a casual labourer and, therefore, he has never been accorded with the Temporary Status. On the other hand, he was working as daily wager casual worker and he had already been regularized as a Syce on 16.9.1993, i.e., before the implementation of the scheme of regularization of casual labourers, 1993. Further, vide order dated 4.12.2009 in O.A.No.864/2009 (Shri Dharambir v. Union of India & others), this Tribunal directed the respondents to pay arrears of various benefits due to grant of temporary status to the casual employees w.e.f. 1.7.1983. They filed the R.A.No.42/2010 against the said order on the ground that the claim of the applicants therein according to the prayer was to be considered w.e.f. 1.7.1996 only and not earlier and the temporary status was granted to them only with effect from the said date instead of 1.7.1993. The Tribunal rejected the aforesaid R.A.No.42/2010 on 22.3.2010. Thereafter, they filed the M.A.No.1435/2010 in O.A.No.864/2010 seeking correction of certain typographical mistakes in the judgment dated 4.12.2009 mentioning that the similarly placed employees in other OAs have been granted the similar benefits only w.e.f. 1.7.1996. According to the applicants therein, the said MA was allowed vide order dated 13.9.2010 and directed the establishment to pay the benefits w.e.f. 1.7.1996 only and not from the early date. Accordingly, all the financial benefits have been paid to all the casual labourers with temporary status who were eligible and whose cases were not sub judice as per their entitlement since 1.7.1996, i.e., the date of conferment of the temporary status. The applicant was not paid any benefits, as he has already been regularized as Syce w.e.f. 16.9.1993, i.e., well before their regularization in terms of the aforesaid scheme issued on 10.9.1993. The respondents have, therefore, submitted that the applicant is not entitled for any relief, as provided in the OM dated 10.9.1993.
9. Learned counsel for respondents has also relied on the decision of this Tribunal in OA-2264/2011 Shri Vijay Pal v. Union of India (through Secretary, Ministry of Defence). The grievance of the applicant therein was that he has been incorrectly denied payment of arrears of weekly off w.e.f. 1.7.1988 and also he has been incorrectly denied the ad hoc bonus, vide respondents order dated 14.12.2010. The said OA was disposed of by this Tribunal, vide order dated 4.7.2011 with a direction to consider the representation of the applicant therein and to pass appropriate orders.
10. The learned counsel for the respondents has also relied upon the common order of this Tribunal dated 25.11.2011 in O.A.No.818/2011 and connected cases Shri Jai Prakash v. The Union of India through Secretary, Ministry of Defence & others. All the applicants in the said OAs have challenged the communication dated 14.12.2010 in terms of which the request for payment of arrears on account of paid weekly off, stated to be due from the date of his engagement as daily wager in terms of DOPTs OM dated 7.6.1988 and for prayer of ad hoc bonus has been rejected. The Tribunal after detailed discussion has dismissed those OAs on the ground that they were hit by the principle of constructive res judicata.
11. The applicant has filed a rejoinder stating that in the DOPTs O.M. dated 10.9.1993 it has not been mentioned anywhere about paid weekly off as a benefit to be accorded to the casual labourer on conferment of the temporary status. However, the casual labourers on daily wage became entitled for the benefit of the paid weekly off and ad hoc bonus by virtue of DOPTs OM dated 7.6.1988. He has also referred to paragraph 10 of the DOPTs OM dated 10.9.1993 wherein it has been stated that In future the guidelines as contained in this Departments O.M. dated 7.6.88 should be followed strictly in the matter of engagement of casual employees in Central Government Offices. As such, the arrears of paid weekly off remaining unpaid in respect of those casual workers, who were granted temporary status, was allowed and paid only after the intervention of this Tribunal. He has also stated that the payment of arrears of paid weekly off remaining unpaid had been released to the casual labourers conferred with temporary status w.e.f. 1.7.1996, after computing and working out the same, from the same date even though there was no specific mention for payment of the paid weekly off in the DOPTs OM dated 10.9.1993. However, on the basis of OM dated 7.6.1988, the payment of paid weekly off has been admitted in principle by the respondents in their cases for whatever reason.
OA-411/2012
12. The grievance of the applicant in this OA is that the respondents have not paid him the paid weekly off for the National Holidays on which he was made to work as a casual worker. His other grievance is that he was not paid ad hoc bonus during the period he served as casual worker. He has, therefore, prayed for the following reliefs in this OA:-
(a) Direct the Respondents to make payment of the arrears of paid weekly off due which remaining unpaid in spite of the applicant had been agitating his cause since long, which remaining unpaid since the applicants date of engagement in 1987 as per law alongwith 12% p.a. interest to have became due from the date it fell due till the date is paid.
(b) Direct the respondents to make payment of the arrears of the Ad-hoc Bonus remaining unpaid on wrong premises without any fault of the applicant to have computed and calculated in terms of the government instructions taking into account the applicant date of initial engagement with interest also @ 12% p.a. by quashing the impugned communication (A-1).
(c) Pass any other or direction as deemed just and proper in the facts and circumstances of the case with award of exemplary cost against the Respondents in favour of the applicant.
13. The respondents in their reply have submitted that the applicant had earlier approached this Tribunal, along with another similarly placed person, namely, Brij Mohan, vide O.A.No.2174/2009 seeking the following reliefs:
(a) Direct the respondents to carry out the review of the applicants payment made on muster-rolls by grant of Annual Increments where ever admissible as per the applicants entitlement as per law to work out the arrears of pro-rata daily wages to which the applicant has become entitled by virtue of conferment of temporary Status under DOP&T O.M. dated 10.09.193 which is effective from 01.09.193 and make payment of arrears with 12% interest from the date it fell due till it is paid.
(b) Direct the respondents to reckon the conferment of Temporary Status by relating back wef 01.09.1993 from the date DOP&T scheme came into effect for purpose of payment of entitlement of all the benefits as envisaged under para 5 of DOP&T O.M. dated 10.09.1993 which is being denied on wrong premises.
(c) Work out the entitlement of the benefit of annual increments in computation of pro-rata daily wages by taking into effect conferment of temporary Status wef 01.09.1993 by also giving benefit of weekly off where ever the applicant completing continuous 6 days working period as CLTS and make payment of arrears of weekly off not paid and Gazetted Holidays with difference of wages paid and as per entitlement on addition of annual increments which has been denied on wrong premises with 12% interest alongwith the yearly adhoc bonus as is allowed to the CLTS by the Government from time to time by also taking into account days of paid weekly of and Gazetted Holidays.
(d) Direct the respondents to work out the leave entitlement upto date @one day leave on each 10 days working period and intimate the same, also the respondent need to ensure proper accounting of such leave as per Govt instructions to be carried over on regularization in substantive absorption in Group D.
14. This Tribunal disposed of the said OA vide common order dated 16.12.209 with the following directions:
6. Accordingly, we dispose of these OAs with a direction to the respondents to consider the claim of the applicants by adding factum of increments while computing the pro-rata wages w.e.f. 1.7.1996 and also to compute their leave account and the same shall be intimated to the applicants by a speaking order to be passed within a period of three months from the date of receipt of a copy of this order. While disposing of their claims, the detailed calculations, as are indicated by the learned counsel for applicants, shall also be considered by the respondents. No costs.
15. Though they have paid all dues in terms of the aforesaid order, the applicant again filed O.A.No.2264/2011 seeking another relief on the basis of the DOPTs letter No.49014/2/86-Est. (C) dated 7.6.1988 (supra) and it was also disposed of vide order dated 4.7.2011 with the direction to the applicant to make a suitable representation within three weeks time to the respondents giving specific provisions of the rules under which he was entitled for the weekly off and the ad hoc bonus and the respondents to consider the same and pass a speaking order. The said order reads as under:
The grievance of the applicant in this OA is that he has been incorrectly denied payment of arrears of weekly off w.e.f. 01.07.1988 and also that he has been incorrectly denied ad hoc bonus vide respondents order dated 14.12.2010.
2. Learned counsel for the applicant submits that the denial of his claim for weekly off and ad hoc bonus is not in accordance with the rules and that he would make a detailed representation to the respondents in this regard and would be satisfied if a direction is issued to the respondents to decide the same in accordance with the rules within a fixed time frame.
3. In view of the above limited prayer, we deem it appropriate to dispose of this OA, at the admission stage itself, by giving three weeks time to the applicant to make a detailed representation giving the specific provisions of the rules under which he is entitled to the same (i.e. weekly off and ad hoc bonus) to the respondents in response to the letter dated 14.12.2010 and, on receipt of such representation, the respondents are directed to decide the same through issue of a reasoned and speaking order and communicate the same to the applicant within a period of three months in accordance with law.
4. It is made clear that we have not expressed any view on the merits of the claim of the applicant.
5. No costs.
16. However, the applicant did not make any representation. The respondents have also stated that on the very same issues other similarly placed employees have filed the following O.A.s:-
OA No 818/2011 filed by Shri Jai Prakash OA No 819/2011 filed by Shri Rishi Pal OA No 823/2011 filed by Shri Hari Chand OA No 824/2011 filed by Shri Raj Pal OA No 827/2011 filed by Shri Dharambir OA No 828/2011 filed by Shri Dharambir All those OAs were dismissed by the common order dated 25.11.2011 as they were hit by the principles of constructive res judicata. The relevant part of the said judgment is as under:-
3. The brief facts of the case, as are relevant, are that the applicant, who is presently working as a Casual Labour with Temporary Status (CLTS) at the EBS Farms, Ghaziabad, had earlier filed OA No.1865/2009 with the following prayers:
Direct the respondents to carry out the review of the applicants payment made on muster rolls by grant of Annual Increment where ever admissible as per the applicants entitlement as per law to work out the arrears of pro-rata daily wages to which the applicant has became entitled by virtue of conferment of Temporary Status under DoP&T OM dated 10.9.1993 which is effective from 1.9.93 and make payment of arrears with 12% p.a. interest from the date it fell due till it is paid.
Direct the respondents to reckon the conferment of Temporary Status by relating back w.e.f. 1.9.93 from the date DoP&T Scheme came into effect for entitlement of all the benefits as envisaged under para 5 of the DoP&T OM dated 10.09.93 which is being denied on wrong premises.
Work out the entitlement of the benefit of annual increments in computation of pro-rata daily wages by taking into effect conferment of Temporary Status w.e.f. 1.9.93 by also giving benefit of weekly off where ever the applicant completing continuous 6 days working period as CLTS and make payment arrears of weekly off not paid and Gazetted Holiday with difference of wages paid and as per entitlement on addition of annual increments which has been denied on wrong premises with 12% interest alongwith the yearly ad-hoc Bonus as is allowed to the CLTS by the Government from time to time by also taking into account days of paid weekly of and Gazetted Holidays.
Direct the respondents to work out the leave entitlement upto date @ one day leave on each 10 days working period and intimate the same, also the respondent need to ensure proper accounting of such leave as per govt. instructions to be carried over on regularization in substantive absorption in Group `D.
In the said OA the following order was passed by a Coordinate Bench of this Tribunal on 19.01.2010:
It is submitted at the Bar that the order passed by the Tribunal in OA-803/2009 with connected batch matters dated 18.11.2009, a copy whereof has been produced before the Court, governs the prayer of the applicants at paras 8 (c) and (d) to which the relief has been confined. The matter is, therefore, disposed of by taking note of the above submission for further action on the part of the respondents. No costs.
4. The grievance of the applicant is that he has not been paid the arrears of `Paid weekly off and also the arrears of ad-hoc bonus along with interest at the rate of 12% p.a. to which he is entitled as per the DoPTs Scheme of 1988. Therefore, the present OA has been filed seeking the following reliefs:
Director the respondents to make payment of the arrears of paid weekly off due which remaining unpaid in spite of the applicant had been agitating his cause since long, which remaining unpaid since the applicants date of engagement in 1987 as per law alongwith 12% p.a. interest to have became due from the date it fell due till the date it is paid.
Direct the respondents to make payment of the arrears of the ad-hoc bonus remaining unpaid on wrong premises without any fault of the applicant to have computed and calculated in terms of the government instructions taking into account the applicant date of initial engagement with interest also @12% p.a. 4.1. The main grounds on which aforementioned reliefs are sought are the following:
(1) that the respondent No.5 has made payment of arrears of Paid Weekly Off dues which had earlier remained unpaid but has paid the same only from 1.7.96 reckoning the same, to be applicable on conferment of Temporary Status under DoP&T OM dt. 10.9.93, whereas the applicant is entitled for this even for the period that he was employed as daily wager casual labourer, i.e., since the year 1987, in terms of the DoP&T OM dt. 7.6.1988.
(2) that the Respondent No.5 has denied payment of arrears of Ad-hoc Bonus on wrong premises and by interpreting the rule position and the Government instructions on the subject.
5. The respondents have opposed the OA and have taken a preliminary objection that the OA is barred by the principle of constructive resjudicata, stating that the applicant had not raised these points in the earlier OA No.1865/2009 filed by him in this connection. In support, they have relied on the Judgement of this Tribunal in OA No.553/2009 (Shri Shiv Charan vs. Union of India). They have further stated that the applicant has been granted all the reliefs in terms of the DoPTs OM of 10.9.1993 (hereinafter called as `Scheme of 1993) and, therefore, the respondents pray that the OA be dismissed.
6. We have heard the counsel for both the parties and have been through the pleadings on record, including the written arguments filed by the applicant.
7.1. It is noticed that the applicant had, in the earlier OA No.1865/2009, had prayed for specific similar reliefs, which were referred to hereinbefore. When the OA came up for hearing a Coordinate Bench of this Tribunal had observed that the order passed in OA 803/2009 with connected batch matters dated 18.11.2009 governs the prayer of the applicants at paras 8(c) and (d) to which the relief has been confined by the learned counsel for the applicant at the Bar, and had disposed of the said OA on 19.01.2010 with a direction to the respondents to take further action in the matter.
7.2. For proper appreciation of the matter, it is necessary to extract the order/directions passed in OA No.803/2009, decided on 18.11.2009. The relevant part of this order reads as under:
As these OAs founded on common facts with an identical question of law, are being disposed of by this common order.
2. These applicants have been accorded temporary status w.e.f. 1.7.1996. They are separately agitating their grievance as to illegal selection allegedly held by the respondents. However, the learned counsel for the applicant has restricted the relief only to the grant of computation of pro-rata wages by adding increments and also maintenance of the leave account as per clause 5(iii) of the DoP&T OM dated 10.9.1993. This has been resisted by the learned counsel for the respondents on the ground that having performed job on seasonal basis, they are entitled for the same.
3. On careful consideration of the rival contentions of the parties, we are of the considered view that after grant of temporary status to the applicants w.e.f. 1.7.1996 no distinction can be made between the CLTS performing seasonal work or otherwise. As such, whatever entitled envisaged under DoP^T OM of 1993 shall be made admissible to the applicant.
4. In the above of the matter, we direct disposal of these OAs with a direction to the respondents to consider the claim of the applicants by adding factum of the increments while computing the pro-rata wages w.e.f. 1.7.1996 and also to compute their leave account and the same shall be intimated to the applicants by a speaking order passed within three months from the date of receipt of a copy of this order. While disposing of their claims, the detailed calculations as are indicated by the counsel for applicants in OAs shall also be considered by the respondents. No costs. (Emphasis supplied) It is clear from the above order of the Coordinate Bench of this Tribunal that the applicants in OA No.803/2009 were held to be entitled to the benefits made available under DoP&T OM of 1993 only. The position would be the same for the present applicant as the earlier OA filed by him was disposed of by this Tribunal on the basis of the directions issued in the said OA 803/2009, i.e., he would be entitled to the benefits admissible under DoPTs OM of 1993 only.
It is noticed that Para 5 of the DoP&Ts Scheme of 1993 (Page 15 of the paper book), the temporary status would entitle the casual labourers to the following benefits:
Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA, and CCA.
Benefits of increments at the same rate as applicable to a Group `D employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for atleast 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of works casual or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
Maternity leave to lady casual labourers as admissible to regular Group `D employees will be allowed.
50% of the service rendered under Temporary status would be counted for the purpose of retirement benefits after their regularization.
After rendering three years continuous service after conferment of temporary status, the casual labouers would be treated on PAR with temporary Group `D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D employees, provided they furnish two sureties from permanent Govt. Servants of their Department.
Until they are regularised, they would be entitled to Productivity linked Bonus/Ad-hoc bonus only at the rates as applicable to casual labourers. 7.3. The respondents have categorically stated that the applicant has been granted all the entitlements in terms of the DoPTs Scheme of 1993, including the ad hoc bonus.
7.4. Having earlier filed a case vide their OA No.1865/2009 for award of entitlements as per DoP&T letter No.51016/2/90-Estt(C) dated 10 Sep. 1993, which was disposed of by this Tribunal on 19.01.2010 with a direction to the respondents to consider the claim of the applicant by adding the factum of increments while computing the pro-rata wages w.e.f. 01.07.1996 and also to compute their leave account, and as per the order/judgment, payment of arrears has been made to the applicant and the other parties who filed the OA on the same matter, the applicant cannot now seek yet another relief on the basis of DoP&T OM/letter of 07.06.1988 as he could have sought the same in the earlier OA. We have no hesitation in holding, therefore, that the present OA is barred by the principle of constructive resjudicata. The applicant cannot seek reliefs in piecemeal.
8. The applicant in his written submissions, filed after the case was reserved for orders, contended that the case would not be barred by constructive resjudicata as the present OA relates to payments that he was entitled to while holding status as a Casual Labour on daily wages (from Febraury, 1980 to 30.06.1996) when he was paid out of contingency through Muster Rolls, whereas the earlier OA related to payments when he held a different status, namely, that of CLTS. In the order passed in the earlier OA 1865/2009, this distinguishing feature relating to the two working spells, in each of which there is different status of the applicant (casual labour on daily wage and Casual Labour with Temporary Status), were not taken into consideration and, in fact, the spell relating to the daily wage period from 1980 to 30.06.1996 was not even discussed and allowed specifically. Thus, the pleadings in the OAs are confined to different causes of action, and thus the doctrine of constructive resjudicata would not be operative. It is also stated that there is a mention of the OM dated 07.06.1988 in the OM dated 10.09.1993.
9. We are unable to accept the above submissions of the learned counsel for the applicant, in view of the fact that what was directly and substantially in issue in the earlier OA was `the arrears of weekly off and ad-hoc bonus not paid. As such, the applicant ought to have raised all points which could be taken in support of his claim on these two issues. Any such point, which might and ought to have been so raised by the applicant in the earlier application is deemed to have been a matter directly and substantially in issue in that application and is thus hit by the principle of constructive resjudicata. It was thus obligatory upon the applicant to put forward all claims on these issues that were available as a result of DoPT orders and within his knowledge in the earlier application, and failure to do so would debar him from raising such claim in any subsequent application. The applicant could, and should, have claimed the relief now sought relating to the `daily wage period in terms of the DoPTs OM dated 07.06.1988 (which, as per the applicants own statement, finds mention in the DoPTs OM dated 10.09.1993) in the earlier OA specifically, but he did not do so, and he cannot now be allowed to claim the same reliefs, as reliefs relating to the same issue cannot be claimed in piecemeal either for different periods or under different schemes. Also, the order passed in the OA referred to the OM dated 10.09.1993, and the applicant could, and ought to have, made his claim for weekly off under the 1988 Scheme as well in that OA.
The respondents counsel has categorically stated that all the payments have already been made by the respondents in terms of DoPTs OM dated 10.09.1993, including those relating to ad hoc bonus (this was confirmed in response to a specific query from the Bench), and also that the order of the Tribunal has been implemented and has attained finality. Thus, no case for any further direction in the matter is necessary.
10. The learned counsel for the applicant, in his written arguments, has listed out the following cases:
1. (2010) 10 SCC 141
2. (2010) 9 SCC 145
3. (2010) 9 SCC 602
4. (2009) 10 SCC 273
5. (2007) 13 SCC 416;
6. (2008) 11 SCC 753
7. (2007) 8 SCC 487 (2006) 13 SCC 401 (2007) 6 SCC 196
10. (2007) 10 SCC 724 (2004) 3 SCC 277 (2004) 1 SCC 551 (2004) 10 SCC 745 on the applicability of resjudicata and constructive resjudicata without specifying as to how and in what manner these cases support his claim. In the absence of any specific submission on any point, it is not considered expedient to refer them as principles of law on the subject, which is otherwise well settled, and we have accordingly dealt with the issues raised in the proceedings. However, in the interest of justice, we have randomly selected a few of the cases mentioned for our perusal and found that some of these cases, in fact, are distinguishable and some even go against the case of the applicant. For better appreciation of the applicants reliance on these cases, it would be relevant to note the issues involved in the following cases referred to by the applicant:
a) Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141.
b) Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri and Others, (2010) 9 SCC 145.
c) Gaddam Ramakrishnareddy and Others v. Gaddam Ramireddy and Another, (2010) 9 SCC 602.
d) Dadu Dayalu Mahasabha, Jaipur (Trush) v. Mahant Ram Niwas and Another, (2008) 11 SCC 753.
In Alka Guptas case (supra), the Honble Supreme Court held that a bar of second suit is not applicable where the second suit is based on a different and distinct cause of action. In our view, this case would not help the applicant and in fact would go against the applicant as in the present case the reliefs/cause of action are substantially the same, as already discussed earlier.
In Haryana State Electricity Boards case (supra), the Honble Apex Court held that the second suit was not barred by res-judicata as the matter that was directly and substantially in issue therein was completely different from the matter that was directly and substantially in issue in the first suit. This case is totally distinguishable from the present case as in the present case the issue involved in both OAs is substantially the same and, therefore, the applicant ought to have raised all points which could be taken in support of his claim, and any such point, which might and ought to have been so raised by the applicant in the earlier application is deemed to have been a matter directly and substantially in issue in that application and thus the present case is hit by the principle of constructive resjudicata.
The cases of Gaddam Ramakrishnareddy(supra) and Dadu Dayalu Mahasabha, Jaipur (supra) also would not help the case of the applicant as the facts and circumstances of both the cases are distinguishable.
We do not consider it is necessary to go into the other cases as the law is well settled in the matter of constructive resjudicata.
11. For the reasons discussed above, we must hold that the present OA is hit by the principle of constructive resjudicata; therefore, it is dismissed. Accordingly, OAs No.819/2011, 823/2011, 824/2011, 827/2011, and 828/2011 are also dismissed. No costs.
Registry is directed to place a copy of this order in the respective files of the other OAs mentioned above.
17. The applicant has filed a rejoinder stating that the respondents have wrongly stated that in compliance of this Tribunals order they have paid all the benefits to the applicant, which was due to him under the provisions of DOP&T OM dated 10.9.1993. Hence in order to ascertain the correctness of the respondents contention, the applicant called for information under Right to Information Act, 2005 and in the reply he was informed, vide communication No.550/Civ/Stud/RTI/Vijay Pal dated 14.10.2010, that amount of paid weekly off calculated on the basis of six days continuous working as mentioned in the muster-rolls for the period w.e.f. 1.7.1996 to 31.8.2010 @ Rs.22408/- as shown in the calculation sheet enclosed therewith. They have also stated that payment of ad hoc bonus has not been made as the applicant did not meet the requisite criteria. But on scrutiny of the due and drawn statement and the information made available to him under RTI 2005, he again submitted another representation dated 30.11.2010 to the Commandant requesting him to reconsider the issues with regard to payment of paid weekly remaining unpaid as per the directions contained in DOP&T OM dated 7.6.1988. The respondents admitted the same only w.e.f. 1.7.1996 ignoring the earlier period for this purpose as well payment of the ad hoc bonus was not admitted as stated in their letter dated 14.12.2010.
18. We have heard the learned counsel for the applicants, Shri V.P.S. Tyagi and learned counsel for the respondents, Shri D.S. Mahendru in both these OAs. As regards the applicant Shri Chetan in OA-3222/2011 is concerned, his grievance is that though he is similarly placed as the applicants in the bunch of OAs decided on 18.11.2009, he has not been extended the same benefits granted to those applicants. His further grievance is that even though he made a representation seeking the same relief as in the order dated 18.11.2009 for grant of benefit relating to paid weekly off remained unpaid and ad hoc bonus as envisaged in DOP&Ts OM dated 7.8.1988, the same was rejected vide the impugned Annexure A-1 letter dated 13.3.2011 on the wrong premise that since he was never accorded the status of casual worker, he is not entitled for the paid weekly off in terms of the aforesaid order of the DOP&T.
19. We have considered the submissions made by the applicant and the Annexure A-1 letter of the respondents dated 13.3.2011. We have also considered the reply filed by the respondents. The admitted position by the respondents themselves is that he was working as a daily wager casual worker with them with effect from 1980. He has already been regularized w.e.f. 16.9.1993 which was before the actual implementation of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Govt. of India 1993 even though the said scheme came into force w.e.f. 1.9.1993. However, their contention is that the DOP&Ts OM dated 7.6.1988 is applicable only to casual workers. The aforesaid stand taken by respondents is quite fallacious and against the facts. There is no difference between terms casual wager casual worker and casual worker as envisaged in DOPTs OM dated 7.6.1988. The subject of the said OM itself is Recruitment of Casual Workers and persons on daily wages Review of Policy. In fact, the designation given to the applicant as casual wager/casual worker is the respondents own coinage in order to frustrate his claims in this OA. It is true that the applicant was not given the temporary status but he was straightway regularized in service w.e.f. 16.9.1993 on the basis of the relaxation given for regularization of casual labourers engaged in terms of the OM dated 7.6.1988, as provided in DOPTs subsequent OM dated 8.4.1991. Hence he was entitled for paid weekly off and paid National Holiday for the admitted period of his engagement from 1980 to 16.9.1993 which has not been paid to him. Therefore, the respondents are bound to pay the amount on account of them.
20. We, therefore, dispose of this OA with the direction to the respondents determine the various weekly off dates and the National Holidays during the period from 1980 to 16.9.1993 and make the payments as provided in the said OM dated 7.6.1988 within three months from the date of receipt of a copy of this order. He shall also be paid the simple interest at the rate of 9% per annum for the delayed payment till the amount is actually paid.
21. There shall be no order as to costs.
22. As far as Shri Vijay Pal, the applicant in OA-411/2012 is concerned, as submitted by the respondents, the same is hit by the principle of constructive res judicata. The applicant has earlier approached this Tribunal vide OA No.2264/2011 (supra) seeking the very same relief sought in this OA and it was disposed of on 4.7.2011 with the directions to him to make a suitable representation and the respondents to consider and dispose it of by passing a reasoned and speaking order. However, according to the respondents, the applicant has not made any representation so far. We, therefore, dispose of this OA also giving one more opportunity to the applicant to make a representation to the respondents within two months from the date of receipt of a copy of this order, in the interest of justice. If such a representation is received, the respondents shall consider the same and dispose of it by passing a reasoned and speaking order, within a period of two months thereafter.
23. No order as to costs.
24. Let copies of these orders be placed in both the files.
( Smt. Manjulika Gautam ) ( G George Paracken ) Member (A) Member (J) /vb/