Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary on 16 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.832/HR/2011 Decided on: 16.03.2012 CORAM: HONBLE MRS. SHYAMA DOGRA, MEMBER (J) HONBLE MRS. PROMILLA ISSAR, MEMBER (A) Jagdish Rai, Aged about 50 Years, S/o Sh. Mai Ram, Part Time Chowkidar, Sub Post Office, Safidon, District Jind (Haryana). ..Applicant Versus 1. Union of India through Secretary, Government of India, Ministry of Information Technology and Communications, Department of Posts, Dak Bhawan, New Delhi-110011. 2. Chief Post Master General, Haryana Circle, Ambala. 3. Senior Superintendent of Post Offices, Karnal Division, Karnal. 4. Assistant Superintendent of Post Offices, Head Post Office, Jind. .Respondents Reserved on: 27th February, 2012 Present: Sh. Amit Sharma, proxy for Sh. R.K. Sharma, counsel for the applicant Sh. Rohit Sharma, proxy for Sh. Deepak Agnihotri, counsel for the respondents. ORDER
(BY Honble Mrs. Shyama Dogra, Member(J)
1. Heard learned proxy counsel for the parties.
2. The applicant has challenged the impugned order of termination of his services as Part Time Chowkidar vide Annexure A-1, dated 21.07.2011, without assigning any reasons with further prayer to give a direction to the respondents to mark his attendance for the period of work and to regularize the services of the applicant in terms of the Scheme formulated for grant of temporary status / regularization in Group D post.
3. The applicant claims that initially he was appointed as Part Time Chowkidar w.e.f. 02.02.1992 but the respondents are taking work from him on full time basis though he is termed as a Part Time Chowkidar right from 02.02.1992 till date, without any break. Thus, he has rendered almost 20 years of service to make him entitled to grant of temporary status and regularization under the Scheme introduced by the Respondent-Department, dated 12.04.1991 vide Annexure A-4. He has also prayed for consequential benefits and payment of full amount of salary for the duties performed by the applicant from 5 P.M. to 9 A.M. and 9 A.M. to 5 P.M. from the date of his appointment till date after adjusting the amount already paid to him for part time duty along with interest @ 18% p.a. from the due date till the date of actual payment.
4. Learned counsel for the applicant has submitted that in view of the judgment rendered by the Honble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi and others, reported as 2006(1) SCSLJ 480, since the applicant has worked with the respondents for more than 19 / 20 years without any intervention of any court of law, he is to be regularized under the Scheme formulated under the one time measure in view of the observations made by the Honble Apex Court in the aforesaid case.
5. Learned counsel for the applicant has also placed on record a copy of the Scheme published in Swamys - Establishment and Administration issued by the Government of India, Department of Posts on 16.09.1992 (A-5) Clause 3 thereof envisages that if part-time casual labourers are working for five hours or more, it may be examined whether they can be made full time by readjustment or combination of duties. However, there should be no engagement of fresh casual labourers. He further submits that further instructions are issued by the same Department on 30.11.1992 (A-5). Under Clause 5 thereof it is provided that some benefits to casual labourers be given on completion of three years service in temporary status and they be treated at par with Group D employees of the Department of Posts. Thereafter, they are to be granted benefits like leave admissible to temporary employees, holidays, counting of service for the purpose of pension and terminal benefits etc.
6. He has also referred to one judgment rendered by the Learned Co-ordinate Bench of this Tribunal in OA.No.1235/HR/2002 titled Harjinder Pal Singh Vs. UOI & Anr. decided on 08.05.2003 and submits that his case is squarely covered by this decision wherein it was directed by the respondents to consider the case of that applicant working in the Department of Posts for grant of temporary status by considering him a casual employee working for more than 8 hours a day as per the scheme to which the applicant has also referred to.
7. The respondents have filed their written statement and raised the preliminary objection that the ratio of the judgment rendered in the case of Uma Devi & Ors. (Supra) is not applicable in the present case wherein it was discussed that the public appointments are to be made while following Regular Selection Procedure and back door entry should not be allowed to persist for engaging daily wagers. They have further raised an objection that the applicant was engaged as Casual Labour Part Time Chowkidar in Safidon Post Office as contingent paid worker on 02.05.1992 for which no regular bill is maintained by name. Therefore, while passing impugned order Annexure A-1, all the Part Time Chowkidars including the applicant have been disengaged in pursuance of orders passed by the Chief Postmaster General, Haryana Circle, Ambala vide Annexure R-1 dated 18.07.2011. Annexure R-2, is an order issued by the Department of Posts (Pay Commission Cell), New Delhi in this regard.
8. The respondents have however admitted this fact that the Department has formulated a Scheme vide Annexure A-4 dated 12.04.1991, for grant of temporary status and regularization of Casual Labourers, but the Scheme reveals that temporary status would be conferred upon casual labourers in employment as on 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year, during the year for a period of 240 days (206 days in the case of offices observing five days week). Appointment to Group D vacancies would be done as per the extent recruitment rules, which stipulates preference to eligible GDS employees. Since the applicant was engaged in 1992, his case is not covered under the Scheme.
9. They have also drawn our attention to the case decided by the Learned Coordinate Principal Bench of this Tribunal, in OA.No.702/2011 MA No.501/2011, titled Md. Faiyazuddin & Ors. Vs. Ministry of Communications, U.T., New Delhi & Anr., which was dismissed vide order dated 05.07.2011 Annexure R-3.
10. On merits of the case, the submission of the respondents is that applicant was engaged for 7.5 hours of duty as Part Time Chowkidar from 10.00 PM to 05.30 AM of next morning which is equated to 5 hours. The applicant used to come to the Office early and stay at the Post Office after his duty was over at his own just to treat him as Full Time Chowkidar. The Part Time Casual Workers are not allowed to mark their attendance. However, it is also mentioned by the respondents that their presence and absence are marked as P & A respectively by the Incharge of the Office. Applicant was also asked to send his application for the post of Multi Tasking Staff, which was earlier known as Group D post and was to be filled on the basis of seniority from Part Time Casual Labourer and on the recommendation of the concerned recruiting unit. However, he was not found eligible for the same as his educational qualifications are only upto 4th Class whereas the minimum educational qualification provided for Multi Tasking Staff is 10th Pass. Thus, the respondents submit that the applicant is not entitled to grant of temporary status and regularization and related benefits which are being given to the Casual Labourers to whom temporary status was granted before their regularization.
11. The applicant has filed the replication and reiterated his submissions with further arguments by the learned counsel for the applicant that Annexure R-1 dated 18.07.2011 envisages that no Part Time Worker is to be engaged as Chowkidar under any circumstances which shows that from future they are not to be engaged and it has been categorically mentioned in that letter that such Part Time Workers who were engaged on or before 01.09.1993, their services may not be dispensed with but utilized on other jobs. He further submits that the engagement of Multi Tasking Staff has to be done prospectively from the date of issuance of order with regard to Review of instructions or engagement of Casual Labourers in the light of the guidelines and conditions on out sourcing and stopping the existing practice of engaging Casual Labourer as waterman, gardener, watch and ward and this letter is not applicable retrospectively for those Casual Workers who were already working with the respondents.
12. The applicant has categorically submitted that his attendance was duly marked. However, after 21.07.2011 he was not allowed to mark his attendance. He has also specifically denied that he has been working with the respondents for 7.5 hours only and respondents have failed to produce any documents on record to prove this fact as Chowkidars are assigned 9 / 10 hours duty from 6 P.M. to 6 A.M. which are more than 8 hours.
13. We have heard learned counsel for the parties and carefully gone through the pleadings on record.
14. After perusal of the order passed by this Court in Harjinder Singhs case (Supra), it is found that he was also working as Chowkidar performing the duties from 5.00 PM to till 7.00 AM i.e. for 14 hours a day. But he was being paid only for 5 hours a day. In that case also the respondents have taken the plea that Harjinder Pal Singh was only Part Time Contingent Paid Chowkidar. Therefore, he could not be conferred the temporary status. In view of the factual position, the Court has observed that the applicant was performing the duties from 5.30 PM to 7.00 AM. He could not be treated as a Part Time employee, but he could be treated as a Casual Employee performing duties for more than 8 hours a day and he was held to be entitled to be considered for grant of benefit of temporary status under the Scheme. While giving this finding the Court has relied on the decision rendered by this Bench in the case of Narain Singh Vs. UOI and another, decided on 25.04.2000 in OA.No.861/CH/1999 and directions were given to the respondents to consider the case of the applicant for grant of temporary status by considering him a casual employee working for more than 8 hours a day as per the Scheme along with consequential benefits.
15. On the other hand, the respondents have referred to another decision rendered by the Principal Bench in the case of Md. Faiyazuddin & Ors. Vs. Ministry of Communications & Anr. Vide Annexure R-3, which was decided on 05.07.2011. In that case, the respondents have also taken the stand that those applicants who have raised dispute under the Industrial Disputes Act, they cannot be granted appropriate relief as prayed for them in the form of Original Application filed in the Tribunal. The respondents in that case have also explained that there was total ban on the engagement of casual workers from 01.09.1993 onwards and also to dispense with the services of casual labour part-timers from 01.12.2010. However, in our considered opinion, the decision rendered in aforesaid case of Md. Faiyazuddin & Ors. Vs. Ministry of Communications & Anr., is distinguishable on the ground that letters now placed on record by the respondents themselves have not been discussed or any finding being given thereon. In these letters itself, it is mentioned that the persons who are already engaged as Part Time Workers on or before 01.09.1993, their services may not be dispensed with but utilized on other jobs which clearly shows that the persons who were engaged on or before 01.09.1993 are not disengaged and the applicant also comes under the category of these Part Time Workers as he has been engaged by the respondent in 1992. It is also held that the letter issued by the respondents vide Annexure R-2, is applicable prospectively for not engaging the Casual Labourers with effect from that date and in future keeping in view that Multi Tasking Staff Group C is now to be engaged for the purpose of performing the duties of caretaker, general cleanliness, dusting of furniture and gardening etc.
16. So far as treating the applicant as Full Time Casual Worker is concerned, we are of the view that since the respondents have themselves submitted that applicant used to come to the Post Office earlier and stay at the Post Office after his duty was over, it can easily be inferred that he has been performing the duties for more than 8 hours as in case he was to perform the duties for 7.5 hours only, he could not have been allowed to stay late in the office. Therefore, in our considered opinion applicants case is squarely covered by a decision rendered by the Learned Coordinate Bench of this Tribunal, in the case of Harjinder Pal Singhs case and the Scheme framed by the respondents as detailed hereinabove in preceding paras.
17. Therefore, for the foregoing reasons, having come to this conclusion that the applicant has been working with the respondents for more than 8 hours a day, the Competent Authority is directed to consider the case of the applicant for grant of temporary status by considering him as a Casual Employee working for more than 8 hours a day and also consider him for grant of temporary status under the Scheme dated 16.9.1992 read with Instructions dated 30.11.1992 and if found eligible, may be granted consequential benefits from the day he is to be given temporary status and the balance of arrears be paid to him within a period of three months from the date of receipt of a copy of this order.
18. With these observations and directions as above, this OA stands disposed of accordingly. No order as to costs.
(PROMILLA ISSAR) (SHYAMA DOGRA)
MEMBER(A) MEMBER(J)
PLACE: Chandigarh
Dated: 16.03.2012
SV:
O.A. NO. 832/HR/2011 titled (JAGDISH RAI VS. UOI & ORS) -8-