Council of Scientific and Industrial Research and Others vs Parideen and Others

Aruna Suresh, J.—Present writ petition has been filed by the petitioners Council of Scientific and Industrial Research (hereinafter referred to as "CSIR") and National Physical Laboratory (hereinafter referred to as "NPL") assailing the order dated 12th May, 2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as "CAT") in OA No. 3160/2001 whereby CAT allowed the application filed by the respondents herein with a direction to the petitioners herein to consider the re-engagement of the respondents.

Factual matrix of this case is that on or before 5th December, 1988 the respondents were engaged to work as daily wage workers to carry out the work of seasonal or occasional/intermittent nature and the engagement of the respondents came to an end after the expiry and completion of work. Some casual workers filed Writ Petition (Civil) in the Hon''ble Supreme Court being Writ Petition (Civil) No. 631/1988 titled Kamlesh Kapoor and Ors. v. Union of India and Ors. praying for regularization of casual workers. The said petition was disposed of by the Hon''ble Supreme Court vide its order dated 5th December, 1988 with a direction to the petitioners to prepare a scheme for absorption of all persons who were working on casual basis. Consequently, petitioner No. 1 issued directions vide letter No. 3(58)187-E-III/V dated 30th March, 1990 to all the laboratories/institutions directing inter alias that the services of only those persons may be continued who were doing same type of job as performed by regular employees of the laboratories/institutions. This resulted into disengagement of the respondents from their work.

Some casual labourers filed OA No. 2215/1988 titled Shri Suresh Prasad Thakur and Anr. v. Director General, CSIR and Anr. challenging their discontinuation. Vide its order dated 14th April, 1991 CAT allowed the said OA with the directions to modify the scheme of 1990 and also laid down the guidelines for such modification. This order was challenged by the petitioners in Civil Appeals No. 5299-5300/1993. However, the challenge was not entertained by the Hon''ble Supreme Court vide its order dated 10th August, 1994 and accordingly the scheme of 1990 was modified and new scheme of 1995 titled "Casual Workers Absorption Scheme of CSIR 1995" was formulated.

Respondents Mr. Parideen and Mr. Veer Singh in the present writ petition Along with three others who were also engaged as casual labourers on daily wages on or before 5.12.1988 were dis-engaged disengaged in the year 1990. Some casual workers who were not identified for absorption under the scheme feeling aggrieved because of their non-engagement from services filed OA No. 48/1997 titled Raj Kishore Misra and Ors. v. Council of Scientific and Industrial Research and Ors. before the CAT praying for their engagement and subsequent absorption. Vide order dated 13th December, 2000 CAT disposed of the said application with the directions to the petitioners to make efforts to re-engage the applicants in the said OA. It was also observed that while doing so, the petitioners should not lose sight of the claim of the persons who were senior to the applicants in the said OA and awaiting their engagement. The engagement of disengaged casual labourers were to be in accordance thereof. But some persons junior to the present respondents were re-engaged ignoring the respondents. Therefore, the present respondents filed their representations which were not replied to.

Respondents filed OA No. 3160/2001 and their application was allowed by the CAT vide its order dated 12th May, 2003 with the following directions:

(i) The applicants whose name appear in the seniority list furnished by the respondents themselves they will be appointed as and when vacancies become available in their turn.

(ii) The other applicants who claim to have worked with respondents shall make a comprehensive representation to respondents with convincing material to prove that they had worked with respondents and in case respondents feel satisfied they may also re-engage as per their turn in accordance with the scheme.

Learned counsel for the petitioners has contended that after their disengagement in the year 1990, the present respondents never agitated the question of their disengagement till the year 2001 when they filed OA bearing No. 3160/2001 praying therein for re-engagement as daily wage workers and subsequent absorption. Therefore, the petition is barred by limitation. He has relied upon Jai Prakash v. Union of India and Ors. OA No. 3071/2001 decided on 12th November, 2001 and dismissed in liming as time barred and also on merits.

Learned counsel for the respondents while refuting these contentions has submitted that the said order dated 12th November, 2001 was reviewed in a Review Application No. 18/2005 vide order dated 6th October, 2005 and the order of the Tribunal was recalled with the directions that the scheme of 1990 as modified in pursuance of the directions of the Hon''ble Supreme Court vide order dated 10th August, 1994 in Civil Appeal Nos. 5299-5300 of 1993 and subsequently issued on 6th December, 1995 being not noticed by the Tribunal was an error apparent on the face of the record. The OA was accordingly heard on merits and allowed with the directions to the respondents (therein) to re-engage the applicants in the said OA within a period of three months and grant of temporary status and regularization in accordance with the Scheme of 1995.

It is also submitted by the learned counsel for the respondents that the cause of action in favor of the respondents accrued only when junior casual workers were regularized and they were ignored and the OA was filed immediately thereafter.

Petitioners have not disputed the fact that they regularized some of the junior casual workers without taking into consideration the seniority of the respondents (herein). In view of this, challenge of the maintainability of the OA on the basis of limitation is of no consequence and is without merit.

Petitioners have further contended that the 1995 scheme was only clarificatory and only an extension of the 1990 scheme. This contention of the petitioners is completely untenable and is devoid of merits. The scheme of 1995 was framed by the petitioners on the guidelines issued by the Tribunal in OA No. 2215/1988 titled Shri Suresh Prasad Thakur and Anr. v. Director General, CSIR and Anr. and OA No. 2221/1988 Shri Shiv Charan and Ors. v. Director General, CSIR and Anr. in its common order dated 12th April, 1991. This order was challenged by the petitioners by way of a Civil Appeal Nos. 5299-5300/1993. The appeal was dismissed with the directions to the petitioners to implement the modified scheme within 15 months from that day.

The relevant portion of the 1995 scheme is as under:

Absorption of Casual Workers in CSIR

Name of the Scheme: This scheme shall be called "Casual Workers Absorption Scheme of CSIR, 1995" and will supersede all the earlier schemes on this subject operating in CSIR and its National Labs./Instts.

Administration of Scheme: ....

To whom Applicable: The scheme being a one-time measure will be applicable to the workers engaged on casual basis and paid either on daily wage or monthly basis at CSIR Headquarters and its National Labs./Institutes and will also include casual workers engaged in a sponsored project/bilateral or any time bound project scheme. Casual Workers will include contract workers directly engaged by the CSIR Labs./Instts. and being paid their wages on monthly basis.

Scope of the Scheme: The scheme will be applicable to casual workers initially engaged through Employment Exchange or otherwise prior to 5.12.1988 but had not been regularised for want of regular vacancies or whose services have been dispensed with for want of regular vacancies and who had worked for 240 days/206 days including Sundays and Holidays (in the case of six days/five days a week, respectively) in a year prior to 5.12.1988 will have priority over the others in regard to absorption. Those who have worked for lesser period, may be considered for absorption in accordance with the length of service put in by them.

Terms and conditions of regularisation:

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

General Conditions:

(a) ...

(b) ...

(c) ...

(d) ...

...

...

Clause 3 of the above scheme is fully applicable to the respondents who have been engaged as casual workers on daily wages and as such they are entitled to the benefit under the scheme.

A perusal and analysis of the opening lines of the scheme indicate that this scheme shall supersede all other earlier schemes on this subject of the CSIR. In other words, the scheme of 1990 stood superseded on preparation of scheme of 1995 and on its implementation for regularization and absorption of casual workers in CSIR. Therefore, the submissions of the learned counsel for the petitioners that the scheme of 1995 is only a modification or clarification of the scheme of 1990 is untenable.

It is further contended by the learned counsel for the petitioners that the respondents are not covered by the scheme of 1995 and they could not be considered for re-engagement because they had not completed 240 days/206 days including Sundays and Holidays (in the case of six days/five days a week respectively) and were not engaged as daily workers. The respondents were engaged as casual workers on daily wages in the year 1986 and 1987 respectively apparently prior to 5.12.1988. This fact is clear from the list prepared and maintained by the petitioners themselves. Respondent Parideen had put in 18, 133, 166 and 158 days in the years 1986, 1988, 1989 and 1990 respectively. Whereas respondent Veer Singh had put in 46, 19, 149, 123 days in the years 1987, 1988, 1989 and 1990 respectively. Considering the working days of both the respondents respectively, the petitioners are right when they say that the respondents do not fulfill the condition of the scheme as they do not qualify for regularization as they have not worked for the minimum working days as per the scheme of 1995.

However, later part of clause 4 of the scheme cannot be overlooked to consider the claim of the respondents in the present circumstances. It requires the petitioners to take into consideration the length of service put in by the respondents if they have worked for lesser period. Though the persons who have worked for the requisite period are to be given priority over the others with regard to absorption.

Learned counsel for the petitioners in support of his submission relied upon the order dated 11.09.2003 of the Tribunal in case of Jai Prakash v. Union of India and Ors. (supra) wherein it was held that in case of casual workers there is no concept of seniority. As already pointed out by us earlier, the said decision has been reviewed by the Tribunal and the OA was allowed vide its order dated 6th October, 2005. Challenge to the said order dated 6.10.2005 by the petitioners before this court was also dismissed on 19.07.2006. Therefore the reliance on the judgment of Jai Prakash (supra) to contend that concept of seniority is inapplicable in case of casual workers is otiose as apparent vide order dated 6.10.2005. The Tribunal while allowing the OA in the said case held the applicants therein to be senior and accordingly in view of the scheme were required to be given preference over the juniors. It is not out of place to mention here that the order of the Tribunal dated 13th December, 2000 in OA No. 48/1997 titled Raj Kishore Misra and Ors. v. Council of Scientific and Industrial Research and Ors. whereby the concept of seniority in the said OA was protected has not been challenged by the petitioners and Therefore the petitioners cannot now claim that seniority is a concept alien to the causal labour class. In any case the CAT''s judgment is not binding on this Court.

In this case the petitioners have maintained a list of seniority of the Daily Wagers including the present respondents. In this seniority list the name of Raj Kishore Misra appears at Serial No. 54 and he joined as a casual worker on 22.08.1988, whereas the name of Parideen appears at Serial No. 37 and date of his initial appointment is shown as 11.09.1986. Similarly, respondent Veer Singh is shown at Serial No. 47 and his date of appointment is shown as 10.11.1987. For termination of the service the petitioners are required to observe the principle of last-come first-go i.e. the juniormost has to go first on termination of a service.

In Central Welfare Board and Others Vs. Anjali Bepari (Ms) and Others, it was observed that "dispensing with the services should be on last come first go basis i.e. the juniormost incumbent has to go out first and they would be regularised only when regular posts are available and in accordance with the order of seniority".

In Union of India and Others Vs. Dharma Pal and Others, , it was observed:

Even those who were engaged as daily wages/casual labour, who could not complete 240 days but required to be retrenched, the procedure prescribed for retrenchment under the Industrial Disputes Act should be followed. A list of them in the order of seniority should be maintained. Last-come first-go principle should be followed in that behalf. As and when vacancies arise or need for the work arises, they should be called for the work immediately without asking them to get their names sponsored by the Employment Exchange.

The concept of seniority has been imparted in clause 4 of the scheme of 1995 by using the word "Priority Over Others". So, clearly the petitioners cannot be justified in the action of re- engaging the juniors and ignoring the seniors on the plea that the concept of seniority is not applicable.

As per 1995 scheme priority has to be given to those who have completed 240 days/206 days including Sundays and Holidays (in the case of six days/five days a week, respectively) prior to 5.12.1988. Others who have worked for a period of less than said period of 240/206 days as the case may be, their entire length of service should be considered for absorption. Considering the entire scheme of 1995 the Tribunal rightly allowed the OA vide impugned order dated 12th May, 2003.

We, Therefore, find no infirmity in the order of the Tribunal meriting interference. The Writ petition being without any merit is accordingly dismissed with costs quantified at Rs. 10,000/- payable on or before 20th January, 2008. The petitioners are also directed to implement the order of the tribunal not later than 20th January, 2008. Since the petitioner enjoyed a stay from this Court since 20th January, 2004 the case will be listed for reporting compliance on 24th January 2008.