Manoj Singh & Ors vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-

i) By means of writ or certiorari quash the impugned order dated 16.11.2009 (contained as Annexure No. A-1 of the compilation No. II to this Original Application).

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to restore the service of the applicants.

iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to appoint other persons in place of the applicants.

iv) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the outstanding salary of the applicants.

v) Issue any other order or direction which this Court may deem fit and proper in the circumstances of the case.

vi) Award the costs of the application in favour of the applicants.

The brief facts of the case are that the applicants were appointed by the respondents in the Central Excise Department, Agra as daily wager on different dates and years and continuously working for many years. Respondents authority orally terminated the services of the applicants without considering the grievances of all the applicants. Respondents have appointed at least 5 daily wager in place of the applicants. Newly appointed daily wagers are working from August 2004 till now. Applicants have filed O.A. No. 1295/2004 before this Tribunal for direction not to dispense with their services and not to appoint other persons in place of applicants. They have further sought direction to pay outstanding salary to the applicants. This Tribunal vide order dated 17.11.2004 disposed of the O.A. with direction that in case applicants have not been paid their wages or any new faces are being engaged by the respondents, it would be open to the applicants to give a proper representation to the authorities concerned by giving the details within a period of 4 weeks from the date of receipt of a copy of this order and in case they gives such a representation, authorities would apply their mind to the grievances raised by the applicants and dispose of the same by reasoned and detailed order within a period of 6 weeks thereafter under intimation to the applicants. Issue of regularization of applicants was rejected by this Tribunal stating that in the instant case, admittedly as per applicant’s own showing, they were engaged as casual labourer only in the year 1999, 1998. Therefore, they cannot get the benefit of scheme dated 10.9.1993. Thereafter applicant again filed O.A. No. 737 of 2007, which was decided on 30.7.2009 directing the applicants to file within four weeks from today a complete copy of O.A. along with all annexures and additional representation before respondents No.2 and if such representation is filed, the said respondents shall decide said representation within three months of receipt of representation in accordance with law. In compliance of the order dated 30.7.2009, respondents have passed a detailed order dated 16.11.2009, rejecting the claim of the applicants for re-appointment/ regularization.

Learned counsel for respondents have filed counter affidavit, in which it is stated that the applicants were engaged on daily wager for the work which was not regular in nature and they have never worked continuously for 240 days in any calendar year. The letters given to the applicants are not appointment letter as it do not contains any appointment order number. The representation of the applicants were decided by the Deputy Commissioner, Central Excise, Agra by order dated 2.2.2005 and 16.11.2009 after considering all the facts given by them and rejected the claim of the applicants.

Heard learned counsel for the parties.

Learned counsel for the applicants argued that applicants were engaged by the respondents as daily wager on different dates and years. In support of their claims, applicants have annexed their appointment letters dated 24.5.2099, 18.3.1999 and 28.7.1998 (Annexure A-2 to the O.A.). Respondents have terminated the services of the applicants orally and in their place, engaged some new faces as daily wager, who are still working in the department. Applicants have continuously worked in the department till 2004. It is argued that the department cannot engage new casual workers in place of the applicants. It is also argued that department have wrongly decided the representation of the applicants because the applicants had worked for 240 days, hence they are entitled for getting temporary status and also entitled for regularization. It is also argued that services of the applicants cannot be dispensed with without notice and without any order. Learned counsel for applicants also argued that CAT, Principal Bench and CAT, Mumbai Bench had passed favour orders for the applicants in the similar matters.

Learned counsel for respondents have argued that applicants were engaged on daily wager for the work which was not regular in nature and they have never worked continuously for 240 days in any calendar year. It is also argued that in the appointment letters, it is clearly mentioned that their appointments services are temporary in nature and in case of unsatisfactory work, their services can be terminated without any notice. Hence, applicants cannot claim for regularization.

I have considered the rival submissions made by the learned counsel for parties and have gone through the entire material available on record.

From perusal of the record, it is evident that the work done by the applicants was not the same as entrusted with the regular employee and they were not engaged against any regular/permanent vacancy/post. Since their services were no more needed, therefore, they were asked not to come to work. From perusal of the impugned order, it is clear that applicants had not worked during April 2004 to August, 2004. It means they were not engaged in the department after March, 2004 and they had never completed 240 days of continuous work in any calendar year and their services cannot be termed as continuous service. Appointment letters annexed by the applicants shows that they were engaged on temporary basis and in case of unsatisfactory service, their services can be dispensed with without any show cause notice. Appointment of the applicants were not made on a sanctioned post. They were paid minimum fixed wages and no salary was paid. The claim of the applicants that the daily wagers/ casual employees shall not be replaced by another set of daily wagers/ casual labourers directly or through any other mode unless the disengagement is restored to on the ground of unsuitability. It is admitted fact that applicants were not engaged in the department after March, 2004 and as per the applicant’s own statement, newly appointed daily wagers are working in the department from August 2004 till now, which shows that newly appointed daily wager were engaged after five months of disengagement of the applicants. Hence, the applicants cannot claim that newly appointed casual labours were appointed in their place. Issue of regularization of applicants was rejected by this Tribunal vide order dated 17.11.2004 in O.A. No. 1295/2004 stating that in the instant case, admittedly as per applicant’s own showing, they were engaged as casual labourer only in the year 1999, 1998. Therefore, they cannot get the benefit of scheme dated 10.9.1993.

Learned counsel for applicants has placed reliance of the judgment passed by the Hon’ble High Court in Civil Misc. Writ Petition No. 76697 of 2005 decided 12.8.2009, which was also dismissed by the Hon’ble Supreme Court on 12.4.2013 in Special Leave to Appeal (Civil) No. 7576/2013, on the ground of delay, to show that one set of adhoc or temporary employee cannot be replaced by another set of adhoc /temporary employee and must be replaced only by a regularly selected employees. In the present case applicants were not adhoc/ temporary employee. Appointment letter annexed by the applicants clearly shows that their services were temporary and can be dispensed with without any show cause notice by the respondents. It is also evident from perusal of para 7 of the Counter Affidavit that services of the petitioners have been disengaged in pursuance of the Govt. of India’s letter F.No. C.18013/75/2003 /ad-IIIB dated 10.3.2004 issued by the CBEC, New Delhi wherein in para 3 and 4, it has been stated that work for which no regular post have been created/sanctioned may be outsourced through service provider/contractor after following the procedure prescribed in the GFRs. Therefore, the respondents have disengaged the services of the applicant and engaged five persons after five months of disengagement of the petitioners, that too through outsourcing. It is not the case of replacing one set of employees from another set of employees. Hence the case law relied upon by the learned counsel for applicants will not be applicable in the present case.

Constitution Bench of Hon’ble Apex Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and Others reported in (2006) 4 SCC 1 has held that absorption, regularization, or permanent continuance of temporary, contractual, casual, daily wage or adhoc employee appointed/ recruited and continued for long in public employment dehors the constitutional scheme of public employment. The Court further held that constitutional court should not issue direction for regularization of service of such employees.

In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), this Court was considering the validity of confirmation of the irregularly employed. It was stated:

"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.”

The Hon’ble Apex Court further reiterated the aforesaid law in the case of Satya Prakash and others Vs. State of Bihar and others reported in 2010 (2) UPLBEC 1181, wherein following observations were made by the Court:-

“6. We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. Appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Muadevi’s case (supra) this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that 5 such directions issued could not be said to be in consistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.

paragraph 53 of Umadevi’s Judgment, deals with irregular appointments (not illegal appointments). Constitution Bench specifically referred to the judgment in S.V. Narayanappa v. State of Mysore, (1967)1 SCR 128, B.N. Nanjudappa v. T. Thimmiah, (1972) 1 SCC 409, in paragraph 15 of Umadevi’s judgment as well.

Let us refer to paragraph 15 and 16 of Umadevi’s judgment in this context. Necessity of keeping in mind the distinction between regularization and conferment of permanence in service jurisprudence has also been highlighted by this Court by referring to the following passages from R.N. Nanjundappa’s case, which reads as follows:-

“If the appointment itself is in infraction of the rules of if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment.”

Perusal of record also reveals that applicants had approached before this Tribunal to the OA No. 1295 of 2004 and OA No. 1294 of 2004for their regularization, which was rejected, only direction was given to move proper representation with all the details regarding paid wages. Thus in view of the judgments of Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi (supra) , Ashwani Kumar and others Vs. State of Bihar (Supra) and Satya Prakas and others Vs. State of Bihar (supra), as the law is now well settled that casual labour has no right to seek regularization, I do not find any merit in the O.A.

Accordingly, O.A. is dismissed.

No order as to costs.