The Telecom District Engineer, The Assistant Engineer, Telecommunication and The Union of India (UOI) vs Antony Raj and The Registrar, Central Administrative Tribunal

R. Sudhakar. J.

This writ petition coming up for final disposal, has been filed by (i) The Telecom District Engineer, Tuticorin-3, (ii) The Assistant Engineer,

Telecommunication, Vilathikulam Post, Tuticorin District and (iii) The Union of India, represented by its Secretary, Department of

Telecommunication, New Delhi, and the affidavit in support of the writ petition has been sworn to by the Deputy General Manager of the Office of

the General Manager, Telecom, Tuticorin. The petitioners challenge the order of the Tribunal in O.A. No. 428 of 2000, dated 4.7.2001.

The prayer in O.A. No. 428 of 2000 is as follows:

To direct the respondents to enforce the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 1989 to the services of the

applicant with effect from July 1997 onwards and to provide the applicant the scale of pay and other allowances similar to K. Dharmaraj and S.

Pandi with effect from July 1997 onwards with all arrears.

The facts which led to the fling of the Original Application before the Tribunal, where the first respondent herein was the applicant, are as

follows:

The first respondent/applicant was working as part-time water boy-cum-sweeper since 1987 under the control of the second petitioner herein on

part-time wages of Rs. 38/- per month and from February, 1994, it was increased to Rs. 191/- in addition to D.A. The case of the applicant is that

in the month of March 1994, he was asked to sign a contract to become a contractual labourer. He did not sign the contract and therefore, for 19

months, he was not paid any wages and after various representations, the salary was settled at the rate of Rs. 150/- per month. The monthly wages

of the applicant was given after getting signatures in receipts. The case of the applicant is that he has been working continuously as water boy-cum-

sweeper for several years and inspite of representation to include his name in the list for the purpose of getting temporary status under Casual

Labourers (Grant of Temporary Status and Regularisation) Scheme, 1989, he was not given any benefit and therefore, O.A. No. 1003 of 1998

was filed before the Tribunal and the same was disposed of with a direction to consider the applicant''s representation. It is stated that the

Department had sent a reply stating that the casual labourers engaged upto 30.3.1985 alone could be considered and since the applicant was

appointed after that date, his case could not be considered. The contention of the first respondent/applicant is that casual labourers engaged even

thereafter and upto 22.6.1988 were considered.

It is the case of the Department, the present petitioners, that the first respondent/applicant was engaged at various periods of time from 1987 on

the basis of the wages fixed by contract. Therefore, the first respondent is not eligible for conferment of temporary status and is also not entitled to

the benefit of the said Scheme.

The Tribunal in the present case, based on the counter affidavit, directed the Department to produce documents relating to the first

respondent/applicant and came to the conclusion that the first respondent/applicant was not engaged on contract basis as alleged in the counter and

also came to the conclusion that he was engaged even before July 1987 and therefore, the Tribunal thought it fit to hold that the Department should

consider the question of regularisation of the first respondent/applicant as he was working for the last 14 years with the petitioners/Department.

The Tribunal rejected the case of the Department that the first respondent was engaged on contract basis and consequently accepted the case of

the applicant. The Tribunal also rejected the argument of the Department that on and after 30.3.1985, there is no question of recruitment of casual

labourers and therefore, the first respondent/applicant cannot be considered. There was a direction by the Tribunal to the Department to consider

the case of the first respondent/applicant for regularisation as per the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme,

1989. The Tribunal however held that the first respondent/applicant is not entitled for conferment of temporary status, since he is a part-time casual

labourer. Aggrieved by the said directions of the Tribunal, the present writ petition has been filed by the Department.

The contention of the Department is that the first respondent was engaged on contract basis based on quotation given by him to do certain

services in the Telephone Exchange and the payment was made on the basis of rates mentioned in the quotation and since there is no appointment

order in favour of the first respondent, it can safely be held that he was only engaged on contract basis and therefore, the direction of the Tribunal

to consider the case of the first respondent for regularising him was erroneous and contrary to the regulations in force.

Next contention of the Department is that the Tribunal failed to consider the fact that the first respondent was not sponsored by Employment

Exchange and therefore, he cannot have any right whatsoever. On this ground, the petitioners'' counsel would submit that reference to two others''

appointment mentioned by the first respondent/applicant in the Original Application were persons who were duly sponsored by the Employment

Exchange and therefore, the first respondent cannot claim the same treatment, as he continued to work on contract basis part-time.

It is further contended by the Department that on and after 30.3.1985, there was a total ban imposed by the Department of

Telecommunications, New Delhi -- vide D.O.T Letter No. 270/6/84 STN, dated 30.3.1985 and therefore, the benefit of Casual Labourers (Grant

of Temporary Status and Regularisation), 1989 will not be applicable to those persons who are appointed on casual basis after 30.3.1985.

Learned Counsel for the petitioners-Department would in particular refer to the copy of the said DOT Letter, dated 30.3.1985, relevant portion of

which reads as follows:

Sub: Casual Labour - Engagement

A number of instructions have been issued from time to time stressing the need to limit the number of casual labour employed by the Telecom Units

to a minimum. It is, however regretted to note that inspite of these instructions, the number of such casual labours in Telecom Circles/Districts is

increasing.

The position has been reviewed and it has been decided that fresh recruitment and employment of casual labour for any type of work should be

stopped forthwith in Telecom Circles/Districts. The casual labour already in employment should be utilised only 1) for work of casual nature, 2) all

installation work of temporary nature, 3) cable laying work and 4) line construction/dismantling work. Regular posts of mazdoors/Group-D posts

are sanctioned for maintenance/Admn. work as per standards posts already laid down by this office, from time to time. As such, no casual

mazdoors are required for maintenance/Admn. work. If any casual mazdoors are being utilised for maintenance/office work, they should be

reallotted/transferred and used in the works enumerated above. Every effort should be made to reduce the number of casual mazdoors employed

and in no case fresh recruitment/employment made.

Learned Counsel for the petitioners would also rely upon the proceedings of the Department of Telecommunications, dated 28.3.1994 to show

that the authorities have informed the various Telephone Exchanges that the quotations should be obtained for the wages to be paid to part-time

officials so as to consider the lowest quotation and to get the approval. He would also submit another proceedings dated 5.8.1993 to show that

there was a request to change the one hour time for part-time to 2-1/2 hours per day. This request for enhancement of hours of work per day was

negatived by the Department by proceedings dated 14.9.1993.

Learned Counsel for the petitioners-Department also relied on the memo dated 12.12.1995 which was a proposal to regularise the casual

labourers with temporary status who had put in ten years of qualifying service or more as on 31.3.1996 to the cadre of regular mazdoors. The

memo dated 12.12.1995 reads as follows:

It is proposed to regularise the casual labourers with temporary status who have put in 10 years of qualifying service or more as on 31-3-96, to

the cadre of Regular Mazdoors.

Eligibility conditions for applying regularisation will be as follows

Should have completed 10 years of qualifying service or more as on 31-3-96.

Should have completed 240 days per year in any three years and should have put in atleast one day of service in each of the other 7 year.

Should have been on rolls of the Department from 31-3-95 and are currently working in the Department.

Should have been conferred with temporary status.

In case of part time officials, the service rendered for 4 hours per day or more only should be taken as qualifying service for the purpose of

regularisation.

In case of break-in service, necessary condonation certificate issued by the appropriate authority should be enclosed.

TEMPORARY STATUS MAZDOORS who fulfuill the above eligibility conditions may submit their applications in the prescribed format

enclosed herewith on or before 27-12-1995 through proper channel. The applications received after the due date will not be considered at nay

circumstances.

Learned Counsel would also place on record a typed set of documents relating to various proceedings of the Telecommunications Department to

show that the contesting respondent and similar persons were engaged on contract basis for few hours depending on the size of the Telephone

Exchange. There is also a specific direction by the Department that there should not be any continuous employment, as no casual labourer/part-

time employment is permitted. Learned Counsel for the petitioners also relied upon the various payment charts from the year 1987 onwards to

show that the first respondent was employed only for one hour every day and several such persons who were appointed in each Telephone

Exchange/Sub-Division, were paid on contract basis in the same manner and there was no discrimination whatsoever. These documents were

available in the files. However, the Tribunal for whatever reason failed to advert to the same and this has occasioned the Tribunal holding in favour

of the applicant.

Learned Counsel for the petitioners also submitted that in terms of the memo dated 12.12.1995, the part-time officials who had rendered

service for four hours per day or more only should be taken as qualified for the purpose of regularisation and the first respondent did not come

under this category and he was continuing as contractual labourer and there was no regular order of appointment and therefore, the question of

granting the relief as prayed for in the Original Application filed before the Tribunal, does not arise.

Learned Counsel for the petitioners also would rely upon the judgments reported in: (i) Executive Engineer ZP Engg. Divn. and Another Vs.

Digambara Rao etc. etc., , (ii) Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, and (iii) State of U. P. and

others Vs. Harish Chandra and others, , to contend that the first respondent has no legal right whatsoever as he was working on contract basis and

there was no order of appointment produced either before the Tribunal or before this Court to sustain the relief sought for and in such view of the

matter, sympathy and sentiments cannot be a ground to grant the relief sought for.

Learned Counsel for the petitioners also brought to our attention the order of the Tribunal dated 13.11.1998 in O.A. Nos. 561 and 562 of

1996 in the case of S. Sathyan and R. Mariappan v. Union of India and Anr.), wherein similar issue was considered by the very same Tribunal and

inspite of this earlier order of the Tribunal which has been brought to it''s notice, the Tribunal has not referred to the same and therefore, the issue

requires to be re-considered on all these aspects.

Learned Counsel for the first respondent would rely on (i) 2006 (1) Sup 545 (The workmen of Bhurkunda Colliery of Central Coalfields Ltd.

v. The Management of Bhurkunda Colliery of Central Coalfields Ltd), (ii) 2000 (6) SLR 291 (Satya Dev v. Haryana Vidyut Prasaran Nigam Ltd.)

(Division Bench decision of the Punjab and Haryana High Court) and (iii) Order of this Court dated 14.11.2005 in W.P. No. 9463 of 2003 and

submit that other employees who have been similarly placed, have been regularised and therefore, the order of the Tribunal should not be

interfered. Several factual details are adverted to by the counsel for petitioners that the claim of the first respondent cannot be considered. The

counsel supports the contention based on several proceedings, memorandum and regulations to say that the claim of the first respondent is not

maintainable. We feel that it may not be necessary to go into a detailed enquiry with regard to various factual details, as we feel that the factual

aspects should have been resolved by the Tribunal and we do not propose to deal with them in exercise of power under Article 226 of the

Constitution. However it is apparent that all the factual aspects and previous order of the Tribunal have not been gone into.

We have given our anxious consideration to the contentions urged by learned Counsel for the petitioners and the first respondent. We find that

the Tribunal has not gone into the various contentions raised by the counsel on either side in depth to come to it''s conclusion except to state that

from the very documents submitted by the Department, it was found that the first respondent was not engaged on contract basis. This fact is

seriously disputed by the petitioners placing reliance on several documents and proceedings.

Various documents have been produced by the learned Counsel for the petitioners to show that the first respondent was paid on hourly basis

for several years as in the case of several other persons. Further, the Department''s Memo dated 12.12.1995 gives certain parameters for

consideration in the matter of regularisation of such employees. This memo has not been considered by the Tribunal. Further, the Tribunal has not

also gone into the earlier order of the very same Tribunal in O.A. No. 561 and 562 of 1996, dated 13.11.1998, which has, relying on the

Supreme Court judgment, held that the persons who were employed on contract basis, are bound by the law of contract and cannot claim that

their names should be included in the list of Mazdoors. The Tribunal in that case relied on the decision of the Supreme Court reported in 1996 (2)

SCC 455 (State of Himachal Pradesh v. Suresh Kumar Verma), wherein the Supreme Court held that the appointment on daily wage basis is not

an appointment to a post according to rules. The Tribunal in that case also considered the total ban on engagement of casual labourers - vide

circular dated 30.3.1985 and came to the conclusion that there was no question of engaging any casual labourer and the claim for regular

employment on the basis of contract was negatived. All these aspects were not considered by the Tribunal.

In such view of the matter, it is clear that the Tribunal in the present case was not apprised of the various factual and legal aspects of the claim

in it''s proper perspective. We find that several documents relied on by the Department, though found in the records, have not been highlighted

before the Tribunal. The Tribunal did not have the opportunity to consider all the documents relied upon by either parties on merits and therefore,

we are of the view that the interest of justice would be served if the matter is remanded to the Tribunal for re-consideration of all the issues afresh

by permitting both sides to produce any fresh material.

In the result, the impugned order of the Tribunal is set aside and the matter is remanded to the Tribunal for fresh consideration of all the issues

on merits. The writ petition is ordered accordingly. No costs.