Judgment on regularisation of casual labourers. Court distinguishes Uma Devi, holds reinstatement implies continuity, directs Union of India to regularize petitioner and others with notional benefits.
Union of India to regularize petitioner and others as per order, with notional benefits for intervening period.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
(1) D.B. Civil Writ Petition No. 6799/2015
Lahri Ram Meena S/o Shri Banshi Lal Meena, aged about 48 years, R/o Village Aaduka, Post Patan, Tehsil Rajgarh, District Alwar.
Petitioner-Applicant
Versus
Respondents/Non-Applicants
Proforma Respondent
Connected With
(2) D.B. Civil Writ Petition No. 18572/2015
Petitioners
Versus
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Respondents
| For Petitioner(s) | : Shri Ashwani Chobisa with Shri Saurabh Tiwari for petitioner in CW No.6799/15 & for respondent in CW No.18572/15 |
|---|---|
| For Respondent(s) | : Shri R.D. Rastogi, Addl. Solicitor General assisted by Shri C.S. Sinha & Shri Akshay Bhardwaj for respondent in CW No.6799/15 & for petitioner in CW No.18572/15 |
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
19/11/2018
These two writ petitions are directed against the common judgement dated 10.02.2015 by which the Central Administrative Tribunal, Jaipur has disposed of the Original Application with direction to the Union of India and its subsidiary authorities to consider the case of the applicant nos.1, 2, 4, 6 and 8 namely;
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Mool Chand, Rang Lal Meena, Devi Singh, Bhanwar Lal and Gopal Lal respectively (in CW No.18572/15) for regularisation as per the provisions of the office memorandum dated 10.9.1993 within three months from the date of receipt of copy of the order. Similar direction was issued with regard to respondent no.3-Lahri Rai Meena and respondent no.5-Raghuveer Singh from the date they submit copy of the order of the Court regarding payment of back wages. With regard to respondent no.7-Rajeev Nayan Dube, it was held in the impugned order that his case was not covered by office memorandum dated 10.9.1993 as he was engaged only with effect from 22.04.1993 and therefore no such direction can be issued. The respondent no.7-Lahri Rai has challenged this part of finding in the judgement of the Tribunal in D.B. Civil Writ Petition No.6799/2015.
The original applicants earlier also filed O.A. No.196/2010 before the Tribunal, which was partly allowed by the Tribunal by order dated 13.9.2011 directing the Union of India to consider their case strictly in accordance with the provisions of law and pursuant to office memorandum dated 10.9.1993 for the purpose of regularisation of their service if they are otherwise found suitable. However, the original application was dismissed in respect of those applicants who were not found engaged prior to issuance of the office memorandum dated 10.9.1993. The petitioner-Union of India filed CW No.3144/12, which was dismissed as withdrawn on 9.1.2012 with liberty to Union of India to file a review petition. It is thereafter that the review petition was filed by the petitioners, which however was dismissed as time barred and the application seeking condonation of delay was also dismissed. The Union of India again filed D.B. Civil Writ Petition
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No.7854/2012, which was disposed of by order dated 13.5.2013 and this Court declined to interfere with observation that the order of the Tribunal dated 13.9.2011 merely required it to consider the case of the original applicants for regularisation strictly as per the office memorandum dated 10.9.1993 and regularise them in service if they were otherwise found eligible. Compliance of the judgement of the Tribunal was ordered to be made within three months.
In compliance of the judgement of the Tribunal, the Superintending Archaeological of the Union of India, Jaipur Circle, Jaipur passed the order dated 28.6.2013, whereby the representation of the respondents-original applicants in the matter of regularisation was rejected on the premise that none of the casual labourers were in the employment on the date of issuance of the office memorandum dated 10.9.1993 and thus have not rendered continuous service of 240 days in a year. None of them therefore could fulfill the requirement of office memorandum. Hence, they were not entitled to get regularisation in accordance with the provisions of law and office memorandum dated 10.9.1993. It was this order of the Union of India, which has been challenged by the respondents in D.B. Civil Writ Petition No.18572/2015 before the Central Administrative Tribunal, which accepted the Original Application by impugned judgement dated 10.02.2015.
Shri Ashwani Chobisa, learned counsel for the petitioner in writ petition no.6799/15 has argued that the order of the Tribunal dated 10.2.2015 is discriminatory viz. petitioner-Lahri Ram Meena and the applicant nos.1 and 2 namely; Mool Chand and Rang Lal before the Tribunal ignoring the fact that the case of the petitioner
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is absolutely similar to them in all respects. Though the Tribunal has passed a positive direction to consider their case in accordance with office memorandum dated 10.9.1993 and grant them benefit of temporary status and regularisation, but the same has not been done in the case of the petitioner.
It is contended that grant of temporary status and benefit of regularisation to the petitioner-Lahri Ram Meena cannot be made subject to obtaining any order from the Labour court under Section 33C(2) of the Industrial Disputes Act, more particularly when mere quashing the termination itself amounts to granting natural consequence of continuity in service, for which the petitioner is also entitled. The effect of quashing the termination would be that the petitioner was to be treated in service on 10.9.1993 and would also be treated to have completed 240 days as on 10.9.1993, hence he was also entitled to similar relief as granted to the applicant nos.1 and 2 and others in order dated 10.2.2015. Learned counsel in support of his submissions relied on the judgement of Supreme Court in State of Karnataka & Ors. vs. Uma Devi-(2006) 4 SCC 1.
Shri R.D. Rastogi, learned Additional Solicitor General has argued that the Tribunal has failed to appreciate that respondents were initially engaged as daily rate workers and were assigned different duties. They were required to work for more than 8 hours in a day subject to availability of work. Learned counsel has referred to a chart of the working of the respondents referred in ground (B) of writ petition No.18572/15 and argued that Tribunal failed to appreciate the Circular dated 10.9.1993, which provided for grant of temporary status to the casual employees, who were in employment as on the date of issuance of said circular dated
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10.9.1993 and had rendered minimum one year of continuous service in the Central Government offices. The Tribunal has wrongly interpreted the office memorandum dated 10.9.1993 by extending the benefit of workers, who were allowed to continue in service by intervention of the Court and by treating the period from the date of termination till their reinstatement as on duty. Since none of the respondents fulfilled necessary condition of office memorandum to get the benefit of termination, their case would not be considered favourably and was rightly rejected. It is submitted that the Tribunal in its earlier order dated 13.9.2011 and this Court also in its order dated 13.5.2013 merely directed Union of India to consider the case of the respondents for temporary status and thereafter regularisation in view of the office memorandum dated 10.9.1993. The Union of India has complied with the aforesaid judgements and rejected the representation of the respondents for regularisation in service.
Shri R.D. Rastogi, learned Additional Solicitor General has submitted that as far as Rang Lal Meena, Lahri Rai Meena and Mool Chand are concerned, they approached the Central Administrative Tribunal and the Tribunal by order dated 4.3.1994 set aside their termination and directed that they should be treated as casual labourers with the department and therefore can be taken on duty immediately. On the question of their back wages, the Tribunal expressed its disinclination to pass any order thereabout. However, the Tribunal set the original applicants before it at liberty to move an application u/s.33C(2). It was however observed that they were to be entitled to future wages applicable to them as casual labourers in the department from the date of judgement of the Tribunal dated 4.3.1994. Learned
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Additional Solicitor General has argued that as far as Mool Chand, Rang Lal Meena, Lahri Rai Meena are concerned, while setting aside the termination order vide order dated 4.3.1994, the Tribunal did not give any specific direction to grant them the benefit of continuity in service or back wages. All that was observed was that they could for back wages approach the Industrial Forum under Section 33C(2). While Mool Chand and Rang Lal have approached the Tribunal under Section 33C(2), Lahri Rai Meena did not file any such application. Therefore, the Tribunal required Lahri Rai-original applicant no.3 and Raghuveer Singh-original applicant no.5 to do so. It is submitted that the Tribunal has failed to appreciate that regularisation of employees would depend upon the criteria and norms of the government, particularly in the notification dated 10.9.1993. Since none of the respondents could fulfill the criteria laid therein, their case could not be considered separately and was rejected.
Shri R.D. Rastogi, learned Additional Solicitor General cited the judgement of the Supreme Court in J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr.-(2007) 2 SCC 433, in particular para 17 thereof, to argue that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow as the matter of course. The disastrous effect of granting several promotions as a `consequential benefit’ to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts. Shri R.D. Rastogi therefore submitted that even if reinstatement of some of the respondents was directed by the Tribunal, it would not
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automatically mean that they were also granted the benefit of continuity of service.
We are not persuaded to countenance this submission because the Tribunal in order dated 4.3.1994 while allowing the OA and setting aside the order of termination also directed that those applicants before it should be treated as casual labourers of the department and they should be taken on duty immediately. As far as back wages were concerned, however, the Tribunal instead of making specific direction, set them at liberty to approach the Industrial Forum under Section 33C(2) for the computation of their wages according to law. This direction clearly implied their entitlement to continuity in service and observed that the respondent concerned would have to approach the Industrial Forum under Section 33C(2) and then only it would compute their wages, subject to the proof being furnished by Union of India that they were not gainfully employed elsewhere.
The judgement of the Tribunal thus clearly shows that not only the Tribunal set aside their termination, but also directed that they should be treated as casual labourers of the department and should be immediately taken on duty. However, for the period during which they were out of service, they were not straightway granted back wages, but were required to move Industrial Forum under Section 33C(2). Such a liberty could proceed on the assumption of their deemed continuation on duty consequent upon their termination being set aside. The liberty granted to them to move Industrial Forum u/s.33C(2) was to enable the management/Union of India to show as to if they were gainfully
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employed elsewhere so that for such corresponding period they could be denied back wages, even then back wages have been granted to these workmen. The cited judgement of the Supreme Court in J.K. Synthetics Ltd., supra therefore cannot be applied to the facts of the present case.
As far as applicant-respondent no.4-Devi Singh is concerned, in his case also, the Industrial Tribunal vide award dated 17.7.1998 declared that his termination from service made on 6.4.1993 is violative of Section 25F of the Industrial Disputes Act and directed his reinstatement with continuity. Even Devi Singh approached the Labour Court and filed an application under Section 33C(2) of the Industrial Disputes Act. The Labour Court, Kota by order dated 26.6.2003 allowed the application and directed that certain amount of unpaid wages shall be paid to him within three months. Applicant-respondent no.5-Raghuveer also approached the Industrial Tribunal against the order dated 6.4.1993 by which his services were put to an end. By award of the Industrial Tribunal dated 15.7.1998, his retrenchment from service with effect from 6.4.1993 was declared to be illegal and unjustified and he was held entitled to reinstatement with 50% back wages and continuity in service. Raghuveer Singh also filed application u/s.33C(2), which was allowed by order dated 26.6.2003.
As regards Bhanwar Lal-applicant-respondent no.6, the Tribunal in para 20 of the judgement has held that services of Bhanwar Lal were discontinued from 26.10.1990 to 4.1.1994 and he was re-engaged only on 5.4.1994 with intervention of the Court. The Tribunal therefore found that the case of Bhanwar Lal
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was identical to the other four applicants namely; Rang Lal Meena, Mool Chand, Devi Singh and Gopal Lal and he ought to be treated similarly. Since he was to be treated as on duty since 25.1.1990 to 4.1.1994, which was by the court’s order, the Tribunal has relied on the chart produced by the Union of India where it is admitted that Bhanwar Lal was reinstated in service with effect from 5.1.1994 on account of intervention of the Court, which means that his termination from service was declared illegal and he was ordered to be reinstated in service. It was therefore that the Tribunal came to the conclusion that on 10.2.1993, he should be deemed to have been on duty. The case of Raghuveer Singh has also been found to be identical to that of Gopal Lal.
The direction of the Tribunal therefore cannot be faulted. As far as Rajeev Nayan Dubey is concerned, the Tribunal simply required him to make a representation to the Union of India and its authorities to consider his case for regularization.
In view of above, while we are not inclined to interfere with the judgement of the Tribunal in the writ petition filed by Union of India being D.B. Civil Writ Petition No.18572/2015 and therefore dismiss the same. We are however persuaded to allow the D.B. Civil Writ Petition no.6799/2015 filed by Lahri Ram Meena and direct Union of India and its Superintending Archaeological of the Union of India, Jaipur Circle, Jaipur to also consider his case along with other respondents in writ petition no.18572/2015 except Rajeev Nayan Dubey, treating them in service from 10.9.1993 and pass appropriate order with regard thereto at par with other similarly situated employees, who were so regularized. The appropriate government in compliance of the judgement of
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the Tribunal and also of this Court would now be required to regularize them in service. It is however directed that in the event of their service being regularised, they would only be entitled to notional benefits for intervening period and no actual benefits would be liable to be granted to them.
(GOVERDHAN BARDHAR),J
(MOHAMMAD RAFIQ),J
RS/38-39
3 issues framed by the court
Whether continuity in service and consequential benefits are automatically granted upon quashing of termination under Section 33C(2) of the Industrial Disputes Act.
Whether the petitioner and other casual labourers are entitled to regularisation in service based on the office memorandum dated 10.9.1993.
Whether the Tribunal correctly applied the criteria for regularisation by treating the period of termination as continuous service.
Colour shows how this judgement treated each authority
State of Karnataka & Ors. vs. Uma DeviReferred¶53
State of Karnataka & Ors. vs. Uma Devi-(2006) 4 SCC 1 · Who else cites this
J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr.Distinguished¶62
J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr.-(2007) 2 SCC 433 · Who else cites this
2 provisions across 2 enactments
Union of India
Lahri Ram Meena
Mool Chand
Rang Lal Meena
Rajeev Nayan Dube
Mohammad Rafiq
Goverdhan Bardhar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
