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2004 DIGILAW 458 (GAU)

Union of India v. Central Administrative Tribunal

2004-08-09

AFTAB H.SAIKIA, P.P.NAOLEKAR

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JUDGMENT P.P. Naolekar, C.J. 1. Heard Mr. D. Baruah, learned CGSC for the Petitioner and Mr. R.P. Sarma, learned Counsel for the Respondents. 2. The Respondents before us, namely, Ram Prasad Rai, Danbir Mahanta, Jit Bahadur, Mahandra Rai, Mainuddin Ali and Rikhi Ram Biswakarma as applicants, had approached the Central Administrative Tribunal, Guwahati Bench for issuing direction to the Respondents therein i.e. Union of India and Commanding Officer of the Air Force Station, Misamari that the applicants be allowed to continue in their service as temporary employees with full privilege under the Rules as per the Office Memorandum dated 10.09.1993 issued by the Government of India, Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training and not linked with regularization of their services, as is being mentioned by the Central Administrative Tribunal in its Order. It is the case of the Private Respondent that they were engaged as casual labour on various dates during the period of 1989-90 at Air Force Station, Misamari, Sonitpur and since then they have been regularly working as casual employee till October, 1993 when they have been asked by the Commanding Officer not to perform their work. 3. It is the case of the Private Respondents that the Government of India has framed a scheme called "Casual Labours (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993, (hereinafter referred to as "the Scheme of 1993"), under which they are entitled to temporary status with all benefits as available under the Scheme. After submission of Return by the Union of India, the matter was referred to by the Tribunal for enquiry to find out whether the private Respondents have been engaged as casual labour as is being claimed by them. The Enquiry Officer submitted his report before the Tribunal holding therein that the private Respondent Nos. 1 to 5 were never employees of the Air Force and one of the applicants, namely, Rikhi Ram Biswakarma, was employed for a duration of 157 days i.e. from 28.05.90 to 31.10.1990. After submission of the report, the private Respondents had produced before the Tribunal the certificates issued by the Flying Officer (Senior Administrative Officer), Air Force Station, Misamari dated 01.03.1993 to the effect that the private Respondents have been working as casual labours and that they are honest workers and bear good moral character. After submission of the report, the private Respondents had produced before the Tribunal the certificates issued by the Flying Officer (Senior Administrative Officer), Air Force Station, Misamari dated 01.03.1993 to the effect that the private Respondents have been working as casual labours and that they are honest workers and bear good moral character. The Tribunal had also given an opportunity to the Union of India to produce the relevant registrar of payment, vouchers and book of accounts relating to payment of casual workers so as to indicate that none of these documents contain the names of the private Respondents as casual labourer and that they have never been paid by the Air Force for performing duties as casual labours. Admittedly, the office of the Air Force is maintaining the registrar of payment, vouchers and books of accounts relating to payment to casual workers. Yet, the same have not been produced before the Tribunal. On consideration of the certificates issued by the Respondent authority placed before the Tribunal and because of non-production of best evident available, the Tribunal has reached to the conclusion that the private Respondents were engaged by the Air Force as casual workers between 1989-90 and were continuously working with the Air Force. Having arrived at this findings, the Tribunal has committed an error in giving direction to the Respondent authorities to regularize the service of the applicants relying on a decision of the Apex Court in All India Statutory Corporation v. United Labour Union and Ors. reported in : AIR 1997 SC 645 . 4. We may notice here that the private Respondents did never claim relief for regularization of their service. Their simple prayer for relief was for acquisition of temporary status under the scheme framed by the Government of India by the Scheme of 1993 and the consequential benefits. The Union of India had preferred a writ petition before the High Court i.e. Civil Rule No. 5750/97 against the order of the Tribunal. This High Court by its judgment and order dated 05.02.1998 while dismissing the writ petition upheld the order passed by the Tribunal. Aggrieved by the said order, the Union of India preferred Civil Appeal No. 5098 of 1998 in the Apex Court. This High Court by its judgment and order dated 05.02.1998 while dismissing the writ petition upheld the order passed by the Tribunal. Aggrieved by the said order, the Union of India preferred Civil Appeal No. 5098 of 1998 in the Apex Court. It appears from the order of the Apex Court that arguments had been advanced on the basis of the decision rendered in the matter of Steel Authority of India Ltd. v. National Union Water front Workers. reported in : (2001) 7 SCC 1 , for the submission that regularization of the casual workers cannot be and could not have been given by the Tribunal, simply because they have been working as casual workers. The Hon'ble Apex Court has set aside the judgment delivered by the Division Bench of this Court and remanded the case back for consideration of the question raised by the Union of India and this is how the matter has been placed before us. 5. At the outset, the counsel for the Union of India has submitted that on the case made out by the Respondents before this Court that the private Respondents are not claiming their regularization in the service, but their case is based on the Scheme framed by the Government of India in 1993 for acquisition of temporary status, the complexion of the case has entirely changed. He has further submitted that the finding arrived at by the Central Administrative Tribunal that the private Respondents have been engaged as casual worker during 1989-90 till the scheme came into force is not correct. We have gone through the certificates produced by the private Respondents, which clearly indicates that the private Respondents were working as casual labour in the Air Force, Misamari Station when the scheme has come into effect. It is also clear from the judgment of the Tribunal that the Union of India has been given opportunity to disprove the fact that the Respondents have been working as casual workers as claimed for and to produce the best evidence available with them. It is also clear from the judgment of the Tribunal that the Union of India has been given opportunity to disprove the fact that the Respondents have been working as casual workers as claimed for and to produce the best evidence available with them. The party who is in possession of payment register, vouchers and books of account of payment of wages to casual workers engaged with them at the relevant time, from which it could be easily ascertained whether the private Respondents were engaged in the department at the relevant time or not, should have produced them and cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was no part of their duty to produced them before the tribunal. A party in possession of best evidence which would through light on the issue involved, if withholds the same. Court can draw adverse inference against such party. We are satisfied with the findings arrived at by the Tribunal that the private Respondents have been working as casual labour from 1989-90 till the scheme of 1993 which came into force on 10.09.93. Now, the question is whether the private Respondents are entitled to get the benefit under the Scheme of 1993. Office Memorandum was issued on 10.09.93 by the Government of India for granting temporary status and regularization of the casual workers. The grant of temporary status to casual employees, who are presently employed and have rendered one year continuous service in the Central Government establishment other than the Department of Telecom, department of Posts and Railways shall be regulated by the scheme as appended to it. Clause (4) of the Office Memorandum provides that temporary status would be conferred on all casual labourers, who are in employment on the date of issue of the Office Memorandum, and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in cases offices observing 5 days week). The scheme also provides for conferment of temporary status without reference to the creation/availability of regular Group 'D' posts. It further provides that such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment, unless they are selected through regular selection process for Group 'D' posts. The scheme also provides for conferment of temporary status without reference to the creation/availability of regular Group 'D' posts. It further provides that such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment, unless they are selected through regular selection process for Group 'D' posts. Clause (5) of the Scheme of 1993 provides for the benefits to which the casual labourers are entitled. 6. From the scheme it is apparent that casual labourers working in the establishment of Central Government, who have rendered continuous service of at least 240 days would be given temporary status and that temporary status would be without reference to the creation/availability of regular posts and the conferment of temporary status would not give regular status, unless they are selected through regular selection process for Group 'D' posts. There is clear-cut distinction between the conferment of temporary statutes and regularization in the service. Acquisition of temporary status would not and will not give any right of regularization to casual workers, who have been given a temporary status. For regularization in service one is to go through the selection process. It is only after being selected in terms of the scheme, casual labourers acquiring temporary status, can be regularized in service. As is being already referred hereinabove, it is not the case of the private Respondents that they should be regularized in the service, because they are working as casual workers. It is the case of the private Respondents that having worked as casual workers since 1989-90 they are entitled to the benefit under the Scheme of 1993. 7. We having reached to the conclusion that the private Respondents are working as casual workers in the Air Force Station, Misamari for more than one year, they fulfill the conditions laid down under the scheme to acquire the temporary status. That being the case, we partly allow the appeal preferred by the Union of India and set aside the directions given by the Central Administrative Tribunal for regularization of services of the private Respondents. Accordingly, we direct that the private Respondents shall be assigned the temporary status under the Scheme of 1993. In the circumstances of the case, the parties shall bear their own costs.