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2006 DIGILAW 335 (ORI)

Union of India v. Sudarsan Barik

2006-04-26

A.K.SAMANTARAY, I.M.QUDDUSI

body2006
JUDGMENT I. M. QUDDUSI, J. : These writ petitions have been filed on behalf of the Union of India represented through its General Manager, South Eastern Railways and others challenging the im¬pugned judgment and order passed by the Central Administrative Tribunal, Cuttack Bench,Cuttack dated 25.1.1999 in a batch of O.As. Since all these writ petitions have been filed against a common judgment of the Tribunal and involve common questions of law, they are disposed of by this common order. 2. The brief facts of the case are that the opposite parties in all the instant writ petitions were initially engaged as casual labour for the year 1967-68 and had worked till the year 1972-73 under Permanent Way Inspectors belonging to Sompeta, Berhampur, Ramba and Khurda Road Units. They were retrenched in the year 1972-73. Thereafter a circular was issued by the Railway Board dated 16.3.1987 in continuation of its earlier letters dated 1.8.64, 25.6.84 and 11.9.86 in respect of maintenance of Live Casual Labour Register. It was decided therein that the benefit be extended to those casual labourers both project and open line, who had worked before 1.1.81 and were discharged from service either for want of work or completion of work before 1.1.81 for enrollment in the Live Casual Labour Register for the purpose of their engagement in future. The last date for receipt of such applications was 31.3.87. It was directed therein that on each Zonal Railway, the list of project casual labour will be prepared for each Division, as under : “i) Project casual labour employed on works of each of the Departments like Civil Engineering, Signal & Telecommunication, Electrical, etc. within the geographical boundaries of a Division or by the Construction Organization or by the Chief Project Manager/Railway Electrification reporting to the General Manager of a zonal railway will form one unit (separately for each de¬partment) or which one seniority list will be prepared for each department. In this manner for each of the Departments on each Division, there will be one separate list of project casual labour employed on works executed within that division. ii) Within each Department, the seniority list will be prepared according to the categories, as under :- (a) All unskilled casual labour will be treated as one category. (b) Semi-skilled casual labour will be treated trade-wise. (c) Skilled casual labour will be treated trade-wise. ii) Within each Department, the seniority list will be prepared according to the categories, as under :- (a) All unskilled casual labour will be treated as one category. (b) Semi-skilled casual labour will be treated trade-wise. (c) Skilled casual labour will be treated trade-wise. (iii) In case where the execution of a project spreads over more than one Division, the guiding principle will be that all the project causal labours will be assigned to the Division in which the station where they were initially engaged is locat¬ed. This will be covered by the directions of the Hon’ble Supreme Court that where the implementation of its direction involves some adjustment, the same must be done. Similar action is also required to be co-ordinate in respect of Open Line Casual Labour for inclusion of their names in the Live Casual Labour Registers.” 3. Subsequently vide letter dated 11.11.87 the Railway Board issued detailed instructions in regard to (1) verification of genuineness of the applications received from project and open line casual labours engaged prior to 1.1.81 in response to the Board’s letter dated 2.3.87 and 4.3.87 Sl.58/87(2) re-engagement (3) giving them temporary status and (4) counting service for the purposes of absorption in regular employment etc. and a copy of the Railway Board’s letter dated 21.10.87 was enclosed for com¬pliance. It was mentioned in that letter that names of such of the applicants whose claims as retrenched casual labours are found to be genuine may be kept in a separate list in the respec¬tive seniority units. They may be borne on a “supplementary Casual Register”. Their re-engagement will be considered only if the list of persons is already borne on the Live Casual Labour Register in the respective seniority units, and wherever the re-engagement of the persons on this supplementary list of casual labours is considered, the Railway Administration should subject them to medical examination to determine their fitness for em¬ployment on Railways, having regard to the fact that they have not been working on the Railways for a number of years. 4. The names of the opposite parties are not included in the Live Casual Labour Register but all were given last chance in pursuance of the direction issued by Supreme Court. But the oppo¬site parties did not apply within the cut off date mentioned in the above circular and the Live Casual Labour Register was pre¬pared thereafter. 4. The names of the opposite parties are not included in the Live Casual Labour Register but all were given last chance in pursuance of the direction issued by Supreme Court. But the oppo¬site parties did not apply within the cut off date mentioned in the above circular and the Live Casual Labour Register was pre¬pared thereafter. The names of the persons included in the Live Casual Labour Register were published in the year 1987, but the opposite parties did not agitate their rights in respect of inclusion of their names in the Live Casual Labour Register till the filing of the O.As. in the year 1996. When the petitioner No.2 published a notice regarding engagement of fresh casual labours in Engineering Department of Khurda Road Division from open market for engagement for 119 days or up to 31.10.1996 whichever was earlier, and the age as on 1.6.1996 was required to be between 18 to 33 years and relaxable for five years for SC/ST and 3 years for OBC candidates, they filed OAs before the Central Administrative Tribunal, Cuttack alleging that they were re¬trenched casual labours of the same unit and they were also entitled to get relaxation in age for which publication for en¬gagement of casual labourers has been made and the retrenched employees are liable to be given first preference while making engagement in the same unit. The plea of the petitioners is that once a chance was given to them to get their names entered in the Live Casual Labour Register and they were unable to get their names entered therein, they have abandoned their rights to claim the re-engagement thereafter. 5. The Tribunal heard and disposed of all O.As. vide the impugned order with the direction that for re-engagement of casual workers, the educational qualification would be taken as one which was in force at the time of their initial engagement and at the time of engagement of casual labourer in the next session. The cases of the opposite parties in the instant writ petition should be considered in terms of observation and direc¬tion given in that order. 6. Mr. The cases of the opposite parties in the instant writ petition should be considered in terms of observation and direc¬tion given in that order. 6. Mr. A. K. Mohanty, learned Senior Advocate appearing for the petitioners, has drawn the attention of this Court in paragraph 15 of the writ petition in which it has been stated that the petitioners have no grievance so far as all other direc¬tions given in the Original Applications except the direction given in paragraph 12 of the judgment to verify the service records of the opposite parties, who claim that they have filed their representations for inclusion of their names and directed that their names should be included in the Live Casual Labour Register. That such a direction given by the Tribunal is illegal and without jurisdiction and is contrary to statutory circulars issued in pursuance of the aforesaid judgment of the Supreme Court. The last date of applications prescribed in pursuance of the direction of the Supreme Court in Estt. Sl. No.58/57 was 31.3.87. But it was specifically stated therein that representa¬tion along with documentary proof reaching the office mentioned above after 31.3.1987 or those which are incomplete will not be considered. The names included in the Live Casual Register were published in the year 1987 and in case some of the opposite par¬ties or all the opposite parties were not included in the said live Casual Register in spite of the applications as claimed by them, they ought to have agitated their right at that point of time and the very fact that the opposite parties have not agitat¬ed their right in respect of inclusion of their names in the Live Casual Register since it was last prepared and completed in the year 1987 till the filing of the OAs in the year 1996 will go to show that the entire claim made by the opposite parties that they had applied for inclusion of their names in the Live Casual Labour Register is concocted and false. And further, inclusion of the names of the opposite parties in the Live Casual Labour Register after verifying their representations said to have been made in the year 1993 and earlier is incapable of being imple¬mented inasmuch as no records are available with the railway administration regarding the representations said to have been made by the opposite parties and/or the claim that they have worked at any point of time. 7. There is no scope for the opposite parties to raise such grievance after a lapse of about 9 years. In this regard, the contention of Sri Mohanty that the claim of the opposite parties was a time barred one appears to be correct, as the opposite parties have shown the cause of action in the year 1996 when the petitioner No.2 proposed to engage casual labour for a specified period from the open field with the plea that according to the instructions of the Railway Board the retrenched casual labour have right to be given the first preference for re-engagement and they reengaged on the basis of their position in the seniority list and that the opposite parties were retrenched from casual labourers from the said unit in which further engage¬ment of the casual labourers is required. We are of the opinion that the Tribunal should have confined the dispute only to the extent of notification published for engagement of the casual labour from the open field for a specified period for execution of track maintenance works anywhere within Khurda Road division. 8. Considering the facts and circumstances of the case, we have found that the opposite parties have filed their OAs before the Tribunal being aggrieved by the publication for inviting applications from the eligible candidates for engagement as Casual Labour on daily rate of wages in Engineering Department of Khurda Road Division, S.E. Railway, dated 28.5.1996 for the purpose of execution of track maintenance works anywhere within Khurda Road Division from open field for 119 days or up to 31st October, 1996 whichever is earlier basis. For the purpose of mainte¬nance of Live Casual Labour Register, the Government of India, Ministry of Railway has framed a scheme which was modified by the Hon’ble Supreme Court in the case of Inder Pal Yadav and others vs. Union of India and others reported in (1985)2 SCC 648 . For the purpose of mainte¬nance of Live Casual Labour Register, the Government of India, Ministry of Railway has framed a scheme which was modified by the Hon’ble Supreme Court in the case of Inder Pal Yadav and others vs. Union of India and others reported in (1985)2 SCC 648 . The Hon’ble Supreme Court modified Part-5.1(a)(i) of the scheme by modifying the cut off date as in service to treat them as tempo¬rary employee given therein, from 1.1.1984 to 1.1.1981 and di¬rected that with this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and the same must be implemented by re-casting the stages consistent with the change in the date as per direction. Subsequently in the case of Dakshin Railway Employees Union Trivandrum Division v. General Manager, Southern Railway and others reported in AIR 1987 Supreme Court 1153. The last date to give option was fixed as 3Ist March, 1987. 9. Accordingly, the relevant part of the Scheme framed by the Railway Ministry was modified and the modified Scheme was circulated, among others, to all the General Managers of Indian Railway including production units as per its circular No.E (NG)/II/84/CL/41 dated June, 1, 1984 by which all the General Managers were directed to implement the decision of the Railway Ministry by the target dates. According to the Scheme, the casual labour employed on projects (also known as ‘project casual la¬bour’) may be treated as temporary on completion of 360 days of continuous employment. 10. Therefore, the Scheme framed by Ministry of Railway was for the purpose of treating the casual labour employed on projects as temporary on completion 360 days of continuous em¬ployment. Therefore, the Scheme was framed for the purpose of absorption of the casual labours working in the project who have already completed 360 days of continuous employment. 11. Since in the case of Dakshin Railway Employees Union Trivandrum Division (supra), the Apex Court considering the modification made by it vide its order dated 18.4.1985 passed in the case of Ind`er Pal Yadav and Others (supra) directed that all the persons who desire to claim the benefits of the Scheme on the ground that they had been retrenched before January 1, 1981 should submit their claims before March 31, 1987. There remained no scope for the retrenched employee to give them appointment after the cut off date. There remained no scope for the retrenched employee to give them appointment after the cut off date. The Administration, therefore, had to consider the genuineness of the claims and process them accord¬ingly. 12. In the instant case, the advertisement was made to engage casual labour on daily rate of wages for 119 days or upto 31st October, 1996 whichever is earlier by the Divisional Railway Manager, Khurda Road Division for execution of track maintenance works within the area of Khurda Road division. Publication of advertisement shows that it was not a case where the persons engaged from the Live Casual Labour Register. They were being engaged from outside. Therefore, inclusion of the names in the Live Casual Labour Register for the purpose of getting engagement as casual labour for a specified period could not have arisen and direction given by the Tribunal in this regard is misconceived. 13. Now the question arises that when the retrenched em¬ployees are available whether the persons from outside can be taken specially when the retrenched employees are available, who are retrenched from the same office as necessity of work had arise. It has been alleged by the opposite parties that in the seniority list Annexures-1/1/A,1/2 to the OAs Nos.481 of 1996, their names had found place. They had annexed the copy of the seniority list of Sompeta, Berhampur, Rambha of Khurda Road Units,. In Section 25-H of the Industrial Disputes Act, 1947 it has been provided that where any workmen are retrenched, and the employer proposes to take into his employ any person, he shall, in such manner as may be prescribed give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer them¬selves for re-employment shall have preference over other per¬sons. 14. The petitioners are duty bound to follow the provisions of Section 25-H of the Industrial Disputes Act and as such when¬ever they propose to engage persons as casual labour, it is incumbent upon them to give an opportunity to the retrenched workmen to offer themselves for re-employment and those re¬trenched casual labourer who offer themselves for re-employment shall have preference over other persons. 15. 15. In view of the above discussions, this Court is of the opinion that the direction issued by the Tribunal in paragraph-12 of its impugned judgment is liable to be quashed but with a direction that whenever petitioner No.2 proposes to engage any person as casual labour he shall give an opportunity to the re¬trenched workmen to offer themselves for re-employment, according to their earlier date of engagement (according to the seniority), considering the age relaxation subject to their fitness, which is to be judged by them. 16. In the result, the writ petitions are allowed. The direction contained in para-12 of the impugned judgment that “amongst the applicants those who have filed their representa¬tions for being absorbed as casual labourers prior to 31.1.1987, should be considered, their service records should be verified, and their names should be included in the Live Casual Labour Register” is quashed, subject to the direction that the petition¬ers are duty bound to follow the provisions of Section 25-H of the Industrial Disputes Act and as such whenever they propose to engage persons as casual labourers it is incumbent upon them to give an opportunity to the retrenched workmen to offer themselves for re-employment and those retrenched casual labourers who offer themselves for re-employment shall have preference over other persons. A. K. SAMANTARAY, J. I agree Petitions allowed.