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2008 DIGILAW 767 (GAU)

Union of India v. Ajant Boro

2008-11-05

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. The instant writ petition is filed against the order dated 14.6.2007 passed by the learned Central Administrative Tribunal, Guwahati Bench (hereinafter to be referred to as Tribunal only) in Original Application Nos. 281/2005, 261/2006, 262/2006 and 263/2006 whereby the learned Tribunal disposed of the original applications as mentioned above by a common judgment directing the Respondents to constitute a responsible committee with senior officials to scrutinize the available records of the Appellants for regularisation as per directions in OA No. 336/2004 and if requested by giving a personal hearing to each individual and consider the case individually, pass appropriate orders and communicate the same to the applicants within a reasonable period, in any case within four months from the date of receipt of the order. 2. Before determining the legal issues raised by the parties, the factual background of the case in a nutshell is narrated herein below: The Respondents herein are the applicants in OA No. 281/2005, 261/2006, 262/2006 and 263/2006. In OA No. 281/2005 there are 30 (thirty) applicants. In OA No. 261 of 2006 there are 11 (eleven) applicants. In OA No. 262/2006 there are 17 (seventeen) applicants and in OA No. 262/2006 there are 41 (forty one) applicants. They were all ex-casual labourers working under the Petitioners herein. The Petitioners are represented by the Railway, Government of India more particularly represented by the General Manager, N.F. Railway Maligaon and other Petitioners are the officers of N.F. Railway. 3. The cause of action of such initiation of cases started in the year 1996 when a batch of similarly situated ex-labour employees serving under the Railway approached the Tribunal, by way of filing application being OA No. 79 of 1996. The Tribunal disposed of the aforesaid OA directing the Railway to consider their cases within a stipulated time. The applicants of the said OA were granted benefit of temporary status. The case of the Respondents herein is that though they are similarly situated to the applicants in OA No. 79/1996, their cases were not considered in the screening held by the Railway's and as such they were deprived of an opportunity for consideration of their cases for appointment on regular basis under the Railways thereby discriminated in the matter of regular absorption which culminated in preferring the OA's mentioned hereinabove. 4. 4. It may be pertinent to mention herein that the Respondents herein had preferred OA 255/2003, OA 336/2004, OA 337/2004 and OA 338/2004 before the learned Tribunal wherein and whereof the Tribunal directed the applicants to submit their representations giving the details of their service as far as possible and the Respondents/Railways were directed to dispose of the same. While taking up the cases of the Respondents by the Railway, the railway directed them to produce documentary evidence relating to identity cards however their cases could not be considered on the ground that genuineness of identity cards could not be established and on that ground the Railway rejected their representations by the impugned orders of the respective OA's which had been challenged, in OA No. 281 of 2005, OA No. 261/2006, OA No. 262/2006 and OA 263/2006. 5. Earlier to the above-mentioned OA's the Respondents herein had preferred OA No. 259/02, OA No. 43/02 and 44/02 before the learned Tribunal. The learned Tribunal had disposed of the above-mentioned OA's directing the applicants therein to make representations setting out their respective claims. The said applications were rejected by the railway on 18.3.2004 holding that the genuineness of their casual labour card could not be established resulting in preferring three numbers of OA's being 336/2004, 337/2004 and 338/2004 which had also culminated in dismissal as mentioned in the preceding paragraph. 6. The claim for regularisation and/or seeking temporary status in Group-D posts under the Railway relates back to the years 1987, 1992 and 1998 whereby opportunity were provided to all ex-causal labourers engaged with N.F. Railway for enlistment of their names in the Supplementary/Live Casual Labour Register and accordingly were asked to submit application within 31.3.1987 in order to enable the Railways to consider their respective claims. Accordingly, list of ex-casual labour was prepared by the Railway on 1.2.1987 wherein the name of the applicants in OA's and Respondents in the writ petition appeared. But it could not be ascertained as to whether their cases were considered by the Railway for giving the benefit of temporary status since no pleadings are available in the writ petition. 7. Thereafter the Railway Board launched a special drive vide Board's letter No. NG/11/98/CL/32 dated 9.10.1998 for regularisation of all the Ex-casual labourers borne on Live/Supplementary Register against regular vacancies and accordingly all the ex-casual labourers were regularised. 7. Thereafter the Railway Board launched a special drive vide Board's letter No. NG/11/98/CL/32 dated 9.10.1998 for regularisation of all the Ex-casual labourers borne on Live/Supplementary Register against regular vacancies and accordingly all the ex-casual labourers were regularised. In the Railway Board letter dated 9.10.1998 under the caption of "special drive the ex-casual labourers borne on Live/Supplementary Register" was not considered though the list of all the ex-casual labourers borne in the Live/Supplementary Register was available before the Railway vide communication dated 17.7.1995 resulting in preferring OA No. 79/1996 before the learned Tribunal and accordingly they were absorbed and the Respondents herein were left out to the reasons best known to the Respondents authority though the learned Tribunal and repeatedly directed to consider their cases according to Live/Supplementary Register if their names borne in the said register which the railway did not consider and the repeated litigation continued before the learned Tribunal and against the order dated 14.6.2007 passed analogously by the learned Tribunal, the Railway has approached this Court by way of this writ petition seeking setting aside the order dated 14.6.2007. 8. Assailing the judgment and order dated 14.6.2007 rendered by the learned Tribunal Shri S. Sarma, learned Standing Counsel representing the Railway would urge the following points viz; (a) The Railway, in fact, had issued a circular in the year 1992 providing opportunities to all the ex-casual labours to place their claim before the concerned Respondents within the stipulated period which opportunity they did not avail and therefore their claim is hopelessly time-barred and on this ground alone the writ petition deserves to be allowed by setting aside the impugned order under challenge, more so, when this Court in similar circumstances allowed the writ petition being No. W.P.(C) No. 6201/2007 (Shri Gopal Chandra Saha and Ors. v. Union of India and Ors.) wherein the Court has observed that the principle of bar in litigation either by limitation or laches is based on public policy of not to permit to adjudication of a state case, thereby dismissed the writ petition preferred by some of the ex-casual labourers; (b) The Respondents herein had worked only about 3 to 6 months during the year 1985 and their claim were based on some fake documents which was sent to the Forensic Science Laboratory (FSL for short) for verification of their labour card wherein the FSL opined that the signature in labour card does not tally with the signature of the officials who had alleged to have been signed in the labour card and on the basis of the fake labour card their case was rejected and on this ground alone the writ petition deserves to be allowed; (c) The question of xerox copies of Live/Supplementary Casual Labour register, the original of which was lost cannot be relied upon until and unless the xerox copies are verified with the original. Therefore, would urge that on the basis of the xerox copies their case cannot be considered for regular absorption in Group-D post, more so, when it is highly belated and therefore submits that considering the factual grounds of the case and the direction issued by the learned Tribunal requires interference under Article 226 of the Constitution of India. 9. Refuting the submissions made by the standing counsel of the Railway, Mr. B. Banerjee appearing in OA 281 of 2005 has referred the pleadings set forth in the writ petition along with the pleadings in OA No. 263/2006 including the written statement by the Railway and would urge that admittedly the Railway in order to clear the backlog of SC/ST in Group-D vacancies initiated a special recruitment drive in the year 1987, 1996 and 1998 directing to all Zonal Railways to take up an action plan to ensure absorption of all casual labourers of railway so far names were kept in the Live Casual Labour Register and the entire process of which were to be completed by December, 1997, so that the position of "no casual labour" is achieved. Drawing the attention of the Court, Mr. Drawing the attention of the Court, Mr. Banerjee has referred the order dated 10.6.2006 whereby the Railway Board had launched a special drive for regularisation of all the ex-casual labourers borne on Live/Supplementary Register against regular vacancies. The Railway did not consider the Live/Supplementary Casual Labour Register in case of the Respondents herein violating Articles 14, 16 and 16(4) of the Constitution of India. 10. In reply to the questions of delay as raised by the Standing Counsel of the Railway Mr. Banerjee has referred the. judgment passed in OA's 336, 337 and 338 of 2004 and the judgment under challenge in the writ petition Whereby and where under the learned Tribunal absorbed that when similarly situated persons have earlier approached the Tribunal and obtain reliefs and were observed the applicants cannot be denied the benefits, if they are really entitled to on the ground of delay. The said observation was made referring the applicants in OA No. 79 of 1996. In support of his contentions he has relied on two decisions of the Apex Court reported in (1990) 4 SCC 13 (Lt. Governor of Delhi and Ors. v. Dharampal and Ors.) (1997) 6 SCC 721 (K.C. Sarma and Ors. v. Union of India and Ors.) wherein the Apex Court has held that the benefit of the judgment should have been given in a case where similarly situated persons were given the benefit by condoning the delay and the reference so made in WP(C) No. 6201 of 2007 (supra) dated 10.12.2007 has no application in the instant case, Mr, Banerjee has urged. 11. Mr. 11. Mr. Banerjee has further urged that there is in existence of Live/Supplementary Register as held by the Tribunal at paragraph 13 of the judgment under challenge and the pleadings made in the additional affidavits along with its annexures filed by the Respondents in OA 281 of 2005 and OA's No. 261, 262 and 263 of 2006 whereby and wherefrom it can be conclusively proved that there are Live/Supplementary Casual Labour Register dated 17.7.1995 certified by PW 1 on 1.2.1987 which was not disputed in regard to genuineness of the aforesaid registers by the writ Petitioner, wherein the name of all the applicants in OA 281 of 2005 are available and the name of all the applicants in OA's 261, 262 and 263 of 2006 were verified by the officers of the Railway on 16.3.2004 and found correct and therefore their claim for consideration by the responsible committee as ordered by the Tribunal cannot be denied in the facts and circumstances of the case. 12. Mr. Banerjee, learned Counsel appearing for the Respondents in OA No. 281/2005 would urge that the judgment under challenge does not require to be interfered with since the Court in exercising the jurisdiction which is certiorari in nature and the scope of interference being limited the case deserves to be dismissed. In support of his contentions he has relied on a decision of the Apex Court reported in AIR 2004 SC 3892 (Ranjeet Singh v. Ravi Prakash). Mr. G. Goswami, learned Counsel appearing on behalf of the Respondents in OA Nos. 216/2006, 262/2006 and 263/2006 has supported the argument advanced by Mr. Banerjee. 13. Considered the submissions made by the counsel of the respective parties. Perused the judgment under challenge along with the pleadings of the parties and the affidavits filed by the Respondents. The order dated 10.12.2007 passed in WP(C) No. 6201/2007 (supra) would show that the writ Petitioners therein were ex-casual labourer, who worked during 1977-80 and thereafter their services were not replaced on the ground that there was no work available for replacement of their service. The order dated 10.12.2007 passed in WP(C) No. 6201/2007 (supra) would show that the writ Petitioners therein were ex-casual labourer, who worked during 1977-80 and thereafter their services were not replaced on the ground that there was no work available for replacement of their service. However, in the year 1987 the Railways issued a circular pursuant to a direction issued by the Supreme Court holding that casual labourers who worked as Project Casual Labourers before 1.1.1981 and discharged for want of further works due to completion of work to make representation on or before 31.3.1987 for the purpose of inclusion of their names in the seniority list which was to be prepared pursuant to the order of the Apex Court. The writ Petitioners did not avail the opportunity of the above-mentioned circular and became vigilant only from December, 2000 and kept on making representations which did not yield any result and ultimately approached the learned Tribunal being OA No. 46/2006. The Tribunal rejected the applications holding that the application was made beyond the period stipulated in Section 21 of the Administrative Tribunal Act, 1985 which bars entertaining any application beyond the stipulated period. However, while rejecting the application the Tribunal made observation that the Respondent may consider representations of the applicants in view of the fact they were working during the period 1977-1980. The employees took the advantage of the aforesaid observation so made and filed the representations which was rejected on 18.8.2005 and the Petitioners once again approached the Tribunal being OA No. 229/05. The Tribunal passed an order directing the applicants to file appeals/representations against the impugned orders before the Respondent No. 2 pointing out the illegalities in the impugned order within a period of one month from the date of the order making it clear that if any appeal/representation is filed by the applicants, the 2nd Respondent will dispose of the same in accordance with law and in the light of the observation made by the Tribunal in the said order within a period of three months thereafter further directing the Respondents to pass a reasoned order with reference to records. Thereafter the Respondent passed a speaking order on 24.2.2006 rejecting the claim of the applicants. Thereafter the Respondent passed a speaking order on 24.2.2006 rejecting the claim of the applicants. Against the said rejection order dated 24.2.2006 the applicants once again approached the Tribunal being OA No. 75/2006 which also stand dismissed vide order dated 4.10.2007 and hence the writ petition being WP(C) No. 6201/2007 (supra) was filed which was dismissed being barred by limitation which is not the case in hand in the instant writ petition. 14. In the instant case, the applicants in OA No. 79/96 were absorbed in Group-D post and consequently thereupon the Respondents herein approached the Tribunal whereby the Tribunal directed the Railway to consider the case of the Respondents but the same was rejected by the Railway. Thereafter, the Respondents herein once again approached the Tribunal and the Tribunal directed to consider the case in the light of Live/Supplementary Live Casual Labour Register, if their names were borne in the said Register, which was not done by the Railway. The materials placed before the Court do not indicate the action if any, has been taken by the writ Petitioners/Railway and therefore the Tribunal has successively directed to consider the cases of the applicants in accordance with the Live/Supplementary Live Casual Labour Register which was/has not been done by the Railway and therefore it cannot be construed that the instant case is covered by the decision rendered by this Court on 10.12.2007 in WP(C) No. 6201/2007. Moreover, the writ Petitioner has not questioned the legality and validity of the Live/Supplementary Live Casual Labour Register maintained by the officer of the Railway dated 1.2.1987 and 17.7.1995. In absence of legality of the said live registers being in question the Court is of the opinion that Live/Supplementary Live Casual Registers are maintained by the writ Petitioner but has not acted upon the same which is reflected in the judgment under challenged. 15. In absence of legality of the said live registers being in question the Court is of the opinion that Live/Supplementary Live Casual Registers are maintained by the writ Petitioner but has not acted upon the same which is reflected in the judgment under challenged. 15. Admittedly the learned Tribunal disposed of the case being OA No. 79/96 and the Railway absorbed the applicants therein in Group-D post and accordingly the Respondents herein have claimed the benefit of the judgment and this Court after going through the judgment under challenge has no hesitation to hold that they are entitled to get the benefit of the judgment, more so, when in the additional affidavit filed by the applicants in OA No. 281 of 2005 annexing correspondences of the communication dated 1.2.1987 and 17.7.1995 wherein the name of the applicants are made available in Live/Supplementary Live Casual Labourers Registers mentioned by the Railway. In case of OA No. 262/06, OA No. 262/06 and OA No. 263/2006 the additional affidavit filed would show that the name of the applicants were verified by the officers of the Railway on 16.3.2005 and found correct and therefore their claim for consideration by the responsible committee cannot be denied as ordered by the Tribunal. 16. We have carefully perused the decisions cited by the counsel appearing for OA No. 281/05 and reported in (1990) 4 SCC 13 (supra) and (1997) 6 SCC 721 (supra); wherein, the Apex Court has held that the benefit of the judgment to other similarly situated must be given even if there is delay in approaching the Court/Tribunal. The case in hand according to us, is squarely covered by the decisions of the Apex Court. 17. The order question of exercise of writ of certiorari as raised by the counsel of the Respondents herein, the Court has no hesitation to hold that certiorari jurisdiction would not be available to correct the errors in drawing inferences like a Court of appeal and the decision cited and reported in AIR 2004 SC 3892 (Ranjeet Singh v. Ravi Prakash) supports this proposition of law in the matter of exercise of writ of certiorari jurisdiction. 18. 18. In the result the writ petition is dismissed and the judgment rendered by the learned Tribunal is upheld directing the writ Petitioners to comply with the directions within the time specified in the judgment of the Tribunal from the date of receipt of a certified copy of this order. The parties are left to bear their own costs. Petition dismissed.