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2013 DIGILAW 655 (GUJ)

Shankerbhai Kasturbhai Baraiya v. Union of India

2013-11-11

MOHINDER PAL, RAVI R.TRIPATHI

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Judgment Ravi R. Tripathi, J.—These two petitions are filed by two petitioners who are aggrieved by judgment and order dated 31.03.2005 passed by the Hon’ble Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as “the Hon’ble Tribunal”) in O.A. No. 78 of 2003. The Hon’ble Tribunal was pleased to dismiss the Original Applications as the Hon’ble Tribunal came to the conclusion that, “ .. .. in view of the fact that the termination order cannot be said to be illegal, arbitrary and unreasonable, we do not see any merit in this OA. We are therefore, of the considered opinion that the OA deserves to be rejected. In the conclusion, therefore, the OA is rejected with no order as to costs.” 2. The Hon’ble Tribunal has set out the facts of the case in the opening para of the judgment, which read as under: “The applicants claiming that they were working as full time employees in the respondents department and having completed more than 240 days of continuous service were required to be absorbed as full time employees, had by moving this OA, initially prayed for a direction to the respondents to absorb them as full time employees as well as to grant them the benefits of temporary status from retrospective date with consequential benefits. .. ..” The Hon’ble Tribunal records that, “During the pendency of the OA, they have amended the OA and contended that the action of the respondents to take away the work of the full time sweeper and get the same performed by the contractor is illegal and arbitrary. .. ..” 3. Unfortunately, the petitioners-original applicants are not able to support their case/ contentions/ case put forward before the Hon’ble Tribunal by any acceptable documents. On the face of it the claim of the petitioners-original applicants is too bald. It is the case of petitioners-original applicants that Petitioner Nos. 1 and 2 herein were working with the Department from 1992 and 1995 respectively. On the other hand their case is that they started working with the department on shifting of the office to Premier Shopping Centre, Mirzapur, Ahmedabad. Their working hours were from 08.00 AM to 07.00 PM and that Petitioner No. 1 was paid fixed salary of Rs. 2000/- per month. 4. On the other hand their case is that they started working with the department on shifting of the office to Premier Shopping Centre, Mirzapur, Ahmedabad. Their working hours were from 08.00 AM to 07.00 PM and that Petitioner No. 1 was paid fixed salary of Rs. 2000/- per month. 4. It is the settled position of law that when a person approaches any judicial forum, be it Central Administrative Tribunal or High Court, the petitioner has to stand of his own and cannot seek support from the so called weaknesses of the respondents. In the present case the petitioners- original applicants have tried to support their case by producing certain documents. These documents are produced at Annexure ‘B’ from Pages 17 to 30. Page 17 is document in the form of certificate issued by one AE Truck (Admn.), TMX Bldg, Bhadra, AM. Said certificate dated 17.08.1993 reads as under: “This is to certify that Shankerbhai Kasturbhai Bariya has worked as temporary casual labour for supply of water to Air Coolers and cleaning office for 3 (three months) from 1.5.92 to 31.7.92. He bears good moral character.” (emphasis supplied) The contents of the above certificate are self explanatory. Petitioner No. 1- original applicant must have worked for some time with the department as is clear from the payment vouchers which show the work done and the amount paid. It is thereafter that petitioner No. 1 appears to have approached the office, that is, after more than a year of his having last worked with the department with a prayer to issue a certificate so that he can apply elsewhere for getting employment. That is the reason why the last phrase reads, “He bears good moral character”. The date is 17.08.1993. The period mentioned is from 01.05.1992 to 31.07.1992. When it is put to the learned advocate for the petitioner as to whether there is any other such document relating to any subsequent period right upto the year 2002, the learned advocate has no positive reply. 5. The next document is in the form of of voucher-cum-receipt. It is dated 03.01.1996. What is interesting is that it has the following items showing the payment. Date Amount Details to 4.12.95 to 8.12.95 243-40 Sweeping/ cleaning on 7th Flr GIA Secn Ahmedabad for 5 days. 5. The next document is in the form of of voucher-cum-receipt. It is dated 03.01.1996. What is interesting is that it has the following items showing the payment. Date Amount Details to 4.12.95 to 8.12.95 243-40 Sweeping/ cleaning on 7th Flr GIA Secn Ahmedabad for 5 days. 11/12/95 30-00 -do - 4th Flr vice Sh.S.J. Chavda on CL 1/2 12/12/95 60.85 - do - 1st Flr vice GP Vyas on CL 13.12.95 60.85 - do - 4th Flr, vice Sh. S.J. Chavda on EL. 18.12.95 to 22.12.95 243-50 - do - 7th Flr GIA Sc (Abad) for 5 days. 24.12.95 60.85 Chowkidar (night) Sunday. 25.12.95 60.85 - do – Dhoshi CL 30.12.95 60.85 - do - - do – CL 943-00 (nine hundred forty three only) Contents of this voucher cum receipt are self explanatory. Petitioner No. 1 was engaged by the department by allowing him to do miscellaneous work and he was paid for the work done. The details set out indicate that this was done in cases of regular staff being not available due to casual leave or EL. On the basis of this document petitioner No. 1- applicant cannot be said to have obtained any status of temporary servant and that is what precisely the Hon’ble Tribunal has held in its decision. 6. Similarly, Page 20 again shows some details wherefrom it is clear that on 12 days he was paid at the rate of Rs. 49; for 7 days he was paid at the rate of Rs. 20; for 1 day he was paid at the rate of Rs. 15/-; and on yet another day he was paid at the rate of Rs. 10/-. This is definitely indicative of the fact that he was taken for miscellaneous work and accordingly he was paid for. In such circumstances, to claim that he was with the department and therefore, he should be absorbed by the department, cannot be accepted because if such relief is granted that will be doing injustice to many more similarly situated persons waiting for entry in Government service. 7. What follows is also important. There are few pages viz., Pages 1 to 30, which are photocopies of some Attendance Register. None of these pages bear any single mark to support the claim of the workmen that these are the pages of Attendance Register of Telecom Department. 7. What follows is also important. There are few pages viz., Pages 1 to 30, which are photocopies of some Attendance Register. None of these pages bear any single mark to support the claim of the workmen that these are the pages of Attendance Register of Telecom Department. These pages are for the months of March, May, June, July, August, September, October, November and December 1999 and January 2000. 8. Interestingly, these pages do not have names of very same persons, which are found at Pages 21 or 22. In some of the pages there are only 3 names, in some there are 4 names, and in some there are only 2 names. The Hon’ble Tribunal has rightly observed that these pages do not show that they belong to Telecom Department. Not only that when the matter was under consideration before the Hon’ble Tribunal learned advocate Mr. Pathak was asked to give details of the officer who is said to have initialled these pages. Learned advocate Mr. Pathak could not give any details as recorded by the Hon’ble Tribunal. The learned advocate for the petitioner vehemently submitted that the Hon’ble Tribunal has recorded that there was ‘master and servant’ relationship between the petitioners herein and the Telecom Department. This he says on the basis of the observations made by the Hon’ble Tribunal in Para 4 of the judgment wherein the Hon’ble Tribunal was considering the contents of the reply of the respondent- Telecom Department. The relevant observations which are pressed into service by the learned advocate are as under: “ .. .. We, therefore, reject the contention of the respondents that the applicants were entrusted the work of cleaning and sweeping of the exchange building on contract basis and that there was no relationship between the employee and employer and as such this Tribunal has no jurisdiction.” 9. As stated hereinabove petitioners- original applicants must succeed of their own, not on the basis of weaknesses or lapses on the part of the respondent. In Para 5 of the judgment, the Hon’ble Tribunal has taken all pains to consider the case of the petitioners and appreciated the aforesaid documents by having threadbare analysis. The Hon’ble Tribunal has come to the conclusion that the petitioners are not able to put any case which can be accepted by the Hon’ble Tribunal. The Hon’ble Tribunal has recorded as under: “.. .. The Hon’ble Tribunal has come to the conclusion that the petitioners are not able to put any case which can be accepted by the Hon’ble Tribunal. The Hon’ble Tribunal has recorded as under: “.. .. None of these documents can be relied upon for proving that the applicants had worked during this period as an employee of the respondents department. .. ..” 10. The Hon’ble Tribunal has also then observed that, “.. .. There is absolutely no evidence of the applicants having competed (sic., completed) 240 days of continuous working in a year under the respondents and therefore, the question of applicability of the scheme for grant of temporary status and regularization and awarding the temporary status to the applicants does not arise. The Clause 5 of the scheme clearly stats that temporary status would be conferred on all the casual labourers currently employed and who have rendered a continuous service of at least one year, out of which they must have been employed on work for a period of 240 days (206 days in case of offices observing 5 days a week). Hence it was incumbent on the part of the applicants to adduce sufficient evidence to show that they had worked for 240 days in a year and were employed with the respondents on the date of the coming into force of the scheme. The applicants have miserably failed to adduce necessary evidence to establish it and therefore, the question of the award of temporary status to them does not arise. .. ..” (emphasis supplied) 11. The learned advocate for the petitioners did submit that once there is ‘master and servant’ relationship, the Hon’ble Tribunal ought to have granted relief as prayed for. This submission is made on the basis of observations which does not have direct bearing on the facts of the case; therefore, it cannot be accepted and the Hon’ble Tribunal has rightly not accepted. 12. It is really painful that the Hon’ble Tribunal has to observe in Para 6 as under: “6. Mr. Pathak, learned Counsel for the applicants relied on the decisions in the case of Dhangadhra Chemical Ltd., 1957 SC 264, Dharanpal, 2002 (3) ATJ 441 and Bharat Heavy Electricals Ltd., 2003 (5) Scale 21. The copies of these decisions are not supplied nor the authorities supplied. Mr. Pathak, learned Counsel for the applicants relied on the decisions in the case of Dhangadhra Chemical Ltd., 1957 SC 264, Dharanpal, 2002 (3) ATJ 441 and Bharat Heavy Electricals Ltd., 2003 (5) Scale 21. The copies of these decisions are not supplied nor the authorities supplied. The decision of Dharanpal said to have been reported in 2002(3) ATJ 441 is not found at that page and not found to have been reported in ATJ 2000 (3) ATJ 441. The decision of Dhangadhra Chemicals has no application to the facts of the instant case as there is no question of applicants being forcibly made to agree with the terms of the contract of service.” (emphasis supplied) 13. The learned advocate for the petitioners now makes available a copy of the said decision in the case of Dhangadhra Chemical Ltd. 1957 SC 264, Dharanpal 2002 (3) ATJ 441. If that is so, this Court is of the opinion that it was the bounden duty of the learned advocate to approach the Hon’ble Tribunal and get the aforesaid observations deleted from the judgment and order of the Hon’ble Tribunal. 14. The learned advocate for the petitioners did press into service decision in the matter of Dhrangadhra Chemical Works Ltd. vs. State of Saurashtra and others, reported in AIR 1957 SC 264 and relied upon the Head Note (a) of the judgment. This Court is of the opinion that the Hon’ble Tribunal is right in observing that the said decision is not applicable to the facts of the present case and the Hon’ble Tribunal has rightly rejected the contention of the petitioners – original applicants. 15. In the result, the Hon’ble Tribunal has not committed any error which warrants interference at the hands of this Court. Hence both these petitions have failed. The same are dismissed. Rule is discharged.