Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 687 (GAU)

Union of India v. Jiten Chandra Bhuyan

2018-04-20

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. S.C. Keyal, learned Assistant SGI for the petitioners. Also heard Mr. H.K. Das, learned counsel for the respondents. 2. The respondents, herein, claim to be working in the Office of the Director, Doordarshan Kendra Guwahati on a casual basis. The respondent No. 1claims to have joined as a casual worker on 2.11.1992, the respondent No. 2 on 2.2.1993, the respondent No.3 on 1.7.1992, respondent No. 4 on 3.8.1993 and the respondent No.5 on 1.3.1992. It is the common claim of all the respondents that they have worked for more than 240 days in a year and, therefore, are entitled to the benefit of a temporary status, which ultimately may lead to a regularization. The respondents rely upon a scheme adopted by the petitioner-authorities called Department of Personnel and Training, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme. Clause 4 of the said scheme is as under: “………………4. Temporary Status. (i) Temporary Status would be conferred on all casual labourers who are in employment on the date of issue of this OM 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 the case of offices observing 5 days week).” 3. In the aforesaid premises, a prayer was made in the writ petition for grant of temporary status w.e.f. 4.10.2000 and for regularization of their services thereafter. The petitioner-authorities had filed an affidavit-in-opposition, wherein the various periods for which the respondents had worked was stated and accordingly, took the stand that they had not worked for 240 days in a given year. In the said affidavit, the petitioner-authorities had also annexed a communication dated 26.2.2015 from the Senior Administrative Officer for the Additional Director General (P) addressed to the Director General, Doordarshan. The said communication pertains to the request for temporary status/regularization of the services of the respondent Nos. 1, 2, 4 and 5. In the communication, it was stated that the respondent No. 1had worked for 130 days from July 1992 to December 1992 and for 114 days from January 1993 to June 1993. Similarly, it was stated that the respondent No. 5 had worked for 86 days from May 1992 to October 1992 and 146 days from January 1993 to November, 1993. In the communication, it was stated that the respondent No. 1had worked for 130 days from July 1992 to December 1992 and for 114 days from January 1993 to June 1993. Similarly, it was stated that the respondent No. 5 had worked for 86 days from May 1992 to October 1992 and 146 days from January 1993 to November, 1993. It was also stated that the respondent No. 2 had worked for 136 days from July 1992 to October 1992 and for 131 days from January 1993 to December 1993 and that the respondent No. 4 had worked for 14 days in 1993. 4. But what is more relevant is the communication dated 26.2.2015 which says that the relevant records of the casual workers regarding their engagements could not be found as they have been damaged due to water logging in the record room of the Doordarshan Kendra premises. Therefore, the information regarding the period worked by the respondents stated in the communication dated 26.2.2015 would have to be construed to be based not on complete record. It would always remain unknown as to what would be the number of days the respondents had actually worked, had the complete record been the basis of such information. 5. Later on, the said writ petition was transferred to the Central Administrative Tribunal, Guwahati (‘CAT’) and was renumbered as TA No. 040/00002/2015. Upon being transferred, the said petition was given a final consideration by the CAT by its Judgment and order dated 10.5.2016. In the proceeding before the CAT, an issue had arisen as to whether any other person, who were junior to the respondents were given the benefit of grant of temporary status. On the submission of the rival parties, it was brought on record that Mr. Suresh Ingti and Ms. Dipali Das were granted the temporary status. Accordingly, by the Judgment and Order dated 10.5.2016, the petitioner-authorities were directed to verify as to whether any person junior to the respondents were granted the temporary status and if yes then the same status be also granted to the respondents. 6. The judgment and order dated 10.5.2016 of the CAT has been assailed in this writ petition and a stand has been taken by the petitioner-authorities that the aforesaid Mr. Suresh Ingti and Ms. Dipali Das were incorrectly granted the temporary status. 6. The judgment and order dated 10.5.2016 of the CAT has been assailed in this writ petition and a stand has been taken by the petitioner-authorities that the aforesaid Mr. Suresh Ingti and Ms. Dipali Das were incorrectly granted the temporary status. Accordingly, it is the contention that a similar relief, which was granted in an incorrect manner, cannot be claimed by the respondents. 7. The said stand of the petitioners although otherwise may be acceptable inasmuch as, no one can claim the benefit of a negative inequality, but at the same time, a judicial notice also have to be taken of the communication dated 26.2.2015, which depicts an admitted position of the petitioner-authorities that the complete record pertaining to the engagement of the respondents are unavailable. 8. Further the said communication of 26.2.2015 indicates that at least the respondent No. 1 had worked for more than 240 days in a given year from July 1992 to upto June 1993. Except for the respondent No. 4, Debajani Das, the period worked by the respondent No. 5 and respondent No. 2 also indicate that their period of engagement may have been slightly short of 240 days in a given year. The communication also reveals that as regards the respondent No. 3, no information is available with the petitioner-authorities. 9. The learned counsel for the respondent has also relied upon a judgment and order of the Rajasthan High Court dated 22.9.2015 in DB Civil Writ Petition No. 5721/2007, wherein it has been held that “… the period of 240 days has to be reckoned in a period of any 12 months and it has nothing to do with the calendar year either. The Scheme nowhere suggests that it has to be during a calendar year and it only says that the casual labourer should have completed 240 days during the year and this year could be a block of any 12 months during which he completes 240 days..” 10. We do not find any reason to disagree with the reasoning of the Rajasthan High Court as regards the interpretation of the expression ‘year’ for arriving at the meaning of 240 days in a year. We do not find any reason to disagree with the reasoning of the Rajasthan High Court as regards the interpretation of the expression ‘year’ for arriving at the meaning of 240 days in a year. It is more so, inasmuch as, the Scheme providing for temporary status to the casual workers working for 240 days in a year gives no indication that the expression ‘year’ would have to be construed to be a calendar year. Further, a reference to a calendar year would also stand as an impediment for grant of temporary status to a casual worker, inasmuch as, it would be most unlikely that the petitioner-authorities would engage a casual worker only in the beginning of the year, so as to make an assessment of his achievement of working more than 240 days in a given calendar year. 11. In view of the aforesaid two aspects of the matter, more particularly, the aspect that the complete record of engagement is not available, and also considering the aspect that the petitioner No. 1had completed 240 days in a given year comprising of a block of 12 months, and the other respondents have worked for a period which is marginally short of 240 days, and whereas in respect of two of the respondents, no information is available, as provided in the communication dated 26.2.2015, which contains the admitted position of the petitioner-authorities, this court is of the view that the benefit of doubt that may accrue in the absence of records, should not be in any manner unfavourable to the respondents. If the records are not available because of flooding in the office, the same has to be construed to be laches on the part of the petitioner-authorities. The maxim ‘nullus commodum capere potest de injuria sua propia” meaning that no man can take advantage of his own wrong would be applicable in the present case as regards the claim of the petitioner-authorities that the temporary status cannot be granted to the respondents as because the fact as to whether they have worked for 240 days in a year cannot be determined as the records have been destroyed. 12. Further, it is an admitted position that the respondents are working from the years 1992 and 1993 respectively, which as on today would be approximately 25 to 26 years. 12. Further, it is an admitted position that the respondents are working from the years 1992 and 1993 respectively, which as on today would be approximately 25 to 26 years. If a person is working for almost 25 years in an organization in a casual manner, in the absence of any specific material to indicate the contrary, it cannot be presumed against such casual worker that they have never worked for more than 240 days in a year in all these 25 years approximately. 13. In view of the above, this court is of the view that ends of justice would be met and the equity favours the respondents for a consideration by the petitioner-authorities for grant of temporary status. Accordingly, no merit is found in the writ petition and while upholding the order of the CAT, a modification is provided that the petitioner-authorities shall now consider the claim of the respondents for grant of temporary status by taking into consideration the views expressed and the conclusions arrived by this Court in the foregoing paragraphs. 14. The aforesaid be done within a period of 3 months from the date of receipt of the certified copy of this order. 15. Writ petition, accordingly, stands disposed of in the above terms. No costs.