O R D E R
Per: Justice K Haripal, Judicial Member
The applicant claims that she was a casual labourer attached to the office of the third respondent, Postmaster General, Central Region Kochi from 1986 onwards. She joined the Department as a part-time tea maker,
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then she was called for an interview on 10.03.1987. While working as part- time tea maker, a vacancy of a post in 'Group D' arose, she also applied for the post and was invited for the interview. Whatever it may be she continued as a part-time sweeper. After working as a casual sweeper for six years, she requested the respondents to appoint her as full time casual labourer with temporary status. But she was replied as per Annexure A4 that it is under examination. Then she applied for making her full time casual mazdoor which was also under consideration, going by Annexure A5. Meanwhile, by Annexure A6 order dated 04.04.2000, on account of the increase in the workload she was asked to work eight hours a day from that day. This arrangement continued till 05.09.2003 till her working hours was reduced to seven hours a day. Again by Annexure A10 order dated 02.01.2004 her working hours was revised and enhanced to eight hours a day and by Annexure A11 order dated 31.05.2004 it was reduced to six hours but again by Annexure A12 order dated 01.07.2004 her hours of working were revised to eight hours and she continued to work for eight hours a day from 01.07.2004 onwards. While so she moved Annexure A13 representation for granting her permanent status but instead of granting her any relief, by Annexure A1 order dated 30.08.2019 her service was abruptly retrenched with immediate effect. Thus, her services were terminated which is illegal, unjust and unauthorised. She has approached this Tribunal seeking to cancel Annexure A1 to the extent terminating her service and for a direction to reinstate her with backwages with adequate
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compensation, the termination being illegal, arbitrary and violative of the natural justice. She also seeks a declaration that she is entitled to be conferred with temporary status regularisation of service, recognition 32 years of service and that too for long time as full time casual labourer putting in eight hours work daily.
2. According to the applicant even though she had put in more than 32 years of service, on the verge of attaining sixty years her services were terminated without following the principles of natural justice. She was not even served with a show cause notice and her services were terminated abruptly to the utter shock of the applicant. She has also understood that from the next day onwards a person who was working as gardener in the residence of the third respondent was engaged in her place. In other words, she was purposely avoided to appoint person of choice of the respondents.
3. She has worked in the office in different capacities as tea maker, as casual labourer, as scavenger and all types of odd works were done by her for over 32 years. All her representations for granting temporary status and regularisation were not considered seriously and her abrupt termination is illegal and liable to be interfered with.
4. The applicant also relied on the decisions reported in Olga Tellis v
Bombay Municipal Corporation [AIR 1986 SC 180], A. K. Kriapak and Ors v
Union of India & Ors [1969 (2) SCC 262], State of Orissa v Dr. (Miss) Binapani Dei & Ors [AIR 1967 SC 1269], D.K Yadav v J M A Industries Ltd
[1993 (3) SCC 258], Secretary, Ministry of Communications v Sakkubai and
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another [1997 (11) SCC 224] and Secretary, State of Karnataka & Ors v
Umadevi & Ors [2006 (4) SCC 1].
5. The respondents have filed a reply statement describing the contentions of the applicant not maintainable and mischievous. According to them, the applicant was never appointed as a casual labourer but she was engaged in the office of the Postmaster General, Kochi for three hours a day and wages were paid on hourly rate with effect from 02.05.1989 till 03.04.2000. She attained the age of sixty years on 23.12.2019. Referring to Annexrue R1 and R2 communications, the respondents have said that temporary status could be conferred on casual labourers in employment as on 29.11.1989 who continued to be currently employed and have rendered continuous service of at least one year and during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing five days a week). Cut-off date of 29.11.1989 was later modified as 01.09.1993 by Annexure R2. Such casual labourers engaged for eight hours including half hour lunch time were paid at daily rates arrived at on the minimum of the pay scale for a regular 'Group D' official including DA, HRA and CCA. According to them, conferment of temporary status to a casual labourer does not automatically imply that the casual labourer would be appointed as regular 'Group D' employee within any fixed time scale. Appointment in 'Group D' vacancies will continue to be done as per the extended regular recruitment Rules which stipulate preference to eligible Gramin Dak Sewak employees. After rendering three years continuous
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service after conferment of temporary status, the casual labourers would be treated at par with temporary Group D employees. Conferment of temporary status has no relation to availability of sanctioned strength of regular 'Group D' posts. Engagement of casual labourers will be continued to be on a daily rates of wages on need basis.
6. According to the respondents she was only engaged as a part-time scavenger for three hours a day on need basis, her wages were paid on daily rates on pro rata basis of minimum pay and allowances payable to 'Group D' officials. She was not engaged for 206 days as on the date of Annexures R1 and R2 OMs, during the period from 01.09.1992 to 31.03.1993 at the office of the third respondent which is an administrative office observing five days a week. Hence, she was not entitled to get conferment of temporary status as per Casual Labourers (Grant of Temporary Status and Regularisation) Scheme issued under Annexures R1 and R2.
7. It is further stated that she was engaged as part-time scavenger on need basis from 02.05.1989. During 1996 she was considered for conferring temporary status but her case was not found eligible as she had not worked for 206 days in the preceding one year from 01.09.1992 to 31.08.1993. Documents produced by the applicant would show the upward and downward revision of office hours were done depending upon the need of the office. Therefore she is not entitled to get any relief.
8. According to the respondents, there is absolutely no record to show that the applicant was working as a tea maker, sweeper, cleaner, sweeper,
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scavenger, etc., before 02.05.1989. Reiterating the provisions under Annexures R1 and R2 they said that she would get eligibility for conferring temporary status only if she had worked on or before 01.09.1993 provided she had worked for at least 206 days in one year from 01.09.1992 to 31.08.1993. It is reiterated that she was engaged on need base only.
9. Referring to the decision of the Hon'ble Supreme Court in Union of India & Anr v Mohan Pal & Ors [2002 (4) SCC 573], it is pointed out that the Hon'ble Apex Court has held that the Annexures R1 and R2 Scheme is only a one-time programme applicable to casual labourers who were in employment on the date of commencement of the Scheme and had also rendered continuous service for the prescribed period. This decision has been followed in Annexure R11 judgment of the Hon'ble High Court by which a decision rendered by this Tribunal was reversed. Similarly referring to Annexures R13 and R14 it is submitted that consistent view has been taken by this Tribunal on the point and therefore the applicant is not entitled to get any relief.
10. The applicant filed rejoinder, reiterating her contentions in the O.A. Referring to Annexure R7 she pointed out that a person who had been working in eight hours a day should be described as full time casual labourer. Along with rejoinder the applicant also produced Annexures A14 and A15 documents wherein the method of payment of wages to the casual labourers have been given.
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11. The respondents filed an additional reply statement denying the contentions in the rejoinder. According to them, the contentions of the applicant are mischievous and thus the O.A is liable to be dismissed.
12. I heard the learned Counsel for the applicant and also the learned Standing Counsel. According to the learned Counsel for the applicant it is illegal and unjust that the person who is a sixty year old lady who had put in 32 years of service in the office of third respondent has been unceremoniously eased out by serving Annexure A1. On the following day itself, a person of choice of the third respondent was engaged in her place which shows the malafide conduct of the respondents. According to the learned Counsel, it is evident from Annexures A6 and A8 that she had been working as full time casual labourer for 1249 calendar days, thereafter her working hours was reduced to seven hours a day. Between Annexures A8 and A10 she had worked for 119 calender days working seven hours a day. From Annexure A10 dated 02.01.2004 her working hours was again restored to eight hours. Similarly from Annexure A12 dated 01.07.2004 till the date of retrenchment, she had been engaged in eight hours a day and it was illegal to terminate the services of such a person.
13. On the other hand, according to learned Standing Counsel, it may be true that she had been engaged occasionally by the third respondent for doing odd jobs as part of outsourcing, but before Annexure A6 dated 04.04.2000 she had never been engaged for eight hours. Such an engagement will not fit in the conditions stipulated in Annexures R1 and R2.
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Therefore merely for the reason that she was engaged for eight hours occasionally from 04.04.2000 onwards will not confer any right on her to be given temporary status. According to the learned Counsel even if it is assumed that she was entitled to get temporary status, that will not entitle her for any other benefits. Various documents produced by the respondents touching the engagement of casual labourers on daily wages were relied on by the respondents and according to him the Hon'ble Supreme Court had made it clear that Annexures R1 is a one-time programme and therefore any person who was engaged subsequent to 01.09.1993 cannot claim any benefit under the Scheme. He also pointed out that this Court has consistently held that such an employee is not entitled to get temporary status or regularisation. Uma Devi quote supra also stands against such a proposition. According to the Counsel, following issue of Annexure A1, a person was engaged on daily wages as part of outsourcing, that the immediate reason for issuing the order disengaging the applicant was the adverse comments made by the Audit party. Learned Counsel also relied on the decision in Secretary, Ministry of Communications v Sakkubai and another [1997 (11) SCC 224]. Thus the learned Counsel pressed for dismissing the O.A.
14. The applicant claims that she had been engaged as casual labourer in the office of the third respondent from 1986 onwards. In that capacity she had done all odd jobs in the office as tea maker, as scavenger, as sweeper, as water carrier and all types of works were done continuously from 1986
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till her termination under Annexure A1 on 30.08.2019. So it is claimed that even though she had been working there on daily basis for over 32 years, when she was about to attain the age of 60, was abruptly retrenched from service illegally and violating all principles of natural justice. She also contended that even though she had made repeated representations for conferring her temporary status, that were not considered. Certain documents also have been produced by the applicant showing that her representations were under examination but nothing had materialised. Annexures A6, A8, A10, A11 and A12 indicate that she had been working on hourly basis. From Annexure A6 it is clear that she was asked to work for eight hours a day from 04.04.2000 onwards. Later by Annexure A8 order dated 05.09.2003 her daily hour of engagement was reduced to seven hours. Again under Annexure A10 it was raised to eight hours and then under Annexure A11 dated 31.05.2004 it was reduced to six hours; under Annexure A12 it was again enhanced to eight hours. That means from 01.07.2004 till the date of her disengagement on 30.08.2019 she had been working for eight hours a day. So according to the applicant she is entitled to get temporary status and she ought not to have been sent-out without following the principles of natural justice.
15. On the other hand, the respondents wanted to convince the Tribunal that she had never been engaged as a full time casual labourer till the issuance of Annexure A6. Before that she was engaged only three hours a day and that was also on 'need based'. Whenever occasions arose, her
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working hours was enhanced to eight hours which was reduced to seven and again reduced to six hours. Annexures A6, A8, A10, A11 and A12 have been highlighted by the respondents to say that her timing was fixed on need based and there is absolutely nothing to say that prior to 2000 she was engaged as a casual labourer. Prior to 1989, that is before 29.11.1989 or between 29.11.1989 to 01.09.1993 she had never been engaged by the respondents, that she has no document to say that she was engaged for one year and therefore she was never under the employment of the respondents and is not entitled to get any notice prior to retrenchment. Referring to various communications issued by the Department, it was pointed out that there was total prohibition in engaging casual labourers after 2010, still her engagement continued on need basis. Referring to Annexure R9 audit inspection report it was pointed out that audit party had specifically noticed that 805 number of casual labourers were engaged by the third respondent during 2016-2019 which called for adverse comments and they were called upon to furnish reasons or circumstances for violating the guidelines issued by the DoP&T and Postal Directorate from time to time, that it was under such circumstances that Annexure A1 was issued. It was reiterated that they had no obligation to issue any show cause notice before issuing Annexure A1 order disengaging the applicant.
16. After hearing Counsel on both sides and scanning the materials made available before the Tribunal, I am of the view that there are numerous impediments in granting any relief in favour of the applicant. First of all, it
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has come out that the Postal Department had issued specific directions on 12.04.1994 by way of a Scheme known as Casual Labourers (Grant of Temporary Status and Regularisation) Scheme. The salient features of the same are enumerated therein. For our purpose, it seems that the first two clauses alone are required to be extracted: -
"(1) Temporary status would be conferred on the casual labourers in employment as on 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year; during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing 5 days week)
(2) Such casual workers engaged for full working hours, viz. 8 hours including ½ hour's lunch time will be paid at daily rates on the basis of minimum of pay at the pay scale for a regular 'Group D' official including DA, HRA and CCA".
That means in order to get temporary status for a casual worker he must have been in employment for one year on 29.11.1989 and who must have been continued in employment. During the previous one year he must have put in 240 days of engagement (206 days in the case of offices observing five days a week). Here the material question is, whether the applicant had been in engagement for 206 days in the office of the third respondent which was observing five days' week on or immediately preceding 29.11.1989.
17. This cut-off date was subsequently extended till 01.09.1993 by way of Annexure R2 communication dated 01.11.1995. This was done on the basis of a direction issued by this Tribunal. Whatever it may be, the material question is whether the aspirant had been in engagement for one year for
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the period between 29.11.1989 and 01.09.1993 putting in 240 days of work or 206 days of work in offices observing five days a week and their engagement should have been continued.
18. As rightly pointed out by the learned Standing Counsel, there is absolutely no material to prove this important aspect. It is claimed that the applicant had been in engagement in the office of the third respondent from 1986 onwards. This has been denied by the respondents. According to them she might have been engaged on need based, occasionally. Her case will not fit in the necessary conditions in Annexures R1 and R2 and therefore the case should fall. There is considerable force in this contention.
19. Secondly, Annexures A6, A8, A10, A11 and A12 indicate that she had been engaged on hourly basis during the period from 04.04.2000 onwards. But nothing is there to show that she was engaged prior to 04.04.2000. Annexures A3, A4 and A5 indicate that she had made some representations but no inferences are possible in favour of the applicant to uphold the case of the applicant.
20. Even if it is assumed that she had been engaged eight hours for some time as indicated by her, those documents will not fit in the case of the applicant to consider to grant her temporary status, as required in Annexures R1 and R2 documents. In fact the above two aspects clearly drive a wedge in the case of the applicant and she is not entitled to succeed.
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21. Even otherwise there are documents to indicate that positive directions were issued by the Department of Posts prohibiting engagement of casual labourers after 01.12.2010. Moreover as indicated earlier, the Hon'ble Supreme Court, in Mohan Pal (supra) has stated in unambiguous terms that Annexure R1 Scheme is a one-time programme applicable to casual labourers who were in employment on the date of commencement of the Scheme and had also rendered continuous service for the prescribed period. The applicant has no case that she had been engaged during the relevant period, i.e., one year prior to 29.11.1989 or during the period upto 01.09.1993. The respondents have a clear case that she was engaged on need based only and she is not entitled to get temporary status. From the Annexures A13 and A14 orders also it is clear that a consistent view has been taken by this Tribunal in the matter of engagement of casual labourers.
22. It is true that the applicant had been engaged by the respondents for considerably long period but she will be able to get any benefit only if it is found that she falls within the parameters stated in the Scheme evolved by the respondents. It is very clear that her case will not fall within the Scheme.
23. It is also important to say that she was being engaged as casual labourer in the establishment purely on the basis of needs, which varied from time to time. She was paid wages on daily basis only. Such an engagement was never against any sanctioned post.
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24. Her argument that she was terminated without following principles of natural justice also can not cut any ice. Having regard to the nature of the engagement, she does not deserve any advance notice. In Mohan Pal, quoted supra, the Hon'ble Apex Court has made it clear that, even a casual labourer who was granted temporary status can be terminated. That means, a daily wage employee, who is not in the rolls of the establishment cannot insist that he should be disengaged after service of notice in advance.
25. Therefore the O.A is only to be dismissed. Dismissed. No costs. (Dated this the 24thday of May, 2023)
Justice K. Haripal (Judicial Member)
bp
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List of Annexures Annexure A1- True copy of the Order No.Gen/4-1/2014 dated 30.08.2019 issued by the 4threspondent.
Annexure A2- True copy of the letter No.T/M1 sc-1/86 issued by the Asst. Director of Postal Services of the 3rdrespondent.
Annexure A3- True copy of the Memo No.ST/3-13/90 dated 06.06.90 issued by the 4 th respondent.
Annexure A4- True copy of the letter No.ST/3-5/82Pt dated 13.11.1996 issued by the 4th respondent.
Annexure A5- True copy of the letter No.ST/3-5/82 dated 09.09.1998 issued by the APMG of the 3rdrespondent.
Annexure A6- True copy of the office memo No.Gen/4-1/2000 dated 4.4.2000 issued by the APMG of the 3rdrespondent.
Annexure A7- True copy of the letter No.ST/105-19/2002 dated 31.07.2003 issued by the 4threspondent.
Annexure A8- True copy of the Memo No.Gen/4-1/2000 dated 05.09.2003 issued by the 4threspondent.
Annexure A9- True copy of the letter No.Rectt/21-1/Dlg 2002 dated 14.11.2003 issued by the 4threspondent.
Annexure A10- True copy of the Memo No.Gen/4-1/2000 dated 02.01.2004 issued by the 4threspondent.
Annexure A11- True copy of the office Note No.Gen/4/01/2000 dated 31.05.2004 issued by the 4threspondent.
Annexure A12- True copy of the letter No.Gen/O&M/3-7/04 dated 01.07.2004 issued by the 4threspondent.
Annexure A13- True copy of the representation dated 23.08.2019 submitted by the applicant.
Annexure A14- True copy of OM 2-53/2011-PCC dated 22.01.2015 issued by the Government of India, Ministry of Communications & IT, Department of Posts.
Annexure A15- True copy of OM 7-10/2016-PCC dated 31.03.2017 issued by the Government of India, Ministry of Communications & IT, Department of Posts.
Annexure R1- True copy of Casual Labourers (Grant of Temporary Status and Regularisation) Scheme.
Annexure R2- True copy of the postal Directorate letter No.66-52/92-SPB-I dated
01.11.1995.
Annexure R3- True copy of declaration dated 02.01.2004 given by the applicant with its English translation.
Annexure R4- True copy of Postal Directorate letter No.4-4/2009-PCC dated 19.11.2010.
Annexure R5- True copy of Chief PMG Kerala letter No.EST/53-3/2009/Vol.III dated
27.12.2010.
Annexure R6- True copy of Chief PMG Kerala letter No.EST/53-2/9/Review dated
16.01.2011.
Annexure R7- True copy of Postal Directorate letter No.4-4/2009-PCC dated 06.08.2013.
Annexure R8- True copy of DoPT OM No.F-49019/I/95-Estt-(C) dated 14.06.2016.
Annexure R9- True copy of para 3.20 of the audit inspection report dated 12.05.2019.
Annexure R10- True copy of the judgment dated 29.04.2002 of the Hon'ble Supreme Court in Union of India & Anr. V. Mohan Pal & Ors.
Annexure R11- True copy of common judgment dated 31.10.2002 of the Hon'ble High Court of Kerala in OP No.3979 & 32078 of 2000, 15650 of 2001.
Annexure R12- True copy of the DG Posts letter No.66-50/2014-SPB-I dated
30.06.2014.
Annexure R13- True copy of order dated 27.06.2017 in OA 727/2015 of the CAT, Ernakulam Bench.
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Annexure R14- True copy of common order dated 28.09.2017 in O.A 612/2014, 883/2015, 891/2015, 931/2015, 947/2015 & 238/2016 of the CAT, Ernakulam Bench.
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