1. By this O. A., the applicant has prayed for quashing of the order dated 29.8.90 (Annexure-1) by which services of the applicant as Casual labour in the departmental canteen was directed to be not counted for as service and consequently the regularisation of the services of the applicant's vide order dated 29.12.88 was cancelled.
2. The short point involved in the case is whether the period during which the applicant had worked in the canteen would or would not be counted for the purposes of regularisation. Initially the said period was counted and after being approved by D.P.C. under regularisation scheme of casual labour, the applicant was regularised vide order dated 29.12.88. Subsequently the department found that the applicant was initially engaged in departmental canteen on casual basis during April, 1979 and worked upto March, 1982. It was also found by the department that the applicant was brought on muster roll only in August, 1982 and continued thereafter till the date of regularisation dated 29.12.88.
The department felt that the period during which the applicant worked in departmental canteen as casual labour was erroneously counted for computing his total service period of engagement in the department for regularisation. Consequently, the order dated 29.12.88 to post the applicant as a regular mazdoor was cancelled by the impugned order dated 29.8.90, Hence this O.A.3. Heard the learned counsel for the parties and perused the documents on record.
4. The learned counsel for the applicant has submitted that the applicant was initially engaged on 1.4.79 as Casual labour and was deputed to work in the departmental canteen. In support of his contention, the learned counsel has drawn attention towards Annexures SA-1, 2 and 5 filed with the Supplementary affidavit. Annexure SA-2 issued by S.D.O. Phones shows that the applicant had worked in the departmental canteen of Telephone Exchange, Lucknow as Assistant Manager from 1.4.79 to 30.6.79, while the S.D.O. was working as Secretary of that canteen. Annexure SA-1 also issued by S.D.O. Phones, shows that the applicant worked in the departmental canteen w.e.f.
12.12.81 to 31.3.82, while the said S.D.O. was Secretary of that canteen. Annexure SA-5 is from Divisional Engineer (Administration), who recommended to retain the applicant as Assistant Manager, as the applicant had worked from 1.4.79 to 30.6.79. From the documents on record and also from the recital made in the Counter Reply and the Supplementary Affidavit of the respondents, it is clear that the applicant had worked in the departmental canteen.
5. Tbc only question, now is that whether the applicant was engaged by the canteen or by the department. According to the respondents, no engagement order was issued by the department as the canteen was not been managed by the department. The respondents in their Supplementary affidavit have submitted that the canteen was not a departmental canteen. However, from all the documents on record and the certificates filed by the applicant, it is established that the canteen, where the applicant had worked, was a departmental canteen. The stand taken in the Supplementary Counter reply that the canteen was not a departmental canteen, was not the stand of the respondents at the time of filing of Counter reply. At the time of filing of Counter reply, the stand was, that applicant was engaged as a casual labour in canteen. The contents of impugned order also shows that the canteen where the applicant had worked was a departmental canteen. In the Counter reply, the case of the respondents was that the applicant was engaged in canteen on adhoc basis as a casual labour and not as a Assistant Manager. However, as pointed-out earlier vide Annexures SA-1, SA-2 and SA-5 which are the certificates issued by S.D.O. and the Divisional Engineer the applicant had worked as Assistant Manager from 1.4.79 to 30.6.79. Thus, the stand of the respondents that the applicant had not worked as Assistant Manager in the departmental canteen, is also not correct.
6. From the above, it is clear that the applicant had worked from April, 1979 to March 1982 in the departmental canteen.
7. The applicant has, with a Supplementary affidavit, filed cony of Labour Card which contains the details of the engagement of muster roll of the individual to whom this book is issued. This shows that the applicant was initially engaged in April, 1979 and worked upto 1983.
The total period of working days has been noted as 990. The learned counsel has also produced, for perusal, the original labour card Each page of this book has official seal and initial. First and last page has the signature of the Assistant Engineer (Phones). A perusal of the book shows that the applicant was engaged on muster roll in April, 1979. This does not show that the applicant was engaged by the canteen.
It appears that after the applicant was engaged as casual labour, the applicant was deputed in the departmental canteen. The applicant continued to work in the departmental canteen till March, 1983. Thus, the respondents' contention that the applicant was a canteen employee and not a departmental employee, has no merit. As the applicant was appointed as casual labour by the department, the order of the department to exclude the period of working of the applicant in the departmental canteen, is found to he erroneous. A casual labour once engaged can be deputed to work as per the exigency of service and the requirement of work at any place as per job requirement. If the department, after engaging the applicant as casual labour, decided to take work from him in the departmental canteen the applicant cannot be made to suffer for the period he had worked in the departmental canteen. The benefit of the period the applicant had worked in the departmental canteen has to be given to him and the same cannot be legally denied. Thus, the impugned order not to count the said period, for the period of regularisation is invalid.
8. In view of the discussions made above, the impugned order dated 19.8.90 (Annexure - 1) is quashed. The O.A. is allowed accordingly.
Consequently, the benefits thereof shall be given to the applicant as may be admissible to the applicant due to quashing of the impugned order. No costs.