The Union of India, and ors. Vs. Md.Kalim Ansari. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the respondent worked in the appellant-bank as cashier-cum-clerk. the enquiry was first fixed on november 15, 1994 but on that date the respondent did not appear without giving any intimation to the enquiry officer. due to his non- appearance the enquiry was adjourned to november 28, 1994. after recording his evidence, the enquiry officer closed the enquiry and submitted his report holding the respondent guilty of all the charges. the industrial tribunal found and held that the domestic enquiry held against the respondent suffered from violation of the principles of natural justice. it appears that from the bank this letter was not handed over to the enquiry officer. admittedly, the respondent had not appeared for the enquiry on two earlier dates. in those circumstances and having regard to the fact that the witness intended to be examined by the management in support of the charge had come in connection with that enquiry from delhi to dehradun for the third time, the enquiry officer decided to proceed with the enquiry and examine him ex parte. pw.1 happened to be the branch manager where the respondent was posted at the material time and where the misappropriation was committed by him.1. heard learned counsel for the petitioners and learned counsel for the sole respondent.2. the writ petition has been filed by the union of india and officials of central excise, patna commissionorate against order dated 26.04.2007 whereby the central administrative tribunal, patna bench, patna allowed o.a. no. 386 of 2005 filed by the applicant- respondent after holding that as per scheme in dopt's order dated 10th september 1993 the applicant had acquired temporary status as casual labourer.3. the scheme under order dated 10th september 1993 is definitely to the advantage of the applicant-respondent who was in service as a casual labourer since june 1992 as per official records and had been engaged for a period more than 206 days which would be the minimum requirement of days as the office in question observed 5 days working per week. the number of working days before the learned tribunal was not contested and the certificate given by the assistant commissioner of central excise, raxaul range where the applicant worked was the basis for finding of fact given by the tribunal.4. before us also the number of working days being provided through annexure-3 to the writ petition is not less than(sic) 206 days but a stand has been taken that the duty hours for the applicant were less than the normal duty hours and hence he ought to have been treated as a part time casual labourer not entitled to temporary status in view of clarification issued by the department of personnel and training (dopt) dated 12th july, 1994 a copy whereof has been annexed as annexure-2 to the writ petition. category-2 under paragraph-1 of the office memorandum contained in annexure-2 clarifies that no temporary status could be granted to a part time casual employee.5. according to learned counsel for the petitioner the total working hours indicated against the number of days for which the applicant had worked would show that on the basis of eight hours office duty he had not completed the required number of working days as per chart given in annexure-3.6. learned counsel for the respondent-applicant, however, vehemently opposed any reliance upon annexure-3 showing work done by the applicant on the ground that no such chart or material was produced before learned tribunal and in fact the bio-data and number of total working days and hours furnished by the assistant commissioner of central excise, raxaul range was never disputed by the authorities before the tribunal. he pointed out that according to number of days as well as hours certified by the assistant commissioner the applicant had worked for more than 206 days and he cannot be deprived of the status of a temporary casual labourer on the plea that he worked as a part time casual labourer.7. we find that part time casual labourer is not defined and it is an issue of fact as to how many hours the applicant worked during the relevant period. as per certificate which was not contested before the tribunal, the applicant had worked for the required number of days even on the basis of hours indicated in the certificate and that certificate which has been brought on record as annexure-c to the counter affidavit in this writ proceeding is not under challenge.8. in our considered view, the finding of fact given by the tribunal on the basis of certificate granted by a competent official when the certificate has not been contested does not require any interference. hence, we find no good ground to interfere with the order of the tribunal. this writ petition is, therefore, dismissed.9. there shall be no order as to costs.

Judgment:
1. Heard learned counsel for the petitioners and learned counsel for the sole respondent.

2. The writ petition has been filed by the Union of India and Officials of Central Excise, Patna Commissionorate against order dated 26.04.2007 whereby the Central Administrative Tribunal, Patna Bench, Patna allowed O.A. No. 386 of 2005 filed by the applicant- respondent after holding that as per scheme in DOPT's order dated 10th September 1993 the applicant had acquired temporary status as casual labourer.

3. The scheme under order dated 10th September 1993 is definitely to the advantage of the applicant-respondent who was in service as a casual labourer since June 1992 as per official records and had been engaged for a period more than 206 days which would be the minimum requirement of days as the office in question observed 5 days working per week. The number of working days before the learned Tribunal was not contested and the certificate given by the Assistant Commissioner of Central Excise, Raxaul range where the applicant worked was the basis for finding of fact given by the Tribunal.

4. Before us also the number of working days being provided through Annexure-3 to the writ petition is not less than(SIC) 206 days but a stand has been taken that the duty hours for the applicant were less than the normal duty hours and hence he ought to have been treated as a part time casual labourer not entitled to temporary status in view of clarification issued by the Department of Personnel and Training (DOPT) dated 12th July, 1994 a copy whereof has been annexed as Annexure-2 to the writ petition. Category-2 under paragraph-1 of the office memorandum contained in Annexure-2 clarifies that no temporary status could be granted to a part time casual employee.

5. According to learned counsel for the petitioner the total working hours indicated against the number of days for which the applicant had worked would show that on the basis of eight hours office duty he had not completed the required number of working days as per chart given in Annexure-3.

6. Learned counsel for the respondent-applicant, however, vehemently opposed any reliance upon Annexure-3 showing work done by the applicant on the ground that no such chart or material was produced before learned Tribunal and in fact the bio-data and number of total working days and hours furnished by the Assistant Commissioner of Central Excise, Raxaul range was never disputed by the authorities before the Tribunal. He pointed out that according to number of days as well as hours certified by the Assistant Commissioner the applicant had worked for more than 206 days and he cannot be deprived of the status of a temporary casual labourer on the plea that he worked as a part time casual labourer.

7. We find that part time casual labourer is not defined and it is an issue of fact as to how many hours the applicant worked during the relevant period. As per certificate which was not contested before the Tribunal, the applicant had worked for the required number of days even on the basis of hours indicated in the certificate and that certificate which has been brought on record as Annexure-C to the counter affidavit in this writ proceeding is not under challenge.

8. In our considered view, the finding of fact given by the Tribunal on the basis of certificate granted by a competent official when the certificate has not been contested does not require any interference. Hence, we find no good ground to interfere with the order of the Tribunal. This writ petition is, therefore, dismissed.

9. There shall be no order as to costs.