Mahinder Singh Vs. Council of Scientific and Industrial Research, Through Its Director General, Rafi Marg, New Delhi and Others - Court Judgment

ORAL:

M.L. Chauhan, Member (J):

1. This is the second round of litigation. Earlier the applicant had filed OA No.3116/2010, which was decided on 20.09.2010 at the admission stage with liberty given to the applicant to file representation within one week from the date of receipt of a copy of the order claiming his seniority over the juniors and giving specific grounds on which he should be considered by the Respondents for re-engagement as casual labourer, absorption and regularization in appropriate post with the Respondents. Respondents were also directed to consider the said representation of the Applicant alongwith the copy of that OA as a supplementary representation and pass appropriate orders within a period of 02 months from the date of receipt of a copy of that order. Pursuant to the directions given by this Tribunal in the aforesaid terms respondents have passed the impugned order dated 14.03.2011 (Annexure A-1), which is under challenge in this OA and the applicant has prayed for the following reliefs:

“(a) call for the records of the case;

(b) pass an order quashing and setting aside order dated 14.03.2011 of respondent No.3 (Annexure-A).

(c) pass an order directing the respondents to re-employ the applicant and further absorb the applicant in regular grades of Group ‘D’ in the National Physical Laboratory or any other constituents of Respondent No.1 in accordance with the Scheme of 1995 (Annexure P-6).

(d) pass such further or other orders which this Hon’ble Tribunal deems fit and proper in the facts and circumstances of the case.”

2. We have heard the learned counsel of the applicant at the admission stage. We are of the view that in view of the reasoning given in the impugned order the present OA is liable to be dismissed in limine. At this stage, it will be useful to quote the speaking and reasoned order passed by the respondents in extenso, which thus reads:

“No.1/147/Law/2008-Vig.

Dated: 14.3.2011

Shri Mahinder Singh,

S/o Shri Khem Singh,

R/o B-14, NPL Colony,

New Rajender Nagar,

New Delhi-60.

Subject: Representation for re-engagement and regularization in accordance with the scheme of 1995.

Reference: Order of the Hon’ble CAT in OA No.3116/2010.

Sir,

In pursuance of the directions of the Hon’ble CAT order dated 20.09.2010 in OA No.3116/2010, the Director, NPL being the Competent Authority has considered your representation dated 01.10.2010 received in the office on 03.11.2010 through CSIR vide its letter No.2/28(NPL)/2004-EII dated 28.10.2010 alongwith the OA No.3116 of 2010. After taking into account the submission made by the applicant and the provisions of the scheme ‘Casual Workers Absorption Scheme 1995’ of CSIR and the facts and figures thereon, the Director, NPL has disposed off the representation as under:-

1. Facts of the case are that Shri Mahinder Singh (from hereon will be referred to as ‘the applicant’) was engaged from time to time for occasional/Intermittent nature of work from 1986 to 21.03.1990 and did not complete 240 days in any year as detailed in ‘Annex A’. After his discontinuation in March, 1990, Shri Mahinder Singh after a gap of 18 years raised an Industrial Dispute in 2008 with regard to his illegal termination by filing a claim petition before the Assistant Labour Commissioner for conciliation and the conciliation proceedings were declared a failure. The failure report and the facts of the case were considered by the Ministry of Labour, Government of India. The Ministry vide order No.L-42012/83/2009-IR(DU) dated 05.01.2010 (Anex. ‘B’), held that this not a fit case for adjudication for the following reason:

“The claimant has raised the matter belatedly after a lapse of around 18 years from time to time of his alleged discontinuity for employment. Hence the matter raised in ex-facie frivolous.”

2. The submission of the applicant that he was ‘appointed’ as casual worker on daily wages in NPL on 12.11.1986 and continued to discharge the duties of cleaning, sweeping etc. till 1990 when his employment was abruptly discontinued alongwith other casual workers is not correct as per the details of his engagement given in ‘Annex’. ‘A’. Further, he himself negated his averment by mentioning himself as ‘Beldar/Mali’ in his Original Application filed before Hon’ble CAT and at the same time stating that his duty is ‘sweeping and cleaning etc.’ It is worth mentioning that since he was engaged on occasional/Intermittent work as per the requirement of job work his statement that ‘his employment was abruptly discontinued’ does not hold ground.

3. The fact regarding filing of claim before the Assistant Commissioner Labour has been suppressed by the applicant in the representation and also in OA filed before the Tribunal much after the order of the Ministry of Labour in January, 2010. The applicant has not approached the Tribunal with clean hands, he has suppressed the material facts and in this context it is pertinent to note that the applicant has mislead the Tribunal and abused the process of law by not disclosing before the Hon’ble Tribunal. The claim of the applicant appears to be an after thought. Had the grievance of the applicant been genuine he would have approached for legal redressal within the time prescribed under law. This inordinate delay can not be allowed to be condoned as it would defeat the ends of justice and also set a bad precedent.

4. However, without prejudice to the above technical reasons, the representation of the applicant has been examined on merits and in accordance with the ‘Casual Workers Absorption Scheme’ 1990/1995 of CSIR. The Absorption Scheme, inter-alia lays down the following conditions:

a) Casuals worker under consideration should have been engaged prior to 05.12.1988 and in service as on 04.10.1990.

b) Casual workers should be educationally qualified for the post as prescribed from time to time for which regularization is considered, no dilution of qualification will be allowed.

c) Absorption will be as per normal procedure of recruitment prescribed for the post.

d) Age relaxation to the extent of completed years of casual service in the Lab./Instt. is allowed.

5. The reference of orders/judgments of various cases in the aforesaid representation are matter of record.

6. The case of the applicant is not similar to the case of the persons cited in the OA and representation. This is a clear distinction between the cases of all those persons and the applicant on the following counts:

a) That all these persons were in engagement at NPL as on 04.10.1990 i.e. the date of implementation of Casual Worker Absorption Scheme. Whereas the applicant discontinued his job in NPL as on 31.03.1990.

b) All these persons, in one way or the other, fulfilled the conditions of the schemes on either the requirement of the requisite qualifications or completion of requisite number of continuous days of engagement as per the scheme. Whereas in the case of the applicant, neither did he possess the basic qualifications required for employment in the Council and nor did he fulfilled the condition of continuous employment as per the scheme.

c) Besides, in all those cases the Hon’ble CAT has based its direction/orders on merit, circumstances and the facts and figures and the same shall not be applied automatically to the case of the applicant.

7. With regards to the list prepared as per the directions of the court contains the details of the persons who were engaged prior to 1988, and were in service on 04.10.1990 was not based on the concepts of seniority, date of engagement, fulfillment of condition of requisite service in accordance with the scheme of absorption. Further, taking into notice the spirit of the Order of the Hon’ble CAT in OA No.48/1997, i.e. ‘not to loose sight of the claims of the persons senior to him’, he did not came forward for legal recourse: (a) when the list identifying casual workers was brought out by Respondent No.2; (b) why did not he impleaded himself as a party in various petitions filed by his so called ‘juniors’.

8. On the aforesaid facts and scheme, the present representation does not hold merit and the applicant cannot be absorbed in accordance with the scheme of absorption on the following grounds:

a) The scope of the scheme of absorption 1990/1995, which was a one time measure to enroll those casual workers who have been identified to have worked prior to 05.12.1988 and were in service on 04.10.1990 cannot be extended to include the applicant who was not in service on the cut off date fixed under the scheme.

b) According to the provisions in the scheme age relaxation can only be given up to the total number of days the person has worked on the duty assigned to him before the cut off date i.e. 04.10.1990. But in this case the time lapsed after his disengagement far exceeds the duration he worked with NPL, CSIR and even after applying the provision of age relaxation, his age exceeded the prescribed age limit.

c) As per the amended rules (prescribed by 6th Central Pay Commission) the minimum grade in which all future recruitment shall takes place will be PB-1, (GPC) pay band of Rs.4860-20200 (Grade Pay-1800) from the persons having a minimum qualification of either 10th or ITI equivalent. The applicant’s educational qualification is only up to the 5th class thus he is not eligible for absorption to any post in NPL-CSIR after taking in to account the age relaxation

Accordingly your representation on this subject stands disposed off.

Yours Sincerely,

Sd/-

Encls. As above.

(T.V. JOSHUA)

CONTROLLER OF ADMINISTRATION”

3. Thus, as can be seen from the facts as quoted above, the applicant was initially engaged from time to time for occasional/Intermittent nature of work from 1986 to 21.03.1990, whereas according to the averments made by the applicant in the OA he continued to discharge duties of cleaning, sweeping and such other activities till October, 1990 when his services were abruptly discontinued but the applicant has not placed any evidence/record to suggest that he has performed the aforesaid duties till October, 1990. Applicant has further pleaded that he was again employed as casual labour from time to time during October, 2004 to October, 2005. As can be seen from the facts noticed in para-1 of the impugned order, as reproduced above, the applicant had not made any grievance regarding his discontinuation of his employment in March, 1990 and for the first time he raised an industrial dispute in 2008 with regard to his illegal termination by filing a claim petition after a lapse of 18 years and the matter was not referred to the Industrial Tribunal but the claim was rejected on the ground that the claimant has raised the matter belatedly after a lapse of around 18 years from time to time of his alleged discontinuity for employment. Hence the matter raised is ex- facie frivolous.

4. As can be seen from para-3 of the order passed by the authorities applicant has suppressed this fact when he approached this Tribunal, by filing OA-3116/2010. Thus, according to us, once the applicant has raised an industrial dispute and the matter was not referred to the Industrial Tribunal by the Central Government it was not permissible for the applicant to invoke the jurisdiction of this Tribunal by filing OA-3116/2010. That apart, applicant has suppressed this material fact from this Tribunal, as such, we are of the view that the present OA is required to be dismissed on this sole ground instead of entering into the merits of the matter.

5. Moreover, this stale and dead claim of the applicant cannot be entertained at this belated stage when admittedly the applicant was disengaged from service in the year 1990 and further it was not permissible for this Tribunal to grant liberty to the applicant to file fresh representation and also give direction to the authorities to decide the representation of the applicant and direct consideration of the case of applicant regarding re-engagement as casual labour, absorption and regularization in appropriate post with the respondents after a lapse of more than two decades, in the light of the law laid down by the Apex Court in the case of C. Jacob v. Director of Geology and Mining and Anr., (2008) 2 SCC (LandS) 961. The Apex Court in the case of C. Jacob (supra) held that the Courts should be circumspect in issuing such direction as it ultimately leads to consideration of case on merits at subsequent stages of litigation as if the cause of action stood revived due to fresh consideration. That was a case where the services of the petitioner before the Apex Court were terminated on 1982 after issuing a show cause notice dated 8.7.1982 to him. Nearly 18 years thereafter, he submitted two departmental representations dated 5.5.2000 and 21.7.2000 requesting that he may be taken back into service. He received a reply from the department that a copy of the show-cause notice enclosed by him with his representation was incomplete and therefore he should submit complete notice. Instead of doing so, the petitioner filed an application in the Administrative Tribunal which was disposed of by the Tribunal on 19.12.2002 without issuing notice to the party, directing that the petitioner’s representation should be considered and an order passed thereon within four months. In compliance with this direction, respondent No.1 passed a detailed and speaking order, rejecting the petitioner’s representation. The petitioner again approached the Tribunal challenging the order passed by Respondent 1. The Tribunal transferred petitioner’s application to the High Court. The learned Single Judge of the High Court decided the case on merits, holding that the respondent Department has failed to establish that procedure of enquiry, as prescribed in relevant rules, was followed before terminating the petitioner’s service. The learned Single Judge therefore held that the petitioner was deemed to have retired w.e.f. 18.8.1982. The learned Single Judge also directed sanction of pension to the petitioner. The Division bench of the High Court, however, held that the petitioner had not completed 20 years of qualifying service as on the deemed date of his retirement i.e., 18.7.1982, and therefore was not entitled to pension. The issues which were involved before the Apex Court were:

i) whether the Tribunal ought to have directed the respondent Department to consider petitioner’s representations dated 5.5.2000 and 21.07.2000, which were badly delayed (about 18 years);

ii) whether the respondent Department was bound to consider the representations on merits; and

iii) whether the burden of proof at such a belated stage was on the petitioner or on the respondent Department to show that requisite procedure of enquiry was followed while terminating the petitioner’s services.

Dismissing the SLP the Apex Court held that there is need for circumspection and care in issuing directions for ‘consideration’. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing ‘consideration’ of such claims.

6. The ratio as laid down by the Apex Court in C. Jacbob (supra) is fully attracted in the facts and circumstances of this case. Admittedly, as per the own showing of the applicant, who was a casual labour on daily wage basis, his employment was abruptly discontinued in the year 1990. Applicant raised an industrial dispute after a lapse of about 18 years and the Central Government refused to refer the matter to the Industrial Tribunal and this Tribunal on the basis of the OA filed by the applicant in September, 2010 disposed of the same vide order dated 20.09.2010 without issuing notice to the opposite party, giving liberty to the applicant to file fresh representation and treating the OA as a supplementary representation and pass a speaking order regarding grievance raised by the applicant for re-engagement, absorption and regularization and it was not permissible for this Tribunal to give such directions after a lapse of about 20 years of disengagement of the applicant in the light of the law laid down by the Apex Court in the case of C. Jacob (supra).

7. Even on merits, applicant is not entitled to any relief. According to the respondents employment of the applicant was discontinued w.e.f. 31.03.1990 and the applicant was not in employment when the Casual Labour Absorption Scheme, 1990 was made applicable. From the impugned order it is also evident that the applicant has not completed 240 days in any year as per the details given in the impugned order (Annexure A-1). Thus, even for the argument sake no cut off date was fixed, applicant was not entitled to regularization of his services in terms of 1990/1995 Scheme. In any case, if the applicant had any grievance regarding his non-regularization in terms of the aforesaid Scheme he should have agitated the matter at that time. Thus, we see no infirmity in the action of the respondents whereby the claim of the applicant for absorption has been rejected in terms of the reasoning given in para-8 of the impugned order, which has been quoted in earlier part of the judgment.

8. That apart, in terms of the law laid down by the Constitution Bench of the Apex Court in Secretary, State of Karnataka and others v. Umadevi (3) and others (2006) 4 SCC 1, every appointment to a civil post has to be made in accordance with the recruitment rules. Even on this ground applicant cannot be appointed to a Group ‘D’ post de hors the rules and in violation of the mandate of Articles 14 and 16 of the Constitution of India.

9. Thus, viewing the matter from any angle, we are of the view that the applicant has not made out any case for grant of relief. The competent authority in para-6 of its order has also stated that case of the applicant is not similar to the persons cited in the OA and representation, who have obtained favorable orders from this Tribunal.

10. In the result, for the foregoing reasons, OA is found bereft of merit, which is accordingly dismissed at the admission stage itself. No costs.