Indian Council Of Medical ... vs Prem Chand And Ors.
2002 Latest Caselaw 423 Del

JUDGMENT

Devinder Gupta, J.

1. By this Writ petition the Indian Council of Medical Research (hereinafter referred to as ICMR) seeks to challenge an order dated 20.10.2000 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), holding that to all such of the private respondents herein, as fall within the definition of casual labourers, as provided in the Casual Labour (Grant of Temporary status and Regularisation) Scheme 1993, should be extended the benefits of the aforesaid Scheme provided, firstly if they have been engaged by respondents for a period of at least 206 days since respondents' organisation is observing the 5 day week and secondly subject to the said persons being in employment of respondents on the date of issue of the impugned order, and thirdly in case they fulfill the other eligibility qualifications prescribed in the Scheme. It was also ordered by the Tribunal that the said directions should be implemented within four weeks from the date of receipt of copy of the impugned order.

2. On 3.1.2001, this Court issued notice to show cause on the writ petition and also notice on the stay application referred by the appellant.

3. When the matter came up for hearing thereafter on 1.5.2001, learned counsel for the respondents stated that respondents will not press the contempt proceedings before the Tribunal, and thereafter on 13.9.2001, in the presence of both the parties, it was directed that since pleadings are complete, the matter would be taken up for final disposal. Accordingly, this writ petition is being taken up for final disposal at the admission stage itself.

4. The case of the petitioner is that the ICMR is having a number of projects including the Malaria Research Project under its unit called the Malaria Research Centre. The private respondents were casual employees of the IDVC, which was a project under the Malaria Research Centre, jointly sponsored by the Government of India and the petitioner (ICMR).

5. The private respondents had earlier preferred CWP Nos. 2/93 and 3/93 claiming regularisation on the ground that they were Project employees under the petitioner for a fairly long time.

6. The said earlier writ petition was dismissed by this Court vide order dated 14.11.95. The Special Leave Petition preferred by the private respondents- herein against the said judgment in the earlier writ petition, was also dismissed by the Supreme Court.

7. That after the matter regarding regularisation of services, stood finally agitated with verdicts going against the private respondents up to the Supreme Court, they preferred another writ petition being CWP No. 1747/87 claiming grant of temporary status in terms of Notification of the Government of India, Ministry of Personnel, (DOPT) OM dated 10.9.93. O.M. had been issued in respect of the Scheme formulated by the Government of India, Department of Personnel & Training titled 'Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India which came into force w.e.f. 1.9.1993.

8. The petitioners, who were respondents in the said CWP No. 1747/87, filed their counter affidavit contending inter alia, that the O.M. dated 10.9.93 is not applicable to the ICMR and moreover that private respondents were, in any case, casual employees of the Project who did not fulfill the conditions required for being entitled to the said Scheme.

9. The petitioner filed a detailed counter affidavit to oppose the said writ petition of the private respondents- herein. While the said writ petition was pending, the Central Government on 1.12.98 notified that petitioner (ICMR) would be subject to jurisdiction of the Tribunal, and thereupon the said earlier petition was transferred to the Tribunal and was registered there as TA-50/99. The impugned order is the culmination of those proceedings.

10. We have heard the counsel for both the parties at some length. It appears to us that the Tribunal has not comprehensively decided the various contentions of both the parties including certain aspects which went to the root of the matter, and a decision either way would have either entitled or disentitled the private respondents from the benefit of the said Scheme. Apart from the legal issues regarding applicability and interpretation of the Scheme, the private respondents in their counter affidavit filed in this court have also sought to rely on various extracts of official correspondence etc. exchanged between respondents 2 and 3 which, according to the private respondents clearly show that the petitioner institution was itself holding the view that the private respondents before us, which are covered by the Scheme.

11. Since we find that the Tribunal has not comprehensively adjudicated upon certain mandatory issues arising out of the contentions of both the parties, we propose to dispose of the present writ petition with the following observations/directions only in order to ensure that no prejudice is caused by our observations in relation to the merits of the said rival contentions which have not been adjudicated at all by the Tribunal.

12. The fundamental point is the question of applicability of the Scheme which, as per its opening paragraph No. 3, is applicable to "Ministries", "Departments of the Government of India" and "their attached subordinate offices". The said terminology, "Ministries", "Departments" and "attached subordinate offices", are having well established connotation in the filed of Central Government Service Rules and Orders, and therefore, a finding was required to be rendered on this aspect which has not been done by the Tribunal.

13. In addition to the adjudication of the scope of Clause 3 of the Scheme referred to above, the further question to be adjudicated would be the effect of the provision in the I.C.M.R. Rules making Central Government's CCS Rules etc applicable to the employees of ICMR in terms of Bye law No. 1 which is quoted hereinbelow:

"In regard to all matters concerning the service conditions of employees of the council, the Fundamental and Supplementary Rules framed by the Govt. of India and such other rules and orders issued by the govt. of India from time to time shall mutates mutants apply to the employees of the council. Provided that such rules and orders issued by the Govt. of India as are specifically not made applicable to autonomous organisations like ICMR should not apply to the employees of the Council."

14. Incidental to the adjudication of the above two aspects, would be the consideration of the effect of the provision in Clause 3 of the Scheme laying down that the scheme shall not be applicable to the casual workers in Railways, Department of Telecom and Department of Posts who are covered by their separate schemes.

15. We find from the records that apart from the observation of the Tribunal to the effect that the private respondents are admittedly project employees, the documents which had been made the basis of the petition filed by the private respondents themselves and which are at pages 61 to 64 of the paper book, the private respondents have themselves claimed to be casual employees of the project called Malaria Research Project.

16. Another aspect to be adjudicated upon by the Tribunal would be the effect of the earlier proceedings in the form earlier CWP No. 2/93 and 9/93, seeking regularisation of their services, being decided against the private respondents up to the Supreme Court. It has been contended by the counsel of the petitioner (ICMR) that in case the project employees do not have any entitlement for regularisation at all, as now stands concluded by the earlier proceedings up to the Supreme Court, then they cannot have entitlement to temporary status under the Scheme dated 10.09.1993.

17. Fundamental issue would also be the question as to whether project employees are at all entitled to be treated as employees of ICMR establishment, and what is the difference in the status of these casual employees of the project vis-a-vis casual employees of the main establishment (ICMR). There are also related contentions of the respondent which equally warrant adjudication by the Tribunal, inter-alia, on the point that the internal nothings and correspondence exchanged between the respondents 2 and 3 before the Tribunal (who are now petitioner Nos. 2 & 3 before this Court) allegedly incorporating an admission on the part of the institution itself that the project employees would be governed by the scheme dated 19.09.1993, or atleast the petitioner institution can be taken to have so treated it, and therefore, ICMR is in a sense, estopped from now taking a stand to the contrary.

18. We find from a perusal of the impugned judgment that the Tribunal has not adjudicated comprehensively on the real matters in dispute between the parties including certain core questions and issues which we have set out above. Without saying anything more least it amounts to, or may be treated by the Tribunal to be, an expression of opinion by us on the aspects which have not yet been adjudicated, we set aside the impugned judgment and order of the Tribunal dated 20-7-2000 only on the ground of there being no decision on certain core issues, and direct that the Tribunal will decide the matter afresh after hearing both the parties in accordance with law, in the light of observations set out hereinabove.

19. In order to ensure the interest of justice, we also direct that the Tribunal while deciding the matter afresh pursuant to our present directions, will not be influenced by any of the observations/findings on the merits of the matter either as contained in our present order or in the impugned order dated 20-7-2000 which we have set aside with the direction for the Tribunal to decide the matter afresh and in accordance with law. Parties to appear before the Tribunal on 15.5.2002.