Union Of India vs Ram Kishore & Ors.
2011 Latest Caselaw 3569 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) No.27/2007

%                          Date of Decision: 27.07.2011


Union of India                                                  .... Petitioner

                          Through Mr. Kumar Rajesh Singh, Advocate.


                                    Versus


Ram Kishore & Ors.                                        .... Respondents

                          Through Mr. A.K. Trivedi, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether reporters of Local papers may             YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?            NO
3.        Whether the judgment should be                    NO
          reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Union of India through the General Manager,

Northern Railway has challenged the order dated 22nd November, 2005

passed by the Central Administrative Tribunal, Principal bench, New

Delhi in O.A No.1067/2005 titled as „Ram Kishore & Ors. v. Union of

India & Ors.‟ partly allowing the original application of the respondents

and directing the petitioners to pay the respondents the arrears in lieu

of the grant of temporary status after completion of 120 days on

verification of their claims.

2. The Brief facts to comprehend the dispute between the parties are

that the respondents were initially appointed as casual labour during

the period of 1974 to 1981 in the Construction Organization, and after

screening of the respondents, all of them were working in the open line

in their respective categories of Group „D‟ posts. The respondents were

continuously working in their initial appointments till the date of

attaining temporary status without any interruption and there was no

break in their entire service records.

3. The grievance of the respondents is that they are entitled for the

grant of scale rate payment, after the completion of 120 days of

continuous service from their initial date of appointment till the date of

grant of temporary status, and therefore, they claimed the arrears for

the said period from the petitioner, since similarly placed employees

were given the same temporary status and benefits. The respondents

addressed their grievances to the petitioner through the proper channel

however, no action was taken by the petitioner and the respondents

representations were not even considered.

4. Thereafter, the respondents filed O.A. No. 1067/2005 before the

Tribunal, wherein they claimed that they had been engaged as Casual

Labour during the period from 1974 to 1981, but they were not granted

temporary status after completing 120 days of continuous service. They

prayed for directions to the petitioner that they may be granted regular

pay scale of putting 120 days as casual service and also be granted

arrears of pay from the completion of 120 days as casual service, till the

date the respondents became entitled for grant of temporary status.

5. In support of their submissions the respondents relied on the

Railway Board Instructions dated 12th July, 1973 by which the period

of six months of continuous service for the grant of temporary status

was reduced to 4 months. The respondents also relied on the judgments

of the Tribunal in OA No. 371/2001 titled as „Tara Chand & Ors. Vs.

Union of India & Ors.‟ and OA No. 996/2001 titled as „Rameshwar &

Ors. Vs. Union of India & Ors‟ wherein similar relief, as claimed by the

respondents, were given to other casual labors. The respondents also

relied on the judgment of the High Court of Delhi in C.W. No.

5247/1997, wherein it was held that the order of the Labour Court

denying the arrears of pay was erroneous and hence was set aside. It

was also pointed out that the petitioners had themselves admitted the

claim in LCA No. 302/1994 and LCA No. 307/1994. As per the

respondents even though a large number of Railway employees were

paid the arrears of pay with consequential benefits, yet for some reason

best known to the petitioner the respondents were excluded from the

same benefits.

6. The pleas and contentions of the respondents were contested by

the petitioner contending, inter alia, that the respondents have

misrepresented the facts by claiming that they worked as casual labour

in the construction organization and after screening they were engaged

in the open line on Group-D post. According to the petitioner they have

not divulged any details or produced any documents in support of their

claims and there is no reference of even a date on which they

supposedly joined the construction organization and were subsequently

transferred to the open line. In these circumstances it was asserted that

the respondents are not entitled for any relief.

7. The learned counsel for the petitioner also contended that the

respondents have never worked as casual labour under the

Administration of Delhi Division, but have instead been employed as

casual labour in the construction organization. It was also submitted

that the respondents were project casual labour who worked in the

construction organization and thus they are entitled for temporary

status only after the completion of 360 days after 1st January, 1981 in

terms of PS No. 9048 and not 120 days as claimed by the respondents,

which was the case for casual labour who worked on the open line. It

was also contended that in any case the application of the respondents

was barred by limitation as the cause of action arose 3 years prior to

the date the Tribunal came into existence.

8. The Tribunal carefully considered the pleas and contentions

raised by both the parties. The Tribunal also took note of the decision of

this Court in the Banwari Lal‟s case decided on 27th October, 1999

wherein similar claims as that of the respondents was allowed. The

similar decision in similar circumstances was reiterated by the Tribunal

in OA No 371/2001 titled as „Tara Chand & Ors. Vs. Union of India &

Ors‟ and OA No. 996/2001 titled as „Rameshwar & Ors. Vs. Union of

India & Ors‟. In light of the many decisions on similar issue, the

Tribunal allowed the claim of the respondents and directed the

petitioners to pay the respondents arrears in lieu of the grant of

temporary status after 120 days on verification of their claim. The

relevant para of the Tribunal‟s judgment is as follows:

"3. The issue is no more res integra. High Court of Delhi on 27.10.1999 in Banwari Lal‟s case had allowed the aforesaid claim which has been reiterated by this Tribunal in OA-371/2001 (Tara Chand & Ors. Vs. U.O.I. & Ors.) decided on 16.2.2001.

4. In another case in OA-986/2001 (Rameshwar & Ors. Vs. U.O.I. & Ors.) decided on 26.4.2001, taking cognizance of the decision of the High Court, the O.A. was allowed in view of the decision in Ram Prasad & Ors. Vs. Ganpati

Sharma & Anr. (CWP-5247/87) decided on 27.10.1999. By another order passed in OA-2747/2003 (Amar Nath & Ors. Vs. U.O.I. & Ors.) decided on 22.12.2004, a similar claim has been allowed.

5. Though the respondents have vehemently opposed the above contentions, yet in the light of several decisions on the issue including the decision of the High Court in CWP-5247/87, as the applicants are similarly circumstanced, this O.A. is partly allowed. Respondents are directed to pay to the applicants the arrears in lieu of grant of temporary status after 120 days after verification of their claim, within a period of three months from the date of receipt of a copy of this order. No costs."

9. Being aggrieved by the said order of the Tribunal, the petitioner

preferred to file a Review Application No. 117/2006, on the ground that

as per the claims of the respondents themselves, they had worked as

casual labour three years prior to the date on which the Tribunal had

come into existence and therefore the original application was barred by

limitation in view of Section 21 of The Administrative Tribunal Act,

1985. However, the Tribunal dismissed the same on account of delay by

order dated 2nd August, 2006.

10. Against this decision of the Tribunal the petitioner had filed writ

petition No. 17029-32/2006. However since order dated 2nd August,

2006 passed by the Tribunal in R.A. No. 117/2006 was not on record

and the writ petition was filed only against the order passed in OA No.

1067/2005, therefore permission was sought by the petitioner to

withdraw the same with the liberty to file a fresh writ petition.

Thereafter the petitioner has filed the above noted writ petition.

11. The learned counsel for the petitioner has challenged the order of

the Tribunal dated 22nd November, 2005 by contending inter alia that

the Tribunal failed to appreciate the fact that the respondents had filed

the O.A. after a lapse of 25-30 years and therefore it clearly stood

barred by limitation. In support of his contention the learned counsel

relied on the case of Ratna Chandra Samnta Vs. UOI & Ors. JT 1993 (3)

SC 148, wherein the applicants had filed the O.A. after 15 years and it

was held by the Supreme Court that delay deprives a person of the

remedy available in law. It was emphasized that a person who lost his

remedy due to lapse of time, loses his right as well.

12. Learned counsel for the petitioner also contended that the

Tribunal failed to appreciate the fact that the respondents have not

produced a shred of document or proof of their employment as casual

labour under the Administrative Control of Delhi Division. Also since as

per PS 1666 muster rolls/ salary bills/ labour pay sheets were

destroyed after 5 years, in the absence of any document or casual

labour card, the claim of the respondents is unsubstantiated and the

same could not have been accepted by the Tribunal. According to the

learned counsel for the petitioner, in any case as per P.S. No. 9048 the

casual labour working under a project are entitled for temporary status

only after completing continuous service of 360 days from the date of

appointment and not 120 days as observed by the Tribunal, which is

the criteria applicable only for casual labour under the Administrative

Control of Delhi Division.

13. The respondents have reiterated their plea and contentions made

before the Tribunal and contended that they were appointed as casual

labor during the period of 1974 to 1981 in the Construction

Organization, and after screening of the respondents, all of them were

working in the open line in their respective categories of Group „D‟

posts. The respondents were continuously working in their initial

appointments till the date of attaining temporary status without any

interruption and there was no break in their entire service records.

They have contended that they are entitled for the grant of scale rate

payment, after the completion of 120 days of continuous service from

their initial date of appointment till the date of grant of temporary

status. They also claimed the arrears for the said period from the

petitioner, since similarly placed employees were given the same

temporary status and benefits. The respondents addressed their

grievances to the petitioner through the proper channel, however no

action was taken by the petitioner and the respondents representations

were not even considered.

14. This Court has heard the learned counsel for the parties in detail,

and perused the entire record which was before the Tribunal as well as

the writ petition. Along with the writ petition the entire record of the

Tribunal was not filed, however, later on the learned counsel for the

petitioner filed all the relevant records which was before the Tribunal on

8th July, 2011.

15. It cannot be disputed that the respondents were initially

appointed as casual labour and thereafter, have also attained

temporary status and have been regularized in the service. The dispute

is regarding criteria for grant of temporary status and the consequential

benefits which include arrears, if the claim of the respondent is to be

accepted.

16. The Tribunal has based its decision in accordance of the ratio of

the High Court of Delhi in Banwari Lal‟s case which allowed the claim,

prayed for by the other laborers who were similarly placed as

respondents. The Tribunal has followed the decision of Banwari Lal‟s

case in OA No. 371/2001 titled as „Tara Chand & Ors. Vs. U.O.I. & Ors.‟

decided on 16.2.2001. Therefore, the validity of the Tribunal‟s decision

is dependent on the High Court‟s ruling in Banwari Lal‟s case and its

applicability in the present matter.

17. The learned counsel for the petitioner is unable to refute that the

order dated 27th October, 1999 passed in the case of Banwari Lal

(supra) which is also followed by the Tribunal in the case of OA No

371/2001 titled as „Tara Chand & Ors. Vs. Union of India & Ors‟ has

been reversed/ modified or set aside or differed by the High Court. The

learned counsel for the petitioner is also unable to refute that the

decision in OA no. 371 of 2001 titled as Tara Chand & ors. Vs Union of

India & ors has not been modified or set aside in any writ petition filed

against the order passed in said case.

18. The learned counsel for the petitioner faced with this situation

during arguments on 18th July, 2011, had taken time to ascertain

whether the orders relied by the Tribunal while allowing the claim of the

respondents have been set aside or modified in any manner. Time was

given to the learned counsel for the petitioner on 18th July, 2011. The

learned counsel for the petitioner is however, unable to produced copy

of any order showing that the orders relied on by the Tribunal have

been modified or reversed or set aside in any manner. The learned

counsel for the petitioner has not even produced the copies of the

orders relied on by the Central Administrative Tribunal to show that the

ratio of the judgments relied on by the Tribunal are not applicable or

that they are distinguishable in any manner.

19. In the circumstances the decision of the Tribunal to grant

temporary status to the respondents after 120 days after their

employment as casual labour after verification of the claims of the

respondents and then to pay the arrears from the date of grant of

temporary status cannot be faulted on any ground urged by the

petitioner. The plea of limitation raised by the petitioner also cannot be

accepted as in similar circumstances the High Court and Tribunal has

granted temporary status and arrears to other casual laborers who were

similarly placed. Despite the opportunity given to the learned counsel

for the petitioner, he has not even produced the copies of the orders

relied on by the Tribunal allowing the claim of the respondents. In the

totality of the facts and circumstances, there is no such illegality or

unsustainability in the order of the Tribunal or such perversity which

will require any interference of this court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

20. The writ petition is, therefore, without any merit and it is,

therefore, dismissed. Parties are, however, left to bear their own costs.

ANIL KUMAR, J.

JULY 27, 2011                         SUDERSHAN KUMAR MISRA, J.
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