All India Cpwd(Mrm) Karamchari ... vs D.G. Of Works Cpwd & Ors
2016 Latest Caselaw 7271 Del

$~R-11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                      Judgment Dated: 6th December, 2016
+      W.P.(C) 4102/2002

   ALL INDIA CPWD(MRM) KARAMCHARI SANGATHAN & ANR
                                           ..... Petitioners
                 Through  Mr. Naresh Kaushik and Ms. Joymoti
                          Mize, Advocates
                 versus
   D.G. OF WORKS CPWD & ORS                ..... Respondents

Through Mr. Bhagvan Swarup Shukla, CGSC, Mr. Shekhar Gehlot and Mr. Mimansak Bhardwaj, Advocates CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE VINOD GOEL

G.S.SISTANI, J (ORAL)

1. Challenge in this writ petition is to the order dated 30.01.2002 passed by the Central Administrative Tribunal (hereinafter referred to for short as „the Tribunal‟), by which the OA filed by the petitioners was allowed in part. Challenge is also laid to the order dated 01.04.2002 passed in Review Application 69/2002 which was filed by the petitioners herein and was dismissed. The petitioner no.2 is also represented by the All India CPWD(MRM) Karamchari Sangathan, through its President.

2. Before the Tribunal, the petitioner No.2 sought regularization of his service as a Sewerman from the date of his eligibility and payment of wages as a Sewerman with all consequential benefits, including arrears of salary due to him w.e.f. 30.01.1986 in the post of Sewerman. The petitioner was enrolled as a Beldar on muster roll with III-B Sub Division, Kaushak Road Enquiry, CPWD, New Delhi w.e.f. 03.01.1986. The case of the petitioner is that although he was appointed as a Beldar,

he has been performing the duties as a Sewerman from the date of his appointment till the date of filing of the OA. Reliance is placed on a communication dated 09.02.1993 issued by the E.E.(Engineer) to the Superintending Engineer for regularization of the petitioner as a Beldar. Thus, it is claimed that it stands duly established that the petitioner was performing the duties of a Sewerman. On 10.07.1995, the petitioner made a representation to the Superintending Engineer for regularization of his services in the post of Sewerman. However, on 13.02.1996, the petitioner was granted temporary status as a Beldar w.e.f. 01.09.1993. The petitioner then made a representation on 05.08.1996 to the Executive Engineer seeking regularization to the post of Sewerman. Along with the OA filed, the petitioner placed various documents on record to show that he was, in fact, performing the duties of a Sewerman, including a copy of the Identity Card provided to him, copy of the Duty Chart, an Endorsement Letter dated 09.02.1993, Endorsement on Letter dated 05.08.1996.

3. The petitioner approached the Tribunal in the year 2001 seeking regularization to the post of Sewerman. In the counter affidavit filed, it was denied that the petitioner was working as a Sewerman. However, the petitioner in the rejoinder reiterated that the petitioner continued to work as a Sewerman and not a Beldar. We may notice, at the outset, that the Tribunal allowed the petition in part. In para 8 of the order, it was noticed as under:

"8. We note from the letter dated 9.2.1993 issued by the Executive Engineer, B Division, CPWD, New Delhi, addressed to the Superintending Engineer, IP Bhavan, New Delhi, wherein it has been stated, inter alia, that the applicant, a muster roll Beldar, has been working as Sewerman since 1986 and the case was sent for necessary action, namely, regularization of muster roll Beldar/Sewerman. It is further noticed that by the

subsequent order dated 13.2.1996, the applicant has been granted temporary status as a Beldar w.e.f. 1.9.1993 in terms of DOP&T‟s OM dated 10.9.1993...."

4. The concluding paragraph of the judgment reads as under:

"11. From certain documents annexed by the applicant to the rejoinder, it appears that the respondents have utilised the services of the applicant as Sewerman even as on 16.5.2001. According to the applicant, the same was the position even earlier. Taking into consideration the fact that this application has been filed on 18.7.2001, we direct the respondents to verify their records, along with the claim of the applicant that he has worked as a Sewerman, even though he was engaged as a Beldar, from one year prior to the date of filing of the OA i.e. from 18.7.2000. In case the applicant has in fact discharged the duties as a Sewerman, the respondents shall pay the wages due to him as a Sewerman. In this connection, the applicant may, if he so desires, submit a self-contained and a detailed representation along with any supporting documents to show that he has actually performed the work of a Sewerman from 18.7.2000, within two weeks from the date of receipt of a copy of this order. Thereafter necessary action shall be taken by the respondents within three months from the date of receipt of the representation and they shall also arrange to pay the amount found due to the applicant within this period"

5. We may notice that the prayer made by the petitioners seeking regularization as Sewerman has been denied but the order is devoid of any reasons as to why this relief has been denied to the petitioner, more so, after the Tribunal had noticed in para 8 of its order, which has been reproduced above in para 3 aforegoing that the letter of 09.02.1993 issued by the Executive Engineer recognized the fact that the petitioner as a muster roll has been working as a Sewerman since 1986. The errors apparent on the face of the order passed by the learned Tribunal were sought to be corrected by the petitioner by filing Review Application 69/2002, which was summarily dismissed.

6. Mr. Naresh Kaushik, learned counsel for the petitioners has submitted

that based on the documents placed on record, there is no element of doubt that the petitioner continued to work as a Sewerman since his initial date of appointment on 03.01.1986 in the CPWD. Learned counsel for the petitioner submits that as per the provisions of CPWD Manual, the different instructions issued by the authorities from time to time as well as the Rules and Regulations framed by the Central Government in respect of the casual employees, it was incumbent upon the respondents to have regularised the services of petitioner no.2 w.e.f. such date when he became eligible for regularization. Counsel further submits that the respondents continued to employ the petitioner no.2 on Muster Roll basis illegally and arbitrarily, and he was not absorbed in the work charged establishment as per the direction contained in the Office Memo No.63/1/68-NCS-2 dated 30.1.1969, which is filed at internal page 26 of the Original Application not to speak of regularization of his services. It is further contended that the respondents ignored the petitioner no.2 by discriminating him with the number of other Muster Roll staff employed in CPWD in Group „D‟ posts, who were regularized in their services from time to time in view of the directions passed by the Supreme Court of India in the case of Surinder Singh And Anr. v. The Equal Work to Daily Rated Muster Roll Workers of CPWD. Counsel contends that in pursuance to the Surinder Singh And Anr. (supra), an Office order was issued by Sh.B.B. Singh, Deputy Director of Administration, CPWD, in the month of August, 1988, to the Superintendent Engineers (Co-or) and all other Superintending Engineers in Civil as well as Electrical Division for regularising the services of all casual daily rated workers in the Department, who had completed six months of continuous service. Mr.Kaushik also submits that in the year 1993 the Executive Engineer

„B‟ Division, CPWD, had issued a letter to the Superintending Engineer Coordination Circle (Civil), I.P. Bhavan, enclosing therewith all other necessary documents for taking necessary action towards regularization of the petitioner no.2 to the post of Sewerman in the regularly classified category. In support of this contention, counsel has drawn the attention of the Court to the letter, a copy of which has been filed at page 30 of the Original Application. Counsel contends that subsequent thereto, the petitioner no.2 made a representation to the Superintending Engineer on 10.7.1995 for regularization of his services in the post of Sewerman.

7. Mr. Shukla, learned counsel appearing for the respondents submits that there is no infirmity in the order passed by the Tribunal while deciding the OA as also while deciding the Review Application which would require interference in proceedings under Article 226 of the Constitution of India. Learned counsel submits that the petitioner was employed as a muster roll employee as a Beldar and he continued to work as a Beldar. The petitioner may have worked as a Sewerman on a temporary basis, but that, by itself, cannot be a ground for regularization of the petitioner as a Sewerman, neither he was entitled to arrears of salary as a Sewerman on account of any inordinate, unexplained delay in approaching the Tribunal in the year 2002. He further submits that the Tribunal has considered the entire matter and issued directions to examine the case of the petitioner and grant wages, if found eligible, within one year of the filing of the OA.

8. We have heard the learned counsel for the parties and considered their rival submissions.

9. Two basic issues arise for consideration before this Court. The petitioner has sought regularization of service as a Sewerman from the date of his eligibility. The second relief claimed by the petitioner is

payment of wages with all consequential benefits, including the arrears of salary due to him w.e.f. 30.01.1986 in the post of Sewerman. Closely related to these two issues, is the issue relating to limitation which has been urged by the respondent both before the Tribunal and before us. We may note that the order of the Tribunal has attained finality as far as the respondents are concerned. This gains importance for the reason that the Tribunal has taken note of the fact that based on a letter dated 09.02.1993 issued by the Executive Engineer, „B‟ Division, CPWD, New Delhi which was addressed to the Superintending Engineer, I.P. Bhawan, it has been stated that the petitioner, a muster roll Belder, has been working as a Sewerman since 1986 and the case was sent for necessary action, i.e., regularization of muster roll of Beldar/Sewerman. In the concluding part of the decision of the Tribunal, the Tribunal notices "it appears that the respondents have utilised the services of the applicant as Sewerman even as on 16.5.20001". In this backdrop, respondents were directed to verify their records along with the claim of the applicant that he was working as a Sewerman even though he was engaged as a Beldar from one year prior to the date of filing of the OA, i.e., 18.07.2000. The Tribunal further directs that in case the applicant has in fact discharged the duties as a Sewerman, the respondents shall pay wages due to him as a Sewerman. Since the passing of the order till date, the respondents have not verified the factual position even as we hear and dictate orders in the matter. Resultantly, we are left with little or no option to fall back on the following documents to reach the conclusion that the petitioner was in fact working as a Sewerman.

(i) Letter dated 09.02.1993; which reads as under:

"Central Public Works Department No.271/92/B Divn./ECI/562 dated 9.2.93

To The Superintending Engineer, Coordination Circle (Civil) CPWD, Room No.B-108, Ist Floor, I.P. Bhavan, New Delhi.

Sub: Regularisation of muster roll beldar/Sewerman in the regular classified category.

Ref: Memorandum No.3/6/92/Coord. Circle I(Civil)/E6/1131 dated 26.10.92

On the above reference and subject, the particulars of Shri Rohtas, muster roll Beldar working as Sewerman since 1986 are being sent to your office for necessary action.

Encl:

1. Photograph-2

2. Application form(original)

3. Proforma

4. Photocopy of caste certificate

5. Photocopy of employment exchange registration card.

6. Photocopy of first entry certificate

7. ACR-2 nos.

8. Photocopy of service book of the workman

Sd/-

Executive Engineer, B Division, CPWD, New Delhi"

(ii) Letter dated 05.08.1996; which reads as under:

5.8.96 "To The Executive Engineer, B Division, CPWD, IP Bhavan, New Delhi.

(Through Asstt. Engineer III/B) Sub: Posting of one Sewerman in Shimla Section Ref: 3(6)/Coord. Circle (C)/E-6/96/356 Sir,

On the above subject, I Rohtas is working as muster roll Beldar since 3.1.86. I was working as Sewerman at Kushak Road Enquiry.

It is humbly requested that name may kindly be forwarded for further necessary action. I shall be highly thankful to your.

Yours faithfully,

Sd/-

(Rohtas) Muster Roll Belder III/B Sub Division Kushak Road, Enquiry

This is to certify that Shri Rohtas, Muster Roll Beldar is working as Sewerman.

Sd/-

Forwarded to AE 3B pl."

(iii) Duty Chart for the month of February, 1989 which shows the name of the petitioner working as a Sewerman;

(iv) Identity Card of the petitioner filed on record which shows his designation as Sewerman;

(v) Endorsement on communication dated 17.07.1995.

10. We may also note that a copy of the details of vacant posts for the month of February, 1988 has been placed on record which shows that one post was lying vacant in the concerned Division. Having regard to the aforesaid documents placed on record, we are satisfied that the petitioner was, in fact, working as a Sewerman from the year 1986. As far as the question of backwages is concerned, the petitioner would be entitled to backwages for the period of three years prior to the filing of the OA. (State of Punjab & Ors. v. Jagjit Singh & Ors., Civil Appeal

No.213/2013 decided on 26.10.2016). The petitioner would also be treated as regularized from 30.04.1993, the date mentioned in the Identity Card. We may notice that a conservative date is fixed by us for grant of benefit to the petitioner although the date on the Duty Chart pertains to the year 1989. As far as payment of interest to the petitioner is concerned, as agreed by Mr. Kaushik, in case the respondents comply with the order within one month from the date of receipt of the order, there shall be no interest. However, in case the order is not complied with within one month from the receipt of the order, the petitioner will be entitled to interest @ 6% per annum.

11. The writ petition is accordingly disposed of.

G.S.SISTANI, J

VINOD GOEL, J DECEMBER 06, 2016 pst