Cheriya Koya A. v. Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939 OP (CAT).No. 158 of 2017 (Z) ----------------------------AGAINST THE ORDER IN OA 180/00625/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONER: ------------- CHERIYA KOYA A. AGED 48 YEARS, S/O P.M.MOHAMMED KOYA, ASHARODA HOUSE, AMINI ISLAND, (DISENGAGED AS PART TIME SWEEPER) ACIO OFFICE, AMINI ISLAND, U T OF LAKSHADWEEP BY ADV. SRI.P.V.MOHANAN RESPONDENTS: -------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI.110001 2. DIRECTOR OF INTELLIGENT BUREAU SUBSIDIARY INTELLIGENT BUREAU, MINISTRY OF HOME AFFAIRS, GATE NO.7, NORTH BLOCK, NEW DELHI.110001 3. THE JOINT DIRECTOR SUBSIDIARY INTELLIGENT BUREAU, MINISTRY OF HOME AFFAIRS, THIRUVANANTHAPURAM-695001. 4. ASSISTANT DIRECTOR OFFICE OF THE DEPUTY CENTRAL INTELLIGENT OF OFFICE, MINISTRY OF HOME AFFAIRS, KAVARATHY.682555 R1-R4 BY ADV. SRI.SUVIN R.MENON, CGC R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16. 09.2017, THE COURT ON 23.11.2017 DELIVERED THE FOLLOWING: OP (CAT).No. 158 of 2017 (Z) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE ORDER IN NO.180/00625/2014 DATED 17/5/2016 EXHIBIT P2 TRUE COPY OF THE OA NO.180/00625/2014 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANTS EXHIBIT P5 TRUE COPY OF THE MA.NO. 1047/2015 RESPONDENT(S)' EXHIBITS ----------------------nil ks. TRUE COPY P.S. TO JUDGE ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **==============================** ## **OP(CAT)No. 158 of 2017** ## **============================== Dated this the 23[rd] day of November, 2017** ## **JUDGMENT** ## **Shircy V.J.** Challenge is against Ext.P1 verdict of the Central Administrative Tribunal, Ernakulam Bench in O.A. No. 180/00625/2014 dated 17.5.2016. 2. The relevant facts of the case in brief are as follows: The petitioner joined service as a Part Time Contingent Sweeper on 1.8.1985 in the office of the Assistant Central Intelligence Office at Amini on daily rate wages. Though he joined as a sweeper, in fact he was discharging the duties of Sweeper, Dhobi, Chowkidar and Watchman from 1.8.1985 to 7.11.2013 without interruption. He had been discharging duties for about eight hours on every day. In a OPCAT 158/2017 2 year he worked for more than 240 days on daily rate wages. His wages were enhanced at the rate of Rs.600/- in the year 1987, Rs. 2000/- in the year 1990, Rs.5500/- in the year 2004 and Rs.8000/- in the year 2013. In the month of November, 2013, he was transferred to the office at Kavaratti and the employee who was working at Kavarathi was transferred to Amini Island and he joined at Kavaratti on 7.11.2013. While so, the service of the petitioner was dispensed with, without a formal order arbitrarily w.e.f. 10.12.2013 and thus he was denied his employment. Though he submitted a detailed representation to the 3[rd] respondent, it was not fruitful. Aggrieved by the denial of employment, and seeking regularisation to the post of sweeper, O.A. No. 625/2004 was filed, but it was dismissed and hence, this O.P. The reliefs sought for in the O.A are as follows: “A) To declare that the denial of employment to the applicant as part time sweeper in the office controlled by third respondent with effect from November 2013 is illegal, OPCAT 158/2017 3 arbitrary and violative of Article 14 and 16(1) of the Constitution of India and also violative of the provisions of Industrial Disputes Act. B) To direct respondents 2, 3 and 4 to reinstate the applicant in service as Part Time Sweeper forthwith all attended benefits. C) To regularize the service of the applicant as Part Time Sweeper in terms of the provisions contained in Casual Laborers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993. D) Any other appropriate order, direction as this Hon'ble Tribunal deem fit in the interest of justice. E) To direct the third respondent to serve copy of the order to the applicant, if any, terminating the service of the applicant as part-time sweeper.” 3. The respondents/Government in the reply statement contended that the applicant was never engaged as a full time casual labourer in the department. Actually, he was engaged purely on need basis and his wages were paid in accordance with the rates under the Minimum Wages Act as applicable from time to time. Hence, his claim for regularization is not admissible and he is not bound by any service Rules. OPCAT 158/2017 4 4. The Tribunal accepting the contentions of the Government dismissed the Original Application. 5. We heard the learned counsel for the applicant/petitioner and the learned counsel for the respondents/Government and perused the records. 6. The case of the applicant is that he joined as a sweeper on 1.8.1985 on daily wages in the office of the Assistant Intelligence Office at Amini and worked there till 10.12.2013 till his service was dispensed with by the authority. So the O.A. was filed requesting to reinstate him in service as Part Time Sweeper and to regularise his service. The O.A. was dismissed accepting the contention raised by the department that he was not posted as a part time sweeper in any sanctioned post but was engaged purely on need basis, ie as and when his service was required and he himself was also engaged in other profitable employments outside, beyond the limited hours he was engaged in the department. Therefore, he was not engaged OPCAT 158/2017 5 as a full time casual labourer. Annexure A5 is a Scheme introduced for Casual Labourers (Grant of Temporary Status and Regularisation) by the Government of India, which came into force with effect from 1.9.1993. The definite contention raised by the department is that he was not engaged as a full time casual labourer under the respondent at any point of time but whenever his service was required, he was engaged purely on need basis and so he was free to engage himself in any kind of profitable engagement outside the department/office and so he is not entitled for the benefits under Annexure A5 Scheme. Annexure A5 scheme is made applicable only to casual labourers in employment of the Ministries/Department and offices and subordinate offices and casual labourers, who acquired the temporary status alone, are made entitled to get its benefit. Though he contended that he was continuously working as a part time sweeper in the department from 1.8.1985 till 9.12.2013, no scrap of paper was available on record to show that he was OPCAT 158/2017 6 engaged continuously on temporary basis from 1.8.1985 till 9.12. 2013. In the reply statement filed by the Department, it was specifically contended that Annexure A5 Scheme was applicable only to full time casual labourers and he was never engaged as a full time casual labourer to a sanctioned post in the department. Hence, Annexure A3 and A6 to A8 representations submitted by him for regularisation were rejected by the department. As he never worked as a full time casual labourer for a continuous period, the principle laid down in **Secretary, State of Karnataka & Others v. Umadevi & Others** **[ (2006) 4 SCC 1]** cannot be made applicable to the applicant. 7. Annexure A9 is, of course, a letter issued to the Central Board of Excise & Customs by the Department of Revenue, Ministry of finance, Government of India calling upon to furnish the details of the casual labourers who had been engaged continuously for a long period and not OPCAT 158/2017 7 covered under the Scheme of 1993 in the proforma with a written undertaking to the Board for necessary action. No definite Scheme was framed or formulated by the Government for absorption of any employees into regular permanent posts as per the letter referred above. From the pleadings, it is revealed that the applicant is claiming benefit under Annexure A5 Scheme for regularisation alleging that he had a continuous service from 1.8. 1985 to 10.12.2013. But in the absence of documents to show that he was engaged as a part time sweeper in a sanctioned post continuously or appointed as a casual labourer in accordance with the recruitment Rules, the benefits flowing from Annexure A5 applicable to full time casual labourers cannot be extended to him for regularization in the department. 8. It is also to be noted that though the OA was dismissed on 17.05.2016, this Petition was preferred only on 7.3.2017 without any explanation for delay. OPCAT 158/2017 8 9. In the reply statement filed before the Tribunal as well in the statement filed before this Court, the department has contended that on 6.12.2013 he had misbehaved to some officials of the department by using provocative language and threatened them with dire consequences and thereby obstructed them from discharging their official duties, and so also he is not suitable for giving any engagement in the department subsequently. Though such a contention was raised, no document was produced by the department to prove that such an incident had happened and his indiscipline behaviour disqualify him from further engagement for any kind of work in the department. The contention raised by the department regarding the alleged incident was also denied by the applicant. So considering the entire aspects involved, we find that though he is not entitled for regularization in the department, he can be provided employment as and when there is a need for the same in OPCAT 158/2017 9 the department considering the fact that he served the department as a sweeper for sometime. So, whenever such a necessity arises in the department he can be engaged for the same, though he is not entitled for regularisation of service in the department. We also find that at any rate the denial of his employment cannot be treated as arbitrary and violative of Articles 14 & 16(1) of the Constitution of India as contended by him. With the above findings this Original Petition is disposed of accordingly. Sd/- **P. R. RAMACHANDRA MENON JUDGE** **Sd/-** **SHIRCY V.** **JUDGE** **ks.** True copy P.s. To Judge