- (1.) BY way of this writ petition, the petitioners, Union of India and its officials in the Central Excise and Customs Department, have questioned the order dated 13.01.2012 as passed in Original Application ('OA') No. 227/2008 whereby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the CAT') has, in terms of the opinion of majority (2:1), accepted the claim of the applicant (the respondent herein) for grant of minimum pay scale of Group 'D' employee and for regularisation on Group 'D' post; and has issued the following directions:- "(i) The applicant shall be paid minimum of pay scale allowable to an ordinary Group 'D' employee doing the similar job. (ii) The respondents are directed to consider the fitment of the applicant into an appropriate pay level and state of employment within three months next. (iii) Till effective finalization of applicant's fitment into an appropriate pay level and status of employment, he shall be deemed to have been engaged at a monthly pay of Rs.3,000/- per month and shall be paid all arrears at this rate from 15.02.2007 to till date without any interest, if paid within three months next and with 18% interest if paid beyond that."
(2.) THE CAT has issued yet further direction that: "(i) The applicant shall be considered for regularization as obviously Group 'D' post is till in existence and he is still doing the job of a Group 'D' employee and when this shall be done the Hon'ble Apex Court's judgments relating to administrative fairness of authority shall be kept in mind to the fullest extent." The order as passed and the directions as issued by the CAT have been questioned in this writ petition as being contrary to the record and particularly the decisions already rendered in the case of the applicant-respondent, who was held to be a part-time casual labourer and who, according to the petitioners, is not entitled to make any claim towards Group 'D' post, or regularisation, or any pay scale. After having heard the learned counsel for the parties at length, having perused the material placed on record, and having examined the divergent views expressed by the learned Members of the CAT, we have formed an opinion that the matter is required to be remanded to the CAT for consideration afresh. In this view of the matter, only a brief reference to the background aspects, so far relevant for the present purpose, would suffice. The applicant-respondent was initially engaged by the petitioners as contingent Farrash on 01.01.1996 on monthly wages of Rs. 300/- which were revised to Rs. 500/- from the month of January 1997. The applicant alleged that he was entitled for grant of temporary status and regularisation on a Group 'D' post in terms of Casual Labour (Grant of Temporary Status and Regularisation) Scheme, 1993 as put into effect by the Government of India but, instead of extending the due benefits, his services were ordered to be terminated by verbal orders. While assailing the alleged verbal termination order and seeking other reliefs, the applicant preferred an OA bearing number 275/2000 before the CAT that was dismissed on 22.10.2001; but the order so passed by the CAT was not approved by this Court; and while allowing CWP No. 266/2004 on 28.07.2005, this Court remanded the matter to the CAT for decision of the OA afresh. It is noticed that in the original order dated 22.10.2001, the OA was dismissed by the CAT essentially with reference to the decision of the Hon'ble Supreme Court in the case of Secretary, Ministry of Communications & Ors. Vs. Sakkubai & Anr.: 1998 SCC (L&S) 119 wherein it was held that the part-time casual labourers were not entitled for grant of temporary status and regularisation. The Division Bench of this Court, in the order dated 28.07.2005 as passed in CWP No. 266/2004, did not approve the order so passed by the CAT essentially with the observations that the order impugned lacked in reasons and had been passed without noticing the issues between the parties. This Court observed that the precedent could be applied only on the facts admitted or found; and in case of dispute, the facts necessary for the purpose have to be found on the basis of material on record. This Court proceeded to set aside the order and remanded the matter to the CAT with a direction to decide the questions germane to the controversy and particularly to carry out inquiry into the fairness of the order terminating the services and the nature of the duties discharged by the applicant; and as to whether he was discharging the duties as part-time or whole-time employee and whether he was engaged in connection with sovereign functions of the State, or if he was entitled to any benefit under the provisions of the Industrial Disputes Act. This Court, inter alia, said:- "7. In these circumstances, the order under challenge cannot be sustained and, therefore, has to be quashed. The writ petition is, therefore, allowed. The order dated 22.10.2001 (Annexure 3) passed by the Tribunal is set aside. The Tribunal is directed to decide the Original Application afresh by considering the rival contentions including objections to the termination of the services after four years continuous service. It is only, if the termination is found to be valid that the question of grant of the status of regularisation will become germane for consideration. The question as to validity of termination order needs a detail enquiry into the fairness of terminating the services, the nature of the duties discharged by the petitioner. In order to find out whether he was engaged and discharging his duties as part time or whole time employee and whether he was engaged in connection with sovereign functions of the State or otherwise, if he was not engaged under the Sovereign function of the State, whether he is entitled to any benefit of the provisions of the Industrial Disputes Act. All these questions are germane for deciding the validity of the termination, which have not been adverted to by the Tribunal, but which the Tribunal is required to consider while considering the validity of oral termination after four years of continuous service. 8. The Original Application of the petitioner be decided expeditiously as early as possible, preferably within a period of three months."
(3.) THE CAT took up for consideration the said OA (No. 275/2000) afresh in its order dated 21.12.2005. It appears that before the CAT, a point was sought to be asserted that the applicant was a full-time worker and not a part-time one but with reference to the material on record, ultimately, it was conceded on behalf of the applicant that he 'may be taken as a part-time casual labour'. The case as canvassed and the submissions as made before the CAT were noticed in paragraph 6 of the order dated 21.12.2005 in the following terms:- "6. The learned counsel for the applicant has embarked very heavily on the point that the applicant was a full time worker and not a part time worker. For this purpose, he made me to traverse through the photocopies of the attendance register in addition to certain other documents. He has submitted that the applicant was engaged as a full time worker like other persons and not as a part time worker as contended by the respondents. He was confronted with a question from the Court regarding the validity or otherwise of Annexure A/10 filed by the applicant along with the additional affidavit wherein applicant's controlling authority has indicated him to be as a part time daily wager. He was at a difficulty to answer the same and finally submitted that the applicant may be taken as a part time casual labour and his case may be adjudicated upon accordingly......." The CAT, thereafter, proceeded to consider the question of validity of the termination order and held it to be illegal and inoperative in the following:- "8. I have anxiously considered the rival contentions put forth on behalf of both the parties. As regards the termination as contended by the applicant or an abandonment of as contended by the respondents, there is no denial to the fact that the applicant was on leave from 27.12.1999 to 09.01.2000. There is also no denial that the applicant submitted a representation on 12.01.2000 in regard to not taking on duty and the alleged termination. The respondents have not revealed the action which was taken on his representation. They have in fact said nothing on this except that the applicant himself did not turn up for duties. I find that the respondents have neither issued any show cause notice nor replied his representation and there is no material on the records in support of their contention. I have absolutely no reason to disbelieve the version of the applicant that he was not allowed to resume his duties and his services were terminated through oral order from 10.01.2000. The defence version of the respondents is also otherwise falsified with the volte face assertion in the reply in para 2(i) that the applicant was engaged for certain work as part time contingent worker and on completion of work his engagement was discontinued. In this view of the matter, the termination of the applicant shall have to be construed as illegal and inoperative." The CAT, however, rejected the case of the applicant about applicability of the said Scheme of 1993 after finding that the applicant was admittedly not in employment as on 01.01.1993 and the question of rendering one year's continuous services on that date did not arise. The CAT also found that the said Scheme was not a continuous one and the applicant was not entitled to any benefit thereunder. The CAT ultimately proceeded to allow the OA but directed reinstatement of the applicant 'on the job on which he was last employed' while, of course, holding him entitled to all consequential benefits. Significantly, the other reliefs as prayed were declined. The operative part of the order dated 21.12.2005 reads as under:- "11. The upshot of the aforesaid discussion is that the Original Application merits acceptance in part and the same stands allowed accordingly. The oral termination order dated 10.01.2000 stands set aside. The respondents are directed to reinstate the applicant on the job on which he was last employed and he shall be entitled to all consequential benefits except the back wages. Other reliefs stand denied. No order as to costs." (emphasis supplied) ;