MAHESHWARI, J. - (1.) THE petitioners-Union of India and Others have submitted Writ Petitions No. 6562/2003 and 1867/2004 against the orders dated 29. 5. 2002 and 12. 12. 2003 respectively passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (`the Tribunal') in Original Applications (OA) No. 244/2001 and 92/2003 respectively filed by respondent No. 1 Ganesh Lal. THE subject matter of both the writ petitions being inter-related, on common facts and involving common questions, both the petitions were heard together and are being disposed of by this common order.
(2.) THE parties have already had various rounds of litigation, culminating into the two impugned orders. It shall therefore, be useful to narrate chronology of events : Preliminary Respondent No. 1 Ganesh Lal was informed by the Superintendent (Excise), Udaipur by the letter dated 2. 1. 1990 that his name had been forwarded by the Employment Office, Udaipur for appointment on the post of Gardener as daily wager and he was called to appear on 11. 1. 1990 with relevant certificates. Therefore, by the order dated 18. 1. 1990 issued by the Office of the Assistant Controller, Central Excise and Customs Division, Udaipur, sanction was accorded for part time contingent paid staff at the rate of Rs. 200/- per month from 22. 1. 1990 to 21. 4. 1990 and the respondent no. 1 was ordered to be appointed in Central Excise and Customs Division, Udaipur as Gardener w. e. f. 22. 1. 1990. Initially, he was paid Rs. 200/- per month, therefore at the rate of Rs. 300/- per month and from June, 1991 onwards at the rate of Rs. 400/- per month. OA No. 255/1993 decided on 15. 7. 1994 The status of the respondent No. 1 continued as such and it seems that he made efforts for getting regularised and ultimately submitted Original Application No. 255/1993 before the Tribunal which was decided on 15. 7. 1994. The order dated 15. 7. 1994 has not been placed on record by either of the parties before us. However, the Tribunal has quoted the directions contained in the order dated 15. 7. 1994 in the impugned order (dated 29. 5. 2002) in Writ Petition No. 6562/2003 which shows that while disposing of the said OA No. 255/1993, the Tribunal directed for considering the case of the applicant on the following points:- " (a) Whether any benefit can be extended to the applicant as per order of the Government referred to as Annex. A/2 dt. 26. 09. 89 and subsequent orders; (b) Whenever any vacancy occurs in Class `d' the applicant's case for absorption or appointment should be considered on that post with other similarly situated persons. However, preferential treatment should be given to those persons who are working for a pretty long time while considering on merit. This aspect should also be kept in mind while considering their regularisation. " OA No. 244/2001 Decided on 29. 5. 2002 The pleadings and documents pertaining to OA No. 244/2001 have not been placed before us by either of the parties. However, from the narratives in order dated 29. 5. 2002, it is found that the applicant (respondent No. 1 herein) contending the he had rendered more than 11 years and 6 months of service without break and his case for regularisation was not being considered, filed this OA No. 244/2001 and submitted that he was duly selected as Daily Causal Labour (Gardener ). Although he was shown as part time contingent staff for the period 22. 2. 1990 to 21. 4. 1990 but he has been discharging duties for more than eight hours a day. The applicant also contended that vacancy exist in Group `d' but despite that no action was being taken either to confer temporary status or to regularise him in Group `d' post. The applicant contended that he was entitled for 1/30th of the minimum of the pay in the pay scale of Rs. 750-940 as per DOPT orders applicable to the Department and since he has been continuously working without break, he was entitled for regularisation. The applicant also referred to letter dated 5. 10. 1995 by the Administrative Officer to the Central Excise and Customs, Jaipur in which it has been stated that the applicant was appointed on daily wages basis and work of gardener was being taken from him which was of regular nature. The applicant alleged that he was paid Rs. 55/- per day from January, 2000 onwards, although as per circular dated 11. 11. 1999, minimum wages for the Gardener was Rs. 1768/- per month or Rs. 68/- per day. The writ petitioners countered with the submissions that the applicant was engaged as Gardener on part time basis only for four hours per day at a consolidated sum of Rs. 200/-; that he has worked only upto June, 2001 and since his services have already been dispensed with, he was not entitled for grant of temporary status and for regularisation in group `d' post. He was paid a consolidated amount per month which was raised from time to time and he was paid Rs. 55/- per day from January, 2000 to June, 2001 for working four hours per day. According to the writ petitioners, there was no post of Gardener under the Office of Assistant Commissioner, Central Excise and Customs, Udaipur and as per DOPT Office Memorandums dated 10. 1. 1993 and 12. 7. 1994, temporary status could not be granted to part-time casual worker.
(3.) THE applicant submitted rejoinder and claimed that he has worked in the month of July, 2001 also and that respondents (petitioners herein) have stopped payment from the month of October, 2001 onwards to force him to withdraw the OA. THE applicant also seems to have annexed copies of correspondence as Annex. A20 and a copy of fax message as Annex. A21 written by one Rawat Construction to the Assistant Commissioner stating therein that the applicant was working since June, 2001 and this was done to deprive him of the temporary status and regularisation. It also appears that applicant filed MA No. 7/2002 contending that payment to him has been stopped from the month of October, 2001 to force him to withdraw the case and the salary deserves to be released to save him from starvation. The Tribunal proceeded to dispose of OA No. 244/2001 by the order dated 29. 5. 2002. The Tribunal found that judgment dated 15. 7. 1994 has already become final and the parties were bound by the same. It was of course true that in the said judgment dt. 15. 7. 1994 no direction was given for granting of temporary status to the applicant but only for consideration. But then, there was nothing on record to establish that respondents considered the case of the applicant for grant of temporary status. The applicant was also unable to establish that he was engaged as full time gardener and payment of Rs. 55/- per day from the year 2000 would not lead to the conclusion that the applicant was a regular employee. On the basis of the material on record, the learned Tribunal found that the contention of the respondents that applicant was part time casual gardener appeared to be correct and that a part time casual employee was not eligible for grant of temporary status. Thereafter, the learned Tribunal recorded that however it was not disputed by the respondents that the applicant worked continuously for about 11 and 1/2 years as part time gardener and his performance was satisfactory and that there was force in contention on the part of applicant that there was no proper compliance of the earlier order of the Tribunal. The OA No. 244/2001 was disposed of with the following directions:- " In view of the above discussion, this OA is disposed of with the direction to the respondents to consider the applicant for appointment to any group `d' post which may fall vacant under the jurisdiction of the respondent No. 2 and is required to be filed up under normal direct recruitment quota, within 3 years, by giving due preference to him for having worked satisfactorily with them for over 11 years and by granting age relaxation for the period he worked with them. Since the respondents are principal employer, they shall ensure that the applicant is paid wages including arrears, if any, due to him for the period he performed work of Gardener through the contractor. Let such amount, if any, be paid to the applicant without two weeks from the date of receipt of this order. " Contempt Petition No. 34/2002 Decided on 25. 2. 2003 The applicant respondent No. 1 prayed for making payment and when no payment was received by him, he filed contempt Petition No. 34/2002 before the Tribunal in which notices were issued and then the contempt petition was disposed of by the order dated 25. 2. 2003. From the copy of the order dated 25. 2. 2003 placed on record in Writ Petition No. 1867/2004 it appears that in compliance of the aforesaid directions dated 29. 5. 2002 in OA No. 244/2001, the payment was sought to be made by Cheque dated 10. 9. 2002 but it was observed that cheque was issued wrongly in the name of other person and it has to be returned. Finally, another cheque of the said amount was handed over to the learned counsel for the applicant on 12. 12. 2002 and the matter was heard on that date. However, the Tribunal took note of the fact that there was abnormal delay in complying with the orders, and therefore, Assistant Commissioner was directed to appear in person and on his appearance, the contempt petition was heard and disposed of on 25. 2. 20023. It appears that before the Tribunal, the stand was taken by the contemners that Central Public Works Department (`cpwd') was the principal employer of the applicant and not the Central Excise and Customs Department and this stand was objected against by the applicant being contrary to the earlier findings of the Tribunal. However, the Tribunal while dealing with the contempt petition considered the additional reply filed on behalf of the contemners for the reasons assigned for delay in payment that the applicant has been working for them through an agency of CPWD and upon receipt of ]the order dated 29. 5. 2002, the issue was taken up with CPWD Authorities and this process took time for which the contemners tendered unconditional apology. It was then brought to the notice of the Tribunal that the order dated 29. 5. 2002 has already been challenged before this Court. (Noteworthy it is that contempt petition was heard on 12. 12. 2002 when for abnormal delay in compliance, the Assistant Commissioner was directed to remain personally present and that the Writ Petition No. 6562/2003 was filed only on 18. 2. 2003 ). The learned Tribunal disposed of the contempt petition with the following observations:- " 7. Having perused the entire records and considering the arguments, we are of the considered view that orders of the Tribunal have been fully complied with though, after an abnormal delay for which Shri Rajesh Kumar Verma, contemnor (respondent No. 2), has sought unconditional apology. Notwithstanding the fact that there has been laxity on the part of department in not seeking extension for compliance of the orders when they realised that the same was going to take time, but it is not a case of deliberate and willful disobedience of our order. Moreso, when the orders have actually been complied with in so far as the issue raised by the learned counsel for the applicant that the respondents have violated the orders by stating that the C. P. W. D. was the principal employer, we are of the view that this limited aspect is not relevant to the relief claimed by the applicant and this is no ground to proceed in a contempt matter any further. 8. In view of the above discussions, we dismiss this contempt petition and discharge the notice issued to the contemnors as the petitioner/applicant has received his full wages. In case, he is not satisfied with the sum paid to him and still something is left, he shall be at liberty to move this Tribunal afresh, if he is so advised. " Writ Petition No. 6562/2003 ;