Sunday, November 4, 2012

Bom O.A.No.252/2010, O.A.No.271/2010, O.A.No.272/2010 O.A.No.273/2010 and O.A.No.274/2010 on ???? -02-2012


O.A.No.252/2010, O.A.No.271/2010, O.A.No.272/2010
O.A.No.273/2010 and O.A.No.274/2010

Dated this        ,  the   th day of February, 2012.


Smt. Vimal Narayan Balotra,
aged 51 years, presently
working as Sweeper/Safaiwala
in the office of the Asst. Collector
of Central Excise, Kalyan I Division, Thane I
Commissionerate and residing at
Madhul Patil Chawl, S.N. Road,
Mulund (W), Mumbai 400 080.    ... Applicant in

Janu Govind Rohane,
age 50 years, presently
working as Hamal in the office
of the Central Excise, Kalyan I
Division, and residing at
Vahalipada, Tal. Kalyan
Dist. Thane.                    ..  Applicant in
                                  O.A. No. 271/2010
Bhalerai B. Damodar,
aged 44 years, presently
working in the office of the
Asst. Commissioner, Central
Excise, Panvel divsion,
and residing at P.O. Kambale
Tal: Sinar, Dist. Nasik.          ... Applicant in
Kripal N. Guher,
Working as Sweeper/Safaiwala,
Audit, Central Excise,
Thane I Commissionerate,
and residing at:
CMM Dhobighat, Section,
No.1327, Camp: No.4,
Ulhasnagar -4                     ... Applicant in

 Shelar D. Shripad
 aged 42 years, presently
 working in the office of the
 Asst. Commissioner,
 Central Excise, Mahad, Raigad,
  Commissionerate, Ist Floor,
  Complex, CBD Belapur, Navi
  Mumbai and residing at
  Shanishwar Apt. Tapal Naka,
  2nd floor, Room No.201,
  Old Panvel, Dist. Raigad.      ...  Applicant in
(Applicants by Shri Ramesh Ramamurthy, Advocate)


1)  Union of India through
    The Commissioner of Central
    Excise Thane I Commissionerate,
    Nav Prabhat Chambers,
    Ranade Road,
    Dadar, Mumbai 400 028. .. (Common in all the 5                                    O.As)

2)  Joint Collector (P&V)
    Central Excise Thane I
    Commissionerate, Nav Prabhat
    Chambers, Ranade Road,
    Dadar, Mumbai 400 02...(Only in O.A.No.252/2010)

2)  Adl. Collector P&B
    Central Excise,
    Muambai III. Nav Prabhat
    Chambers, Ranade Road,
    Dadar (W), Mumbai 400 028 ...Respondent No.2
                            in O.A. 271 & 272/2010)

2)  Dy. Commissioner of Central Excise,
    Audit, Thane I, Valipeer Road,
    Nihakanta Bldg., 3rd floor,
    Kalyan (East).            .. Respondent No.2 in
2)  Commissioner of Central
    Excise, Navprabhat Chambers
    Ranade Road, Dadar (W)
    Mumbai 400 028.           .. Respondent No.2 in

3)  Asst. Commissioner of
    Central Excise,
    Kalyan I Division
    Thane I Central Excise Commissionerate
    Sangrama Bldg., Valivpeer Road,
    Opp. Rly. Goods Shed,
    Kalyan.                  ...   Respondents in
                                  O.A.271 & 252/2010
3)  Asst. Collector of
    Central Excise Office,
    Panvel I Division,
    Raigad Commissionerate,
    Panvel.                   ...  Respondents in
3)   Asst. Commissioner,
     Central Excise, Mahad,
     D.N. Raigad, Commissionerate,
     Ist floor, Complex, CBD Belapur,
     Nasik.                       ...  Respondents
                                     in O.A.No.274/2010)
(Respondents by Shri V.S.Masurkar, Advocate in all the
                       O R D E R

     The OAs are filed on 11.03.2010 or thereabout on the question of benefit of temporary service towards pension.  They all have similar circumstances.  They all have similar circumstances.  For convenience, the matrix of OA No.252/2010 is referred to hereafter.

2.   The brief case of the applicant is that, she was appointed as Sweeper w.e.f. 01.12.1984 in the office of Kalyan-I, Central Excise Division under the Central Excise Commissionerate at Thane.  She was duly sponsored by the Sub Regional Employment Exchange office and her posting was against a vacant post.  Further, she was granted temporary status w.e.f. 01.09.1993 vide order at (Annexure A-2).  She continued as a temporary status worker uninterruptedly for about 26 years till the present and on one occasion in 2005 floods in Mumbai in which she and some more employees of the Department lost their belongings etc., the respondent Department has also paid her a compensation of Rs.18,000/- which they have paid to other permanent class IV employees similarly affected in the flood.  Furthermore, GPF contribution was being deducted w.e.f. 01.06.1997 but was stopped w.e.f. 01.09.2004.  All these statements have been accepted by respondents as factua.

3.   Furthermore, she claims she has been discrimi-nated against other persons similarly situated who have been absorbed as regular Group 'D' employee.  Her representation dated 27.07.2009 at Annexure A-5 has been rejected.  She, therefore, prays in paragraph 8 of the O.A. as below:
“a)  That this Hon'ble Tribunal be pleased to hold and declare that the action of the respondents not considering the applicant for regularization on par with his juniors under the 1993 scheme amounts to violation of Article 14 & 16 by the Constitution of India and the said action is required to be stuck down by this Hon'ble Court;

b)   that this Hon'ble Tribunal be pleased to direct the respondents to forthwith consider the applicant for regularization and grant her the benefit of the said regularization on par with her juniors/colleagues who have been granted the benefit of temporary status under the establishment order no. 141/1994.

c)   that this Hon'ble Tribunal be pleased to direct the respondents to take immediate steps for absorbing the applicant in Class IV post as done in the case of persons who are similarly situated like the applicant;

d)   that this Hon'ble Tribunal be pleased to direct the respondents to immediately restart the GPF contribution which has been stopped and to continue making such deductions every month and further deduct the amounts due from the date it has been stopped till date;

e)   that this Hon'ble Tribunal be pleased to count the services rendered by the applicant prior to her being temporary status for pension and other retiral benefits.”
4.   I have carefully gone through all the papers submitted by the applicant as well as respondents and have also carefully heard both the learned counsel for the parties.  At the outset, there are three different prayers which are unconnected to each other – namely, regularisation in Group 'D' have been clubbed namely, restoration of GPF deduction (which is equivalent to granting of GPF scheme benefit) and counting of her services towards pension.  The cause for pension has not yet arisen as the applicant is stated to be around 51 years and has still some years to go in the service.  As far as the claim of GPF restoration is considered, it is pointed out by respondents that she has not raised any objection when GPF deduction was stopped w.e.f. 01.09.2004 for more than 5 years and the very first reference from her side appears in her representation dated 27.07.2009 at Annexure A-5.  I also find that many averments have been made in the OA which are not supported by documents and at times there have been misrepresentation or suppression of facts, as has been pointed out by the respondents.
5.   The applicant has not produced the names of any juniors or other similarly situated persons, who as per  her claim at para 4 (f) of OA have been regularised as permanent Group 'D' employees.  The respondents at paragraph 12 have categorically denied this and have stated that she has not furnished any names of such person, no Casual Labourer having temporary status has been regularised.  As pointed out by the respondents, paragraph 4 (d) of OA is a misrepresentation and Annexure A-4 appears to be some other list not connected with the statement at paragraph 4(d) of the OA.  Paragraph 4 (d) and paragraph 4(g) both refer to a letter dated 10.04.2008 which actually points to the letter from  Commissioner of Service Tax, Mumbai to the Commissioner of Central Excise, Thane-I asking them to intimate to all the Casual Worker to appear for physical test on 15.04.2008 at a designated place at Worli Sea Face. Applicant claims that since she received the intimation late, she was not able to take this opportunity.  Thereafter, she made some representations which have been rejected.  She has also not been able to substantiate as to why she did not appear for the physical fitness test which was to be organised on 15.04.2008 at Worli Sea Face and how she answers to the instructions on 11.04.2008 under which she was to present her papers at the officer of Central Excise Bldg., Churchgate, Mumbai.  Even her representation dated 27.07.2009 is silent on that point.
6.   The respondents have also explained the details and circumstances under which the order for stopping the deduction of her GPF contribution w.e.f. 01.09.2004 has been issued in view of the fact that she is not a regular Group 'D' employee and there are instruction from government not to make GPF deduction for temporary status employees.
7.   Thus, the prayers at paragraph 4(d) and 4(e) are immature at this stage and that leaves me only with the question of her regularization as Group 'D' employee.
8.      Despite all the infirmities in her OA, the basic two points to consider in this claim are that she is an employee of 1984, who was given temporary status w.e.f. 01.09.1993 and has rendered her services now for more than 18 years as temporary status. The crux question, therefore, is whether the Department is entitled to take the services of someone on temporary basis for 18 years (and still continues to do so) but not give benefits of permanent staff.  The OA points out that the Ministry had issued instructions to fill up vacancies in Group 'D' that have been arisen in the year 2006-07, 2007-08 and 2009 from out of the existing temporary status workers.

9.   The respondents would claim three reasons for not absorbing her service in Group 'D',firstly the application of Umadevi judgment passed in the case of Secretary, State of Karnataka & Others Vs. Umadevi (3) & Others [2006 SCC (L&S) 753],under which it was held that the scheme introduced by the Government called the 1993 Scheme was a one time exception and was not an on going scheme.  The second reason stated by the Department is that there were no recruitments in the Group 'D' post except for a special Recruitment drive in the year 2005 for the vacancies in the Reserved Category of Scheduled Caste and Scheduled Tribes. Thereunder, only 9 vacancies existed for ST and no vacancies for SC.  Hence, the applicant, who belongs to SC category could not be included in that drive.  The third reason at paragraph 14 of reply statement is that there is a ban on recruitment of Group 'D' employees.  The Ministry vide letter No......... dated 26.12.2003 has intimated that the casual workers with temporary status cannot be absorbed as Group 'D' post against 15% vacancies provided in recruitment rules for being filled up by absorption.  They can be appointed as Group 'D' employees against 85% vacancies filled by direct recruitment after going through regular selection process subject to approval of the Screening Committee.  This along with another letter from Financial Advisor dated 30.09.2004 is cited as the reason for non-absorption.  In subsequent developments even after the respondents having intimated to the Ministry the possibility of filling up of 27 vacancies which arose in the year 2006-07, 2007-08, 2008-09, a letter has been received on 13.11.2009 not to make any appointment in regular Group 'D' post except for compassionate basis.
10.       Umadevi's Judgment... paras........

11.  I find that Annexure A-2 is the regularization order No.141/94 dated 31.08.1994 under which the applicant was conferred temporary status w.e.f. 01.09.1993.  This order states its preamble as below: 
“In pursuance of Ministry of Personnel, PG and Pensions letter No. 51016/2/90 Estt.(C) dated 10/09/93 and letter No. 49014/2/93 Estt.(C) dated 09.03.94 received under Boards F.No. A-12034/52/93 AD III dated 11/10/93 and Ministry's F.No.C-300/3/24/94 AD.IV dated 11/04/94 respectively, the following casual workers (safaiwalas/Hamals) who were in service as on 01.09.93 in this department and had rendered the continuous service of minimum 206 days are conferred temporary status w.e.f. 01.09.93”
12.  In this connection, the respondents have stated at paragraph 5 that the 1993 Scheme upon which the applicant is relying was a one time exception to the general Rule and, therefore, the applicant should have approached the respondents in the year 1993 itself.  Although, neither the applicant nor the respondents have brought out the Scheme on record, it is not stated by the respondents whether the said Scheme was meant for giving temporary status to the casual labourers or giving permanent regularization.  The attempt of the respondents to put the onus on the applicant and their emphasize that “the applicant ought to have approached in the year 1993 and not as per her convenience and desire, therefore, the OA suffers from delay and latches”.  This cannot be taken as pertinent because they give the temporary status to the applicant which itself was a jump from her earlier status of causal labour and the applicant is not supposed to understand the fine distinction made by the respondents between temporary status and regular employment, especially in view of the fact that several other perks were made available to the applicant and even here GPF deduction was started in 01.06.1997.  It remains to be examine as to whether the implementation of the 1993 Scheme was in full compliance or only a half a compliance in terms of granting temporary status to the applicant.  It is further noticed that the Department has also not clarified as to what was the outcome of their efforts for regularization in pursuance to Annexure A-4 dated 10.04.2008 under which the respondents had started examining the validity of testimonials and planned for conducting physical test.  So three aspects are important:
i)   The appointment of the applicant was not a backdoor entry or illegal.  She was taken as Casual Labour in the year 1984 and was given temporary status in the year 1993 that takes care of aspect of backdoor  entry which is the crux under the Umadevi judgment.
ii)  It is fact that the respondents department has been taking her service despite on a temporary status which clearly shows that the department is in need of her services, but have not been able to convince the Ministry.
iii) There appears to be no system in the department for a time-bound review of such a situation. It is, therefore, necessary at this stage to direct that the department should set up the system of 5 yearly review of their requirement of Group 'D' service.  It is is often seen that powers to deal with the complaints, grievances or genuine demands of Group 'D' employees are generally required to go upto very high Officers of the department (and many times to DoPT and the department of Finance).  But the same senior officers of the department are also dealing with matters of crucial strategic or financial importance having serious influence on administration.  Hence, looking at the conplaints of Group 'D' employees receives low priority givinng rise to avoidable litigations.  Hence, the Respondent No. 1 is directed to set up the system of 5 yearly review of all cases of casual employment or temporary appointments. 
13.  As far as the present case is concerned, it is really unfortunate that the applicant who has completed more than 18 years in the service of the respondents department has not yet been given regular status.  Even if it is the plea of the department that there is a ban on recruiting staff for Group 'D' post, that ban cannot be on permanent basis when requirement of Group 'D' post has been recognized by the Government Department.  Such ban can exist only for temporary period of extreme economic exigencies.  The respondents have not even furnished any information about existing vacancies.  The respondents have annexed R-11 dated November 2009 wherein it is mentioned that OM No.1/1/2008-IC dated 24.12.2008 provides that in future there shall be no recruitment in IS pay band save in exceptional circumstances, e.g., compassionate appointment as indicated in para 2.2.10 of the Report of the Sixth Central Pay Commission. Therefore, regular recruitment in IS scale would not normally be permissible.

                             (Smt. Leena Mehandale)      
                                  Member (A)                           

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