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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: BASANT LAL AND ORS.

DATE OF JUDGMENT18/02/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1993 AIR  188            1992 SCR  (1) 823  1992 SCC  (2) 679        JT 1992 (2)   459  1992 SCALE  (1)413

ACT:     Civil Services:     Indian Railways Establishment Manual : Chapter XXIII and Rule  2304-Casual labour-Temporary Railway servants  status- When  to  be  accorded-Regularisation and  payment  of  back wages-Directions issued.

HEADNOTE:     The  respondents were employed as Casual Labour  in  the Construction  Division  of the Northern Railways  and  their services were terminated by oral order. The respondents made a representation that they had been working continuously for more  than 120 days and as such were entitled to the  status of  temporary Railway servants. Since there was no  response to  their  representation, the  respondents  approached  the Central Administrative Tribunal. They relied on letter dated 29.12.78 issued by the General Manager, Northern Railway. As per   the  letter  and  the  earlier  instructions,   casual labourers  whether employed on project or otherwise who  had completed  four months’ continuous service were required  to be  considered  by the Employment  Screening  Committee  for absorption against Class IV posts.     The Tribunal gave its finding that since the respondents had  worked for more than 120 days, they would be deemed  to have acquired temporary status, and that the termination  of their services without notice was violative of Rule 2304  of the   Indian  Railways  Establishment  Manual.   Thus,   the Tribunal  quashed the termination Orders and  directed  that the  respondents should be reinstated and posted  either  in the same zone or anywhere else depending on the availability of work, and absorbed against regular class IV posts as  per rules.     The  Union of India has preferred the present appeal  by special leave, challenging the Tribunal’s order.     On  behalf  of the appellants it was contended  that  in case the respon-                                                        824 dents  were  employed in the construction work on  the  open line  then  they  would acquire  a  temporary  status  after continuous  employment  of  120 days, and  since  they  were employed  on  a project work they  could  acquire  temporary

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status only after completing 360 days of service.     Disposing of the appeal, this court,     HELD:  1.  Chapter XXIII of the Indian  Railways  Manual lays  down  that casual labourers who have worked  for  more than  120  days in open line and those who have  worked  for more than 360 days on projects acquire temporary status  and would  be entitled to the rights and  privileges  admissible to  temporary  Railway servants. Before  the  Tribunal,  the respondent-workers  took a clear stand that they were  Class IV  employees in the Northern Railways and were employed  in the  Construction  Division.  This  was  supported  by   the appointment  letters issued to them. They had  been  working for  over 120 days and as such were entitled to  all  rights and  privileges  admissible to temporary  Railway  servants. [825C-D; 826E]     2.  It  is directed that all the 105 workers  should  be accorded  the status of temporary employees. They  would  be entitled  to the salary equal to temporary status  employees of  the  Railway  at  the initial  stage  of  the  pay  from 12.5.1991.  The  respondents have been uprooted  from  their original place and even now they are being given daily wages at the rate of Rs. 19.10 paise and not being given the wages equal  to a temporary status employee of the Railway at  the initial stage of pay. The Railway Authorities shall pay  the back  wages, to all the employees from 12.5.1991 equal to  a temporary  status employee allowed at the initial  stage  of pay  within two months, after adjusting any  amount  already paid to them. [828 G-H; 829A-B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION : Civil Appeal no. 847  of 1992.     From  the  Judgment  and Order dated  16.3.1990  of  the Central  Administrative Tribunal, New Delhi in O.A.No.  2467 of 1988. Dr. Anand Prakash Sharma, S.N. Sikka and B.K. Prasad for the Appellants.     D.N. Goburdhan, Ms. Pinki Anand and G.K. Luthra for  the Respondents.                                                        825     The Judgment of the Court was delivered by     KASLIWAL,J. Special leave granted.     The  Union  of India has filed this appeal by  grant  of Special   Leave  challenging  the  order  of   the   Central Administrative  Tribunal, Principal Bench, New  Delhi  dated 16.3.1990.  Shri Basant Lal and 104 others were employed  on the post of casual labour in July, 1988. Their services were terminated  by  oral  order dated  19.12.1988.  The  workers submitted    a   representation   against   their    illegal termination. Their contention was that they had been working continuously  for  more  than  120 days  and  as  such  were entitled to the status of temporary Railway servants. Having received   no   response  to  their   representation,   they approached  the Central Administrative Tribunal. It  was  an admitted  case of the Railway that the casual labourers  who have  worked  continuously for more than 120  days  in  open line  and  those who have worked for more than 360  days  on projects acquire temporary status and they will be  entitled to the rights and privileges admissible to temporary Railway servants  as  laid  down  in Chapter  XXIII  of  the  Indian Railways  Establishment Manual. Thus, the contention of  the Railway  was  that  the workers in  the  present  case  were employed  in  project work and having completed  nearly  143

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days  of work with effect from 26.7.1988 to  19.12.1988  and having not completed 360 days of continuous work, they  were not  entitled to acquire temporary status. The case  of  the workers  was  that  they  had  worked  for  over  120   days continuously  in the Construction Division of  the  Northern Railway  other than projects and as such they  had  acquired temporary status. The Tribunal held that admittedly all  the applicants  before them had completed more than 120 days  of continuous  service  as  such they  had  acquired  temporary status. The workers had been given casual labour cards.  The Tribunal  also  referred  to a letter  of  General  Manager, Northern Railway dated 29.12.1978 which contained  reference of  earlier  instructions vide letters  dated  21/22.3.1972, 23.5.72  and  27.11.1975  in accordance  with  which  casual labourers  whether employed on project or otherwise who  had completed four months continuous service were required to be considered for employment Screening Committee for absorption against regular class IV posts and casual labour on  project who  as a Rule be appointed against Class IV posts that  may be  required  for operation and maintenance  of  new  assets created  and  they  were eligible  for  appointment  on  new section   of  the  open  line  of  the   Railway   concerned irrespective of the limitation of the immediate area of                                                        826 construction.  The workers had alleged in para 37  of  their application  that  the  aforesaid  instructions  which   had statutory force were not being implemented by the  Railways. In  reply to the said allegation the Railways  admitted  the same  as a ‘‘matter of record’’. The Tribunal in  the  above circumstances  held  that  the applicants  before  them  had worked for more than 120 days as such they will be deemed to have  acquired  temporary  status and  this  conclusion  was further  supported  by the letter of  the  General  Manager, Northern  Railway,  dated 29.12.1978  extracted  above.  The termination  of their services without giving them a  notice was  in  violation  of the provisions of Rule  2304  of  the Indian Railways Establishment Manual and was not sustainable in  law.  The  Tribunal  thus  set  aside  and  quashed  the termination  orders and gave a direction to  reinstate  them and  to  consider  for  engaging them in  the  zone  of  the Railways where they had been engaged, failing which anywhere else in India depending on the availability of work. In  the circumstances  of  the case the Tribunal did not  allow  the payment of back wages. It was also directed that the Railway shall  consider  the  absorption of the  applicants  in  the regular posts in Group IV category in accordance with  their length  of service and the relevant Rules. The  Railway  was directed to comply with the above directions within a period of three months from the date of communication of the order.     We  have  heard Dr. Anand Prakash,  Senior  Advocate  on behalf of the Union of India and Shri Goburdhan Advocate  on behalf  of  the workers. It was not disputed  before  us  by learned  counsel  for the Union of India that  in  case  the workers  were employed in the construction work on the  open line  then  they  would acquire  a  temporary  status  after continuous  employment of 120 days, but if the workers  were employed  on a project work then they can acquire  temporary status  only after completing 360 days of  service.  Learned counsel thus strenuously urged that in the present case  the stand  taken  by  the Railways was  that  the  workers  were employed  in  the Construction Division  and  being  project workers, the rule of 360 days of service ought to have  been applied  in  their  case. It was  also  contended  that  the Tribunal  did not record a finding that the workers  in  the present  case were engaged on open line and not  on  project

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works  and in the absence of such finding the  Tribunal  was wrong in applying the Rule of 120 days of continuous service in the present case.     We  have considered the arguments advanced on behalf  of both the                                                        827 parties and have thoroughly perused the record. The  workers had clearly come forward with a case that they were employed as  casual labour in the Construction Division and  in  this regard  they  placed  on record the  letter  of  appointment Annexure IV which reads as under:-          "INFORMATION -          You   are   being  informed  by   Asstt.   Engineer          Construction/Northern   Railway,   Kurukshetra   by          information  No. E-II/AEN/C/KKDEA/ dated  19.7.1988          that  you  are being appointed in the  post  of  as          Casual  Labour. This appointment shall only be  for          the monsoon period. In this duration, your services          can  be terminated at any moment. You shall not  be          entitled for any claim in respect of this service.                                       N.E.IT/R.P.G./N Ambala                                           Chawni, dated 7/88                                     Permanent way Inspector/                                     Construction N.Railway".     In the application filed before the Tribunal the workers took a clear stand that they were Class IV Employees in  the Northern  Railways  and were employed  in  the  Construction Division  and employed as Gangmen and mates. They  had  been working  for over 120 days and as such were entitled to  all the  rights and privileges admissible to  temporary  Railway servants.  The  workers in para 4.37  of  their  application stated as under:-          "That   in  fact,  the  Railway  Board,  and   high          officials  have  always  considered  the  Class  IV          employees in high esteem. It has even ordered by  a          Railway  Circular  dated 29.12.1978,  which  has  a          statutory force that all workers in the Division be          made  permanent  and regular after  completing  the          mandatory days in casual work. It has also noticed,          that,  Delhi Division and other Divisions  are  not          following the orders, and they should implement the          orders.  A true copy of the Annexures is marked  as          Annexure V".     The  Railway  filed  a  written  statement  before   the Tribunal and gave the following reply to para 4.37.          "Para  4.37 is admitted only in so far as it  is  a          matter of record.                                                        828          But  the  same is again  ill-motivated  and  highly          misconceived".     The  Railways as such did not deny the allegations  made in Para 4.37 in the application filed by the workers, and on the  other hand admitted by saying that it was a "matter  of record". The contents of Annexure IV extracted above clearly goes  to  show  that  the  information  given  by  Assistant Engineer,  Construction/Northern Railway, Kurukshetra  dated 19.7.1988  workers  were  appointed in the  post  of  casual labour  and it nowhere mentioned that they were employed  as casual labour on a project work. Apart from this letter,  it is nowhere the case of the Railways that there was any other order  of appointment, nor they have placed any  documentary evidence  on record before the Tribunal or even before  this Court  to  show  that the workers were  employed  as  casual labour  on a project work. A request was made on  behalf  of the  Union  of India that the case may be  remanded  to  the

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Tribunal  for  allowing  the Railways  to  produce  relevant record  to  show that the workers were  employed  as  casual labour  in a project work. We do not consider it  proper  in the  interest  of justice to allow this opportunity  to  the Union of India at this belated stage and to further drag  on the poor workers in this litigation.     Thus,  in the circumstances mentioned above, we  do  not find  any error in the order of the Tribunal so as  to  call for  any  interference. The Railways were  directed  by  the Tribunal  to comply with the directions within a  period  of three months from the date of communication of the order  of the  Tribunal  dated 16.3.1990. Thereafter the  workers  had moved  a  Contempt  application before  this  Court  and  on 12.3.1991,  this  Court had directed the Union of  India  to give employment to all the respondents (workers) within  two months and to pay them the salary equal to temporary  status employee  of  the  Railways  at the  initial  stage  of  the pay.During  the  proceedings for Contempt of  Court  it  was brought to our notice that the Railways had given employment to 35 workers initially and for the remaining 70 workers  it was stated on 6.1.1992 that they have also been employed. In view of such statement made on behalf of the Union of  India we  did  not consider it necessary to  pursue  the  Contempt Petition any longer and the same was accordingly  dismissed. In the circumstances mentioned above, we direct that all the 105  workers  would  be entitled to the salary  equal  to  a temporary  status  employee of the Railway  at  the  initial stage  of the pay from 12.5.1991 when two months expired  in accordance  with  our  order dated 12.3.1991.  It  has  been brought to our notice on behalf of the workers                                                        829 that  they have been uprooted from their original place  and even now they are being given daily wages at the rate of Rs. 19.10  paise  and  not  being given the  wages  equal  to  a temporary  status  employee of the Railway  at  the  initial stage of pay. We, therefore, direct the Railway  Authorities to  pay the back wages to all the employees  from  12.5.1991 equal to a temporary status employee allowed at the  initial stage  of pay within two months from today  after  adjusting any amount already received by them. The Railway Authorities shall accord the status of temporary employee to all the 105 workers.  The workers shall also be entitled to one  set  of costs from the petitioner, Union of India. We dispose of the appeal in the manner indicated above. G.N.                                     Appeal disposed of.                                                        830