IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1524/2002 Reserved on:25.4.2008 Decided on.16.5.2008 Vinod Kumar and others. …Petitioners. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. V.D. Khidta, Advocate. For the respondents : Mr. Ashok Sharma, Advocate for respondents No.2. to 5 Rajiv Sharma, J. The petitioners are seeking regularization on the basis of the Scheme formulated in the year 1989 called “Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989” (hereinafter referred to as the scheme, 1989 for brevity sake) as well as under the left over scheme framed in the year 2001 and also for quashing the notices of retrenchment issued on16th August, 2001. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Mr. V.D. Khidta, Advocate appearing on behalf of the petitioners had strenuously argued that the petitioners had completed 240 days strictly as per the scheme framed in the year 1989 and his clients were required to be regularized. He in the alternative had submitted that the petitioners were also eligible and qualified to be considered for regularization even as per the left over scheme framed in the year 2001. He had specifically assailed the notices dated 16th August, 2001 whereby the petitioners’ services were dispensed with. Mr. Ashok Sharma, Advocate had argued that since the petitioners have not completed 240 days as per the scheme framed in the year 1989 and 2001, they cannot be regularized. He has supported the notices issued to the petitioners on 16th August, 2001. I have heard the learned counsel for the parties and perused the record carefully. What emerges from the pleadings of the parties is that the petitioners were appointed under the Task Force Scheme duly approved by the Department of Telecommunications vide letter dated 23.12.1994. The Director, Telecommunications Project had informed the General Manager on 13th January, 1999 that 40 labourers were engaged for project work through DOT Headquarters vide permission letter dated 23.12.1994. The permission was endorsed by ADT (HRD) on 28.12.1994. The Hon’ble Supreme Court in Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch versus Union of India, AIR 1987 SC 2342 had directed the Union of India 3 to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in Posts and Telegraphs Department. Their Lordships of the Supreme Court have also held that there was no justification for dividing the casual labourers into three categories, namely, (i) those who have not completed 720 days of days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service; and (iii) those who have completed more than 1200 days of service for the purpose of payment of different rates of wages. The Union of India framed a scheme as directed by the Supreme Court. The copy of the same has been placed on record by the petitioners. The scheme had come into force with effect from 1.10.1989. The scheme was applicable to the casual labourers employed by the Department of Telecommunications. It is evident from clause (5) of the 1989 scheme, that the temporary status was to be conferred on all the casual labourers, who have rendered continuous service of at least one year, out of which they must have been engaged on work for a period of 240 days and those casual labourers were to be designated as temporary Mazdoors. Such conferment of temporary status was to be without reference to the creation/availability of regular Grade-D posts. The workmen, who were to be conferred the temporary status were entitled to the benefits enumerated in para 6 of the scheme, 1989. The petitioners made a representation to the Director, Telecom Projects seeking their regularization. The representation 4 made by the petitioner was not addressed to by the respondents, which led to filing of the original application No. 598/HP/2000 by the petitioners before the Central Administrative Tribunal, Chandigarh Bench. The Central Administrative Tribunal on 1.8.2000 directed the respondents to dispose of the representation of the petitioners within four weeks. The representation made by the petitioner was decided on 31.7.2001. As per letter dated 31.7.2001, the petitioners’ cases were disposed of in the following manner: 1. Shri Vinod Chuahan S/O Sh. Raj Mal, applicant No.1. Sh. Vinod Kumar & Sh. Vinod Chauhan are shown to be son of Shri Rajmal in different payment vouchers. a) Date of Joining: 1.11.1995 b) Period of Absence: 1995: December 1996: January; February; April; May; September; 3 days in November, & December. 1997: February 1998: 7 months from January to July; 2 days in August; 1 day in November; December. c) The applicant did not apply for condonation for broken period of service as per rules. d) Does not satisfy the condition of service rendered for 240 days continuously excluding, holidays, when counted backward w.e.f. 1.8.98. e) Completion of 240 days in any preceding year excluding the holidays after 6 working days. 1955: No. 1996: No. 5 1997: Yes, but condonation of service neither applied nor given, which is more than six months before the cut off date of 1.8.98. 1998: Absented from January till 2nd August. Not eligible for granting temporary status. 2. Sh. Karnail Singh, applicant No.2: a) Date of Joining: 1.10.97 b) Period of Absence: 1997: November; December. 1998: January; May; June; July; 2 days is August; 1 day in November; December. c) The applicant did not apply for condonation for broken period of service as per rules. d) Does not satisfy the conditio0n of service rendered for 240 days continuously excluding holidays, when counted backward w.e.f. 1.8.98. e) Completion of 240 days in any preceding year excluding the holidays after 6 working days. 1997 No. 1998 No. Not eligible for granting temporary status. 3. Shri Ashok Kumar son of Sh. Bramha Dass, applicant No.3: a) Date of Joining: 1st July, 1998 4. Shri Sanjiv Kumar son of Sh. J.D. Singh, applicant No.4: No person by the name Sanjiv Kumar s/o Sh. J.D. Singh was engaged instead of Sanjeev Kumar s/o Sh. J.D. Singh was engaged and his details are as follows: a) Date of Joining: 1st July, 1998 Not eligible for consideration. 5. Shri Kishan Kumar son of Sh. Natha Ram, applicant No.5: 6 For the paid vouchers of October and November 1996, the name of casual labourer is shown as Shri Kishan Sharma and not Shri Kishan Kumar. a) Date of joining: 1.10.96. b) Period of Absence: 1996: December 1997: Full year 1998: January till August; 6 days in September; October, November; December. c) Break in service more than 1 year. Not eligible for condonation. Not eligible for granting temporary status. 6. Sh. Ramesh Chand son of Sh. Kanshi Ram applicant No.6. a) Date of joining: 17.12.1996 b) Period of Absence: 1996: No absence w.e.f. 17.12.96. 1997: 2 days in February; 13 days in March; April 16 days in May; June; September; 1 day in December. 1998: January; May; June; September; 1 day in November; December. c) The applicant did not apply for condonation for broken period of service as per rules. d) Does not satisfy the condition of service rendered for 240 days continuously, excluding holidays, when counted backward w.e.f. 1.8.98. e) Completion of 240 days in any proceeding year excluding the holidays after 6 working days. The sum and substance of the decision was that the petitioners had not completed 240 days in a preceding year and as far as the issue concerning the regularization of their juniors was concerned, it was stated that the matter was under examination 7 afresh. The Divisional Engineer, Telecom Project had sent the proformas of the petitioners for regularization. It is evident from the contents of Annexure A-6 that as far as petitioner Vinod Kumar is concerned, he had completed 365 days in the years 1995, 1996 and 1997, respectively and 182 days in the year 1999. In column No. 13, it is specifically mentioned that the petitioner was registered with the Employment Exchange. At the bottom of the proforma, the Divisional Engineer had submitted that Vinod Kumar was recruited through Employment Exchange with effect from 1.1.1996. According to proforma, Sh. Kartar Singh had completed 31 days in the year 1995 and 365 days in the years 1996, 1997 and 1998 respectively and 182 days in the year 1999. Sh. Sanjeev Kumar had completed 240 days in the years 1996, 365 days in the years 1997 and 1998, respectively and 182 days in the year 1999. Ramesh Chand had completed 365 days in the years 1996, 1997 and 1998 respectively and 182 days in the year 1999. The Divisional Engineer Telecom had also sent a communication to the Deputy General Manager, NDP stating therein specifically that the petitioners had completed 240 days prior to 1.8.1998. He had also specifically mentioned the names of the petitioners, who were to be regularized in the communication dated 24.5.2001. Now, the Court has to consider the man-days chart prepared by the Eight Members Committee qua each petitioner vide Annexure A-9 onwards. In the case of Vinod Chauhan, it is stated in the man- days chart that he had completed 181 days in the year 1996, 337 days in the year 1997, 119 days in the year 1998 and 365 days in 8 the year 1999. This document is in variance with the details of the workman i.e. Annexure A-6. According to the proforma supplied by the Divisional Engineer as noticed above, Sh. Vinod Kumar had completed 365 days in the years 1996, 1997 and 1998, respectively. As far as Sh. Chaman Lal is concerned, as per the Eight Members Committee, the workman had completed 115 days in the year 1998 and 304 days in the year 1999 and he had not worked in the year 1997 at all. However, in the proforma of application, the Divisional Engineer Telecom had certified that the petitioners had completed 365 days in the year 1998. Sh. Sanjeev Kumar as per the Eight Members Committee had worked for 158 days in the year 1998 and 365 days in the year 1999. However, as per proforma signed by Sh. Sanjeev Kumar and certified by the Divisional Engineer Telecom, he had worked for 245 days in the year 1996 and 365 days in the years 1997 & 1998 respectively and 182 days in the year 1999. As far as Kishan Kumar is concerned, as per the Eight Members Committee, he had worked for 61 days in the year 1996, 24 days in the year 1998 and 362 days in the year 1999. It is thus evident that there is variance in the calculations of days while the representation made by the petitioner was decided on 31.7.2001, the proforma duly certified by the Divisional Engineer Telecom as well as Sub Divisional Engineer, the details given by the Divisional Engineer in communication dated 24.5.2001 and the Eight Members Committee constituted by the respondents. Mr. V.D. Khidta, Advocate had pointed out with the assistance of Annexure A-8, vouchers of salary, that the calculations made by 9 the Eight Members Committee and while the representation of the petitioners was considered is factually incorrect by way of illustration. While this Court reconciled these vouchers, it was apparent that though the Eight Members Committee had marked man-days in every month as nil, but the petitioners have been paid wages for the same. It has also come in the record that the Sub Divisional Engineer had sent a communication to the Accounts Officer on 13.1.2000 giving therein the details of the man-days chart the petitioners had worked with the respondents. The names of the petitioners find mention in this communication with details of total number of days they worked up to 30th June, 1999. In similar communication dated 29.4.1999, the Sub Divisional Engineer, Hamirpur had informed the higher authorities that the petitioners were engaged in the year 1995 onwards. In the column of break period, nil was denoted. The Accounts Officer had sent a communication to the General Manager on 17th December, 1999 informing him that apart from the list which had already been sent, there were other casual labourers who had been engaged by the Manager, Telecom Task Force from 18.12.1994 and these casual labourers were still working. The names of the petitioners figures at Annexure -2 annexed with this communication. It is also clear from the Annexure A-23 dated 28.12.1994 that the petitioners were recruited towards special recruitment of daily rated Mazdoor. This document has been referred to see whether the petitioners have been appointed in accordance with law at the initial stage or not. The 10 petitioners were issued notices for retrenchment on 17th August, 2001. They assailed this order by approaching the Central Administrative Tribunal by way of OA No. 689/HP/2001. The original application preferred by the petitioners was returned to them for presenting the same before a Court of competent jurisdiction on May 27, 2002. During the course of hearing, this Court had passed the following order on 4th May, 2007, which reads thus: “ Heard in part. Mr. Madan Singh (DET) is present in the Court and assures this Court that on the basis of the pleadings of the parties, the Department is ready and willing to have a re-look into the matter and for that purpose he seeks 15 days’ time. Time granted. Mr. Madan Singh may seek instructions within two weeks. The matter may come up for hearing on 22.5.2007” In sequel to order dated 4th May, 2007, a supplementary affidavit was filed by Sh. Madan Singh, DET. It will be apt to refer to paragraphs 3 to 8 of the affidavit filed by Mr. Madan Singh, DET on 21st May, 2007, which read thus: “That after passing of this order (Annexure A-5), respondents retrenched the DRMs and TSMs in accordance with law. It is further added that respondents had made a request to all General Manager, Telecom District (GMTD) to retrench those persons who had been regularized illegally. In view of this development Telecom District Manager (TDM) Kullu retrenched one person and regarding other SSAs of HPT Circle no information was received by this office. 11 That it is pertinent to mention here that the petitioners continuously worked in the Project with the replying respondents till their retrenchment. In the meanwhile, the respondent No.2 issued another instruction in the interest of Majdoors to grant them status of regular majdoors. The copy of the said instructions/policy mentioned as regularization of casual labourers left out cases is placed herewith as Annexure R-III. These instructions were enforced on 19.4.2001 when the petitioners were working with the replying respondents and were eligible under this scheme for regularization. That the replying respondent had made a communication (Ann. P-14) with the CGM HP Telecom Circle informing him that 27 persons are working in the Project as daily rated Majdoors and TSM including all petitioners. The replying respondents have requested the CGM HP Telecom Circle to grant them status of Regular Majdoors. That the CGM HP Telecom Circle is the Recruiting Unit for the purpose of Recruitment of RMs and replying respondents cannot grant status of TSM or RM to the Majdoors as the same can only be granted by recruiting Circle i.e. CGM H.P. Circle. It is pertinent to mention here that the replying respondents have recommended the names of working DRMs including the petitioners under 2001 policy, but the CGM HP Circle granted status of RM to some persons falling in the list Annexure A-14. It is pertinent to mention here that replying respondent is not in a position to apprise this Hon’ble Court as to why the petitioners’ case was not considered under the 2001 policy. Replying respondents further submit that CGM Telecom, 12 Circle, Himachal Pradesh, Kasumpti Shimla-9 has passed the order of granting regular majdoor status to some persons working at GMTD Mandi and in GMTD Hamirpur. Therefore, CGM, HP Telecom Circle can only apprise this court as to why the name of petitioners were not considered for grant of regular majdoor status. That the petitioners were having full knowledge that CGM Telecom H.P. Circle and GMTD Hamirpur was the competent authority to grant them the temporary status/regular majdoor status but petitioners deliberately did not implead them as respondents. In these facts and circumstances narrated herein above, the replying respondents humbly submit that replying respondents are not in a position to apprise this Hon’ble Court as to why the name of petitioners was not considered for regularization as the record pertaining to regularization of all DRMs is lying with CGM Telecom H.P. Circle and GMTD concerned. This Court on the basis of the supplementary affidavit filed by Sh. Madan Singh disposed of the writ petition on 22.5.2007. The judgment dated 22.5.2007 reads thus: “In sequel to order dated 4th May, 2007, supplementary affidavit has been filed by Mr. Madan Singh (DET) placing on record various documents including letter dated 26th September, 2002 dealing with the regularization of casual labour with temporary status. The names of the petitioners also find mention in the letter dated 26th September, 2002. It has come in the letter dated 26th September, 2002 that on the date of retrenchment (15.9.2001), the petitioners had completed 240 days continuously and were eligible for the 13 grant of temporary status. The respondents are directed to do the needful within a period of 8 weeks from today. While implementing communication dated 26th September, 2002, the respondents shall also take into consideration that the petitioners had become eligible for regularization on 15th September, 2001. Mr. V.D. Khidta, Advocate submits that in the eventuality of petitioners’ being regularized with effect from 15th September, 2001, petitioners will not claim back wages but they be held entitled to seniority. The petition is accordingly disposed of with no order as to costs.” An LPA was preferred against the judgment dated 22.5.2007 and the same was allowed by a Division Bench of this Court on 23.10.2007. The operative portion of the judgment dated 23.10.2007 reads thus: “It would have been more appropriate, in view of the facts stated above, if before passing the final order, the learned Single Judge had called for the affidavit of the C.G.M. H.P. Telecom Circle. Without doing that, the earlier decision of a senior official rejecting the recommendations of a junior official could not have been set aside on the basis of the affidavit of the same junior officer. We are, therefore, of the opinion that the order of the learned Single Judge deserves to be set aside and the matter is remanded to the learned Single Judge for decision afresh. The appellants are directed to file an affidavit of the C.G.M. H.P. Telecom Circle or any authority higher than the C.G.M, H.P. Telecom Circle dealing with all the averments made in the writ petition as well as in the supplementary affidavit filed by Mr. Madan Singh within a period of six weeks from today. 14 Thereafter, the learned Single Judge shall hear and decide the writ petition on merits.” After the remand, on 20th December, 2007, the respondents had prayed for two weeks’ time to comply with the judgment dated 23.10.2007. The time was granted and thereafter the supplementary affidavit was filed, which was noticed in order dated 11.1.2008. The supplementary affidavit was filed by Sh. Anil Kaushal, Chief General Manager on 2nd January, 2008. The petitioners filed a detailed reply to the supplementary affidavit specifically denying the contents of the same. It is in this backdrop that the case of the petitioners is to be adjudicated upon i.e. whether their retrenchment on 16th August, 2001 was contrary to law or were they entitled to be regularized under the Scheme, 1989 and left over scheme framed in the year 2001. The petitioners were engaged as daily rated Mazdoors by way of special recruitment on 28.12.1994. This position has been reiterated in communication dated 17.12.1999 (Annexure A-22). The petitioners made representation on the basis of the scheme framed in the year 1989 seeking regularization. When the representation was not decided by the respondents, they approached the Central Administrative Tribunal as noticed above by way of OA No. 598/HP/2000. The original application was disposed of with a direction to the respondents on 1.8.2000 to decide the representation made by the petitioners. The representation made by the petitioners was decided on 31.7.2001. While deciding the representation, the Chief General Manager, Northern Telecom 15 Project had taken into consideration the details of the days for which the petitioners had worked. As per the calculations drawn by Sh. Ranvir Singh, Chief General Manager, the petitioners were not found eligible since according to him, they did not work for 240 days continuously. This conclusion drawn by the Chief General Manager is ex-facie bad in law. The Chief General Manager has not taken into consideration the applications submitted by the petitioners which were duly certified by the Junior Telecom Officer and Divisional Engineer specifically certifying that the petitioners had worked for more than 240 days during the year 1998. The variance in the conclusions drawn by the Chief General Manager and Annexure A-6 onwards has already been discussed hereinabove. The number of days, the petitioners had worked, were certified by two competent officers under whose immediate jurisdiction, they were working. There was no occasion for the Chief General Manager to come to a different conclusion. There is also variance in the man-days calculated by the Eight Members Committee vis-à-vis other documents placed on record by the petitioners. Annexure A-9 is also at variance with the letter dated 13.1.2001 whereby the Sub Divisional Engineer Telecom District; Hamirpur had given the total number of days up to 30th June, 1999. It is also evident from communication dated 29.4.1999 (Annexure A-21) that the workmen were appointed in the year 1995 onwards. However, in the working days calculated by the Eight Members Committee, it is shown as most of the workmen were engaged from 1996 onwards. The Divisional Engineer Telecom in his communication dated 24.5.2001 16 addressed to the Deputy General Manager NTP had specifically mentioned that the petitioners had completed 240 days prior to 1.8.1998. In para 3 of this communication he has given the names of the petitioners, who were to be regularized. The record compiled by the respondents was also contrary to the payment vouchers. The vouchers placed by the petitioners on record show their regular attendance in a particular month though in the details of the man- days prepared by the Eight Members Committee and Chief General manager, those days were not taken into consideration. To resolve this and to give an opportunity to the respondents to straighten the facts whether the petitioners had completed 240 days in the year 1998, this Court passed the following order on 7th March, 2008: “In sequel to order dated 1st March, 2008, the record is produced. Mr. Madan Singh has also assisted this Court along with Mr. Ashok Sharma, Advocate. There is variance in the calculations of man-days of the petitioners as it is evident by way of illustration at pages 42, 63 and 73. The respondents are directed to reconcile the documents to establish whether in fact the workmen had competed 240 days or not as required under the scheme. The entire exercise be undertaken at the level of DET within a period of 6 weeks.” Since the respondents had not taken this exercise to reconcile the documents, this Court passed the following orders on 24th April, 2004, which reads thus: “The respondents were directed on 7.3.2008 to reconcile the documents to see whether in fact the workman had completed 240 days or not as 17 required under the scheme i.e. Annexure P-1. The outcome of the exercise has not been placed on record. In the absence of this exercise undertaken by the respondents the Court is bound