Ajit Singh vs Uoi Through Secretary

L. Narasimha Reddy, J

In both the OAs, common questions of fact and law are involved. Hence they are disposed of by this common judgment.

The applicants herein joined as Casual Labourers in Lady Hardinge College and Smt. Sucheta Kriplani Hospital, New Delhi, the 2nd respondent herein. The Government framed a Scheme contained in OM dated 10.09.1993 providing for conferment of Temporary Status (for short, TS) on the casual labourers who worked for a specified length of time. In terms of the said OM, the applicants were conferred with TS on 06.10.2000. The Scheme also provided for appointment of the employees conferred with TS, on regular basis.

A call for general strike was made by the Employees' Unions of the 2nd respondent in the year 2009. The employees with TS are also said to have joined the strike. On 23.02.2009, the administration of the hospital passed an office order requiring the employees who are conferred with TS as well as the casual labourers to join duty by the next date, i.e., 24.02.2009, and warned that if they do not do so, their services would be treated as terminated without further notice. This was followed by an order dated 26.02.2009 requiring the employees with TS or casual labourers who have not joined duty in response to the order dated 23.02.2009 to vacate the Government accommodation provided to them. This OA is filed challenging the proceedings through which services of the applicants were terminated.

The Scheme framed by the Government for conferment of temporary status provides for regularization of services, and in case the Government intend to terminate the temporary status, it is necessary that a notice of not less than one month in advance must be issued. According to the applicants, such a notice was not issued, and the action taken by the respondents in terminating their employment with the 2nd respondent is totally illegal.

Respondents filed counter affidavit opposing the OA. An objection is raised on the ground of limitation. It is stated that the OA was filed in the year 2013 challenging the order of termination passed in the year 2009. It is also stated that the applicants were given an opportunity to join service, and since they did not utilize that opportunity, their services stood terminated.

We heard Ms. Harvinder Oberoi, learned counsel for the applicants and Shri R. V. Sinha with Shri Amit Sinha, learned counsel for the respondents.

Both the OAs were allowed through a common order dated 25.01.2016 directing the respondents to reinstate the applicants into service on the same terms and conditions on which they were working prior to the date of their termination, but they were denied back wages. The period between the date of termination and date of reinstatement was directed to be treated as holding good for other benefits.

The respondents filed Writ Petition No.11472/2016 before the Hon'ble Delhi High Court challenging the order passed in the OAs. The writ petition was allowed vide order dated 10.10.2017 and the order passed by the Tribunal was set aside. It was observed that though the respondents herein raised a specific plea of limitation, the same was not dealt with by the Tribunal. The case was remanded to the Tribunal for fresh consideration on all the aspects.

The order impugned in the OAs was passed on 23.02.2009. The OAs were filed in the year 2013. The applicants did not file any application for condonation of delay. However, in the OAs, it was pleaded that the applicants belong to the lower strata of the society and got their temporary status after their hard work as casual labourers. It was also mentioned that they were seeking remedies by making persistent visits to the office of respondents, etc.

On the respondents raising the plea of limitation in the counter affidavit, the applicants filed a rejoinder dealing with the plea. The relevant paragraph in the rejoinder reads as under:-

"3. That applicant had engaged a legal practitioner in the month of July 2011 and the counsel did not take action, after waiting for a reasonable period for disposal of notice, even then. It is further submitted that in the month of May, 2013 the applicant met with legal practitioner and asked in respect of outcome of the case file, as well as result of case as was deputed by them to be filled before the Hon'ble Tribunal. The counsel stated that the case file is misplaced and he is trying to trace out the file and as and when the file will be traced the same will be handed over to the applicants. On 21.05.2013 an R.T.I. application was moved to receive copy of order of termination, but the same has not been supplied to the applicants."

Learned counsel for the respondents vehemently opposed the plea.

11.It is no doubt true that the applicants filed the OA only in the year 2013, though their services were terminated in the year 2009. The fact, however, remains that they worked as Casual Labourers for some time, and thereafter they were conferred with temporary status in terms of a Scheme framed by the Government. It is not as if the applicants have chosen to go on strike on their own. They were left with no alternative except to join other employees who constitute a Union. The applicants were naturally not able to understand the implication of the order issued on 23.02.2009. The record discloses that they were not even served with any of such order. Once they were informed that they must vacate the Government accommodation occupied by them, they understood the implications thereof. They approached the respondents claiming relief. Notice through a Lawyer was got issued in 2011 and the Advocate is said to have kept the applicants in dark of various developments, and he did not take any interest in pursuing the remedies. Ultimately, they took file from him and approached the Tribunal.

Limitation is a subject on which quite large number of judgments are rendered by various Courts and the Hon'ble Supreme Court. It is mostly left to the discretion of the concerned Courts, and the orders either condoning or refusing to condone delay are not interfered with, unless the facts do not support at all or it is established that the party was not vigilant in pursuing the remedies. The social strata from which the concerned parties hail would also become relevant. The test is rigor if a person was conversant with the legal procedure, but remained indifferent in pursuing the remedies. In contrast, if the parties hail from poorer sections of the society, indulgence is shown by the Courts. We are of the view that the applicants deserve to be shown indulgence and the doors of the Tribunal cannot be shut for them simply because they were ill-advised by their counsel, whom they approached; once they were not getting any relief from the respondents.

The Courts also balance the condonation of delay by denying a part of relief to the party who gets the benefit of such condonation. It may be in the form of costs or denial of the relief, such as, interest or back wages. We are of the view that the delay in filing the OA deserves to be condoned by stipulating a condition that in the event of the applicants being granted any relief on merits, they can be denied the benefit of back wages. Therefore, MA No.2425/2013 filed in OA No.3188/2013 and MA No.2557/2013 filed in OA No.3380/2013 are allowed, subject to the said condition.

Coming to the merits of the case, it is a matter of record that the applicants initially joined as Casual Labourers, and were conferred with temporary status. They were forced to join the Strike that was called upon by the Union of the regular employees. The consequences of anybody not joining such a strike, and that too, the temporary employees is not difficult to imagine. Not only they are prevented from discharging duties, but are also subjected to physical violence.

The order passed by the 2nd respondent on 26.02.2009 reads as under:-

"OFFICE MEMORANDUM

With Reference to Office Order No.OMS/Strike/2009 dated 23.2.2009 wherein notice was served on the Temporary Status employees/Casual Labourers regarding termination of their services in case of non joining of duty by them. It is hereby also notified that such of these employees who are in possession of Govt. accommodation (either Hospital Pool or General Pool) would have also to vacate the same immediately, failing which eviction proceedings would be launched against them."

This was pasted on the Notice Board, and it was not served on the concerned employee. In the postal communication sent through Post, address does not appear to have been\ mentioned in full.

The circular was issued on 14.02.2009. Concluding portion of which reads as under:-

"It is, therefore, brought to the notice of all concerned that any staff found absenting from duty or participating in any illegal activity like dharana, strike etc. during office hours will be subjected to strict action as per provisions of the CCS (CCA) Rules as it is violation of the Rule 7 (11) of the CCS (Conduct) Rules, 1964. Besides any other action which may thus be taken against them, they shall also be treated on unauthorized leave for the period they absent themselves from duty and shall not be entitled to get salary for the respective period observing the principles of "NO WORK, NO PAY"."

On 28.02.2009, another Memorandum was issued stating that the Hospitals are declared as essential services, strike in such services is prohibited, and the employeeswere required to join the duty immediately. No date was mentioned therein. In view of the Memorandum dated 28.02.2009, the mandate contained in the office order dated 14.02.2009 virtually got changed.

The Scheme framed for conferment of temporary status and regularization of service provides for termination thereof by issuing a notice of not less than one month in advance. Such a notice was not issued in the instant case. A perusal of the Scheme discloses that on being conferred temporary status, several benefits, such as, minimum of pay scale, leaves of certain categories etc, are extended to them. Temporary status or benefit can be taken away only by following the prescribed procedure. Admittedly, no notice of termination was issued in this case.

In para 4.7 of the OA, applicants pleaded as under:-

"4.7 That the services of a casual labourer who is conferred with Temporary Status cannot be dispensed without giving one month notice in advance. In the instant case there has been gross violation of clause Seven of OM dated 10.09.1993."

The reply thereof in the counter affidavit is as under:-

"4.7 That the averments made in this para of OA are wrong and misleading, hence denied. There has been no violation of DOPT guidelines of 10.09.1993 whatsoever. Applicants were habitual absentees and then they resorted to illegal and unlawful strike and failed to resume duty inspite of notice dated 23.02.2009."

What is stated by the respondents may constitute a ground to be mentioned in the notice, if issued. However, failure to issue notice would certainly render the proceedings illegal.

We, therefore, allow the OAs, setting aside the orders of termination passed against the applicants. The respondents shall reinstate the applicants into service within two months from today, if the applicants have not reached the age of superannuation. Their cases shall be considered for regularization in terms of the OM dated 10.09.1993. The period between the date of deemed termination and the date of reinstatement shall not hold good for payment of back wages, but it shall be treated as valid in the context of determining their wages on reinstatement. There shall be no order as to costs.