Bhaskar Dutta vs Union Of India & Ors.

Ms. Urmita Datta (Sen), Judicial Member:

In accordance with the order of the Hon'ble Chairman, Central Administrative Tribunal, dated 10.09.2021 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, this matter can be taken up by a Bench consisting of a single Member. Accordingly, this matter is taken up for disposal by this Single Bench.

The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-

The applicant was initially appointed to the post of Night Guard in the Sodepur Post Office during the year 1994 and discharged his duties and functions in the said Post Office from 6 pm to 6 am daily and certificate in respect of his working hours has been submitted to the appropriate authority by the Post Master of the concerned Post Office. However, despite performing his duties for more than 23 years, his case has not been considered for the purpose of regularization by the Department. Being aggrieved, he preferred two representations dated 25.07.2016 and 02.05.2017, which have not been considered by the authorities. It is the specific grievance of the applicant that despite performing his duties sincerely from 1994 to 2017 for more than 23 years, he was neither granted temporary status nor regularized and further the department has advertised for appointment of some Dak Sebak candidates throughout the country. The applicant initially preferred O.A. No. 350/1004/2017 before this Tribunal for considering his case for regularization and to grant him pay at par with regular employees in connection to the said post of Night Guard in Sodepur Post Office. However, during course of hearing Ld. Counsel for the applicant sought leave of this Tribunal to file a comprehensive representation seeking the benefit of the judgment of the Hon'ble Supreme Court dated 14.11.2018 in the case of Subha Shankar Dutta vs. DFO in Civil Appeal No. 10956 of 2018 and other cases, and the respondents were directed to consider the same and pass an appropriate Order within a further period of 04 weeks and the O.A. was finally disposed of on 04.12.2018. Pursuant to such Order, the Respondent No. 03 issued an Office Order dated 29.01.2019 denying the benefit in favour of the applicant on the ground that the Postal Department had not engaged the applicant and the applicant was neither an employee of the Department of Posts nor engaged on regular basis against the sanctioned post of Night Guard, therefore, his claim cannot be acceded to and further he was restrained to continue his service as Night Guard, which according to the applicant is completely illegal and arbitrary. The applicant alleges that he has been paid his salary month after month but the respondent No. 3 is making a false statement only to deprive the applicant of his legitimate claim. The Contempt Petition filed by the applicant was also dropped since the respondents claimed that they have complied with the Order passed by this Tribunal. The applicant in support of his claim has referred to one Circular no. 65-24/88-SPB-I dated 17.05.1989 issued by Department of Posts, Ministry of Communication, Government of India whereby it has been clarified that all daily wagers working in Post Offices or in RMS Offices or in Administrative Offices or PSDs/MMS under different designations (Mazdoor, Casual labourers, Contingent Paid Staff, Daily Wager, Daily Rated Mazdoor, Outsider) would be treated as Casual Labourers and those Casual Labourers who were engaged for a period of 08 hours a day should be described as Full-time Casual labourers. The applicant has also relied upon a case being O.A. No. 350/01737/2016 (Soumen Basu & ors. v. Union of India & ors.) passed on 14.08.2018 wherein referring to the aforesaid Circular/Memorandum dated 17.05.1989 has given assent to the submission of the applicant therein regarding their entitlement to be regarded as Full-time Casual Workers and further granted liberty to the applicants to seek payment of benefits of the minimum Pay Band along with Dearness Allowance as admissible for a Full time Casual Worker. The applicant claims that he is entitled to be regarded as a Full-time Casual Labour as per Circular No. 65-24/88-SPB-I dated 17.05.1989 as he was engaged as a Night Guard, which is equivalent to a DRM and has served the respondents for a period of more than 08 hours a day and is entitled to be granted the pay scale benefits in terms of Circular issued by the Postal Department in the year 2015. Moreover, the respondents have extracted work from him for a decade and have all of a sudden discontinued his engagement which is highly illegal.

The respondents have filed their reply wherein they have contended that the applicant was engaged by the Sub Postmaster of Sodepur Sub Post Office as an outsider Daily Rated Mazdoor to perform the duty of Night guard in the Post Office on no work no pay basis. His payment was made as an occasional expenditure, which can be done as per requirement felt by the office supervisor. The respondents have clearly stated in their reply that the Sub-Postmaster Sodepur S.O. is not authorized to issue certificate dated 28.06.2017 to the applicant and the authenticity of the same is disputed. The applicant was engaged as DRM by the SPM, Sodepur Sub Post office as an outsider on daily wages and at no work no pay basis for occasionally and intermitted nature of work as and when required and not through any prescribed procedure of selection as per departmental rules and regulations. However, no engagement letter was issued in the name of any outsider or the aforesaid applicant by the Divisional Head. The applicant submitted an application on 06.12.2010 clearly mentioning his working status as “DRM Night Guard”. The then Divisional Head accorded Order of sanction for payment of wages to the Daily Rated Mazdoors of different Post Offices under North Presidency Postal Division at revised rate fixed for DRM by the higher competent authority w.e.f. 01.05.1998 at no work no pay basis. Initially, the applicant filed O.A. No. 350/1004/2017 claiming full time absorption in the post of Night Guard at Sodepur Sub Post Office in terms of decision of the Hon’ble Apex Court held in the case of State of Punjab v. Jagjit Singh reported in 2017(1) SCC 148. However, his prayer was disallowed since the applicant was neither an employee of the department of Post nor was he engaged on regular basis against any sanctioned post of Night Guard. The respondents have categorically stated that there exists no sanctioned post of Night Guard at Sodepur Sub Post Office and therefore the question of regularization/payment of minimum wages does not arise. The respondents have clarified that it is mandatory to engage casual employees through Employment Exchange and since the applicant has not been engaged through Employment Exchange hence the employment itself is irregular.

The applicant has filed rejoinder reiterating the averments made in the O.A.

Heard the Ld. Counsel for the parties and perused the materials placed on record.

It is noted that that the applicant has referred to Ministry of Communication, Department of Posts Circular dated 17.05.1989, which reads as under:

Further, it is noted that the applicant has also referred to Ministry of Communication, Department of Posts O.M. dated 22.01.2015 (Annexure A/13) which reads as under:-

A bare perusal of Circular relating to Casual Labourers and Part time Casual Labourers, it is noted that the Ministry of Communication, Department of Posts has issued clarification vide Circular dated 17.05.1989 that all daily wagers working in Post Offices or in RMS Offices or in Administrative offices or PSD's/MMS under different designations (mazdoor, casual labourer, contingent paid staff, daily Wager, Daily Rated Mazdoor, Outsider) are to be treated as Casual Labourers. Those casual labourers who are engaged for a period of 08 hours a day should be described as full time casual labourers. Those casual labourers who are engaged for a period of less than 8 hours a day should be described as part time casual labourers. All other designation should be discontinued. The applicant is claiming extension of benefits of the Circular dated 17.05.1989 and also seeks extension of benefits under OM dated 22.1.2015 issued by the Department of Posts wherein guidelines indicate that Part time Casual Labourers ought to be granted wages which should be calculated on pro-rata basis, in terms of hours of duty put in with respect to the minimum of Pay Band – 1 (Rs. 5200-20200) i.e Rs. 5200/- plus a Grade Pay of Rs. 1300/- and Dearness Allowance as admissible from time to time. In addition, the benefit of merger of 50% of dearness allowance would also be admissible in terms of DoP&T O.M. No. 49014/5/2004-Estt.(C) dated 31.05.2004.

In view of the above, since the Circular dated 17.05.1989 clearly clarifies that all daily wagers working in Post Offices or in RMS Offices or in Administrative Offices or PSD's / MMS under different designations (mazdoor, casual labourer, contingent paid staff, daily wager, daily rated mazdoor, outsider) are to be treated as casual labourers. Those casual labourers who are engaged for a period of more than 8 hours a day should be described as Full-time casual labourers. Therefore, the applicant, as claimed by the respondents, having worked as daily rated mazdoors, outsiders ought to be treated as Casual Labourers. Further, Office Memorandum dated 22.01.2015 stipulates remuneration payable to Full Time Casual Labour /Part Time Casual Labour, hence, as the applicant ought to be treated as Casual Labourer as observed above and payment of wages be made as per stipulations contained in O.M. dated 22.01.2015.

Accordingly, I quash the impugned Speaking Order dated 29.01.2019 issued by the Senior Superintendent of Post offices, North Presidency Division, Barrackpore and direct the respondents to act as per above observation within 02 months from the date of receipt of a certified copy of this Order.

With the above direction and observation, the O.A. is disposed of with no Order as to costs.