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Judgment
S.N.Terdal, J
Heard Shri Ravi Shankar Kumar, counsel for applicants and Mrs. Harvinder Oberoi and Mr. Rajeev Kumar counsel for respondents, perused the pleadings and all the documents produced by the parties.
As the facts and main prayer in both the OAs are identical, both are being disposed of with this common order.
The applicants prayed for the following reliefs in the OAs.
OA 909/2014.
"(a) Call for the original records of the case, specially the original records of attendance of the applicants for the year 1998 and 1999; and/or
(b) Pass order(s), direction(S) by which directing the respondents to transfer the applicants to the regular establishment of Delhi Milk Scheme by giving them the benefits of Certified Standing Orders in the cases of other similarly placed employees as detailed in this OA. w.e.f. the date when they have completed 240 days and further grant them all other consequential benefits; And/or
(c) Direct the respondents to pay the arrears of amount of weekly off to the applicants as per GOI policy dated 7.6.1988 (Annexure-A.3) by which the casual workers are entitled for one paid weekly off after six days of continuous work, but the respondents had not ever paid the wages of weekly off days; And/or
(d) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
OA 1102/2014
(a) Call for the records of the case;
(b) Declare that the practice of respondents in giving artificial breaks to the daily rated/Badli workers is illegal and unconstitutional;
(c) Declare that the action of the respondents in not transferring the applicants to the regular establishment immediately on completion of 240 days (including Sunday and other paid holidays) by them and instead discontinuing their services and further retaining their juniors and employing fresh persons in their place, is not only arbitrary, unjust and violative of Article 14 and 16(1) of the Constitution but the same also amounts to retrenchment under Section 2(oo) of the Industrial Dispute Act, 1974;
(d) Pass an order directing the respondent to transfer the Applicants to the regular establishment of Delhi Milk Scheme by giving them the benefit of Certified Standing Orders and the directions issued by this Hon'ble Tribunal by judgment and order dated 11th January 1999 in OA No. 2958/97 and Original Application No. 948 of 1988 etc. and judgment and order dated 10th August 1989 in OA No.37/88 from the date they have completed 240 days (including Sundays and other paid holidays);
(e) Pass an order direction the respondents to accord to the applicants all benefits/facilities at par with their counter-parts in their regular establishments;
(f) Pass such further or other orders which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
The relevant facts of the case are that the applicants were engaged as Badli workers in the respondent- Delhi Milk Scheme on different dates during the years 1998 to 2000. It is averred by the applicants that they have worked continuously on all the seven days of week since their engagement without any leave. The number of days worked by each of the applicants, as culled out from the OAs are indicated below:
"OA 909/2014
Name
Card No.
No.of working days
Ram Niwas
1139
227
Ved Pal
1037
220
Braham Dev
1110
216
OA 1102/2014
Name
Card No
Date of Joining
No of working days.
Bijender Singh
1052
5.1.1999
228
Devender Kumar
1006
13.5.1988
220
Sanjay Kumar
1063
5.1.1999
228
Naresh Kumar
1054
5.1.1999
223
Naresh Kumar
1053
5.1.1999
231
The contention of the applicants is that in terms of para 4(iii) of the Certified Standing Order dated 15.06.1962 for the employees of Delhi Milk Scheme, they are entitled to be transferred to the regular establishment of the respondent organisation. Para 4(iii) is extracted below:
"(iii) 'Badli' means a worker who is employed for the purpose of working in place of regular employees who are temporarily absent:
Provided that a badli worker who has actually worked for not less than 240 days in any period of 12 months shall be transferred to regular establishment governed by the Fundamental and Supplementary Rules."
The counsel for the applicants in support of his contention has relied upon various judgments/ orders of this Tribunal, Hon'ble Delhi High Court and Hon'ble Supreme Court, which are listed below:
"(1) Pramod Kumar & Ors Vs. Union of India & Ors. (OA 37/88-CAT (PB).
(2) Union of India & Anr. Vs. Pramod & Ors Special Leave to Appeal (Civil) Nos.) 1085/1990
(3) Surya Narayan and Ors. Vs. Union of India & Another (OA 948/88 with connected matters)
(4) Union of India & Ors. Vs. Chet Ram & Ors. (CWP 2156/2002 with connected CWPs)
(5) Rajesh Kumar Vs UOI & Ors (146(2008)DLT 588(DB)
(6) Ram Niwas & Ors Vs. UOI & Ors. (OA 84/2007)
(7) Union of India and Another Vs. Rajesh Kumar (Special Leave to Appeal (Civil) No(s) 4896/2008)
The counsel for the respondents have relied upon the orders passed by this Tribunal in OA No. 2989/2015 with connected OAs (Anil Kumar Vs. Union of India & others) and in OA no. 100/2015 (Ramesh Kumar and Others Vs. UOI & Ors).
From the perusal of the above judgments/orders, it is crystal clear that the issue is settled to the effect that in computing the number of working days, the competent authority is required to take into consideration the actual working days, weekly off days (Sundays) and National Holidays in a calendar month and nothing more. The relevant portion of the latest order dated 15.12.2016 passed in OA 2989/2015 is extracted below:-
"Meaning thereby, the Hon'ble High Court of Delhi has already settled the issue and ruled that while re-computing the number of working days, the competent authority is only required to take into consideration the actual working days, weekly offs days (Sundays) and National Holidays in a calendar month and nothing more. Thus the contrary arguments of the learned counsel for the applicants stricto sensu deserve to be and are hereby repelled. On the other end, the ratio of law laid down by Hon'ble High Court of Delhi in the indicated case is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand. Therefore, it is held that indeed, the applicants ( who have already been retrenched in the month of December, 1999) have not completed the mandatory period of 240 working days in that relevant year, so the respondents have rightly calculated the number of working days as per rules and law laid down by Hon'ble High Court of Delhi, in the obtaining circumstances of the case. Hence, applicants are not entitled for reinstatement and regularization of their services, as claimed by them."
From the facts stated by the applicants themselves which have been extracted above, it is clear that none of them has worked for 240 days in any year. The respondents have also submitted a statement showing the total number of days of working including weekly off and national holidays with respect to each of the applicants. From the perusal of the said statement also it is clear that none of the applicants has worked for mandatory 240 working days in any year. As such they cannot be transferred to regular establishment in terms of the Certified Standing Order dated 15.06.1962 of Delhi Milk Scheme. The counsel for the applicants did not press the relief (C) in OA 909/2014 at the time of hearing.
Both the OAs are dismissed as they are found devoid of merit. No order as to costs.