Shailender Kumar & Ors vs Union Of India & Ors.

Manish Garg, Member (J)

In the instant MA, the applicants seek the following reliefs:-

“(i) Quash and set-aside the impugned order dated 28.02.2017.

(ii) Direct the respondents to consider the case of the Applicants for regularization with consequential benefit.

(iii) Without prejudice to the above, direct the respondents not to dispense with the services of the applicant against another set of contract employees but allow the applicants to be continued by the respondents till any regular appointment is made.

(iv) Grant any other relief as deemed appropriate under the facts and circumstances of the case.”

Learned counsel for the applicants submitted that the present M.A. has been filed by the applicants for modification of the order dated 22.08.2023 passed by this Tribunal in the subject O.A., only to the extent of reflecting the name of the existing contractor in place of M/s Sulabh International Social Service Organization, which figured at Para No. 7 of the said order.

2.1 Learned counsel for the applicants submitted that the applicants have filed O.A. No. 211/2018 seeking the following reliefs:

"(i) Quash and set aside the impugned order dated 28.02.2017.

(ii) Direct the respondents to consider the case of the applicants for regularization taken into account the actual number of days worked by the applicants with consequential benefits.

(iii). Prejudice to the above, direct the respondents to re-engage the applicants and not to dispense with the services of the applicants against another set of contract employees but allow the applicants to be continued by the respondents till any regular appointments is made.

(iv). Grant any other relief as deemed appropriate under the facts and circumstances of the case."

2.2 Learned counsel for the applicants highlighted that the respondents themselves averred in Para No. 4.8 of the counter affidavit as under:

"Engagement of casual workers through M/s Sulabh International Social Service Organisation, New Delhi was as per the coveted Govt. Policy on hiring of casual labourers. The applicants had the opportunity to have themselves re-engagement as casual labourers through M/s Sulabh International Social Service Organisation, New Delhi after having their antecedents verified and checked which they had not availed, and instead, sought judicial remedy. Thus, the applicant's claim for regularization is contrary to the Govt. Policy on hiring of casual labourers. Also, the security of the College cannot be compromised."

2.3 Learned counsel for the applicants further submitted that this Tribunal took cognizance of the aforesaid averment made by the respondents in their Counter Reply and disposed of the subject O.A. on 22.08.2023 in terms of Para No. 7 therein, which reads as under:

"7. At this stage, the only direction which can be passed in the present matter keeping in view of the prayer is that let the Competent Authority amongst the respondents take appropriate call whether the applicants are suitable to be re- engaged through the Contractor, M/s Sulabh International Social Service Organisation, in terms of the directions as contained as highlighted in para 2 above, by which verifying the antecedents within a period of two months from the date of receipt of a certified copy of this order. Needless to say, principle of natural justice shall be followed while considering the case of the applicants. Keeping in view of the fact that this is third round of litigation. Needless to say that we are not entering into the merits of the case. Any issue arising out of an obligation between employer and employee is always open to challenge."

2.4. It is the contention of the learned counsel for the applicants that the above order was an oral order passed in the presence of counsel for the respondents, who did not apprise this Tribunal that in place of M/s Sulabh International Social Service Organisation, New Delhi another contractor was assigned the job looked after by M/s Sulabh International Social Service Organisation, New Delhi.

2.5. Learned counsel for the applicants further contended that instead of apprising this Tribunal about the name of the new contractor, the respondents passed an order dated 03.12.2023, stating that, since the contract of outsourcing given to M/s Sulabh International Social Service Organisation, New Delhi is over, the respondents cannot take a decision to re-engage the applicants through the said contractor.

2.6. Learned counsel for the applicants submitted that since the failure on the part of the respondents to apprise this Tribunal about the correct name of the contractor resulted in the order of this Tribunal getting frustrated, the applicant had to move the present MA No. 467/2024 under CAT (Procedure) Rules, 1987 seeking modification of the order dated 22.08.2023 only to the extent to indicate the name of the existing contractor.

2.7 Learned counsel for the applicants concluded his arguments by submitting that the main objection of the respondents in their counter affidavit was limited to the applicability of the provision for modification of the orders of this Tribunal as according to the respondents, instead of Rule 24 of the CAT (Procedure) Rules, 1987, Rule 17 of the said Rules should have been invoked. In this connection, learned counsel for the applicants submitted that the Rule 24 of the CAT (Procedure) Rules, 1987, vests in this Tribunal all the powers to pass any order to give effect to order or to abuse of its process or to secure the ends of justice, which power is not hedged by any technical embargo/limitation. In the present case, the name of the previous contractor came to the fore from the respondents through their counter affidavit. Therefore, in order to give effect to its order and also to secure ends of justice, this Tribunal, may invoke Rule 24 of CAT (Procedure) Rules, 1987. Insofar as Rule 17 of the CAT (Procedure) Rules, 1987 is concerned, this only deals with the manner in which a Review Application is to be dealt with. Learned counsel for the applicants added that, in view of the above, the present M.A. be allowed to the extent that Para No. 7 of the order dated 22.08.2023 is modified to include the name of the existing agency, which is under the contractual obligation with the respondents.

We observe that it is only in the speaking order dated 03.12.2023 that for the first time it is disclosed as under:

“4. Whereas, the contract for outsourcing of cleaning services at National Defence College with M/s Sulabh International Service Organization, Sulabh House, 74, K-1, Extension Mohan Garden, New Delhi – 110059 was only effective from Jun 2011 to 30 Sep 2017 and is no longer in force.”

The counter affidavit was filed by the respondents on 29.05.2018. Relevant portion of Para No. 4.8 of the said counter affidavit reads as under:-

“….The applicants had the opportunity to have themselves re-engagement as casual labourers through M/s Sulabh International Social Service Organisation, New Delhi after having their antecedents verified and checked which they had not availed, and instead, sought judicial remedy. Thus, the applicant's claim for regularization is contrary to the Govt. Policy on hiring of casual labourers. Also, the security of the College cannot be compromised."

We are of the view that the speaking order dated 03.12.2023 is contradictory to the earlier stand taken by the respondents themselves. It was incumbent upon the respondents to disclose correct factual position. The respondents, at this stage, cannot refuse to consider the claim of the applicant on technical pleas. The respondents ought to have considered the case of the applicants on the basis of arrangement as on the date of the order in the subject O.A., i.e., 22.08.2023 or the present arrangement.

We would draw a reference to Rule 24 of The Central Administrative Tribunal (Procedure) Rules, 1987, which reads as under:-

“24. Order and directions in certain cases .-The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.”

The speaking order dated 03.12.2023 falls within the scope and powers of this Tribunal under Rule 24 of The Central Administrative Tribunal (Procedure) Rules, 1987.

In view of the above, we allow the present M.A. The respondents are directed to revisit and re-examine the case of the applicants (for re-engagement through outsourcing irrespective of the name of the contractor, which has not been spelt out till date) on the basis of arrangement as on the date of the order in the subject O.A., i.e., 22.08.2023 or the present arrangment.

The directions of this Tribunal in Para No. 7 of the order dated 22.08.2023 in the subject O.A. are hereby modified accordingly.