Shri Alimuddin & Ors. vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:

The applicants have approached this Tribunal to seek the following relief:

Brief facts of the case, as submitted by learned counsel for the applicants, are that the applicants were engaged as Waterman/Safaiwala/Mali at various Sub-Post Offices under Hailakandi Head Post Office on different dates, with varying duty hours of 1, 1.5, 2 and 2.5 hours per day. They have, throughout, been seeking enhancement of their working hours. In this regard, the Senior Superintendent of Post Offices, vide Memo dated 12.04.1999, accorded sanction for enhancement of the working hours of part-time Safaiwala at Hailakandi Head Office from four hours to five hours with effect from 01.04.1999. However, according to the applicants, the benefit of such enhancement was never extended to them. It is further submitted that the applicants were granted Dearness Allowance (DA) as admissible prior to 01.01.2016 and that, with effect from 01.01.2016, they were also granted DA, with a further enhancement having been made only in March 2018.

The respondents, in their reply, have stated that the applicants are daily-wage labourers, some of whom were engaged for cleaning work in the Sub-Post Offices on an hourly or daily basis, as and when the requirement arose. According to the respondents, such engagement was not against any sanctioned post. It is stated that there is no sanctioned post of Safaiwala or Waterman in any of the Sub-Post Offices under Hailakandi Head Office and that cleaning work is managed by engaging daily-wage labourers.It is further stated that the applicants are paid wages on a daily or monthly basis and that the bills are cleared by the respective Post Offices. According to the respondents, describing their engagement as “posting” is incorrect. It is contended that none of the applicants falls within the category of part-time casual workers, as they were never engaged through the Employment Exchange or pursuant to any open advertisement and were engaged only as and when their services were required.

Mrs. U. Dutta, learned counsel for the applicants, vehemently argued that the applicants are entitled to enhancement of their working hours to at least five hours per day in terms of the sanction accorded by the Senior Superintendent of Post Offices vide Memo dated 12.04.1999. She further submitted that the applicants are entitled to enhancement of DA from time to time in terms of the Office Memorandum dated 22.01.2015 issued by the Government of India, Ministry of Communications & IT, Department of Posts. She further submitted that no order has been issued by the respondents explaining the sudden stoppage of wages of the applicants with effect from November 2024. Neither any notice nor any show-cause notice was issued to them before taking such action. According to learned counsel, the action of the respondents is in violation of the principles of natural justice. It was submitted that even contractual and casual employees are entitled to a fair opportunity of hearing before any adverse action is taken against them and that the respondents could not have arbitrarily discontinued their engagement without following due process.

Learned counsel for the applicants further submitted that, after filing of the present O.A., the respondents filed their reply and the applicants filed their rejoinder thereto. Thereafter, during the pendency of the present O.A., the respondents allegedly orally terminated the engagement of the applicants and restrained them from entering the Post Offices. According to learned counsel, the applicants were prevented from attending to their duties by the concerned Postmasters and Inspectors at the instance of the SPO, Cachar Division, allegedly as a measure of retaliation for approaching this Tribunal. It was further submitted that, thereafter, the respondents engaged fresh daily-wage workers in place of the applicants.

Learned counsel for the applicants submitted that the applicants had been working in the respondent Department as Safaiwala/Waterman/Mali continuously and uninterruptedly for several years and that the nature of duties performed by them was neither casual, peripheral nor intermittent, but perennial and integral to the functioning of the Department. It was, therefore, argued that their oral termination, without issuance of any order or notice, was arbitrary, vindictive and legally impermissible.

To buttress the claim of the applicants, learned counsel for the applicants placed reliance upon the following judgments/orders:

Learned counsel for the applicants further submitted that the applicants are also seeking regularisation of their services and that their case is squarely covered by the principles laid down by the Hon’ble Supreme Court in Ushaben Joshi (supra).

We have heard learned counsel for the parties and perused the pleadings and the material available on record.

From the pleadings and the material placed on record, it emerges that the applicants were engaged as Safaiwala/Waterman/Mali, etc., under the respondent Department on an hourly basis. Some of them were engaged as far back as 1985, 1989, 1996, 1997 and thereafter, and have thus rendered service for several years. Their duty hours ranged from one hour to 2.5 hours per day.

The main grievance of the applicants is that, despite having continued to discharge their duties, their wages were stopped from November 2024 onwards. During the pendency of the present O.A., they have further alleged that they were orally directed not to report for duty and were replaced by another set of workers.

At this stage, it would be appropriate to consider the judgments relied upon by learned counsel for the applicants. In Ushaben Joshi v. Union of India & Ors. (supra), the Hon’ble Supreme Court considered the case of a contingency-paid part-time Waterwoman who had rendered service in the Department for more than three decades. The Court also noticed that another similarly placed employee, who had joined the Department subsequently, had been appointed as MTS. The Hon’ble Supreme Court found the plea of discrimination to be substantiated and directed the Department to treat the appellant at par with the similarly placed employee and to pass an order of regularisation/appointment as MTS on similar terms.

Similarly, in Jaggo(supra), the Hon’ble Supreme Court considered the case of persons who had rendered long and uninterrupted service in essential duties despite their engagement being described as part-time. The Court observed that long and uninterrupted service could not be brushed aside merely by labelling the initial engagement as part-time or contractual and emphasised the integral and perennial nature of the work performed by the appellants. The Hon’ble Supreme Court further noticed that the same work was subsequently outsourced and observed that such outsourcing demonstrated the continuing and inherent requirement of the services.

The aforesaid judgments, however, do not mean that every person engaged on a part-time or daily-wage basis acquires an automatic right to regularisation. The question has to be examined having regard to the nature of engagement, the manner in which the initial engagement was made, the nature of duties performed, the duration of service, the existence of sanctioned posts and the applicable rules and schemes.

At the same time, the long duration of service rendered by the applicants cannot be completely disregarded. The principles emerging from Ushaben Joshi (supra) and Jaggo (supra) require the nature and substance of the engagement to be considered rather than merely its nomenclature.

Another issue which requires consideration is the allegation of the applicants that, during the pendency of the present O.A., they were orally stopped from attending their duties and were thereafter replaced by another set of daily-wage workers.

The principle that one set of temporary, ad hoc or daily-wage employees should not ordinarily be replaced by another set of employees of the same nature has been recognised by the Hon’ble Supreme Court in a catena of judgments, including State of Haryana & Ors. v. Piara Singh & Ors., (1992) 4 SCC 118. The principle is founded on the consideration that an employer cannot perpetuate temporary employment by repeatedly replacing one temporary worker with another, while the work itself continues.

In the present case, the applicants have alleged that, during the pendency of the present O.A., they were stopped from attending their duties and were replaced by another set of daily-wage/outsourced workers for performing the same work. If the said allegation is found to be correct upon verification, such replacement merely by changing the persons performing the same nature of work cannot be sustained. The subsequent outsourcing of the same work was also considered by the Hon’ble Supreme Court in Jaggo (supra) while examining the perennial nature of the duties in question.

In view of the aforesaid, the respondents shall, upon verification of the relevant records, ensure that the applicants are not replaced by another set of daily-wage, ad hoc or outsourced workers for performing the same nature of work merely because the applicants have approached this Tribunal. This direction, however, shall not prevent the respondents from filling any duly sanctioned post through a regular recruitment process in accordance with the applicable rules.

The respondents shall also verify the attendance and other relevant records and release the wages lawfully due and payable to the applicants for the period during which they actually continued to discharge their duties and for which payment has not been made. The exercise shall be completed within eight weeks from the date of receipt of a copy of this order.

As regards the prayer for regularisation, for the reasons recorded hereinabove, we are unable to issue a direction for regularisation in the present proceedings. However, having regard to the long period of service rendered by the applicants and the principles laid down by the Hon’ble Supreme Court in Ushaben Joshi (supra) and Jaggo (supra), the respondents shall examine the claim of the applicants for temporary status or such other benefit as may be available to them under the applicable scheme/instructions governing their engagement in the Department of Posts, in accordance with law. The competent authority shall consider the claim of each applicant individually, having regard to his/her respective date of engagement, nature and duration of service, duty hours, the applicable scheme/instructions and the judgments relied upon by the learned counsel for the applicants, and shall pass a reasoned and speaking order in this regard within twelve weeks from the date of receipt of a copy of this order. The competent authority shall also examine, in accordance with the applicable rules, instructions and the sanction referred to by the applicants, their claim for enhancement of working hours to five hours per day pursuant to the Memo dated 12.04.1999 and their consequential claim for enhancement of Dearness Allowance. A reasoned and speaking order in this regard shall also be passed within the aforesaid period.

In view of the aforesaid directions, the present O.A. stands disposed of. There shall be no order as to costs.

Pending M.As., if any, also stand disposed of.