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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
This application has been preferred to seek the following relief:
“8.1.The Hon'ble Tribunal be pleased to direct the respondents to hold a selection process for appointment to the posts of MTS/Gr. C/Gr. D and allow the applicant to participate in the said selection process relaxing his age limit, in terms of the order dated 12.05.2015 of this Hon’ble Tribunal in O.A. no. 045/00322/2016 which has been upheld by the Hon'ble Gauhati High Court, Itanagar Bench by order dated 08.05.2023 in WP(c) 54/2020.
8.2.The Hon'ble Tribunal be pleased to direct the respondents to re-instate the applicant and allow him to continue his service as casual employee in the respondent department till his participation in the ensuing selection process and pay regular salary w.e.f. May,2024, in terms of the order dated 12.05.2015 of this Hon'ble Tribunal in O.A. no. 045/0032212016 which has been upheld by the Hon’ble Gauhati High Court, Itanagar Bench by order dated 08.05.2023 in WP(C) 54/2020.
8.3.Any other relief or reliefs as the Hon'ble Tribunal may deem fit and proper, including the cost of the case.”
Brief of the case as submitted by learned counsel for the applicant are that, applicant initially joined the O/o Principal Accountant General (Audit), Meghalaya, Mizoram and Arunachal Pradesh as a casual worker in January, 1993. The O/o PAG (Audit), Meghalaya, Mizoram & Arunachal Pradesh trifurcated in June, 2008 and started functioning as Office of Accountant General, Arunachal Pradesh, ltanagar wherein the applicant was engaged as Staff Car Driver by transferring his service under the office of the Accountant General, A.P., Itanagar (respondent no. 3) in the month of August, 2008 and since then he had been serving therein.
The respondent No. 3 entered into contract with various Outsourcing Agencies and engaged various outsourced staff therefrom, one among such staff being the present applicant. Earlier, he approached this Tribunal vide O.A no. 045/00322/2016 and this Tribunal disposed of the O.A on 15.02.2019 with a direction to allow the applicant to participate for regularisation of his service by relaxing his age limit, which has been upheld by the Hon'ble Gauhati High Court, Itanagar Bench by order dated 08.05.2023 in WP(C) 54/2020. Since it was not complied with, he has approached vide the present O.A, seeking direction upon the respondents to hold a selection process for appointment to the posts of MTS/Gr. C/Gr. D and allow the applicant to participate ensuing selection process relaxing his age limit in terms of the said order (supra).
He is also aggrieved as he has been verbally terminated on 12.04.2024 by the respondent and denied salary w.e.f. May, 2024. Vide this O.A, he has prayed for a direction upon the respondents to re-instate him and allow him to continue his service as casual employee in the respondent department till his participation in the ensuing selection process and pay regular salary w.e.f. May,2024.
Sri Arnab Chanda, learned counsel for the applicant submits that applicant fulfils the condition stipulated for regularisation i.e. he has been working since 1993 in the respondent department having sanctioned vacant posts as such he is entitled to be regularised in terms of the decision of the Hon'ble Supreme Court in State of Karnataka v. Umadevi, (2006) 4 SCC 1. The respondents did not take into consideration the previous service period of erstwhile the applicant before the office of the PAG(Audit), Meghalaya, Mizoram & Arunachal Pradesh in June' 2008 w.e.f. 1993 while issuing the order dated 12.05.2015 the same is as such not tenable in law and facts.
The termination of the applicant on verbal order without following any procedure is grossly arbitrary and illegal being violative of Article 14 and 21 of the Constitution of India and also the principles of natural justice, malice and malafide against the applicant is patent. Without conducting any selection process and terminated the applicant by verbal order on 12.04.2024 which is violative of the aforesaid order dated 12.05.2015 of this Tribunal in O.A. no. 045/0032212016 which was upheld by the Hon'ble Gauhati High Court, Itanagar Bench, such action of the respondents is contemptuous of this Hon'ble Tribunal.
That instead of conducting any selection process the respondent department has been engaging employee on contract basis from Outsourcing Agency and has terminated the applicant on oral orders on his refusal to get engaged through Outsourcing Agency and request for compliance of the order dated 12.05.2015.
As per respondents, Applicant is not a departmental employee rather an employee of outsourced agency. The the Applicant had initially joined in the O/o the Principal Accountant General (Audit), Meghalaya, Mizoram and Arunachal Pradesh in January, 1993 through a private Agency named, M/S Suraksha. As a result of the trifurcation of the O/o the Principal Accountant General (Audit), Meghalaya, Mizoram and Arunachal Pradesh in June, 2008, the applicant continued to be engaged as Helper in the O/o the Accountant General, Arunachal Pradesh, Itanagar in the month of January, 2009 where he had been serving through various Outsourcing Agencies, such as M/s Pooja Star Enterprise, M/s Sonu Enterprise and lately M/s GA Digital Web Ltd. It is also stated that all the identity cards issued to Sri Moti Lal Das has been detailed with "Engaged through Outsourcing Agency".
The Office of the Accountant General, Arunachal Pradesh has adopted a policy to source the requirement of personnel at the level of MTS through Outsourcing Agency since the beginning of its operation in June 2008. Accordingly, to meet the requirement of various categories of personnel at the MTS level such as Drivers, Security Guard, Cooks, Helper, Safaiwala, Electrician, etc., the Office of AG, AP, Itanagar entered into a number of agreements/contracts with outsourcing agencies in different stages as per needs and demand starting from 19.08.2008 with M/s Suraksha, Vijoynagar (East Milon Nagar), Dibrugarh followed by M/s Pooja Star Enterprises, Itanagar, M/s Sonu Enterprise, Itanagar and then M/s GA Digital Web Ltd. The applicant was also engaged as outsourced Helper w.e.f. January, 2009 in the Office of the AG, AP, Itanagar.
In the Agreement executed between the Agency and Office of the AG, AP it has been very specifically mentioned that, "Shri Moti Lal Das shall not be deemed to be an employee of the Department and will not claim any Salary/Allowance/Compensation/Damages or Claim on employment/absorption or otherwise or for anything out of their employment/duty/duties under the Agreements, etc.’
The Applicant has provided service to the Department only as an outsourced employee and was/is neither a Casual nor Contractual Worker of the Department. Hence, the Judgment of the Hon'ble Supreme Court published in Swamy's News, July, 2011 as referred by the Applicant herein, is not applicable to him.
4. That in compliance to the earlier direction of the Tribunal he was intimated that his case will we considered as and when the department initiate recruitment process.
The applicant has been paid all admissible dues till March, 2024 through the outsourcing agency. However, the service of the Applicant has been replaced by his wife namely, Mrs. Sathi Rani Das w.e.f. April, 2024 by the agency due to negligence of duties and the Agency has replaced him and engaged his wife.
After shifting his place of work at Itanagar, the Applicant worked in the office of the AG, AP as Helper from an outsourced agency, M/S Suraksha and hence no way related to regularization of service based on the service he might have rendered as Casual Worker in the O/o the PAG (Audit), Meghalaya, Shillong and that the maintenance of monthly report card of Casual Labourers including the Applicant by that office has no relevance at this state as it is outside the purview and jurisdiction of AG, AP, Itanagar. Hence the Law/ Decisions cited by the Applicant is not applicable in the present case.
7. While working as MTS through an outsourcing agency in the Office of the Principal Accountant General, Arunachal Pradesh, Applicant has decided not to perform his duties and refuse to sign the attendance from 1st April, 2024. According to the Applicant, he will not sign the Attendance Register meant for outsourced employees. It may be mentioned here that the attendances are being maintained for monthly wages which is calculated on daily basis. Inspite of several requests by the DAG, AP, the Applicant refused to sign the attendance register. Presently, a new agency namely, M/s GA Digital Web Limited has been engaged on receipt of approval from C & AG, New Delhi in May, 2024. The Applicant has also refused to submit his particulars with this Agency on the pretext that he will not work under outsourcing agency. As a result of his refusal, the name of the Applicant was not included in the list of outsourcing employees.
That, the allegation made by the Applicant that he has been terminated by the DAG, O/o the PAG, AP with verbal order is completely false and baseless and the deponent denied the same in toto. In fact, the DAG had himself asked Mrs. Sathi Rani Das, wife of the Applicant to submit all papers to the outsourcing agency out of sympathy. Presently said Sathi Rani Das is working under outsourcing agency.
Learned counsel for the applicant avers that the respondents have deliberately disobeyed the order of the Tribunal wherein it had directed the respondents to allow the applicant to participate for regularizations of his services by relaxing the age limit and till his participate in the selection process and till then he should not be disturbed from his engagement i.e. his casual work. They deliberately with malafide intention placed the applicant under outsourcing agencies with the evil intention to deny the benefit of regularisation to the applicant in the name of outsourcing employee. Applicant has been serving under the respondent since 1993 onwards. The case of the applicant is strongly supported/covered by the case of Ushaben Joshi v. Union of India & Others, Civil Appeal no.9729 / 2024 (Arising out of SLp (Civil) No.(s). 6427 of 2019) 12024INSC 6241. In Jaggo vs. Union of India & Ors, it was held that:
“27.In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.”
Heard the learned counsel for the parties and perused the pleadings and materials on record.
It is admitted position that the applicant initially joined the Office of the Principal Accountant General (Audit), Meghalaya, Mizoram and Arunachal Pradesh as a casual worker in the year 1993 in Shillong and thereafter after the trifurcation of the department in 2008, the applicant worked in Itanagar under the PAG (Audit) as a Staff Car Driver through outsourced agency. The respondents adopted a policy to source the requirement of personnel at the level of MTS through Outsourcing Agency. Applicant was also one such staff.
The contention of the applicant is that, he has been working under the respondents from 1993 and he has a right to be regularized. He submitted representation for regularisation in 2008 and another on 23.04.2012, which was rejected. He approached this Tribunal for regularisation in 2016 vide O.A/322/2016, which came to be disposed of and affirmed by the Hon’ble High Court. His service came to be terminated in 2024. Now the claim of the applicant is that, he should be reinstated as casual employee under the respondents till his participation in the ensuing selection process.
It was stated by the respondents that after the trifurcation of the department in 2008, applicant was engaged as Staff Car Driver through an outsourcing agency-M/s Suraksha, Vijoynagar. Thereafter, he was engaged through another outsourced M/s Pooja Star Enterprises, Abotani.
It can also be seen from annexure R1A, an agreement period from 01st February, 2016 to 31st December, 2016 between the Accountant General, Arunachal Pradesh/Department and M/s Pooja Star Enterprise for various outsourcing jobs. And it can be seen from the Bill of Professional Service for the month of January, 2016, in the column (B) Driver, Helper, Safaiwala & Electrician (MTS, Outsourcing) etc. the name of applicant figures in SL. No. 5. Then the it can also be seen from annexure R1B, an agreement period from 01st March, 2016 to 31st January, 2017 between the Accountant General, Arunachal Pradesh/Department and M/s Sonu Enterprise for various outsourcing jobs such as Driver (Outsourced), MTS -Outsourced (Skilled) etc. And it can be seen from the Bill of Professional Service for the month of January, 2017, in the column (B) M/s Sonu Enterprise (Outsourcing Agency, House Keeping), the name of applicant figures in SL. No. 5.
After going through the facts, we observed that this petition is not maintainable against the private parties, his service has been transferred to the private agency and so he is an employee of the agency/enterprise. He worked alongwith the agency in 2016 and he did not approach this Tribunal at the relevant time when the service was transferred through Agency/Contractors without complying the order. He went ahead with the agency and now his service has been terminated. He cannot take U-Turn at this stage. Working continuously does not confer any right to claim continuation of any engagement since the contract of service was between him and the Contractors as per their contractual terms and conditions, so we cannot direct the respondents/department to reinstate him or re-engage him.
In view of the above observations, we find no merits in the claim of the applicant and the O.A is dismissed being devoid of merit.
Pending M.A, if any, stands disposed of. No costs.