Anita Xess v. The Union Of India And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/94/2020 John Ekka and Others Vs.
The Union of India and Others With WPA/95/2020 Anita Xess Vs.
The Union of India and Others With WPA/96/2020 P. Vaikunta Rao Vs.
The Union of India and Others With WPA/97/2020 P. Yadava Rao Vs.
The Union of India and Others Mr. Gopala Binnu Kumar Ms. Vinita Devi .... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents March 15, 2024 [SR] Item Nos.9,10,11,12
1. Heard Shri Gopala Binnu Kumar, learned counsel for the petitioners and Shri Shatadru Chakraborty, learned counsel for the respondents, in all the above four petitions.
2. Both the learned counsel for the parties jointly state that the petitioner of all the above four writ petitions were the Daily
Rated Mazdoors in the Forest Department. Out of total 136 mazdoors, 112 mazdoors have been regularized, but the petitioners, who are 11 in numbers, have not been regularized and, therefore, they have filed the present writ petitions. The petitioners have sought relief for a direction in the nature of mandamus to the respondent authority to regularize the service of the petitioners on and from May, 2006, grant arrears of pay and all consequential benefits.
3. Learned counsel for the parties jointly state that since the facts and questions involved in all the above noted four writ petitions are common, therefore, all these writ petitions may be heard together and the writ petition WPA/94/2020 be treated as the leading writ petition. Accordingly, I proceed to decide all the above four writ petitions treating the WPA/94/2020 as the leading writ petition.
4. Briefly stated facts of the present cases are that the petitioners claim themselves to be the Daily Rated Mazdoors working in the Forest Department sometime since the year 1995. Initially, the petitioners and other similarly situated Daily Rated Mazdoors through their Union filed a labour case in which the dispute was referred and an Award dated 13.07.2005 in I.D.Case No.3 of 2002 (136 Daily Rated Mazdoors (As per Annexure -A) under the Divisional Forest Officer, Baratang represented by the Baratang Forest Workers Union vs. The Divisional Forest Officer, Baratang) was passed. The operating portion of the Award dated 13.07.2005 in I.D Case No.3 of 2002 passed by the Presiding Officer, Industrial Tribunal, Port Blair is reproduced below:- "Awarded
that the demand of the General Secretary, Baratang Forest Workers Union in the present reference is justified to the following extent:- (i) The grievances of the workmen appearing against sl. No. Sl. Nos. 21,35,52,53,60,81,95,104,108,117,119,121,123 and 127 of the annexure-A hereto enclosed, are left open to be decided by a speaking order by the second party who is directed to pass appropriate orders in terms of Government of India's Office Memorandum of No. 49014/2/86/Estt(c) dated 7.6.1988 for granting daily wages at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance, within a period of one month from the date of publication of this award in the official gazette. (ii) The workmen appearing at sl.
No 1 to 4 of the annexure-A hereto annexed are entitled to daily wages at the rate of 1/30th pay at the minimum of the relevant pay scale plus dearness allowance in terms of Government of India's Office Memorandum of No. 49014/2/86/Estt(c) dated 7.6.1988 from the date of their initial engagement till the 31.8.1993 (as they have been conferred with temporary status on said from 1.9.1993). I make it clear such entitlement is for actual work of 8 hours a day. The crucial date of their initial engagement as daily rated mazdoors is left open to be determined by the second party since, none of the parties has produced any document in this regard.'
(iii) The workman Shri Emil Tirkey (appearing at sl. No.5) has already completed 240 days of continuous work in course of one year and he was in the roll of the second party on 1.9.1993 and so, he is entitled to be conferred with temporary status with effect from 1.9.1993 in terms of the Scheme "Casual Labourer (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 dated 1.9.1993. He is also entitled to daily wage at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance in terms of Government of India's Office Memorandum of No. 49014/2/86/Estt(c) dated 7.6.1988 from the date of their Initial engagement till the 31.8.1993. I make it clear that his such entitlement is for casual work of 8 hours a day. The crucial date of his initial engagement as a daily rated mazdoo is left open to be determined by the second party since, none of the parties has produced any document in this regard.
(iv) All the other 122 workmen appearing at sl. Nos. 1 to 20, 22 to 24, 26 to 34, 36 to 51, 54 to 59, 61 to 72, 74 to 80, 82, 83, 85 to 94, 96 to 103, 105 to 107, 109 to 116, 118, 120, 122, 124 to 126, 128, 129 to 139 are entitled to get daily wage at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance in terms of Government of India's Office Memorandum of No. 49014/2/86/Estt(c) dated 7.6.1988 from the date of their Initial engagement till the 31.8.1993. I make it clear that his such entitlement is for casual work of 8 hours a day. The crucial date of their initial engagement as a daily rated mazdoors is left open to be determined by the second party since, none of the parties has produced any document in this regard. They are not entitled to be conferred with temporary status in terms of Government of India's office memorandum dated 1.9.1993.
(v) The second party shall also comply with the directions of the Hon'ble High Court at Calcutta, Circuit Bench at Port Blair passed on 8th April, 2005 in WP No. 113 of 2004.
(vi) The matter concerning the regularization of the services of the first party workmen, is left open to be decided by the second party with the observation that the second party shall consider the same subject to availability of vacant posts in the department and subject to their fulfilling the process of recruitment in accordance with the extant provisions of the Recruitment Rules and the general administrative instructions."
5. Against the above quoted Award, the Divisional Forest Officer, Baratang filed a writ petition being WP/176/2005 ( The Divisional Forest Officer, Baratang vs. Baratang Forest Woerks Union), which was dismissed by this Court by a judgment and order dated 13.03.3006. Against the aforesaid judgment in WP/176/2005, MAT No.16/2006 (The Divisional Forest Officer, Baratang vs. Baratang Forests Workers Union) was filed by the Divisional Forest Officer and the Division Bench of this Court dismissed the appeal. The aforesaid judgment of the Division Bench in MAT/16/2006, was challenged by the Divisional Forest Officer, Baratang in Civil Appeal No. 7177/2009 which was disposed of as infructuous by an order dated 19.02.2016, is under :
"We have perused the present application seeking appropriate directions. In view of the subsequent order of the Government with regard to entitlement of pay of the respondent(s), we do not find any live issue for adjudication in this appeal. The Civil Appeal is, therefore, disposed of as infructuous."
6. It further appears that by an order dated 21.05.2015 issued by the Principal Chief Conservator of Forests, 122 Daily Rated Mazdoors out of 136 Daily Rated Mazdoors were appointed on adhoc basis.
7. It appears that since regularization orders were not passed by the respondent authority, therefore, the petitioners and other Daily Rated Mazdoors through their union filed a writ petition being WP/290/2019 (Baratang Forest Workers Union - versus
- Union of India and Others), which was disposed of by this Court by an order dated 18.12.2019 as under : "The grievance of the present petitioner is that the members of the petitioner no. 1 were Daily Rated Mazdoors with the respondent no.4. Subsequently, there were several litigations in the matter and ultimately it was upheld up to a Division Bench of this Court that the members of the petitioner were entitled to 1/30th of pay of the minimum pay scale for the regular employees.
However, the respondent authorities took up the matter up to the Hon'ble Supreme Court, and during the pendency of the Special Leave Petition, such payment started being disbursed to the members of the petitioner no. 1. Thereafter, the members of the petitioner no. 1 were even given regularization in terms of Umadevi's case but on ad hoc basis. Ultimately, by a communication dated July 8, 2018 by the Office of the Principal Chief Conservator of Forests, that is, the respondent no.4.
It was categorically indicated that the department had finalized the appointment of 122 DRMs on ad hoc basis and subsequent to the case of Umadevi and pursuant thereto, and in view of the Special Leave Petition filed by the respondent authorities having been disposed of by the Hon'ble Supreme Court, the department had already initiated the process of appointing the 122 DRMs as regular mazdoors. It may also be recorded that subsequent to Umadevi's judgment, there was a Government Notification as well in consequence thereof, which was given effect to by a communication dated July 8, 2018. However, subsequently, it is found from a communication dated February 4, 2019, that the authorities are dilly-dallying with the matter and have solicited approval of the competent authority for regularization of the DRMs.
The grievance of the members of the petitioner no. 1 is that, subsequent to the communication dated July 8, 2 2018 which is annexed to the present writ application as annexure P7 at page 58, there is no scope for further delaying the matter and the process of appointing the 122 DRMs, including the members of the petitioner as regular mazdoors should be considered reasonably soon.
Learned senior counsel appearing for the Administration, upon instructions, submits that the said regularization process will be expedited and shall be completed within three months from this date.
In any event, the respondents also cannot resile from their position as stated in the communication dated July 8, 2018.
Accordingly, W.P. No. 290 of 2019 is disposed of by directing the respondent no.4 to complete the process of regularization of the 122 DRMs who are represented by the present petitioner."
8. Learned Counsel for the petitioners states, on instructions, that against the aforesaid judgment and order dated 18.12.2019, an appeal was filed by the respondents before a Division Bench of this Court, which was dismissed and therefore, the respondents preferred S.L.P. before the Hon'ble Supreme Court which was also dismissed. Thus, the aforesaid quoted judgment dated 18.12.2019 in WP/290/2019 regarding regularisation has attained finality.
9. Thus, while the petitioners through workers union could not succeed in the matter of their regularization. They formed part of 136 Daily Rated Mazdoors who claimed regularisation, but out of that, only 122 Daily Rated Mazdoors were directed to be regularized and the petitioners were not regularized. In paragraphs 5 and 6, of the affidavit-in-opposition dated 12.03.2022 filed by the respondent nos. 1 to 6 the reasons in brief for not including the name of the petitioners herein while issuing the office order dated 21.05.2015 approving the appointment of 122 Daily Rated Mazdoors on adhoc basis, has been given. In paragraph 15 of the affidavit-in-opposition dated 15.02.2021 filed on behalf of the respondent nos. 1 to 6, it has been stated that the appointment of 122 Daily Rated Mazdoors were made by an office order dated 21.05.2015, who met the criteria laid down in DoPT's office memorandum on adhoc basis in the post of Mazdoor with immediate effect and the petitioners were not eligible as they did not meet the criteria laid down in the office memorandum dated 11.12.2006.
10.
Although, the relief sought for regularization contested by the petitioners herein through their union has attained finality after the judgment and order dated 18.12.2019 in WP/290/2019 has attained finality which directed to complete the process of regularization only in respect of 122 Daily Rated Mazdoors, yet the petitioners herein were pursuing parallel remedy by O.A. 144/AN/2011, Baratang Forest Workers, Baratang through its General Secretary, O.A.
200/AN/2011 P.
Vaikunta Rao, O.A.
201/AN/2011 Robert Lakra - versus - Union of India and four others seeking relief for regularization of their service in view of their alleged continuous service rendered by them. The aforesaid three original applications were dismissed by the Central Administrative Tribunal, Kolkata Bench (Circuit at Port Blair) by an order dated 13/17.12.2012. In paragraphs 2, 3 and 4 of the above referred order, the Central Administrative Tribunal noted the facts of the case in brief. In paragraphs 7, 8 and 9 discussed the matter at length and dismissed the original application. This order of the Central Administrative Tribunal also has attained finality which also binds the present petitioners.
11.
Thus, from the facts briefly noted above, it is evident that the petitioners have been abusing the process of law, choosing the forum suppressing facts and had been litigating the matter even after the question of regularization has attained finality by the above referred order of the Central Administrative Tribunal and more specifically the order of this Court dated 18.12.2019 in WP/290/2019, yet the petitioners
in their individual names, have now filed the present writ petition which is nothing but an abuse of process of law. 12.
The question of regularization of the petitioners has already attained finality. Under the circumstances, the present writ petitions are not maintainable and deserved to be dismissed.
13.
For all the reasons stated above, all the four writ petitions i.e. WPA/94/2020, WPA/95/2020, WPA/96/2020 and WPA/97/2020 are hereby dismissed.
( Surya Prakash Kesarwani, J. )