2011-IST-42-HC-KAR-ST

IN THE HIGH COURT OF KARNATAKA

AT DHARWAD

WP No.65048/2009 (S-CAT)
WP No.65072/2009 (S-CAT)

1) ASSISTANT COMMISSIONER OF CENTRAL EXCISE
HUBLI DIVISION, FIRST FLOOR, C R BUILDING
P B, ROAD, NAVANAGAR, HUBLI-500025

2) ADDITIONAL COMMISSIONER (P&V)
CENTRAL EXCISE NO 71, CLUB ROAD
BELGAUM -590001

3) COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
NO 71, CLUB ROAD , BELGAUM -590001

4) CHIEF COMMISSIONER CENTRAL EXCISE AND CUSTOMS
MYSORE ZONE, S1/S2, VINAYA MARG, SIDDARTHA NAGAR
MYSORE-570011

5) CENTRAL BOARD OF EXCISE AND CUSTOMS
BY ITS CHAIRMAN, AGCR BUILDING , I P ESTATE
NEW DELHI-110002

6) UNION OF INDIA
BY ITS SECRETARY, DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110001

Vs

1) SHRI GANGAPPA MADAR
S/o KATEPPA MADAR
AGED ABOUT 48 YEARS, WORKING AS SWEEPER
O/o ASSISTANT COMMISSIONER OF CENTRAL EXCISE
DHARWAD DIVISION, 2 ND FLOOR, C P BUILDING
NAVANAGAR, HUBLI-500025

2) SMT RENUKA TATTI
W/o GURUSIDDAPPA TATTI
AGED ABOUT 38 YEARS, WORKING AS SWEEPER
O/o ASSISTANT COMMISSIONER OF CENTRAL EXCISE
DHARWAD DIVISION, 2ND FLOOR, C R BUILDING
NAVANAGAR, HUBLI-500025

3) SRI MAHESH
S/o SHANKARAPPA NEELAGUND
AGED ABOUT 35 YEARS, WORKING AS SWEEPER
O/o SUPERINTENDENT OF CENTRAL EXCISE AND CUSTOMS
GUJJAR GALLI, BULLA BUILDING , GADAG

WP No.65072/2009

1) ASSISTANT COMMISSIONER OF CENTRAL EXCISE
HUBLI DIVISION, FIRST FLOOR, C R BUILDING
P B ROAD, NAVANAGAR, HUBLI-500025

2) ADDITIONAL COMMISSIONER (P&V), CENTRAL EXCISE
NO 71, CLUB ROAD , BELGAUM -590001

3) COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
NO 71, CLUB ROAD , BELGAUM -590001

4) CHIEF COMMISSIONER CENTRAL EXCISE AND CUSTOMS
MYSORE ZONE, S1/S2, VINAYA MARG, SIDDARTHA NAGAR
MYSORE-570011

5) CENTRAL BOARD OF EXCISE AND CUSTOMS
BY ITS CHAIRMAN, AGCR BUILDING
I P ESTATE, NEW DELHI-110002

6) UNION OF INDIA
BY ITS SECRETARY DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, NORTH BLOCK
NEW DELHI-110001

Vs

1) SHRI KARISWAMY
S/o SHIVARDRAPPA DODWAD
AGED ABOUT 36 YEARS, WORKING AS SWEEPER
O/o ASSISTANT COMMISSIONER OF CENTRAL EXCISE
DHARWAD DIVISION, 2ND FLOOR, C R BUILDING
NAVANAGAR, HUBLI-500025

2) SRI PARASURAM
S/o H EAMBATNAL
AGED ABOUT 34 YEARS, WORKING AS SWEEPER
O/o ASSISTANT COMMISSIONER OF CENTRAL EXCISE
DHARWAD DIVISION, 2ND FLOOR C R BUILDING
NAVANAGAR, HUBLI-500025

3) SRI APPUSAB
S/o KAMBLE
AGED ABOUT 41 YEARS, WORKING AS SWEEPER
O/o SUPERINTENDENT OF CENTRAL EXCISE AND CUSTOMS
KITTUR BUILDING , 2ND FLOOR, ALUR VENKATARAO CIRCLE
DARWAD, R/o GULAGANJIKOPPA, DHARWAD, DISTRICT DHARWAD

N Kumar and Aravind Kumar, JJ.

Dated: June 02, 2011

Appellant Rep by: Shri S N Rajendra, CGSC
Respondent Rep by: Shri J S Shetty, Adv.

Service – Grant of temporary status for daily wage labourers and casual labourers in central excise and customs department – CAT did not check whether it was really necessary for the labourers to satisfy conditions required for granting temporary status – Matter remanded to CAT for fresh consideration of all issues – Tribunal directed to take up matter expeditiously – Till contentious issues were decided by CAT, services of respondents who were in service shall not be dispensed with

Writ Petitions disposed of

JUDGEMENT

These two writ petitions are preferred challenging the order passed by the Central Administrative Tribunal in O.A. 145/2008 and O.A.128/2008 where a direction is issued to the petitioners to consider the case of the respondents herein in terms of the order passed in O.A.185/2003 and O.A.222/2003 subject to the outcome of the writ petition, pending before Hon'ble High Court. As the question of law involved in both the cases are same, they are taken up together and disposed of by this common order. Respondents in both these petitions sought the following reliefs before Central Administrative Tribunal:

PRAYER SOUGHT FOR IN O.A.NO.145/2008

(i) Issue a writ of certiorari or any other appropriate writ, order/direction to quash the notification No.C.No.111/03/05/2007, dated 02.04.2008 issued by first respondent. The Assistant Commissioner of Central Excise, Hubli Division the copy of which has been produced at Annexure-A A9, and the order No.C.No.11/39/11/2007/ESTT and C.No.11/39/11/2007/ESTT, issued by the second respondent dated 07.03.2008 and 03.04.2008 and the copy of which has been produced herewith at Annexure-A7 and Annexure-A8, respectively, in the ends of justice and equity.

(ii) A direction against the respondents may kindly be issued to continue the service of the applicants as daily waged casual Labourers till the regular appointment to these posts have been made in accordance with law.

(iii) Direction may kindly be issued against the respondents to confer the temporary status of casual Labourers in favour of the applicants as done in the case of similarly situated other casual Labourers working in the office of Commissioner of Central Excise Delhi as per Annexure-A10 and also as per the order dated 08.11.2000, passed by the second respondent, the copy of which has been produced at Annexure-A11.

PRAYER SOUGHT FOR IN O.A.NO.128/2008

(i) Issue a writ of certiorari or any other appropriate writ, order/direction to quash the notification No.C.No.11/39/21/2007/ESTT, dated 26.03.2008 issued by first respondent. The Assistant Commissioner. Assistant Commissioner of Central Excise, Dharwad Division the copy of which has been produced at Annexure-A 13, and the order No.C.No.11/39/11/2007/ESTT and C.No.11/39/21/2007/ESTT, issued by the second respondent dated 07.03.2008 and 24.03.2008 and the copy of which has been produced herewith at Annexure-A10 and Annexure-A12, respectively, in the ends of justice and equity.

(ii) A direction against the respondents may kindly be issued to continue the service of the applicants as daily waged casual Labourers till the regular appointment of these posts have been made in accordance with law.

(iii) Direction may kindly be issued against the respondents to confer the temporary status of casual Labourers in favour of the applicants as done in the case of similarly situated other casual Labourers working in the office of Commissioner of Central Excise, Delhi as per Annexure-A 14.

2. Impugned order shows that prayers 1 and 2 are not considered by the Tribunal. In applications O.A.185/2003 and O.A.222/2003 prayer was to consider the case of the applicants in the said applications for grant of temporary status. In other words the impugned order passed by the Tribunal directed the conferment of temporary status on these respondents. It is that portion of the order, which is challenged in this writ petition.

3. Learned counsel for the petitioner submits that in order to grant temporary status as ordered in the aforesaid cases, respondents have to satisfy three conditions namely (1) they should have been appointed prior to 01.09.1993 (2) rendered continuous service for a period of atleast 240 days and (3) they must be full time employees. Unless these three conditions are satisfied a person cannot be conferred temporary status. It is contended that respondents do not satisfy the said conditions and therefore direction issued by the Tribunal is contrary to law and requires to be set aside.

4. Per contra learned counsel for the respondents submitted that though said conditions are not satisfied as required under law, he pointed out that various High Courts have taken a view that even persons who have not complied those conditions are entitled for grant of temporary status. The question is.

"Whether these respondents do satisfy the aforesaid conditions?"

5. Is it really necessary to satisfy those conditions for grant of temporary status has not been looked into by the Tribunal. It is noticed from the impugned order that a statement was made that case is covered by its earlier judgment and by consent of parties the said order is passed. There was no occasion for the Tribunal to look into the facts of the case and even to find out whether respondents are entitled to said relief or not. It is the case of the respondents that satisfaction of the conditions was prerequisite for conferring temporary status. Tribunal has not considered the said factual and legal aspects. It did not look into the main prayer sought for. In that view of the matter, proper course would be to set aside the order and remand the matter back to the Tribunal for fresh consideration and decide all the issues raised in the application after hearing the parties, and that would meet the ends of justice.

Both writ petitions W.P.65048/2009 and W.P.No.65072/2009 are allowed. Impugned order of the Tribunal is set aside. Entire matter is remanded back to Tribunal for fresh consideration in accordance with law. All contentions urged are left open to be urged before the Tribunal. Parties to bear their own costs.

Tribunal shall take up this matter expeditiously, as sufficient and valuable time has been spent prosecuting the matter before this Court. Till those contentious issues are decided by the Tribunal, if the respondents are in service as on today, their services shall not be dispensed with.

( DISCLAIMER : Though all efforts have been made to reproduce the order correctly but the access and circulation is subject to the condition that Indiaservicetax.com is not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.)