Nekkhomang Neihsial, Member (A).
1. Being aggrieved against the Tender Notice dated 08.09.2016 issued by the Additional Commissioner of Central Excise and Service Tax, Dibrugarh, Assam, the applicants have preferred the instant O.A. seeking the following main reliefs:-
8.1 To set aside and quash the impugned Tender notice dated 08.09.16 issued by the Additional Commissioner of Central Excise and Service Tax, Dibrugarh, Assam and all actions taken thereafter on the basis of the aforesaid tender notice.
8.2 To allow the applicants to continue as casual workers with all benefits extended to such casual workers from time to time.
8.3 To grant pay equal to the regular employees working in different establishments under the respondents and sharing similar duties and responsibilities as that of the applicants.
8.4 Any other relief as Your Lordships deem fit and proper in the interest of justice.
The applicants also prayed for interim order:
9.1 During pendency of this application, the applicants prays that the Tender Notice dated 08.09.10 issued by the Additional Commissioner of Central Excise and Service tax, Dibrugarh, Assam and any action taken on the basis of that notice be kept in abeyance till final disposal of the instant case and allow the applicants to continue as earlier.
2. The applicants claims that they were engaged as casual workers under the Commissioner of Central Exercise, P.O. C.R. Building, Milon Nagar, Dibrugarh, Assam in between 14.08.2002 as per the procedure prescribed for engagement of casual workers prevailing at that point time. Since their engagement the Applicants are discharging their respective works in different capacities such as Driver, Electrician, Safaiwala, Data Entry Operator, Farash/Peon, Cook etc. They are continuously discharging their duties for more than last 13 years without any stigma or blemish.
3. Since their engagement they claimed that they are continuing as casual workers and each of them has individually completed more than 12 years of continuous services in the establishment of Commissioner of Central Excise & Service taxes, Dibrugarh, Assam. It is stated that during this period there is no stigma or blemish in the service career of the applicants. It is further stated that during these long years of attachment with the establishment of Commissioner of Central Excise & Customs the applicants have contributed a lot for the smooth functioning of the office.
4. The impugned Tender Notice dated 08.09.2016 was published by the Respondent No. 6 only to replace the applicants by another set of temporary workers. Main intention behind the same was to deprive the applicants from the benefits extended to casual workers (including regularization). While publishing the tender notice, the respondents have arbitrarily used the power vested on them only to deprive the applicants from their legitimate claim.
5. The main grounds of the applicants are that they are working under the respondents for more than 13 years and as such they have right to continue as such until their dis-engagement on the ground of un-satisfactory service is bad. The respondents cannot replace one set of casual employees (temporary workers) by another set of temporary employees. But in the instant case the respondents have tried their best to replace one set of temporary/casual employees by another set of temporary set of temporary employees. Since they are continuously discharging their duties as casual workers and are doing different jobs in different capacities such as Driver, Electrician, Safaiwala, Data Entry Operator Farash/Peon etc. hence they are entitled to similar pay and allowances with that of the regular employees working in similar capacities. Some persons similarly situated with that of the applicants and working in different divisions of the Central Excise and Customs are allowed to continue as the casual workers. But the Dibrugarh Commissionerate has tried to put the services of the applicants under a contractor by giving differential treatment.
6. The respondents have filed their written statement on 23.05.2017. At para 4 of their written statement, the respondents have stated that the applicants were not engaged by the department. Moreover, they are not casual workers as claimed by the applicants. The applicants have been engaged through outsourcing agencies through Manpower Suppliers. They receive payments from the Manpower Suppliers/Contractors. Monthly bills are submitted by those suppliers/contractors on the basis of the number of persons engaged during the month and payments are being made to the suppliers/contractors in terms of the contract. The applicants being outsourced are not under payroll of the department inasmuch as they are not departmental employees.
7. The respondents have also denied at para 7 in their written statement that the applicants were forced to submit applications. Said notice dated 28.04.2006 was issued for fresh tender from contractors as the earlier contract had ended. Moreover, the Notice was affixed on the office Notice Board for public. As per the notice, applications were invited from Indian citizen and was not restricted to any labour contractors the tender of Sri Sanjib Gogoi was accepted and asked him to supply manpower.
8. The respondents have also stated at para 10 in their written statement that in pursuance of the aforesaid Tender Notice dated 08.09.2016, contractors submitted their tender for supply of Manpower/Workers and accordingly the competent authority of the respondent department has accepted the tender of Sri Novojit Baruah, Sri Sanjib Gogoi and Sri Gagan Handique and requested them to provide outsourced workers to the department vide letter issued under C.No.III(36)01/Daily Wages/PRO/CCE/DBR/12/Pt-II/7868 and 7873 dated 01.12.2016 issued by the Public Relation Officer (Hqrs.), Central Excise & Service Tax, Dibrugarh.
9. We have examined the submissions and pleadings made by both the parties. From the record, it is observed that in another O.A. No. 202/2013 and O.A. No. 223/2013, this Tribunal vide common order dated 04.06.2014 had directed the respondents as here under:
“Having heard he learned counsel for the parties, perused the pleadings and material placed before us, we are of the considered view that ends of justice will be met if the matter is sent back to the respondents for consideration of regularization of the applicants by formulating a proper policy as per law and in terms of DOP&T’s guidelines. Accordingly, we are sending the matter back to the respondents for formulating a proper policy as per law and in terms of DOP&T’s guidelines.”
10. We further noted that instead of passing speaking order by taking into consideration the Scheme as narrated above, the respondent authorities have directly approached before the Hon’ble Gauhati High Court where the matter is still pending.
11. On the date of final hearing on 13.03.2019, Sri R.R. Bangar, respondent No. 4 i.e. Commissioner of CGST, Dibrugarh appeared before the Court. The hearing was concluded on 13.03.2019. On that date, liberty was granted to the applicant to file written argument within seven
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days. However, till date even after more than one month, written argument has not been submitted by the learned counsel for the applicant. 12. Notwithstanding the above position and after careful consideration, it is felt that since the case has been filed by the respondent authorities before the Hon’ble Gauhati High Court, it would not be fair to finally dispose of the present O.A. Accordingly, it is hereby directed that the applicants whether they are working as casual labourers which is yet to be fully established or working through outsourced contractor, the respondent authorities shall not take any coercive action to terminate their services before the case is finally disposed of by the Hon’ble High Court. 13. O.A. stands disposed of accordingly. There shall be no order as to costs.