Executive Engineer U Division v. Ram Prasad & Anr

1. The present petition has been filed by the Petitioner/Management - CPWD challenging the impugned Award dated 7th November, 2006 passed by the CGIT in I.D. No.65/2002 titled Shri Ram Prasad & Shri Raja Ram v. The Executive Engineer, New Delhi. Vide the impugned Award, the CGIT has held that the non-regularization of service of the Respondents - Workmen, Mr. Ram Prasad and Mr. Raja Ram, and continuing them on a casual basis indefinitely, was neither fair nor reasonable. Accordingly, the CGIT directed regularization of the said two Respondents within two months from the date of the impugned Award.

2. The Petitioner has challenged the impugned Award primarily on two grounds: i. That the services of both the Respondents - Mr. Ram Prasad and Mr. Raja Ram, were engaged pursuant to a competitive bids which were floated for the purposes of engagement of Fitter and 2022:DHC:2469 Beldar. The Respondents submitted their quotations which were found to be competitive, and their services were engaged from time to time. The payment was also made on a per day basis. ii. That the judgment in Public Works Department v. Shri Satya Pal [W.P. (C) 7032/2005 decided on 19th October, 2005], relied upon by the Respondents, would not apply to the present case, as the Workmen in the said case were engaged as drivers on a monthly basis and the facts of the said case are clearly distinguishable.

3. Ms. Bidawat, ld. Counsel for CPWD has made the following submissions: i. The work orders in the case of the present two Respondents clearly show that these are contracts for service. There were several conditions which were imposed by the said work orders and the same were clearly accepted by the Respondents. ii. The Respondents have been described as contractors and not as workers. She submits that it was not necessary for them alone to render services and the Respondents could have, in fact, deputed anyone else for rendering the services. iii.Considering the nature of the work orders which have been placed on record, as also, the judgment of the ld. Single Judge of this Court in Daya Shankar Prasad v. Director General of Works CPWD [2013(133) DRJ 155], the services of the Respondents are not liable to be regularised, as they are being engaged from time to time on the basis of work orders. The ld. Division Bench of this Court has also dismissed the LPA No.777/2012 decided on 27th November, 2012 challenging the judgment in Daya Shankar Prasad (supra). Hence, the facts of the present case would be governed by the said judgments. iv.Ms. Bidawat, ld. Counsel also distinguishes the judgment in Satya Pal (supra) by showing that the conditions of service in the said case are also different from the present petition.

4. Mr. Kapoor and Ms. Sharma, ld. Counsels have however placed reliance on the judgement in Satya Pal (supra) and submits that the said judgment has been upheld by the Supreme Court. Ld. counsel further submit that the Respondents have rendered services for a long duration with the Petitioner and the CGIT has rightly regularised their services.

5. This Court has perused the work orders which have been placed on record. The conditions of service, as per the said work orders, are extracted below: “Order for work described below given to Sh. Ram Prasad, Contractor, H. No. 186, Block-I, Mir vihar, Madan Pur Dabbas, Delhi-81. XXX Name of work: - A/R & M/O 9 to 14 Blocks at CGO Complex, Lodhi Road, New Delhi, during 2012-13. (SH:- Providing the services of Fitter) Supply the services of Fitter to attend day to day required complaints related to Fitter complaints received in enquiry Office of Sub-Division II. The required material shall be supplied by the department free of cost. The job is considered for period of 9.00 AM to 5.00 P.M. General Conditions:- The payment for the work will be made once in a month. The contractor shall arrange his own T & P. Services will be 08 hours a day from 9.00 AM to 5.00 PM. Daily attendance of the workers or his authorized representative shall be made in the Register maintained by J.E. in charge of work. The contract can be terminated at any time without assigning any notice. The contractor or his worker shall have no claim of any nature other than the payment mentioned above.”

XXX XXX XXX “Order for work described below given to Sh. Raja Ram, Contractor, Behara hazipur Ambedkar Colony, Loni Boarder, Gaziabad, (U.P.). XXX Name of work: - A/R & M/O 9 to 14 Blocks at CGO Complex, Lodhi Road, New Delhi, during 2012-13. (SH:- Providing the services of Beldar) Supply the services of Beldar to attend day to day required complaints related to Beldar complaints received in enquiry Office of Sub-Division II. The required material shall be supplied by the department free of cost. The job is considered for period of 9.00 AM to 5.00 P.M. General Conditions:- The payment for the work will be made once in a month. The contractor shall arrange his own T & P. Services will be 08 hours a day from 9.00 AM to 5.00 PM. Daily attendance of the workers or his authorized representative shall be made in the Register maintained by J.E. in charge of work. The contract can be terminated at any time without assigning any notice. The contractor or his worker shall have no claim of any nature other than the payment mentioned above.”

6. A perusal of both the work orders extracted above shows that quotations were called for, from the contractors, and after perusing the competitive quotations, the contract was awarded to the said Respondents. Both the Respondents are clearly described as contractors in the said work orders, and not as workmen. The amount payable is also on a per day basis i.e., Rs.339/- per day and Rs.256/- per day, for a period of 365 days. The conditions of service extracted above also shows that the attendance could be of a different person and need not of the same very contractor who was being awarded the work.

7. The CGIT has relied upon the judgment in Steel Authority of India & Others v. National Union Waterfront Workers and Others [(2001) 7 S.C.C. 1]. However, the said judgment would not have any application in the present case as the said case relates to contractual labour, and not persons who have received work orders described as contractors, as in the present case.

8. The facts relating to the conditions under which the work orders are placed on these persons seem to have been completely ignored by the CGIT without any finding in that regard. A perusal of the conditions would show that the same are in the nature of contracts awarded for a particular service. The contractor himself could work or could also depute any other worker for rendering the services. The same is not in the nature of employment. In the case of Satya Pal (supra), a perusal of the SLP paperbook which has been placed on record shows that the conditions of service in Satya Pal (supra) were as follows: “Terms & Conditions

1. Work shall be done as per direction and specification of engineer in charge.

2. No accommodation shall be provided to the driver.

3. The driver has to work on duty 9.00 am to 5.00 pm xxx Hrs lunch at 1.00 pm.

4. The driver has to pick up the vehicle from the fixed place and after office hours as shown at Sl. No.3 above. He has to park the vehicle good condition at the same fixed place.

5. The driver has to make his own arrangement for convenience to reach the place of work and back to home.

6. The driver cannot refuse to work after office hours for such extra work. He will be paid proportionate wages per extra hours O.T. as per departmental rules.