IMPORTANT POINT
Casual employees have preferential rights to re-engagement over new hires until regular positions are filled, as protected under Section 33 of the Industrial Disputes Act.

JUDGMENT :

Amit Rawal, J.

1. Present OP(CAT) at the instance of Union of India, Postal Department, is directed against the judgment dated 28.11.2022 rendered in O.A.No.322 of 2022, whereby following reliefs claimed by the respondents/applicants have been allowed, though according to the petitioner, in a different manner:

I. To call for records leading to any proceedings directing termination of services of the applicants and quash the same;

II. To direct the respondents to reinstate the applicants in employment and to continue them in service in preference to freshers and juniors with all consequential benefits including back wages for the period they were kept on service;

III. grant such other reliefs as may be prayed for and the court may deem fit to grant, and

IV. To grant the costs of this Original Application.

2. For adjudication of the lis, the facts, in narrow compass, are enumerated herein below:

Respondents – applicants, twenty two(22) in number, who have been employed as casual daily waged Mazdoors for 5 to 11 years, had set up their claim before the Labour Commissioner for grant of minimum wages as has been granted to their counterparts in other departments. During the pendency of the matter before the Labour Commissioner, the department attempted to disengage their services giving cause to invoke the jurisdiction of the Central Administrative Tribunal by preferring aforementioned O.A claiming the reliefs aforementioned. Petitioners - respondents raised the objection qua maintainability, as the aforementioned reliefs, as per Section 7 and 7A of the Industrial Dispute Act, could have been agitated either before the Labour Court or Industrial Tribunal.

3. Learned Tribunal, on appreciation of the pleadings as well as the case laws cited by either of the parties much less by overruling the objection, allowed the O.A. with a direction to the petitioners to re-engage the employees till the scheme with regard to engagement through the outsourcing agencies is finalised/approved. However, while granting such relief in paragraph No.12, as extracted herein below, referred to the provision of Section 33 which is the point of challenge in the present O.P. as the pendency of the claim before the Labour Commissioner may not result into an adjudication without noticing the objection of the petitioner:

“12. Section 33 of the Industrial Disputes Act is sacrosanct. The applicants are entitled get protection under Section33 of the Industrial Disputes Act. Their preferential claim cannot be ignore. Therefore, till modalities for outsourcing through approved agencies are finalised, the respondents are directed to re-engage the applicants in preference to freshers and juniors.

The application is allowed as above. No costs.”

4. Sri.T.C.Krishna submits that finding paragraph No.12 are required to be expunged. Even otherwise, the ratio in Ghaziabad Development Authority and others v. Vikram Chaudhary and others [AIR 1995 SC 2325] relied upon by the Tribunal would not be applicable, as, the entire engagement had been through the outside agencies.

5. On the other hand, Sri.Hariraj, learned Senior Counsel assisted by Adv.Akhila submitted that the claim, though according to the instructions, before the Labour Commissioner is still pending, the fact remains that it is settled law that a set of contractual employees or daily wagers cannot be replaced by another set of employers either through outsourcing or through notifications, until and unless the posts have been filled up through regular employment, that too, against sanctioned posts. In support of the contention, relied upon the judgment of the Supreme Court in Hargurpratap Singh v. State of Punjab and Others [(2007) 13 SCC 292] and urged this Court for dismissal of the O.P.(CAT).

6. We have heard the learned counsel for the parties and appraised the paper book.

7. On perusal of the extracted portion of the findings of the Tribunal, we are in agreement with regard to the findings recorded in paragraph No.11