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Judgment
K. Chandru
The petitioner was an employee of Bharat Sanchar Nigam Limited (for short BSNL). She has filed the present writ petition, challenging the
Award passed by the Central Government Industrial Tribunal cum Labour Court (for short CGIT) made in I.D. No. 62 of 2005 dated
23.08.2006. By the impugned Award, the CGIT granted only the relief of Rs. 10,000/- as compensation in lieu of all claims. The writ petition was
admitted on 08.02.2007. Subsequently, when the matter came up on 20.03.2009, this Court on an erroneous assumption that the service
grievance of employees of BSNL will have to go before the Central Administrative Tribunal directed the Registry to return the papers to the
counsel for the petitioner to be presented before the Tribunal. Subsequently, a review application was filed in Review Application No. 70 of 2009,
seeking to review the order dated 20.03.2009. This Court by an order dated 27.09.2011 reviewed the order and restored the writ petition for
being dealt with by this Court.
notice from this Court, on behalf of respondents 2 and 3, a counter affidavit dated 10.12.2007 was filed.
The case of the petitioner was that she joined the service of BSNL on 09.08.1991. She was employed for sweeping and cleaning. While she
joined the second respondent, the BSNL was functioning as Department of Telecommunication. She was initially employed at their office at
Alwarpet, viz., Chief Engineer (Electricals), Department of Telecommunication. Thereafter, the office was shifted to No. 33, Ethiraj Salai, Egmore.
Initially, the petitioner was paid wages directly by the BSNL on monthly basis. Thereafter, from 01.11.1995 to 25.04.1999, they started labelling
the petitioner as contract labour and she was forced to enter into a contract with the Management. There was no intermediary between her and the
Management. The contract was introduced by the BSNL only to get over the labour welfare provisions. On 25.04.1999, the so-called contract
was discontinued and she was informed that as and when her services were required, she will be engaged and on that basis she has been working
continuously after 25.04.1999. She was made to receive wages on fictitious names or on pseudo names viz., Kalai, who is her daughter, Mala,
who is her sister, Suriya, which is first portion of her name and Kumari, second part of her name and also in the name of Ms. Geetha and Sudha.
Even though the names are different and her name was not mentioned, she had been working continuously on the aforesaid names and receiving
wages.
It was also stated that other persons who were similarly placed M/s. P.Murugan, G.Ravi and L.Rajesh were also doing sweeping and cleaning
work. When the office was shifted, those three persons were also allotted to the office of the Chief Engineer (Electricals) and they were also
named as contract labourers. But subsequently, services of those three employees were regularised though they were much junior to the petitioner.
The office of the petitioner comes under the control of the BSNL with effect from 01.10.2000 and she has been working even thereafter.
The second respondent has recommended the case of the petitioner to the third respondent vide letter dated 27.12.2001 for regularising her
service. In that letter, it was specifically mentioned that her juniors M/s. P.Murugan, G.Ravi and L.Rajesh were also regularised with effect from
October 2000. The second respondent once again recommended the case of the petitioner on 19.09.2002. But however she was orally stopped
from work. As she had put in more than 480 days of service during the period of 24 calendar months, she is also entitled to be made permanent in
terms of T.N.Act 46 of 1981.
Thereafter, the petitioner raised an industrial dispute before the Central Government, Labour Department. The Conciliation Officer after notice
to BSNL and as he could not bring about any settlement sent a failure report to the Central Government. The Central Government through
Ministry of Labour vide order dated 21.07.2005 referred the issue of termination of the petitioner for adjudication by the CGIT. The CGIT
registered the dispute as I.D. No. 62 of 2005 and issued notice to both parties. The petitioner filed claim statement dated 10.09.2005. The second
respondent Management filed counter statement dated 29.10.2005. The petitioner also filed a rejoinder dated 25.11.2005.
Before the CGIT, the stand of the Management was that the system of recruitment of conservancy staff under the Department of
Telecommunication was discontinued in a phased manner and it was entrusted to contractors. The communication sent by the DoT will not apply
to the case of the petitioner. The recruitment will have to be done only by the normal recruitment rules. In the case of three employees quoted by
the petitioner, they went to the Tribunal and got a direction to consider their names by giving preference at the time of regular employment and
hence, it will not apply to the case of the petitioner.
Before the Tribunal, the petitioner examined herself as W.W.1 and on her side, she filed 69 documents which were marked as Exs.W1 to W69.
On the side of the Management, one N.Muralidharan was examined as M.W.1 and on their side only the letter of authorisation was filed, which
was marked as Ex.M1.
The CGIT held that inasmuch as the petitioner had put in required days of service u/s 25B of the I.D.Act, without following the procedure for
dispensing her service will amount to infringement of Section 25F of the I.D.Act. It also found in the case of three juniors, there has been
discrimination. Thereafter, the CGIT placing reliance upon certain judgments of the Supreme Court instead of granting the relief of reinstatement
directed payment of Rs. 10,000/- towards compensation. As against the Award, BSNL has not filed any writ petition and it had become final in
respect of them. Therefore, the finding that the case of the workman amounts to illegal retrenchment and the condition precedent for retrenching the
workman was not followed stands unrebutted. similarly, the case of the three workers who went to the Tribunal and got a favourable direction that
they should be given preference in employment and subsequently they were regularised and they were junior to the petitioner also not disproved.
When once it is held that it is a case of retrenchment, whether employees like the petitioner, who was a sweeper and who has been working
even before the take over by the BSNL, relief of compensation of Rs. 10,000/- as granted by the CGIT is legally justified is the only question to
be decided.
The Supreme Court vide its judgment in The State Bank of India Vs. Shri N. Sundara Money, has held that in case of infraction of Section
25F of the I.D.Act, the normal relief is one of reinstatement with backwages in the same status. Subsequently, when the Punjab High Court
granted compensation instead of reinstatement, the Supreme Court took exception to the decision of the Punjab and Haryana High Court vide its
judgment in Harjinder Singh Vs. Punjab State Warehousing Corporation, wherein, the Supreme Court reminded all Courts the constitutional
obligation to guarantee the right to livelihood. It is necessary to refer to paragraphs 30 and 31, which are as follows:-
Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations.
The attractive mantras of globalisation and liberalisation are fast becoming the raison d''etre of the judicial process and an impression has been
created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases
like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by
creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in
such cases is that the initial employment/ engagement of the workman/ employee was contrary to some or the other statute or that reinstatement of
the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the
accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the
employment for years together and that micro wages earned by him may be the only source of his livelihood.
It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal
of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the
approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral
part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employerpublic
or private.
In the light of the above, the impugned Award stands modified and it is hereby declared that the petitioner is entitled for reinstatement with full
backwages and continuity of service. The writ petition stands allowed. No costs. Connected miscellaneous petition is closed.