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Judgment
Rajiv Narain Raina, J.—This order will dispose of 6 petitions cited above as common questions of law and fact are involved in all these petitions:-
CWPNo. 3569 of 2011
CWP No. 3608 of 2011
CWP No. 3579 of 2011
CWP No. 3607 of 2011
CWP No. 3610 of 2011
CWP No. 3609 of 2011
In this batch of cases filed by Bharat Sanchar Nigam Limited (BSNL for short), the Labour Court has answered the industrial reference in favour of the workmen, who are the respondents in these cases, and findings have been returned on evidence adduced by the parties that the workmen were part time employees of BSNL on contract and had put in more than 10 years of service before cessation of their services by the erstwhile employer the Department of Telecom Services, Government of India in its local State offices. The theory propounded by BSNL, the successor-in-interest of the Department of Telecom, was that the workmen were employed through contractors and, therefore, there was no direct relationship of employer and employee existing between the parties. In order to answer the questions raised the facts are culled out from CWP No. 3569 of 2011 for convenience.
The respondent Suresh Kumar was engaged by the Department of Telecom Services as a part time Sweeper and he was paid wages on hourly basis. BSNL became a body corporate with perpetual seal with a right to sue and be sued in its name on its incorporation under the Companies Act, 1956 with effect from 1.10.2000 on a certificate issued by the Registrar of Companies. It was hived from its parent body i.e. the Department of Telecommunication, New Delhi in a reorganization exercise. There can be hardly any dispute that the respondent''s came over by deeming fiction from the Department of Government of India to the newly incorporated BSNL when rights to sue and causes of action subsisted in the new organization. The respondent''s services were discontinued by the parent department on its winding up accommodating the creation of a new juristic identity and transfer of assets and liabilities from one to the other.
The primary objection taken before the Labour Court on disputes being raised by the respondent in the present petition and the respondents in the connected cases by BSNL was that it was not a party to the reference made prior to its creation nor was the Union of India through the Department of Telecom Services, made a party to the reference. The action was, as noticed in the cause title, brought against the General Manager Telecom, Bathinda but which was sent for adjudication to the Labour Court as framed by the appropriate government without notice to the workmen when it made the reference under section 10(1) (c) of the Industrial Disputes Act, 1947 (in short ''the Act'') to test the legal validity of the termination order. The services of Suresh Kumar were terminated by the Department of Telecom while it was in existence to operate with effect from 1.3.1999 vide order dated 22.2.1999 passed by the appointing authority. Before that event, he had been engaged as a Sweeper to work in Phul Mandi, Telephone Exchange Area since 1.8.1990 onwards like the other respondents in the connected cases. At the time of entry into service, Suresh Kumar, like the rest, gave an undertaking that they will not claim any right of permanent absorption in the Department and he could be disengaged without notice. His work timings were only for 0.824 hours in a day and were paid wages accordingly. In proof of duration of working hours in a given day, reliance was placed on a letter of BSNL addressed to DE (Legal) O/o GMT, Bathinda dated 28/29th June, 2001 on the subject of part-time employees. This letter reveals that the respondent/s worked for less than 4 hours except Raju who worked for 6 hours a day. It was also disputed by BSNL that none of the present respondents completed 240 days in a year and they were not workmen by definition as per the Industrial Disputes Act, 1947 (for short, "the Act"). They were part-time employees and could not claim temporary status or the benefit of regularization. It is said that Suresh Kumar and his ilk were contract labour. After their services were discontinued, no person junior to the aggrieved workmen was retained or appointed by BSNL. In fact, there was no legal necessity for maintaining their seniority list by BSNL on its incorporation. In fact, the Department of Telecom has imposed a partial ban on 30th March, 1985 for engagement of casual labour for any type of work and a complete ban was imposed on 26th June, 1988 and it was decided that there should be no recruitment for casual labour even for a specific job. After the issuance of the letter dated 26th June, 1988, a need was felt in amending paragraph 193 of P & T Manual, Volume 10 which permitted engagement of casual labour directly or through contractors. Accordingly, the issue was examined in detail and it was decided vide DOT letter No. 269-4/93-STN-IT(PT) dated 12th February, 1999 to delete paragraph 193 of PNT Volume III, Part-I Chapter 5 dealing with the payment of casual labour engaged on muster rolls which required deletion because of the recruitment ban imposed vide above said letters and the consequential abolition of the system of engaging casual labour through contractors vide letter dated 12th February, 1999. The claim of respondent No. 1 is said to be totally false as the petitioner is bound by a policy decision and the petitioner did not engage respondent No. 1 etc. in its workplace to do the job of janitors in their office.
Disputes having arisen between the parties as a consequence of retrenchment, the appropriate Government made a reference to the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh in six industrial references bearing Nos. 254, 249, 251, 252, 255 and 257 of 2001.
By an order passed by the Tribunal while holding camp court on 22nd September, 2010, all the 6 cases were consolidated. The evidence was recorded independently and separately in each IDR but common evidence of the Management/BSNL was recorded as the witnesses of the Management in all the disputes were common. Reference was whether the action of the General Manager Telecom, Bathinda in terminating the services of the claimants was just and legal and to what relief the workmen are entitled to and from which date. All the references are identical except for the names of the claimants.
The case set up by the workmen was that their services were terminated by the Controlling Officers in the Department of Telecom Services in Bathinda without notice or payment of one month wages in lieu of notice and without payment of retrenchment compensation. Five of the present respondents except Anju Bala were terminated by one stroke of the pen on 22nd February, 1999 taking effect from 1st March, 1999 and Anju Bala with effect from 7th May, 1999. The workmen claimed that they have completed 240 days of work in each calendar year including the year preceding the date of termination. They pleaded reinstatement to their original service on account of termination orders being illegal and ab-initio void and passed contrary to the provisions and protections of the Act.
The BSNL contested the claim by filing separate a written statement in each of the cases. The Management urged that the initial appointment of the workmen was against the law. There was a ban operating on recruitment of industrial workers by a policy decision of the Government which was relaxable only to the extent of engagement on contract basis for specific work. The principles of law laid down by the Supreme Court in State of Himachal Pradesh Vs. Suresh Kumar Verma and another, were pressed into service by BSNL to show that the appointments can be made only against the existing vacancies. There were no such vacancies available for the workmen to return, even in case they were to establish their cases for reinstatement. The BSNL disputed the master-servant relationship. The policy operating against appointment of casual labour was placed by the BSNL in its evidence before the Tribunal. On the other hand, the workmen filed numerous documents to prove that they were working as part-time sweepers with the management. Some of these documents show that the Management/Department of Telecom Services had passed orders enhancing wages of workmen from time to time. The specific documents are W3 and W4 where the name of each of the present workmen exists to show they were granted an increase in wages. However, the witnesses of the Management specifically admitted in their cross-examination that none of the workmen was appointed on contract basis nor were there contracts in existence between the Management and the workmen. The Tribunal has found as pure question of fact and beyond any doubt that each of the workmen were engaged by the Management directly and were paid wages by the Management directly. The respondents worked under the administrative control of the Management of Department of Telecom Services and there were numerous documents on record indicating control and supervision in the performance of duties albeit part time. The evidence was adduced on record that the Management had passed orders regarding their service conditions, enhancement of wages etc. which discredited the theory propounded by the Management that there was no master-servant relationship existing between the workmen and the Management. The Tribunal correctly noticed that the workmen would have no right of regularization in view of the settled law with respect to daily wage workers and part-time employees but regularization was not claimed in the references nor was referred as the industrial dispute arising between the parties. Such a question was not required to be entertained or answered by the Tribunal as the claim for reinstatement alone was subject matter of the reference and the workman could at best be put back to their original status. However, part time employees are workmen within the meaning of Section 2(s) of the Act and they have industrial rights and protections afforded by the provisions of the Industrial Disputes Act, 1947. It cannot be disputed that the compliance of Section 25-F and all other protections of the Act were not afforded at the time when retrenchment was ordered by the Department of Telecom Services which organization stands transformed in the year 2000 into a body corporate, the petitioners before this Court assailing the award passed by the Labour Court in their hands and contesting. The Tribunal returned a finding accordingly on violation of the procedure prescribed in Section 25-F of the Act. The Tribunal reasoned that the breaking up of a day into hours of work would not disentitle the workmen from the protections of the Act and their status as part-time employees qualifying as workmen is duly recognized by case law and precedents of the Supreme Court {See Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, where the principle has been clarified}.
On a conspectus of facts on record and the settled legal position arising out of violation of the provisions of the Act it would lead to a reasonable conclusion that the termination/retrenchment was brought about in violation of the law. The Court a quo has exercised its judicial discretion in awarding reinstatement and back wages subject to any enhancement of wages meanwhile. At the end of the award, the Tribunal has had the courage to apologize for the delay in adjudication which took a decade denying timely justice to the workmen. To this, this Court would add nothing further except that at the end of the day, justice was done.
Recently, a Full Bench of this Court in LPA 754 of 2010 : Municipal Council, Dina Nagar, Tehsil & Distt. Gurdaspur v. Presiding Officer, Labour Court, Gurdaspur & Anr. rendered on 10.10.2014 has examined the question as to whether persons appointed on public posts without following the proper procedure would be entitled for reinstatement in view of the violation of the provisions of Section 25-F of the Act or in view of judgment of the Constitutional Bench in Secretary, State of Karnataka and Others Vs. Umadevi and Others, only the relief of compensation could be granted in such circumstances. The Full Bench after noticing a large number of rulings of the Supreme Court delivered over several decades have culled out seven principles of labour law on reinstatement and relief, four of which i.e. {(i), (ii), (vi) & (vii)} are relevant to the present case and are reproduced with profit in support of conclusions reached in this case. To quote:-
"(i) Keeping in view the recognized power of the Industrial Tribunal to direct reinstatement on account of the violation of Section 25-F of the Act the same cannot be denied solely on the ground that appointments were made by public bodies against public posts and were not in accordance with the relevant statutory recruitment rules.
(ii) The settled position of law as has been sought to be addressed by this Court is that the provisions of Section 25-F being mandatory and on account of violation of the same, the retrenchment would be void ab initio as if it was never in operation and, therefore, the employee would be deemed to be continuing in service.
(vi) The discretion of the Industrial Adjudicator has thus have to be respected and the said Adjudicator has to keep in mind the principles laid down by the Apex Court, as noticed above.
(vii) We do not subscribe to the view that the public authorities could claim total immunity and protection from the provisions of Sections 25-F and 25-B of the Act by taking resort to and shielding themselves on account of the fact that the posts were not filled up in accordance with the relevant statutory recruitment rules and, therefore, per se the workman could not claim reinstatement."
During the course of hearing, this Court asked learned counsel appearing for the BSNL to show any document by which the rights and obligations of the Department of Telecom Services did not become the rights and obligations of the successor-in-interest, i.e., BSNL after it was incorporated in the year 2000 as an independent juristic person. Mr. Sidhu had nothing to offer to this end. This Court would take it that the rights and obligations of the Department of Telecom Services continued on the formation of BSNL. Therefore, there is no merit in the contention of Mr. Sidhu that BSNL not being a party to the reference, it would not be bound by the award.
The other contention of Mr. Sidhu is that there can be no automatic reinstatement on a declaration that the termination order is illegal as re-emphasized in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, . This is a question which largely depends on the judicial discretion exercised by the Tribunal in the facts of the case and case to case which when properly used is not to be lightly interfered with in writ proceedings since this Court does not sit in appeal over the orders passed by the Tribunals as explained in Syed Yakoob Vs. K.S. Radhakrishnan and Others, where the principles of limited interference have been laid down, none of which fits into these cases to issue a writ of certiorari and disturb the awards.
Once discretion vested in the Tribunal is exercised fairly, judiciously, reasonably and properly, it is not for the High Court to add to or subtract from the award of the industrial adjudicator only because it may seem more attractive or expedient by a personal notion of justice. Rather, it is more expedient to avoid personalized and privatized justice and go by the broadest legal principle which achieves a just end to litigation without unnecessarily meriting interfering in awards where relief has been granted on at least a long established set of precedents to avoid the interstices by taking bylanes, alleyways and passageways to score goals and instead the courts should follow the tempo reset by the Supreme Court in labour law in Harjinder Singh Vs. Punjab State Warehousing Corporation, .
Substitution of opinion lies in appellate jurisdiction and not while judicially reviewing orders passed by statutory tribunals of which there is a plethora, otherwise there would be as many opinions. No interference is called for in this batch of cases which are ordered to stand dismissed for the reasons recorded above.