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Judgment
ORDER
Per: Hon’ble Shri Jayesh V Bhairavia, Member (Judicial)
The applicant has filed the present OA under Section 19 of the Administrative Tribunal’s Act, 1985 seeking following relief:-
“8. RELIEFS SOUGHT:
In the above facts and grounds mentioned hereinabove, the applicant prays for the following reliefs: -
(A)Your Lordships may be pleased to admit and allow this application;
(B)Your Lordships may be pleased to direct the respondent authorities to provide the status of Regular Mazdoor to the applicant with effect from the date on which Mr. Moti Puna Patel, Mr. Rajkumar G. Dubedi were made Regular Mazdoor (R.M.) i.e. the services of the applicant may be regularized with effect from the date on which the services of the aforesaid two contemporary employees were regularized.
(C)Your Lordships may be pleased to issue direction to the respondent authorities to pay the basic salary equivalent to the salary of the aforesaid contemporary employees with effect from 31.8.2013,-i.e. from date of reinstatement and further may be pleased to direct them to pay all the consequential benefits which would be
admissible to the applicant. (D) Your Lordships may be pleased to pass any other appropriate and just order/s as deemed fit, just and proper in the interest of justice;”
In support of the prayer sought in this OA, learned counsel Mr. R.N Singh mainly submitted as under:-
That the applicant was appointed as Watchman as Casual labour on 16.10.1984 and he was granted Temporary Status Mazdoor (TSM) w.e.f. 01.10.1989 by the Telecom Department. Thereafter, he was contined in service without any break and rendered service with temporary status for more than 14 years apart from five years as casual labour (i.e. from 1984 to 1989).
It is submitted that in the year 1998, as per the policy in vogue for regularization of Temporary Status Mazdoor (TSM) to Regular Mazdoor (RM), the applicant along with other similarly situated TSMs submitted his details in requisite form for regularization. However, due to some discrepancy in the credentials more particularly related to his date of birth, the applicant’s service was terminated by the Telecom Department vide order dated 16.09.2003 on the ground of suppression of fact about his date of birth.
Being aggrieved with the order of termination dated 16.09.2003, the applicant had approached the Central Government Industrial Tribunal (CGIT) cum labour Court Ahmedabad vide Reference No. CGITA 32/2005 under the provision of Industrial Dispute Act 1947.
After considering the material on record and stand of the first party as well as second party, the learned CGIT-Ahmedabad vide order dated 25.05.2012 (Annexure A/1) passed an award in favour of the applicant and held that the action of the first party in removing/terminating the service of the 2nd party workman i.e. the applicant herein by notice of removal dated 16.09.2003 is illegal, improper and unjust. Accordingly, by restricting the backwages, the respondents were directed to reinstate the applicant in service with continuity of service for purpose of getting retirement benefit if any (Annexure A/1 refer).
Being aggrieved with the award passed by the CGIT Court Ahmedabad dated 25.05.2012, the first party i.e. the respondents herein had approached the Hon’ble High Court of Gujarat by way of filing SCA No. 12236/2012 which was dismissed by the Single Bench Judge of Hon’ble High Court vide order dated 29.04.2013 (Annexure A/2) and the same order/judgment was upheld by the Division Bench of Hon’ble High Court of Gujarat in LPA No. 819/2013 vide Oral order dated 10.07.2013 (Annexure A/3). Thus, the finding recorded by the CGITA vide order/award dated 25.05.2012 has attained finality.
Thereafter, in compliance of the Hon’ble High Court and CGIT-Ahmedabad, the respondents reinstated the applicant in service vide order dated 31.08.2013, however, he was not granted consequential benefits in terms of award passed by CGITA dated 25.05.2012.
Mr. R.N Singh, learned counsel for the applicant argued that the CGITA vide award dated 25.05.2012 directed the respondents to extend consequential benefits. It is true that it was also directed that he may be paid back wages, but his salary was required to be protected at par with the employee who was working with applicant. Therefore, learned counsel submitted that the applicant’s entire service is required to be considered for the purpose of fixing the seniority and his salary deserves to be fixed as that of his contemporary employees.
Further, it is submitted that the applicant has not been granted the benefit of the Regular Mazdoor and at the same time, the respondents granted higher pay of Rs. 14,880/- to the similarly situated employees one Mr. Moti Patel for the month of October 2015, whereas the applicant herein was extended only the basic pay of Rs. 7715/-. Therefore, the said action of the respondents amounts to discrimination to the applicant which is in utter violation of the provisions of Articles 14 and 16 of the Constitution of India.
It is submitted that the applicant submitted application/reminder application to the Respondent No. 4 on 03.03.2015, 08.05.2015, 15.07.2015 whereby he requested that he may be treated as Regular Mazdoor and benefit in this regard be also extended to him. However, no reply was received from the respondents on the said representations. Therefore, the applicant submitted a legal notice to the respondents on 04.03.2016. In response thereto, the respondents rejected the claim of the applicant and accordingly, not considered the legitimate claim of the applicant for regularization and consequential benefits. Hence, this OA.
Per contra, the respondents have filed their reply and denied the claim of the applicant. Ms. R.R. Patel learned counsel for the respondents by referring the reply mainly submitted as under:-
The respondents raised objection for maintainability of the OA for the reason that the applicant has not joined the necessary party i.e. Department of Telecommunication as the applicant was appointed by the DoT.
Further, it is submitted that the BSNL was formed w.e.f. 01.10.2000. Prior to its formation, all employees who were working with the erstwhile Department of Telecommunication (DoT) were transferred en-bloc to the newly formed BSNL on deemed deputation except casual labours. Regular employees of DoT had to either opt for DoT or BSNL. Who opted for BSNL were absorbed in BSNL vide Presidential order. So far casual labors were concerned, as, they were not regular employees of DoT, for them there was no question of submitting such option. However, on need basis they continued to work with BSNL. On and from formation of BSNL, it has undertaken work through contractors at its own & had not engaged causal labours except those who were en-bloc transferred from erstwhile DoT on and from 01.10.2000. The applicant herein was thus working with the BSNL from 01.10.2000 only and prior to that, was working with DoT.
Further, it is submitted that the learned CGIT vide award dated 25.05.2012 while passing the award, though had observed that the applicant is entitled for reinstatement in service with continuity, but, has conspicuously observed further that, continuity of service shall be for the purpose of getting retirement benefits, if any. Therefore, it is submitted that learned CGIT cum labour court had not granted continuity of service other than for the purpose of retirement benefits.
It is submitted that till the applicant is not regularized in service, he cannot claim parity of pay with other similarly placed employees who are discharging their duties as regular employees.
Further, learned counsel for the respondents argued that since the applicant was engaged by the DoT, the task of regularization of his services would fall within the domain of DoT. In this regard, learned counsel for the respondents relied on the judgment passed by the Hon’ble High Court of Gujarat in SCA No. 8499/2013 (Telecom District Manager & Ors. Vs Jagdishkumar D Varatiya & Ors) dated 13.08.2014, submitted that the present OA is not maintainable against the BSNL.
The applicant has filed the rejoinder and besides reiterating the averments made in the OA, he additionally submitted as under:-
That the respondents’ contention regarding non-joinder of the Department of Telecommunications (DoT) is not tenable. Further, in this regard he submitted that the applicant was appointed in DoT and that the General Manager, Telecom Department, is an officer of DoT who is impleaded as party in the present OA. Therefore, the DoT is already impleaded as a party in the present proceedings. He further points out that even BSNL had not impleaded DoT as a party when it approached the Gujarat High Court in the Special Civil Application and subsequent Letters Patent Appeal as referred above.
Further, learned counsel submits that the equal treatment is required to be meted out to the applicant as other similarly situated employees who, were also engaged by DoT, subsequently transferred to BSNL, were regularized as Regular Mazdoor.
It was submitted that the award passed by the Central Government Industrial Tribunal (CGIT) granted him continuity of service, particularly for the purpose of retirement benefits, and did not expressly prohibit or rule out regularization of his service. Therefore, the respondents cannot interpret the award to mean that his previous service has to be ignored for the purpose of considering regularization or he should not be granted regularization. Nowhere it has been observed by the CGIT that the applicant be allowed to continue till his superannutation as TSM. Therefore, the claim of the applicant to treat him as Regular Mazdoor in terms of the policy in vogue and applicant has fulfilled all the requisite criteria for grant of benefit of Regular Mazdoor.
Learned counsel for the applicant argued that the award dated 25.05.2012 required his reinstatement within 60 days, failing which he would become entitled to back wages from the date of the award. In this regard, he submits that the findings recorded by the CGIT was never stayed by the Hon’ble High Court of Gujarat while pendency of Writ Petition filed by the respondents. Even otherwise, the award/order passed by the CGIT in favour of the applicant attained finality on dismissal of the SCA & LPA filed by the respondents. Thereafter, the applicant reinstated only on 04.09.2013. Thus, the respondents’ failure to reinstate him within the period stipulated by the award cannot operate to his prejudice. Therefore, on the basis of the delayed implementation of the award, the applicant is entitled to back wages and that the respondents’ reliance on the observation of the CGIT regarding non-grant of back wages is also not tenable.
Further, he argued that the cases of Moti Patel and Rajkumar Dubedi, who were similarly situated to the applicant, were granted the status of Regular Mazdoor, whereas he was deprived of the same benefit only because he had been removed from service. He asserts that once the order of removal was set aside and reinstatement with continuity was granted, his case should be considered on the same footing.
It is submitted that even assuming that the award did not provide for back wages, his past service could not be ignored. According to him, the direction of reinstatement means that he was not to be treated as a fresh employee. Consequently, his previous service should be taken into consideration while extending benefits available to similarly situated employees.
Heard learned counsel for the parties and perused the material available on record.
Undisputedly, the termination of the applicant was held to be illegal by the CGIT-Ahmedabad vide award/order dated 25.05.2012 and held that the 2nd Party Workman i.e. the applicant herein is entitled for reinstatement in service with “Continuity of Service” (for purpose of getting retirement benefit), if any, and directed the respondents to reinstate him within a stipulated time limit of two months failing which the workman shall entitled for back wages. The said finding and award passed by the CGIT attained finality on dismissal of Writ Petition/LPA filed by the respondents. In compliance with the direction issued by the CGIT and the order passed by the Hon’ble High Court, the respondents reinstated the applicant in service on 31.08.2013. Thereafter, the applicant submitted representation to regularize his service as per policy in vogue as well as by treating him equally along with similarly placed TSM who have been granted the benefit of regularization, the said claim of the applicant as noted herein above has not been acceded to by the respondents.
Undisputedly, the applicant herein rendered continued service as Casual Labour for the period 16.10.1984 to 30.09.1989 and he was conferred with status of Temporary Status Mazdoor (TSM) w.e.f. 01.10.1989 and had rendered service for more than two decades as TSM. It is not in dispute that similarly placed TSM have been granted benefit of regularization and conferred with status of Regular Mazdoor (RM).
So far submission of learned counsel for the respondent that at the relevant time, the applicant was engaged by the DoT and subsequently his service is entrusted to the BSNL, under the circumstances, the Competent Authority in DoT has to decide the pending representation of the applicant and the DoT is not the party in the present case is concerned, in this regard, the learned counsel for the applicant bring to the notice of this Tribunal that the Respondent No. 4 represent the Telecom Department and said respondent at the relevant time issued an order for regularization TRM to RM in the case of similarly placed temporary regular mazdoor working with the applicant. That after the BSNL came in existence the service of the applicant along with the other similarly placed TRM and RM has been undisputedly continued under the domain of BSNL and applicant has been paid salary by the BSNL. Under the circumstances, the case of the applicant ought to have been considered by the respondents including the BSNL in consultation with DoT.
We find substantial force in the submission of learned counsel for the applicant that findings recorded by the CGIT-Ahmedabad vide Award/Order dated 25.05.2012 of “reinstatement of the applicant with continuity of service” has attained finality on dismissal of Writ Petition/LPA filed by the respondents herein. The observation of the CGIT for entitlement of the applicant for reinstatement in service with continuity of service (for purpose of getting retirement benefit) does not construe or interpret that applicant can be deprived of Right of Regularization since he has been ordered to be reinstated with continuity of service. Therefore, the stand of the respondents that CGIT has not granted direction for regularization of services of the applicant is misconceived on the part of the respondents and the same is not tenable. The case of the applicant should have been considered by the respondents herein.
At this stage, it is required to be mentioned that by referring the law laid down by the Hon’ble Apex Court in State of Karnataka Vs. Umadevi’s case, the said principle was further clarified in State of Jharkhand Vs. Kamal Prasad, reported in (2014) 7 SCC and held that workers completing decades of service cannot be left in perpetuity as Temporary or Casual Staff where work is perennial. In the present case, as discussed herein above, the applicant’s service is legally protected by the CGIT Award of continuity of service.
In our considered view, to keep an employee as Casual/ TSM for more than two decades after a Court’s order of reinstatement amounts to unfair labour practice and administrative apathy. If the work has existed for decades, the requirement is clearly permanent.
In view of above, facts and legal proposition, the OA is partly allowed with the following directions:-
The Respondents are directed to consider the case of the applicant for grant of benefit of status of Regular Mazdoor with effect from the date his immediate junior has been granted the benefit of the regularization and also consider the claim of grant of basic salary equivalent to the contemporary employees with effect from 31.08.2013 i.e. from the date of reinstatement along with applicable consequential benefits. The respondents shall decide the claim/representation of the applicant accordingly and intimate the decision preferably within 90 days from the date of receipt of certified copy of this OA.
OA stands partly allowed. No order as to costs.