Sri Gajen Baruah & Ors. vs Bharat Sanchar Nigam Limited & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

This O.A. has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Brief facts of the case, as stated by the applicants in the O.A., are that they were originally engaged as Casual Labourers under the SDO(T), Mangaldoi, in the erstwhile Department of Telecommunications in the year 1988. Thereafter, vide order dated 27.05.1996 issued by the Office of the TDE, Tezpur, Department of Telecommunications, they were provisionally conferred Temporary Status. Although the conferment of such status was subsequently disputed by the respondent authorities, after prolonged litigation before this Tribunal, the Hon’ble Gauhati High Court and the Hon’ble Supreme Court, the applicants were ultimately granted TSM status with effect from 27.05.1996. The Department of Telecommunications, vide Circular No. 269-94/98-STN-II dated 29.09.2000, decided to regularize the casual labourers working in the Department, including those who had been granted temporary status, with effect from 01.10.2000, subject to the terms contained therein. The applicants claim that, being covered by the said Circular, they are entitled to regularization with effect from 01.10.2000. They further claim entitlement to coverage under the GPF Scheme. However, vide Corrigendum dated 12.10.2023, they were continued under the EPF Scheme with the benefit of ESI and Gratuity.

The respondents, in their written statement, have stated that engagement of Casual Labourers for temporary works was a legacy of the erstwhile Department of Telecommunications (DoT), Government of India, and that DoT had banned engagement of Casual Labourers with effect from 30.03.1985. The operational and services part of the erstwhile DoT was corporatized into BSNL with effect from 01.10.2000. According to the respondents, BSNL has never framed any policy for engagement or regularization of Casual Labourers and was only mandated by DoT, vide letter dated 29.09.2000, to regularize the TSMs/Casual Labourers transferred to BSNL with effect from 01.10.2000, as per available vacancies. BSNL acted upon the said mandate by issuing a letter dated 19.04.2001 for the left-out Casual Labourers and regularizing eligible Casual Labourers/TSMs as Regular Mazdoors against available vacancies. It is further stated that the number of Casual Labourers was very large, whereas the vacancies were limited, and any further creation of posts was subject to the prescribed norms of business. The respondents have further stated that, after the judgment of the Constitution Bench of the Hon’ble Supreme Court in Secretary, State of Karnataka v. Uma Devi (3), schemes of regularization based merely on length of service, in cases of appointments made otherwise than through a regular recruitment process, could not be continued. Consequently, BSNL stopped further regularization of Casual Labourers, with the approval of the administrative Ministry, vide letter dated 23.10.2015.

As regards the claim for GPF, the respondents have stated that the applicants continued to be Casual Labourers until March 2023 and were already covered under the EPF Scheme applicable to Casual Labourers/TSMs in BSNL. Pursuant to the orders passed by the Hon’ble Gauhati High Court and the dismissal of the SLPs by the Hon’ble Supreme Court, the applicants were granted TSM status retrospectively, and consequential financial benefits were paid to them. According to the respondents, however, the grant of TSM status did not alter the applicability of the EPF Scheme. It is further stated that BSNL has no authority to open GPF accounts for persons covered by its applicable policy and that EPF provides social-security benefits including savings, pensionary benefits and death-related benefits. The respondents, therefore, contend that the applicants are not entitled to GPF benefits under the applicable rules and policy.

We have heard Sri S. Dey, learned counsel for the applicants, and Sri G. Goswami, learned counsel for respondent Nos. 2 to 5, and have perused the pleadings and the material available on record.

Learned counsel for the applicants has drawn our attention to the Circular of the Department of Telecommunications bearing No. 269-94/98-STN-II dated 29.09.2000 (Annexure-A/6), whereby it was decided to regularize the Casual Labourers working in the Department, including those who had been granted temporary status, with effect from 01.10.2000. The relevant portion of the said Circular reads as under:

Learned counsel for the applicants submits that the applicants fall within the aforesaid category, having been granted Temporary Status (TSM) by the Department of Telecommunications vide order dated 27.05.1996. However, the said order was not given effect to, compelling the applicants to approach the Hon’ble Gauhati High Court by filing W.P.(C) Nos. 2229/2016, 2228/2016 and 2058/2016. The Hon’ble Gauhati High Court, vide common order dated 15.06.2017, directed implementation of the order dated 27.05.1996. The aforesaid order was thereafter challenged by BSNL before the Hon’ble Supreme Court by filing SLP(C) Nos. 24868-24873/2018. The said SLPs were dismissed by the Hon’ble Supreme Court on 29.03.2023. While dismissing the SLPs, the Hon’ble Supreme Court observed as under:

Per contra, learned counsel for BSNL has submitted that the applicants were not regularized pursuant to the Circular dated 29.09.2000 and that the said Circular itself contemplated adjustment against available vacancies. It is submitted that the applicants were granted TSM status only pursuant to the subsequent orders of the Hon’ble Gauhati High Court, which were implemented after dismissal of the SLPs by the Hon’ble Supreme Court. It is further submitted that there was no specific direction in the earlier proceedings to regularize the applicants or to extend GPF benefits to them. As regards the provident fund, learned counsel has submitted that the applicants were covered under the EPF Scheme in terms of the policy applicable to Casual Labourers/TSMs in BSNL and that the Corrigendum dated 12.10.2023 merely clarified continuation of EPF benefits along with ESI and Gratuity.

It is noted that the applicants were admittedly engaged as Casual Labourers under the Department of Telecommunications in 1988. Similarly situated Casual Labourers engaged under the Department of Telecommunications were granted Temporary Status before 01.10.2000, when Bharat Sanchar Nigam Limited (BSNL) came into existence. However, the applicants were deprived of such status. Being aggrieved, they approached this Tribunal by filing O.A. No. 282/2011 along with the connected matters, which were dismissed vide order dated 13.05.2015. Some of the Casual Labourers, including the applicants, challenged the said order before the Hon’ble Gauhati High Court by filing W.P.(C) Nos. 2229/2016, 2228/2016, 2058/2016 and 5353/2015. The Hon’ble Gauhati High Court, vide common order dated 15.06.2017 and separate order dated 30.08.2017, set aside the order of this Tribunal dated 13.05.2015 and directed implementation of the order dated 27.05.1996 issued by the Department of Telecommunications, Tezpur (Annexure A/2). The aforesaid orders of the Hon’ble Gauhati High Court were challenged by the respondents before the Hon’ble Supreme Court by filing SLP(C) Nos. 24868-24873/2018, which were dismissed vide order dated 29.03.2023 (Annexure A/1). Thereafter, vide order dated 28.07.2023, the applicants and 95 other persons were conferred Temporary Status under the Casual Labourers (Grant of Temporary Status and Regularization) Scheme with effect from 27.05.1996 or the date of joining pursuant to the letter dated 27.05.1996 issued by the then TDE, Tezpur (Annexure A/4). Subsequently, vide Corrigendum dated 12.10.2023, one of the service conditions was modified, whereby the applicants were allowed continuation under the EPF Scheme along with the benefits of Employees’ State Insurance and Gratuity.

The main question which arises for consideration is whether, merely on account of the retrospective conferment of TSM status with effect from 27.05.1996, the applicants are automatically entitled to regularization with effect from 01.10.2000 and, consequently, to the GPF Scheme.

The Circular dated 29.09.2000 undoubtedly contemplated regularization of the Casual Labourers, including those who had been granted temporary status, with effect from 01.10.2000. However, the same Circular also provided that the Casual Labourers covered by the specified categories were to be adjusted against available vacancies of Regular Mazdoors and authorized creation of posts by the Chief General Managers in accordance with the prescribed norms. Thus, the Circular cannot be construed as conferring an unconditional or automatic right of regularization upon every person who happened to have TSM status.

The subsequent Office Memorandum of the Department of Telecommunications dated 20.10.2006 also does not support the proposition that conferment of TSM status, by itself, resulted in entitlement to GPF. The said O.M. specifically refers to those TSMs who had been regularized pursuant to the Circular dated 29.09.2000 and provides that such TSMs were to be absorbed in BSNL with effect from 01.10.2000. It further clarifies that Casual Labourers who did not have TSM status as on 30.09.2000 but were regularized in BSNL after 01.10.2000 would be treated as PSU appointees. The BSNL communication dated 23.03.2007, placed on record, reiterates the said distinction and states that the TSMs having TSM status prior to 30.09.2000 and regularized pursuant to the DoT O.M. dated 29.09.2000 would fall under the GPF Scheme, whereas Casual Labourers not having TSM status as on 30.09.2000 and regularized in BSNL after 01.10.2000 would be covered under the EPF Scheme.

In the present case, although the applicants have subsequently been granted TSM status retrospectively from 27.05.1996 pursuant to the orders of the Hon’ble Gauhati High Court, the record does not establish that they were in fact regularized pursuant to the Circular dated 29.09.2000.

Learned counsel for the applicants has placed reliance upon the DoT O.M. dated 20.10.2006 and the subsequent BSNL communication dated 23.03.2007 to contend that TSMs having TSM status prior to 30.09.2000 and regularized pursuant to the DoT Circular dated 29.09.2000 were entitled to the absorption benefits, including coverage under the GPF Scheme. The said documents, however, have to be read in the context of the applicants' claim for regularization and the conditions stipulated therein.

In view of the foregoing discussion, we are of the considered view that the applicants’ retrospective conferment of TSM status with effect from 27.05.1996 does not, by itself, confer upon them an automatic right to regularization with effect from 01.10.2000 or to coverage under the GPF Scheme. However, their claim for regularization requires consideration in the light of the Circular dated 29.09.2000, particularly the applicants’ eligibility thereunder and the provisions relating to adjustment against available vacancies and creation of posts in accordance with the prescribed norms. Accordingly, the competent authority of the respondents is directed to consider and decide the applicants’ claim for regularization with effect from 01.10.2000 by passing a reasoned and speaking order, after taking into account their retrospective conferment of TSM status with effect from 27.05.1996 and the relevant documents placed on record. The issue of their entitlement to GPF shall also be considered in accordance with the applicable rules and instructions, depending upon the decision on their claim for regularization. The entire exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order.

With the above observations and directions, the O.A. stands disposed of. Pending M.A., if any, also stands disposed of. There shall be no order as to costs.