Virendra Pratap Singh Yadav vs Chairman & Managing Director/Managing Director, Bharat Sanchar Nigam Limited (BSNL) & Ors.

The applicant is aggrieved that his services as a daily wage Mazdoor, instead of being regularized as has been done in the case of several others, has been terminated. He seeks the following relief:

The brief facts of the case are that the applicant was initially engaged as a daily wage Mazdoor in the Bharat Sanchar Nigam Limited (BSNL) in November, 1984. Five years later, specifically on 16.03.1989, his services were disengaged. The applicant challenged this before the Central Industrial Tribunal which on 02.07.1997 ordered his reinstatement with full back wages. The order of the Central Industrial Tribunal was challenged by the respondents by way of a writ petition before the Hon’ble High Court of Allahabad which partially modified the said order observing that the Central Industrial Tribunal had not adduced any reason for providing back wages to the applicant and, hence, this part of the direction is not sustainable. Only to this extent the order of the Industrial Tribunal got partially modified. This was further challenged in the Hon’ble Supreme Court and the outcome was that the order of the Industrial Tribunal got restored. The applicant had already been re-engaged on 24.07.2006 and his arrears of salary, in accordance with the award of the Industrial Tribunal, were also paid. However, on 23.05.2011 the engagement of the applicant was again discontinued.

It is this order which is now under challenge in the present O.A. Learned counsel for the applicant argues that once the Industrial Tribunal had categorically adjudicated that disengagement of the applicant or the termination of his services was not in accordance with law and rules, hence, the impugned order terminating his services amounts to circumventing the decree of the Court. He further mentions that the fact that back wages/ arrears were also ordered to be paid to the applicant during the period of his termination indicates that the entire exercise of terminating the services of the applicant has not only been bad in law but also suffers from malafide. He strictly contests the plea of the respondents that there is no work on which the applicant can be engaged by pointing out that several of the labourers engaged by the Department after the applicant have since been regularized. Therefore the applicant cannot be denied the same benefit. He points out that had the applicant’s services not been terminated he too would have stood regularized; and once the Court had held the termination to be bad in law and restored his original position, there is now no cause before the respondents to deny regularization to the applicant on similar lines as has been done in the case of his juniors.

Learned counsel also mentions that the representation of the applicant for his re-engagement has not been acted upon by the respondents. He goes on to argue that but for the illegal action of the respondents the applicant would have had 35 years of uninterrupted services by now and he reiterates that the initial order of termination of his services was set aside by the Hon’ble Apex Court. Learned counsel draws strength from orders passed by this Bench of the Tribunal in O.A. 490/2017 and judgement passed by the Principal Bench in O.A. 1642/2019 to support his claim pointing out that in identically placed matters the Benches of the Tribunal had directed re-engagement of similarly placed applicants and granted them temporary status followed by regularization.

Learned counsel for the respondents raises a preliminary objection regarding jurisdiction pointing out that once the applicant had chosen to approach the Central Industrial Tribunal and since the award of the Industrial Tribunal was agitated up to the Hon’ble Supreme Court, the applicant is precluded from approaching this Tribunal now. He vehemently argues that the applicant cannot be allowed the liberty of choosing the forum he will approach especially when he has already approached the Industrial Tribunal for his grievances. He specifically points to section 28 of the Administrative Tribunal Act to highlight that the jurisdiction in the instant matter does not lie with the Administrative Tribunal. He goes on to argue that the applicant has already availed the legal remedy available to him and hence he cannot now be allowed to knock on the doors of the Administrative Tribunal. On the facts and merits of the case the learned counsel points out that the applicant was merely a casual labour who was engaged for performing particular tasks. He was not holding any regular post or position. He further submits that the engagement of such labour is need based and once the respondents realized that there was no task for which they needed casual labour they rightly disengaged his services. To support his argument, learned counsel also quotes from the observation of the Industrial Tribunal that retrenchment of workmen is within the rights of the employer especially if there is no work which could be assigned to them. Learned counsel for the applicant at this stage points out that this right is accompanied with a rider of strict adherence to the provisions set out in the Industrial Tribunal Act.

I have heard the learned counsel for the parties. The facts of the case are not disputed. Briefly stated the applicant was initially engaged in the year 1984 and got disengaged in the year 1989, i.e. after four years. He got back in services in the year 2006 but was later disengaged again in 2011.

It is worth repeating here that his re-engagement in the year 2006 was on account of the order of the Central Industrial Tribunal and not on account of any cautious decision taken by the respondents to engage his services. In the year 2011 he was again disengaged, this time not by an oral order but by way of a formal written order which is impugned in the present O.A. The applicant was retrenched eleven years back and the primary ground of his retrenchment is that there is no work in the Department which could be assigned to him. It is not for me to determine whether the respondents require the services of the daily wage labour such as the applicant or not. Moreover, it is not possible to determine on the basis of the documents on record whether the Department has regularized the daily wage labourers who are said to have been the juniors of the applicant. Moreover, the documents on record do not establish that the nature of the engagement of the applicant was such as to have been followed by grant of temporary status and regularization. Further, I am not in a position to ascertain the facts and the merits of this matter on the basis of available record. On the other hand, the issue of jurisdiction is also critical. One cannot ignore the fact that the applicant had consciously decided to approach the Industrial Tribunal against his initial disengagement/ termination. Not only was the matter adjudicated upon there but it went up to the Hon’ble Apex Court. At none of the stages in the previous round of litigations was ever an issue raised that Central Administrative Tribunal could be the appropriate forum to agitate this matter. If the respondents have disengaged the applicant once again in the year 2011 despite his having been successful up to the stage of the Hon’ble Supreme Court, the applicant should have ideally again approached the initial forum i.e. the Industrial Tribunal for redressal of his grievance instead of approaching this Tribunal. For this reason too, I am not inclined to interfere in the present Original Application as it would amount to switching over from one judicial forum to another, especially, when the matter has been deliberated up to the level of Hon’ble Apex Court.

Therefore, the present O.A. is dismissed.

No order as to costs.