WP/10915/2004 of Gundu Satyanarayana Murthy Vs The Chief General Manager, BSNL, on 28 December 2004

O R D E R:

Since common question is involved in these two writpetitions, they are disposed of by a common order.

Aggrieved by the proceedings dated 7.1.2003 throughwhich the claim of the petitioners for grant of temporary status andconsequential regularization was rejected by the 5[th] respondent,these writ petitions are filed.

follows:

The brief averments in W.P. 10915 may be stated as The petitioners herein filed O.A. 102 of 2004 before theCentral Administrative Tribunal, Hyderabad Bench for the same reliefas sought for in this writ petition and the Tribunal by interim directionsdated 22.1.2004 directed the respondents to maintain status quo untilfurther orders and the petitioners were functioning as CasualMazdoors. Thereafter, they were orally terminated and were notallowed to function from 13.2.2004. While so, O.A. 102 of 2004 wasclosed for want of jurisdiction. Therefore, the present writ petition is filed.

According to the petitioners, they were appointed asCasual Mazdoors in the year 1994 and 1995 respectively and theyare continuing as such till date. The petitioners were being paidconsolidated wages. The petitioners made a representationrequesting the respondents for confermation of temporary status andalso for regularization of their service. Some persons who are juniorsto the petitioners were given temporary status. As on 1.8.1998 thepetitioners have completed 240 days of service but no temporarystatus was conferred upon them. The General Manager is authorizedto create any post in pursuance of the proceedings of the Departmentof Telecom dated 29.6.2000, but the respondents are not taking anyaction. The Tribunal by its order dated 5.9.2002 directed theapplicants to make a representation giving the particulars of theirengagements along with the supporting documents within a period ofone month and the respondents are directed to consider theirrepresentations. Accordingly, in pursuance of the orders of theTribunal, the petitioners submitted a representation on 26.9.2002 butwithout considering the representation the case of the petitioners wasrejected. Hence the present writ petition.

Conclusion

The respondents filed their counter affidavit stating thatthere are disputed questions of fact of engagement as casual labourand payment of wages thereof which are the subject matter ofinvestigation by the Central Government Industrial Tribunal on areference under Section 10 of I.D. Act. The allegation that thepetitioners were engaged in the years 1994 and 1995 and werecontinuing is baseless. There is no scope for engagement of anycasual labour except for a period of 60 days which was laterextended to 100 days vide letter dated 15.6.1999. The saidcommunication authorized engagement of contractual labour to meetthe emergent situations and the petitioners’ engagement if any isadmittedly intermittent as per the requirement for the specified timebound works and do not confer any right for continuity andconferment of temporary status. Therefore, the writ petition is devoid of merit.

The brief averments in W.P. 12883 of 2004 may bestated as follows:

The petitioners were appointed as Casual Mazdoors inthe year 1994 and they are being paid consolidated wages. Numberof representations were made by the petitioners for conferment oftemporary status and also for regularization but as per C.G.M.T.Memo dated 28.6.2000 all those persons who are juniors to thepetitioners herein but had completed 240 days of service as on1.8.1998 were given temporary status in the cadre of Mazdoors. Thepetitioners have completed 240 days of service as on 1.8.1998 butno action has been taken. As per the proceedings of the Departmentof Telecom Services dated 29.6.2000 a direction is given to adjustthe casual labours against available vacancies of regular Mazdoorsand the General Manager is also authorized to create post of regularMazdoors as per the prescribed norms. The respondents hereinhave not taken any action in respect of the petitioners for confermentof temporary status. As a matter of fact, the respondents themselveshave considered insofar as 42 candidates are concerned. Thepetitioners are similarly situated persons and they have completed240 days in a year for more than one year. In spite of furnishing al therequired documents, the respondents are not considering the requestof the petitioners. Hence they pray to allow the writ petition.

The respondents filed counter affidavit with the sameallegations as contained in W.P. 10915 of 2004.

The learned counsel for the petitioners vehementlycontended that the documents which were issued by theDepartmental authorities would indicate that the petitioners worked asCasual Mazdoors and they have put up more than 240 days andtherefore they are entitled for conferment of temporary status. Hefurther contended that the impugned proceedings dated 7.1.2003 isnot based upon any records of the respondents. Even though thedocuments were produced before the respondents, the same have not been considered with a view to reject the claim of the petitionersand hence he prays to quash the impugned proceedings dated7.1.2003. He further contended that the writ petitioners in W.P. 12883of 2004 are seeking for consideration of grant of temporary statussince they have completed 240 days as on 1.8.1998 and thereforenecessary directions may be given to consider the case of thepetitioners.

On the other hand, learned counsel for the respondentscontended that there is no record to show that the petitioners haveworked for more than 240 days. There are serious disputedquestions of fact with regard to engagement as casual labours andpayment of wages. Therefore, this is not the Forum to decide theseaspects and engaging the petitioners as casual labours cannot beverified as the records have been weeded out as per the detentionschedule and therefore the writ petitions are liable to be dismissed.

As per the directions of the Tribunal in O.A. 1505 of 2001dated 5.9.2002 a direction is given directing the applicants to make arepresentation giving the particulars of their engagement along withthe supporting documents within a period of one month from the dateof communication and thereafter the respondents were directed toconsider the representation given by the applicants as per the Rulesand communicate their decision within a period of two months fromthe date of receipt of such representation. Accordingly, the impugnedproceedings dated 7.1.2003 have been passed, which reads asfollows:

“In your representation cited above, you hadcontended that you had been engaged asCasual Mazdoor from 5.9.1994 to 15.2.1996under the control of DGM (TI) HD. Onverification, it is found that there is no officialrecord in support of your claim. Further youhave claimed that you had been workingunder DE A/T Transmission, Hyderabadafter February – 1996. But you have not produced documental support for the same.As such, your request for conferringTemporary status is regretted”.

This proceedings would indicate that the petitioners didnot produce any document in support of their claim. A specificdirection is given by the Central Administrative Tribunal directing thepetitioners to make a representation along with the documents insupport of their claim. The case of the petitioners is that they havefurnished all the documents along with the application but the sameare not considered. Along with these writ petitions several copies ofthe documents were filed. If the petitioners in these writ petitions filedthe documents, they should have been considered by the DivisionalManager, Telecom. As seen from the record it is clear that thepetitioners have not filed any documents before the DivisionalEngineer, Telecom. Therefore, the Divisional Engineer, Telecomcould not be in a position to take appropriate decision because ofnon-filing of the documents. There is no communication or indicationthat the writ petitioners filed all the relevant documents before the 4[th]respondent. There are some laches on the part of the petitioners innot filing the documents. Had they filed the documents now filedalong with these writ petitions, then it would have been possible forthe 4[th] respondent to verify the genuineness and correctness of thecertificates and documents. Though it is not stated by the petitioners,but the possibility of non-availability of those documents at the time ofgiving representation on 4.10.2002 cannot be ruled out. Thedocuments which are filed along with the writ petitions might not beavailable with the petitioners at the time of making representation.Perhaps that is the reason why the petitioners gave onlyrepresentation to the 4[th] respondent. As the contents in therepresentation were not sufficient to verify the truthfulness andcorrectness of the employment of the petitioners and no documentshave been produced, the request of the petitioners for conferringtemporary status was regretted.

Number of documents were filed along with the writpetitions. The correctness or genuineness of these documents hasnot been specifically denied or disputed in the counter filed by therespondents. At the time of filing of the counter before theAdministrative Tribunal it is specifically stated that on verification ofrecords the petitioners are found to be not the employees butthereafter the respondents have destroyed the records. Even afterdestruction of those records the respondents can ascertain the truthand genuiness of those documents filed along with the writ petitionsby sending to the various offices. So, basing on these documentsand after ascertaining the correctness, the respondents can takeappropriate decision with regard to the nature of the employment andperiod of employment so as to confer temporary status to thepetitioners.

Insofar as W.P. 12883 of 2004 is concerned, their case isthat they were employed by the respondents on daily wages in theyear 1997 and according to them they have completed 240 days ofservice as on 1.8.1998. It is also their case that similarly situatedCasual Mazdoors who have completed 240 days of service weregiven temporary status. In this case also it is for the respondents totake appropriate decision whether the petitioners have worked formore than 240 days and whether similarly situated persons wereconferred temporary status as casual labours.

Therefore, both the writ petitions are disposed of with adirection to the writ petitioners to file all the documents available withthem before the 4[th] respondent including any appointment orders,wage payment slips, muster rolls, certificates etc. within one weekfrom the date of receipt of a copy of this order and on such filing, the4[th] respondent after ascertaining their genuineness shall takeappropriate decision in accordance with the Rules and Regulations ofthe respondent-BSNL within a period of three months thereafter. Inthe circumstances, no order as to costs.

____________________

K.C. Bhanu, J.

Date: 28--12—2004.

MVB.

// TRUE COPY //

..... REGISTRAR

SECTION OFFICER

To

1 The Chief General Manager,Bharat Sanchar Nigam Limited, Door SancharBhavan, Nampally Station Road, Hyderabad 2 The Principal General Manager (Administration), Suryalok ComplexHyderabad 500 001

3 The General manager (Development), Andhra Pradesh Telecom Circle, 3rdFloor, Triven Complex, Abids Hyderabad 500 001

4 The Divisional Engineer Telecom Transmission Installation (HQ), 1st Floor,Triveni Complex, Abids, Hyderabad-500 001

5 The Divisional Engineer Telecom, transmission Installation (HQ), Chuttugunta, Lions Club Road, Vijayawada-500 004

6 The Sub Divisional Engineer Telecom, Transmission Installation (HQ) 1stFloor, Triveni Complex, Abids, Hyderabad 500 001

7 The Sub-Divisional Engineer Telecom, Transmission Installation (HQ), 1stFloor, chuttugunta, Lions Club Road, Vijayawada-500 004

8. The Dy. Engineer, Telecom Transmission Installation (HQ), 1[st] Floor, Triveni Complex, Abids, Hyderabad.

9. The Dy. Engineer, Telecom A/T (Transmission), 4[th] Floor, Charminar TelephoneExchange Buildings, Hyderabad.

10. 2 C.D. copies.