BHARAT SANCHAR NIGAM LTD. versus SRI DEO KUMAR RAI @ DEO KUMAR RAY on 14 December 2021

1. Leave granted.

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2. Heard Mr. Dinesh Agnani, learned Senior Counsel appearingfor the appellant. Also heard Mr. Surendra Patri, learned counselrepresenting the respondent (original applicant before the CentralAdministrative Tribunal (for short “the Tribunal”)).

3. The challenge here is to the judgment and order dated 31.5.2018whereunder, the Gauhati High Court in the Writ Petition (Civil) No. 991/2017 filed by the appellant upheld the order passed by the Tribunal on25.8.2015 and had directed conferment of temporary status to therespondent, under the Casual Labourers (Grant of Temporary Statusand Regularization) Scheme of the Department ofTelecommunications, 1989 (hereinafter referred to as “the 1989Scheme”). The appellant also impugns the order dated 4.6.2019 by whichthe Gauhati High Court rejected the Review Petition 59/2019, againstthe order dated 31.5.2018.

4. Under the 1989 Scheme, the casual workers who are workingin the BSNL on the day of coming into force of the Scheme i.e. 1.10.1989and who had rendered continuous service of at least one year, and out ofthis one-year period those, who have been engaged for at least 240days, are entitled to be conferred the temporary status. The Union ofCasual Labourers were agitating on behalf of the casual workers forsecuring the temporary status. To address the issue, a Committee wasconstituted to verify the records of the casual workers to determine asto who amongst them satisfy the eligibility criteria for securing the benefitunder the 1989 Scheme.

5. The respondent herein had appeared before the Committee on19.1.2004 and on verification of the records available with the Department,the Committee members concluded that the respondent was engagedfor 4 days in the year 1989; 29 days in 1992; 17 days in 1993; 38 days in1994; 38 days in 1995; 34 days in 1996; 37 days in 1997 and 17 days in1998, well below the required 240 days in the year. It was also notedthat in support of the claim for temporary status, engagement for muchlonger periods in the concerned year from 1995 (239 days), 1996 (240days), 1997(250 days), 1998(89 days) was claimed but the respondentfailed to produce any original documents before the Committee.

6. Upon verification of the service records, the Committee in itsReport dated 29.8.2005 observed that the respondent did not fulfil theeligibility criteria since he had not completed “240 days” in 12 calendarmonths. Before the Committee, the BSNL authorities additionally A

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Acontended that the photostat copies of the certificates relied upon by therespondent, were never issued by any officer of the BSNL. The relevantpart of the Committee’s final finding is extracted below:- “In view of the above proof and evidence, the Committee hasfound that the applicant Shri Deo Kumar Rai has completedBmaximum 38 days in 12 calendar months during 01.01.1995 to31.12.1995 and as such the applicant is not entitled to grant oftemporary status as per the provisions of the Scheme, 1989……..”

7. The above decision of the Committee was challenged by therespondent in the High Court by filing the Writ Petition(C) No.2158 ofC2006 which was transferred on 8.4.2009 to the Tribunal and the petitionwas numbered as TA No. 30/2009. Similar such cases were analogouslyconsidered by the Tribunal and in the common order (22.1.2010) theTribunal adverted to the Committee’s conclusion and opined that sincethe Committee had considered all relevant materials placed before it byeither side, no case is made out by the applicants to claim temporaryDstatus and accordingly the TA and the connected petitions were dismissedby the Tribunal on 22.1.2010.

8. When this was challenged, the High Court vide its commonorder dated 19.3.2013 in Writ Petition(C) No. 2945/2011, set aside theTribunal’s order and remanded the matter back to the Tribunal for freshEadjudication. In the remand order, the High Court noted that in view ofthe diametrically contradictory factual assertion of the applicants andthe Department (on the entitlement to the benefits under the Scheme),evidence of the parties will have to be recorded as permitted underSection 22(3) of the Administrative Tribunals Act, 1985 (for shortF“the 1985 Act”). Accordingly, fresh adjudication of the issue was directedby recording evidence of the parties.

9. Following the above, the Tribunal reconsidered the matter, byonce again perusing the Report of the Committee dated 29.8.2005, andnoted that as per the genuine records verified from the office of G.M.T.D.,GKamrup, the applicant was engaged for 4 days in the year 1989; 29 daysin 1992; 17 days in 1993; 38 days in 1994; 38 days in 1995; 34 days in1996; 37 days in 1997 and 17 days in 1998. Adverting next to the photocopyof the certificates produced by the applicant, it was observed that theapplicant was made to work from 1989 to 1998, with some artificialbreaks. With such cryptic observations and without any further evidenceH

or material, the Tribunal passed an order in favour of the applicant on25.8.2015 in the TA No. 30/2009.

10. The Tribunal’s order was challenged by the appellant by filingthe WP(C) No. 991/2017 where a specific plea was raised about theTribunal failing to follow the procedure under Section 22(3) of the 1985Act in terms of the High Court’s earlier directions in the remand order(19.3.2013).

11. The Department again contended before the High Court thatthe respondent does not fulfil the eligibility criteria of having worked for240 days in 12 months and that he had relied on fabricated certificateswhich do not correspond with the official records and without recordingany evidence to conclude otherwise, the Tribunal chose to record a findingwhich was not supported by any acceptable material. In fact, an erroneousconclusion was drawn purporting to draw support from the contraryconclusion drawn by the Committee, which categorically held that theapplicant is disentitled to temporary status, as per the provisions of the1989 Scheme. The Department also relied on the decision of this Courtin Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.[1] tocontend that the foundation of the 1989 Scheme stood demolished andno relief can be claimed under the said Scheme.

12. The High Court under the impugned judgment dated 31.5.2018,had however dismissed the writ petition filed by the BSNL, where theCourt adverted to the xerox copies of the documents produced by theapplicant to erroneously observe that the authenticity of those documentshave not been disputed by the Department. With such finding, the judgmentof the Tribunal dated 25.8.2015 in favour of the respondent was upheldand the Writ Petition was dismissed with the following observation:- “ ********

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By the impugned judgment and order dated 25/08/2015, the learnedTribunal had allowed the application filed by the respondent byrecording categorical finding of fact that the petitioner had workedfor more than 240 days under the department during the periodfrom 1989 to 1998. Such finding of fact was recorded afterconsidering the report dated 29/08/2005 submitted by the“Responsible Committee” constituted by the Department to lookinto such matters as well as the documentary evidence producedby the SDE/JTO.

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AThe learned counsel for the writ petitioner has not been able toinvite our attention to any material which would go to dislodge thefactual finding recorded by the learned Tribunal.”

13. Thereafter, the High Court dismissed the Review Petition filedby the Appellant, vide order dated 4.6.2019, and this order is also underBchallenge in this case.

14. Mr. Dinesh Agnani, learned senior counsel for the appellantpoints out that both the Tribunal and the High Court failed to appreciatethat the 1989 Scheme is intended as a one time measure specifying theeligibility criteria for conferment of temporary status on the casual workersand the respondent had not worked for 240 days in 12 months and isCtherefore ineligible for any benefits under the Scheme. Moreover, suchalso being the finding of the competent committee, there was nojustification either for the Tribunal or for the High Court to give anincorrect factual finding favouring the respondent, without recording anyevidence or adverting to any acceptable material, notwithstanding theDspecific direction issued by the High Court on 20.11.2013 when itremanded the matter back to the Tribunal, for fresh adjudication. Thelearned counsel argues that the photostat copies of the documentsproduced by the applicant does not correspond to the departmental recordsand therefore without recording any evidence to determine the authenticityof the xerox copies of the relied documents, neither the Tribunal nor theEHigh Court could have concluded that the applicant fulfilled the eligibilitycriteria under the Scheme.

15. Per contra, Mr. Surendra Patri, the learned counsel for therespondent argues that the respondent is litigating since long to securethe benefit under the 1989 Scheme and since the Tribunal, as well as theFHigh Court, have granted relief in his favour, interference by this Courtis not merited.

16. In order to secure the benefit of the 1989 Scheme, it wasnecessary for the respondent to establish that he satisfied the eligibilitycriteria prescribed under the Scheme and had worked for at least 240Gdays in 12 months. To resolve the factual controversy, the High Court inits earlier round while remanding the matter, directed the Tribunal torecord evidence. However, the Tribunal’s order dated 25.8.2015 showsthat the only basis for concluding in favour of the respondent was theReport/proceedings of the Committee dated 29.8.2005. The Committee H

however upon verification of the Records concluded that the respondenthas completed maximum 38 days in 12 calendar months during 1.1.1995to 31.12.1995 and as such he is disentitled for the temporary status underthe Scheme. Yet, by misreading the specific recording of the Committeeand without any basis for a contrary view, the Tribunal crypticallyobserved that the applicant was made to work with artificial breaksduring 1989 to 1998 and on that basis, relief was granted to the respondent.But the Tribunal never recorded any evidence to determine the factualcontroversy and instead respondent’s service during 10 years from 1989to 1998 were erroneously taken into account to compute the requirementof 240 days service in 12 calendar months.

17. The Review application filed by the appellant to challenge theincorrect conclusion of the Tribunal and the High Court viz-a-viz thefinding given by the Committee was summarily brushed aside. Moreover,although it was pointed out that the finding is contrary to the material onrecord, the same was disregarded with the observation that both theTribunal and the High Court had considered the Report and grantedrelief to the applicant. The Review petition accordingly came to bedismissed on 4.6.2019.

18. The Committee as noted earlier had clearly recorded that therespondent “has completed maximum 38 days in 12 calendar monthsduring 1.1.1995 to 31.12.1995 and as such the applicant is notentitled to grant of temporary status as per the provisions of theCasual Labourers (Grant of Temporary Status and Regularization)Scheme of the Department of Telecommunications, 1989.” Althoughthis categorical finding of the Committee was noted both by the Tribunalas also by the High Court, regularization was surprisingly ordered forthe respondent. For the contrary finding, the Tribunal did not make anyinquiry or record any evidence, in terms of the remand order dated19.3.2013 of the High Court in the earlier round. It is therefore seen thatthe conclusion is drawn without any material foundation.

19. In the above circumstances, we are of the considered opinionthat the conclusion drawn by the High Court and by the Tribunal favouringthe respondent is contrary to the factual finding recorded by the Committeeon 29.8.2005. The Committee Report also discloses that the Applicanthad failed to produce records in original, to support his claim. TheCommittee further noted that certificates were issued by unauthorisedpersons and the authenticity of such documents have not been established.

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A20. At this stage, it is apposite to extract Clause 5(i) of the 1989Scheme which prescribed the requirements for conferring temporarystatus to casual workers.

“5. Temporary Status

(i) Temporary status would be conferred on all the casual labourersBcurrently employed and who have rendered a continuous serviceof atleast one year out of which they must have been engaged owork for a period of 240 days (206 days in case of offices observingfive days week) such casual labourers will be designated asTemporary Mazdoor.”

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The above clause makes it clear that the Applicant was requiredto have been engaged for 240 days in a given calendar year. TheCommittee’s findings showed that the respondent had served for amaximum of 38 days in a calendar year and was ineligible.

21. The Tribunal in its order (25.8.2015) has relied upon theDjudgement in Uma Devi (supra) to consider the service period during1989 to 1998, to compute 240 days of engagement. However, this mannerof considering eligibility does not gain support from the ratio in UmaDevi. To understand this, we benefit by reading the opinion of JusticeP.K. Balasubramanyan, who speaking for the Constitution Bench, madeEthe following observation on the issue of regularisation of irregularlyappointed workmen as a one time measure, “ 53. ...There may be cases where irregular appointments (notillegal appointments) as explained in S.V. Narayanappa [(1967)1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1FSCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referredto in para 15 above, of duly qualified persons in duly sanctionedvacant posts might have been made and the employees havecontinued to work for ten years or more but without the interventionof orders of the courts or of tribunals. The question of regularisationGof the services of such employees may have to be considered onmerits in the light of the principles settled by this Court in thecases abovereferred to and in the light of this judgment. In thatcontext, the Union of India, the State Governments and theirinstrumentalities should take steps to regularise as a one-timemeasure, the services of such irregularly appointed, who haveH

BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @DEO KUMAR RAY [HRISHIKESH ROY, J.]

worked for ten years or more in duly sanctioned posts but notunder cover of orders of the courts or of tribunals and shouldfurther ensure that regular recruitments are undertaken to fill thosevacant sanctioned posts that require to be filled up, in cases wheretemporary employees or daily wagers are being now employed.The process must be set in motion within six months from thisdate. We also clarify that regularisation, if any already made, butnot sub judice, need not be reopened based on this judgment, butthere should be no further bypassing of the constitutionalrequirement and regularising or making permanent, those not dulyappointed as per the constitutional scheme.”

22. The above ratio as is seen, was concerned with irregularappointments, which issue however is not very relevant in this matter.Furthermore, the ratio does not lay down a ten-year service yardstickfor determining the eligibility of casual workers, as has been understoodby the Tribunal. As such, the period of engagement spreading acrossseveral calendar years (and not one year as mandated under the Scheme)could not have been accepted by treating the gaps in service over thoseyears, as ‘artificial breaks’. This manner of computation is inconsistentwith the diktat of Uma Devi as well as the prescribed criteria governingthe Respondent. It is also seen that the Tribunal in its order (22.01.2010),while dismissing the regularisation claim of the respondent amongst otherapplicants, had noted the admission therein that they had not satisfiedthe requirement of engagement of 240 days in any year. It was finallyheld that the applicants had failed to establish any infirmity in theCommittee’s findings. For the sake of completion, we may note that theabove order of the Tribunal was interfered with and remanded by theHigh Court, as was previously mentioned.