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2017 DIGILAW 682 (HP)

Bharat Sanchar Nigam Limited v. Shashi Kamal

2017-06-19

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. Order dated 11.1.2016 passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the Tribunal) in O.A. No. 986-HP-2013 is under challenge in this Writ Petition. Learned Tribunal below while allowing original application filed by respondent No. 1, the original applicant has directed the appellants (hereinafter referred to as the respondent-Nigam) to regularize the petitioners at par with his juniors within a period of three months from the date of receipt of certified copy of the impugned order. 2. The legality and validity of the impugned order has been questioned on the grounds, inter alia, that learned Tribunal below has wrongly applied the ratio of the judgment of the Apex Court in Hari Nandan Prasad and others vs. Employer I/R to Management of FCI & Ors., 2014 (2) SCR 955, Annexure P-7 as according to respondent-Nigam, discriminatory treatment was never meted out to original applicant as he being not initially engaged on daily wage basis in terms of the rules, therefore, in view of the ratio of the judgment of the apex Court in Secretary, State of Karnataka vs. Uma Devi & ors. 2006(4) SCC 1 , he was not justified in claiming parity with Mazdoors who were regularized on 14.8.2000 i.e. well before the judgment supra was rendered. It has been pointed out that in terms of the judgment of Apex Court in Uma Devi’s case (supra), a workman who has been engaged in departure of the statutory rules is not entitled to be regularized against the post he held on daily wage basis. 3. If coming to the factual matrix, the original applicant was admittedly engaged as daily rated Mazdoor with respondent-Nigam on 29.9.1995 in erstwhile Telecommunication Department at Hamirpur. As per his version, his name was sponsored by the Employment Exchange and he had completed 240 days in a calendar year, however, irrespective of vacancies were available, his services were illegally dispensed with on and w.e.f. 1.8.1996. Though, he was reengaged in the year 1996 itself, however, his services were again terminated on 10.11.1998. Consequently, he approached to Central Government Industrial Tribunal-cum-Labour Court, Chandigarh which has set aside and quashed the action of respondent-Nigam whereby his services were initially dispensed with on and w.e.f. 1.8.1996 and subsequently on 10.11.1998 vide judgment Annexure P-1. The order Annexure P-1 was assailed before this Court in CWP No. 561 of 2004. Consequently, he approached to Central Government Industrial Tribunal-cum-Labour Court, Chandigarh which has set aside and quashed the action of respondent-Nigam whereby his services were initially dispensed with on and w.e.f. 1.8.1996 and subsequently on 10.11.1998 vide judgment Annexure P-1. The order Annexure P-1 was assailed before this Court in CWP No. 561 of 2004. A Single Bench of this Court has dismissed the Writ Petition vide judgment dated 3.5.2007 Annexure P-2 (Colly.) Letters Patent Appeal No. 18 of 2007 preferred against judgment supra was dismissed by a Division Bench of this Court vide judgment dated 26.2.2010 (Annexure P-2, colly.), meaning thereby that vide Annexure P-1 passed by Central Government Industrial Tribunal-cum-Labour Court, Chandigarh has attained finality. 4. As per Annexure P-1, the original applicant was ordered to be reinstated in service with full back wages and other attendant benefits, including continuity of service. Consequently, original applicant was reinstated with back wages and seniority, however, respondents refused to regularize his services at par with his juniors who were already regularized on and w.e.f. 14.8.2000 at such a stage when the petitioner was pursing the matter pertaining to termination of his services at various levels, including this Court in Writ Petition and also in Letters Patent Appeal. He, therefore, has filed O.A. No. 986/HP/2013, Annexure P-2 for seeking direction to respondent-Nigam to regularize his services on the post of Mazdoor at par with his juniors with all monetary benefits, such as grant of increments, bonus, seniority and also absorption in BSNL on abolition of the erstwhile Telecommunication Department. The original application was decided by a Bench of learned Tribunal initially vide judgment dated 24.11.2014 Annexure P-4 with a direction to regularize the services of the original applicant in the same manner as in the case of Raj Kumar OA No. 956-HP-2013., however, restricting the arrears on account of mandatory benefits to a period of 18 months prior to the day of filing of the O.A. i.e. 9.7.2013. 5. The original applicant, however, was not satisfied with restriction imposed qua payment of due and admissible arrears to him on account of regularization of services w.e.f. 14.8.2000, hence, assailed the order Annexure P-4 passed by learned Tribunal in the original application he preferred in this Court by way of filing Civil Writ Petition No. 2822 of 2015. 5. The original applicant, however, was not satisfied with restriction imposed qua payment of due and admissible arrears to him on account of regularization of services w.e.f. 14.8.2000, hence, assailed the order Annexure P-4 passed by learned Tribunal in the original application he preferred in this Court by way of filing Civil Writ Petition No. 2822 of 2015. A Division Bench of this Court vide judgment dated 8.9.2015 has remanded the original application to the Tribunal for fresh disposal after hearing the parties on both sides vide judgment dated 8.9.2015 Annexure P-5. It is in this backdrop, the impugned order dated 11.1.2016 Annexure P-6 came to be passed by learned Tribunal whereby the application was allowed with a direction to the respondents to regularize the services of the original applicant at par with his juniors within a period of 3 months. It is this order under challenge before this Court in this petition on the grounds already set out in this judgment. 6. On analyzing the rival contentions and also the record of the case, the controversy lies in a narrow compass as the point in issue brought to this Court is that in view of Uma Devi’s case cited supra, the original applicant is not entitled for regularization as Mazdoor at par with his juniors, who admittedly were regularized as Mazdoors on and w.e.f. 14.8.2000. The answer to this poser, in all fairness and in the ends of justice, would be in negative for the reason that similarly situated persons and even as per the admitted case of the parties, junior to the applicant also were regularized as Mazdoor on and w.e.f. 14.8.2000. The services of the original applicant, however, were dispensed with initially on 1.8.1996 and subsequently on 10.11.1998 which action of the respondents was held illegal and arbitrary by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh and even by this Court also vide judgment dated 3.5.2007, Annexure P-2 (Colly.) passed in CWP No. 561 of 2004 and ultimately vide judgment dated 26.2.2010 in LPA No. 18 of 2007 & connected matter, Annexure P-2 (Colly.). Therefore, when the juniors of the original applicant were regularized, he was striving for justice against termination of his services by the respondents which action ultimately was held as illegal and arbitrary. Initially, he was engaged as Mazdoor on daily wage basis on 29.9.1995 after his name sponsored by the Employment Exchange. Therefore, when the juniors of the original applicant were regularized, he was striving for justice against termination of his services by the respondents which action ultimately was held as illegal and arbitrary. Initially, he was engaged as Mazdoor on daily wage basis on 29.9.1995 after his name sponsored by the Employment Exchange. Respondent, no doubt claims that it was a backdoor entry in job, however, without producing something tangible lending support to its case. On the other hand, as per own admission on the part of the respondents, the persons regularized as Mazdoor on and w.e.f. 14.8.2000 were not only similarly situated to the original applicant but junior also. The present controversy, as such, is not covered by the ratio of the judgment in Uma Devi’s case supra for the reason that here the petitioner has sought regularization of his services at par with his juniors. The respondents cannot discriminate him against similarly situated persons who have already been regularized as Mazdoor long back on 14.8.2000. The action of the respondents not to regularize the services of the petitioner as Mazdoor is as such discriminatory and is violative of Article 14 of the Constitution of India. No doubt, he was terminated from his employment initially on 1.8.1996 and subsequently on 10.11.1998, however, the termination of his services has been held illegal and arbitrary not only by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh but also by this Court. Therefore, quashing of the impugned action of termination of the services of original applicant with a direction to reinstate him with back wages and seniority tantamount to his reinstatement for all intents and purposes, including the regularization of his services as Mazdoor at least from the date when the persons similarly situated/his juniors were regularized as such. Therefore, quashing of the impugned action of termination of the services of original applicant with a direction to reinstate him with back wages and seniority tantamount to his reinstatement for all intents and purposes, including the regularization of his services as Mazdoor at least from the date when the persons similarly situated/his juniors were regularized as such. The conclusion so drawn by this Court even finds support from the judgment again that of the Apex Court in U.P. State Electricity Board vs. Pooran Chandra Panday & ors., (2007) 11 SCC 92 , where the judgment in Uma Devi’s case has been distinguished and in a similar set of facts and circumstances the regularization of the services of the daily wagers in the service of a society on its merger in Electricity Board on and w.e.f. 28.11.1996 was held legal and valid with the observation that when they were appointed in the Society before 4.5.1990 and as the Electricity Board has regularized the services of the daily wagers who were working in the Board before 4.5.1990 on and w.e.f. 28.11.1996, therefore, on merger of the society with Electricity Board, the daily wagers who were appointed in the society before 4.5.1990 were also entitled for regularization. This judgment reads as follows: “9. The writ petitioners who were daily wagers in the service of the Society were appointed in the Society before 4.5.1990 and their services were taken over by the Electricity Board in the same manner and position. In our opinion, this would mean that their services in the Society cannot be ignored for considering them for the benefit of the order dated 28.11.1996. 10. In our opinion, the proceeding dated 3.4.1997 makes it clear that the employees of the Society should be deemed to be the employees of the Electricity Board with continuity of their service in the Society, and it is not that they would be treated as fresh appointees by the Electricity Board when their services were taken over by the Electricity Board. In this view of the matter, the writ petitioners (respondents herein) are entitled to the benefit of the order of the Electricity Board dated 28.11.1996. In this view of the matter, the writ petitioners (respondents herein) are entitled to the benefit of the order of the Electricity Board dated 28.11.1996. This view also finds support from the affidavit of Shri Ramapati Dubey, Chief Engineer, R.P.M.O., U.P. State Electricity Board in which it is mentioned that In this way, the Board Order dated 28.11.1996, a copy of which has been filed as Annesxure No. 5 to the writ petition, has been complied with and the employees of the Cooperative Electric Supply Society have been given the same status and benefit of regularization in the similar manner as it was given to the employees of the Board. 11. Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors vs. Uma Devi (3) & Ors (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi s case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution.” 7. In the light of the discussion hereinabove, we are not in agreement with learned counsel representing the respondents that the impugned order Annexure P-6 is contrary to the law laid down by the Apex Court in Uma Devi’s case (supra). The case of the original applicant is rather squarely covered by the ratio of the judgment of the Apex Court in Pooran Chandra Panday’s case (supra). Being so, we find no merit in this petition and the same is accordingly dismissed.