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2017 DIGILAW 930 (JHR)

Md. Atique v. Union of India

2017-06-14

APARESH KUMAR SINGH

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JUDGMENT : APARESH KUMAR SINGH, J. 1. Heard counsel for the parties. 2. Reference was made to the Central Government Industrial Tribunal (No. 2) at Dhanbad by the Ministry of Labour, Government of India under section 10(1)(d) of Industrial Disputes Act, 1947 for adjudication of industrial dispute in the following manner: How far the denial of regularization of 167(Annexure) A.CG-17 workers by the General Manager, Telecommunication Department, Ranchi is proper and justified? If not, to what extent the workmen are entitled for any other relief? 3. Learned Central Government Industrial Tribunal (No. 2) at Dhanbad, by the impugned Award dated 21.07.2011 passed in Reference No. 100/1998, has inter-alia held as follows: "Except the aforesaid 22 workmen, none of the other 145 workmen named in the schedule has completed 240 days attendance in any calendar year, so whose regularisation was justly refused by the management, therefore the aforesaid 145 workmen are not entitled to any relief. But the denial of the management to the aforesaid 22 workmen for their regularisation was though legally justified yet in view of their services under the management for more than 240 days in the respective calendar year 1993 and 1994 concerned, the aforesaid 22 workmen's regularisation may be considered by the management against the sanctioned post if filled up through public employment as per the rules." 4. 167 persons were covered under the Notification of reference, but the learned Tribunal came to a finding that only 22 such workmen were entitled for regularisation as according to it, they had worked for more than 240 days in the respective calendar year 1993-94 concerned. Learned counsel for the petitioner has referred to a exhibit W-1/1 which is enclosed at Annexure-1. Name of the petitioner and that of one Md. Shahid, beneficiary of the impugned Award, is at serial no. 21 and 22 thereof, which also contains the reference of the years and the number of days / total number of days they worked under the Sub Divisional Engineer (P), Hinoo, Ranchi. They are quoted hereunder: Sl. No. Name Year No. of Days Total No. of Days Work Unit Under Work 21 Md. Atique 1993 161 411 SDE(P) Hinoo, Ranchi 1994 250 1995 Nil 22 Md. Shahid 1993 88 434 SDE(P), Hinoo, Ranchi 1994 246 1995 Nil 5. Learned counsel for the petitioner has also referred to another instance of Sri Sabih Hassan at serial no. No. Name Year No. of Days Total No. of Days Work Unit Under Work 21 Md. Atique 1993 161 411 SDE(P) Hinoo, Ranchi 1994 250 1995 Nil 22 Md. Shahid 1993 88 434 SDE(P), Hinoo, Ranchi 1994 246 1995 Nil 5. Learned counsel for the petitioner has also referred to another instance of Sri Sabih Hassan at serial no. 23 who is also the beneficiary of the Award and is among the 23 workmen. Learned counsel for the petitioner has tried to make out a case that the petitioner worked for 161 days in the year 1993 and 250 days in 1994, total 411 days; Md. Shahid worked for 88 days in 1993 and 246 days in 1994, total 434 days. Based on this assertion, learned counsel has pleaded discrimination in the approach of the Learned Tribunal in overlooking the case of the present petitioner. Statement to that effect, as made at para-14 of the writ petition, have been answered at para-14 of the counter affidavit of the Respondent Nos. 2 to 4. 6. Respondents though seek to deny the averments made at para-14 of the writ petition, but also submit that they are matters of record and evidences before the Learned Industrial Tribunal which has rightly rejected the case of the petitioner. However, specific statements relating to the number of days of work done by the petitioner and Md. Shahid whose name also finds place in the chart at internal page of the impugned Award and was held entitled for regularisation, have not been denied specifically. If that be so, there is no reason why case of the petitioner ought not to have been considered on similar footing with that of other 22 persons. 7. It would also be pertinent to notice here that Management of the Respondent BSNL also assailed the Award dated 21.07.2011 before this Court in the writ petition WPL No. 324/2012 unsuccessfully. Judgment of the Learned Single Judge dated 23.04.2012 was assailed in LPA No. 297/2012. 7. It would also be pertinent to notice here that Management of the Respondent BSNL also assailed the Award dated 21.07.2011 before this Court in the writ petition WPL No. 324/2012 unsuccessfully. Judgment of the Learned Single Judge dated 23.04.2012 was assailed in LPA No. 297/2012. Learned Division Bench, one of whom (Aparesh Kumar Singh, J) was a party, held in the following terms: "We are of the considered opinion that by the impugned award it has been observed that in case the employer decides to fill up the vacancies or take services of the workmen for the post which were earlier occupied by 22 workmen, then in that situation the 22 workmen's cases may also be considered for the purpose of giving appointment then only they can be regularized. In that view of the matter, when the order is innocuous and has not given absolute right to the workmen for regularization, the direction is only for consideration of their cases. If employers decides to fill up the post from open market then their cases be considered. We are of the considered opinion that there is no reason for grievances of the appellant. There is no merit in the L.P.A. And it is accordingly dismissed." Interference in the matter was declined and Letters Patent Appeal was dismissed. 8. The challenge to the impugned Award has failed on the part of the Respondent BSNL and observation to the effect, as quoted herein-above, have also been made by the Learned Division Bench. Therefore, for the reasons discussed herein-above, present writ petition can also be disposed of on similar terms. In case, the employer decides to fill up the post from open market, then while considering the cases of those 22 workmen, the Respondent BSNL would also accord consideration to the case of the present petitioner. The impugned Award stands modified to the aforesaid extent. Writ petition is disposed of accordingly. Pending I.As are closed.