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2023 DIGILAW 566 (CAL)

Udayan Mukherjee v. Union of India

2023-04-19

HARISH TANDON, PRASENJIT BISWAS

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JUDGMENT : (Harish Tandon , J.) 1. The several persons joined together approached the Central Administrative Tribunal ventilating their grievance against the respondent authorities in perpetrating the discrimination with the similarly circumstance persons perceived on the basis of the memo dated 17.9.2013. 2. Undisputedly, the petitioners were working as a casual mazdoor in Eastern Telecom Project Circle under the Department of Telecommunication for various works including laying of cable, digging of trenches, construction of lines, fitting of subscribers offices and any other allied work instructed by the higher official connected and/or relation thereto. All the petitioners including the widows of the deceased employee claimed that they rendered services continuously and in fact worked more than 240 days in a calendar year. Subsequently, a scheme was floated by the Government of India styled as Casual Labourers (Grant of Temporary Status and Regularization) Scheme for the Department of Telecommunication, 1989 which was brought into effect on and from 1st October, 1989. The said scheme provides for regularization of the casual labourers and embargo in filling up the post of Group-D from outside until they are absorbed into an existing sanctioned post subject to fulfillment of the eligibility criteria. 3. Nearly 614 casual labourers under the said department were found to have worked as casual labourers and it is claimed that they fulfill all the eligibility criterions under the aforesaid scheme and therefore, are entitled to be absorbed in the sanctioned Group-D post. However, 387 casual labourers of the Eastern Telecom Project Circle out of 614 were granted temporary status with effect from 12th February, 1999 leaving 227 casual labourers who were working in the said Eastern Telecom Project Circle and stands on a same footing that of the said 387 casual workers. 4. Subsequently, the Department of Telecommunication decided to corporatize the Telecom Sector and established the Bharat Sanchar Nigam Limited (BSNL) and the employees of the Department of Telecommunication were directed to be appointed under the said BSNL and to be treated as the employee of the said Company. The said 227 casual labourers who were not granted the temporary status were regularized into the service of the said BSNL w.e.f., 1st October, 2000. The said regularization was made to Group ‘D’ post (note test category) as regular mazdoors at a scale of pay admissible to such post. 5. The said 227 casual labourers who were not granted the temporary status were regularized into the service of the said BSNL w.e.f., 1st October, 2000. The said regularization was made to Group ‘D’ post (note test category) as regular mazdoors at a scale of pay admissible to such post. 5. There has been a several correspondences made in relation to the status as temporary mazdoor but no decision thereupon had been taken by the concerned Department of Telecommunication. However, a communication was received on 17th September, 2013 by the BSNL employees union wherein the Department of Telecommunication have clarified that the temporary status mazdoors who were having such status as on 30th September, 2000 shall be allowed the benefit of counting of 50 per cent of the temporary status mazdoors period who were subsequently absorbed in BSNL w.e.f., 1st October, 2000 for the purpose of pensionary benefits and the related service benefits but the casual employees who did not acquire a temporary status shall be treated to be an employee of the said BSNL w.e.f., the date of their regularization in service. 6. The aforesaid communication/decision led to the institution of the Tribunal Application being OA 292 of 2014 at the behest of the petitioners seeking, quashing and/or setting aside of the said memo dated 17.9.2013 and the writ of mandamus commanding the respondent authorities to treat the petitioners as temporary status mazdoors on and from 12th February, 1999 and extend all the benefits admissible thereto. The Tribunal dismissed the said application solely on the ground of delay and latches, more particularly, on the score that the moment 387 casual labourers were granted temporary status barring the petitioners the proceeding could have been initiated at such relevant point of time and having not done so, it is too late in a day to grant reliefs as claimed in the said Tribunal Application. 7. At the time of admission of the writ petition it did not transpire from the impugned order that any opportunity to file affidavits by the respondents were afforded and, therefore, the direction was passed upon the respondents to file affidavits to the writ petition and disclosed the stand taken in this regard. Interestingly, the affidavit in opposition filed by the Ministry of Communication and Technology, the Respondent no. Interestingly, the affidavit in opposition filed by the Ministry of Communication and Technology, the Respondent no. 1 herein revealed the stand of the Government that the moment the relationship of employer and employee ceases after the corporatization they have no role in relation to the reliefs claimed by the writ petitioners; even apart they proceeded to contend that they have been unnecessarily made party in the proceedings. However, the Counsel for the Respondent no. 1 unequivocally submitted before the Court that they have nothing to make submissions as the entire gamut of dispute is between the writ petitioners and the respondents being the BSNL Authorities. 8. The affidavits in opposition filed by the BSNL authorities before this Court in substance appears that they are sympathetic to the claim of the writ petitioners and in fact intended to extend the benefits as temporary status mazdoor but such status can only be granted by the Department of Telecommunication and, therefore, unless such benefit is granted it would not be possible on their part to accede to the prayer of the writ petitioners; even in a supplementary affidavit to the said affidavit in opposition, the BSNL authorities have disclosed certain communications made by the Chief General Manager, Telecom Project, Eastern Zone, Department of Telecommunication dated July 21, 1999 wherein the aforesaid 227 casual labourers who were left out from the earlier communication were sought to be extended the status of temporary mazdoor (TSM). The reason for not including those 227 casual labourers were also indicated therein that due to deviation of figures from the field units as the payment of casual labourers were made on AOG-17, the particulars could not be sorted out. The said letter was duly responded by the Department of Telecommunication to the effect that a certificate from a circle IFA as to the authenticity of the number of the casual labourers eligible for temporary status as on 1.8.1998 should be furnished with the caveat that such figure shall be treated as final and there shall not be any further request for grant of temporary status. The aforesaid communication was made on 30th June, 2000. 9. The aforesaid communication was made on 30th June, 2000. 9. On September 12, 2000 the certificates issued by the competent authorities were forwarded to the Department of Telecommunication but no further steps could be taken for the obvious reason that in the mean time the corporatization has taken effect from 30th September, 2000 and the aforesaid 227 casual employees were regularized on and from 1st October, 2000. 10. On the conspectus of the aforesaid stands having taken in the instant writ petition the question which fell for consideration is whether the memo dated 17.9.2013 can be impinged being discriminatory creating a distinction between a temporary status mazdoor and the casual labourers who were otherwise found entitled to attain such status after a lapse of considerable time. 11. It is beyond cavil of doubts that the writ petitioners were working as casual labourers in the same way and manner that of the other 387 casual labourers who had been granted the status of a temporary mazdoor. The stand of the BSNL authority is categorical that there were lapses on the part of the concerned office in this case, the eastern zone of the Ministry of Telecommunication in not collating the documents in relation to the aforesaid 227 casual labourers. The communication dated July 21, 1999 would reveal that such mistake was detected and the approval was sought from the said Ministry so that the aforesaid 227 casual labourers can be granted a temporary status mazdoor having worked more than 240 days in a calendar year. The stand of the Ministry was categorical as evident from the correspondence dated 30th June, 2000 that they wanted the certificate to be issued by a competent authority and such figure was to be treated as final. Despite the certificate having been given on September 12, 2000, no further steps could be taken because of the corporatization of the Telecom Sector and on incorporation of BSNL, the corporate entity. 12. At the first blush we are of the view that the petitioner has been discriminated with the similarly circumstance persons at the behest of the competent authority. The act of discrimination was subsequently realised and on an explanation was offered by a concerned officer in approaching the said Ministry disclosing the reasons therefor and sought to remedy such mistake so that the aforesaid 227 casual labourers are not subject to any discrimination. The act of discrimination was subsequently realised and on an explanation was offered by a concerned officer in approaching the said Ministry disclosing the reasons therefor and sought to remedy such mistake so that the aforesaid 227 casual labourers are not subject to any discrimination. The equality amongst the equals is the hallmark of the constitutional ethos and the act of discrimination is always viewed seriously in relation to public employment. Equal treatment amongst the equals in public employment is included in Part-III of the Constitution of India as a fundamental right and the citizen of the country having subjected to such discrimination can raise the grievance that the action of the authority or the sovereign infringes the fundamental right guaranteed thereunder. The delay in latches can be a factor for denying the relief as a person who sat over his right cannot be granted reliefs even in a Court of equity. However, a distinction is made in this regard when claim is based on infringement of fundamental rights guaranteed under the constitution where the delay in latches may not be projected as an embargo in granting the reliefs. 13. The aforesaid 227 employees were found to have been discriminated the reasons whereof were disclosed in the communication made by the Chief General Manager in the letter dated July 21, 1999. An attempt was made to rectify the mistake cropped up for the reasons disclosed therein that because of the deviation in figures from the field units as since the payment to the casual labourers are made under a particular head and the engagement of the labourers during a relevant period could not be easily sorted out. The Ministry of Telecommunication accepted the reasons and invited the attention of the Chief General Manager to communicate the final figure with the relevant certificates issued by the competent authority so that they can be put at par with the other 387 casual labourers who have been granted the status of temporary mazdoor. Though the petitioner have been regularized w.e.f 1st October, 2000 having been placed in the BSNL yet such claim as temporary status being pending consideration before the Ministry of Telecommunication does not appear to us accrue any cause of action, the moment both the casual labourers and the temporary status mazdoors were regularized w.e.f the said date. Though the petitioner have been regularized w.e.f 1st October, 2000 having been placed in the BSNL yet such claim as temporary status being pending consideration before the Ministry of Telecommunication does not appear to us accrue any cause of action, the moment both the casual labourers and the temporary status mazdoors were regularized w.e.f the said date. However, the discriminatory act becomes patent on issuance of the memo dated 17.9.2013 wherein the Ministry of Telecommunication decided to count 50 per cent of service tenure as temporary status mazdoor for the purpose of pensionary and other service benefits. Absorption and regularization of the service both of the casual labourers and the TSM was effectuated from the said date and therefore, there was no necessity of approaching the authority to seek the status of TSM until the memo dated 17.9.2013 was issued by the Ministry of Telecommunication. Immediately, a challenge was made to the same which cannot be said to be a belated approach to the Tribunal nor we accept the finding that the petitioners were sitting over their rights. 14. We thus set aside the order of the Tribunal. 15. We direct the Ministry of Telecommunication to take a decision on the communication dated July 21, 1999 and September 12, 2000 relating to grant of temporary status to the aforesaid 227 employees who stand on a same footing that of 387 casual labourers who have been granted such status. With these observations, the writ petitions are disposed of. 16. No order as to costs. 17. Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities. I agree. (Prasenjit Biswas, J.)