Central Administrative Tribunal - Madras
M Thomas vs Bsnl on 20 February, 2025
1 OA No. 375/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00375/2022
Dated this, the 20th day of February Two Thousand Twenty Five
CORAM : HON'BLE MS. VEENA KOTHAVALE, Member (J)
HON'BLE MR. SISIR KUMAR RATHO, Member (A)
M.Thomas,
57, 12th Street,
DAE Township, Kalpakkam 603102. .....Applicant
By Advocate M/s. R. Rajesh Kumar
Vs.
1.Chief General Manager,
BSNL, Chennai Telephones,
78, Purasaiwakkam High Road,
Chennai 600010.
2.Deputy Chief General Manager (HR&A),
BSNL Chennai Telephones,
No. 10, Millers Road,
Chennai 600010. ....Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No. 375/2022
ORDER
(Pronounced by Hon'ble Mr. Sisir Kumar Ratho, Member(A)) This OA has been filed by the applicant seeking the following reliefs:-
"1. To call for the records of the respondents and set aside the impugned order No. SDE/KLT/STAFF/GENL/2019/20 dated 31.01.2020 and order for regularization and pensionary benefits.
2. Pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The facts of the case as submitted by the Applicant, are as follows, in brief:-
2.1. The applicant was initially engaged as a Casual Labour since 1990 in the respondent department. He was given temporary status with effect from 23.06.1991 by an order dated 21.01.1995. It is submitted that the applicant's services were not regularised till he was relieved from official duty after attaining the age of 60 years on 31.01.2020.
2.2. Challenging the termination order dt. 07.02.2012, the applicant and others filed OA Nos. 156 and 159 of 2012 seeking regularisation of TSM.
The O.As, were allowed by a common order dated 22.06.2012 setting aside the termination order dt. 07.02.2012 directing the respondents to reinstate the applicants therein. The respondents were also given liberty to hold a regular enquiry for ascertaining the genuineness of the date of birth, transfer certificate and other certificates. Consequently, the 1st respondent constituted 3 OA No. 375/2022 a "Regular Enquiry Committee" to hold enquiry to ascertain the genuineness of Transfer Certificate and other certificates.
2.3. The applicant, in compliance with the order dt. 13.12.2012 of the 1 st respondent, appeared before the Sub Divisional Engineer (Admn) and submitted all the required documents/certificates in support of his claim. However, despite several respresentations, the latest one being 10.12.2019, the applicant was not regularised.
2.4. The applicant submitted that on acquiring temporary status, he is entitled to the benefits of counting 50% of the TSM period for pensionary benefits in accordance with the OM dt. 20.10.2006 of the Department of Telecommunications. It is further submitted that as per the said OM, a presidential order has already been issued in respect of casual labourers who have rendered Temporary Status on or before 30.09.2000 and regularised on or after 01.10.2000 so as to allow them the benefit of counting of 50% of their services as TSM for pensionary benefits. Since the applicant was granted TSM status w.e.f. 23.06.1991, he is eligible and entitled for regularisation and pensionary benefits.
2.5. Since the applicant's services were not regularised, he was deprived of availing pensionary benefits. Aggrieved, the applicant has filed this OA seeking the aforesaid relief.
3.1. The respondents have filed reply opposing the relief prayed by the applicant. It is submitted that the applicant having entered the department 4 OA No. 375/2022 with bogus/forged/ fraudulent certificates which surfaced at a later date during 2002/2004, when the Respondents initiated the process of regularization of Temporary Status Mazdoors, the applicant is approaching this Tribunal to reward him with regularization and consequential benefits. It is also submitted that there are 53 similarly placed TSMs who submitted bogus/fraudulent/forged certificates as the applicant herein and are approaching this Tribunal right from 2011 onwards. This OA is against the directions of this Tribunal in OAs 156 & 159/2012 in which the applicant herein was also one of the applicants and is bound by the directions of the Tribunal in the order wherein the respondents were granted liberty to hold a regular enquiry to prove genuineness of the date of birth, transfer certificate and other certificates, if the applicants prove that they had produced the genuine certificates, they are entitled for regularization. However, if the applicants fail to establish that their certificates genuine, respondents are liberty to take appropriate decision in accordance with Rules. 3.2. Apart from the merits of the case which lie heavily in favour of the Respondents, the OA is liable to be dismissed on the sole ground of suppression of facts before this Tribunal i.e., the vital fact of submitting bogus certificates at the time of entry into the department which lead to termination from service in respect of the applicant during 2012. The Applicant has narrated only those facts which are in his favour adopting pick 5 OA No. 375/2022 and choose analogy. It is submitted that the Applicant has concealed the following core facts in his affidavit:
i. Submission of bogus certificates in support of his date of birth and educational qualification at the time of entry in the department. ii. Submission of bogus certificates in support of his date of birth and educational qualification before the service verification committee held in the year 2002/2004 constituted specifically for the purpose of regularization. iii. The report of the vigilance enquiry establishing the certificates submitted by the petitioner as NOT Genuine, as confirmed by the concerned school authority.
iv. Making a false allegation in reply to the show-cause notice issued during 2007 that signature was obtained his back and he is ready to submit original certificates.
v. Suppressing the above sequence of events, the petitioner has projected the verification held during 2008 in respect of the fresh certificates submitted by him when an opportunity was extended based on his request, as the first verification conducted by the respondents for the purpose of regularization, which is far from the actual truth.
3.3. The respondents submit that several judgments have held that if a petitioner makes false statement and suppresses material facts or attempts to mislead the court, the court may dismiss the case on that ground alone. The 6 OA No. 375/2022 applicant is not expected to adopt dubious methods like, pick and choose to conceal facts.
3.4. An enquiry was conducted in compliance with the order of this Tribunal in OAs 156 & 159/2012 in the year 2012-2014 by extending natural justice to the Applicant. The report of the enquiry committee has been forwarded to the Applicant herein in the year 2014 wherein it is conclusively proved that the certificate submitted by the petitioner at the time of entry in the department as NOT GENUINE. It is submitted that none of the workers have neither challenged the proceedings of the enquiry committee nor the enquiry committee report, till this date. Having accepted the order of this Tribunal in OAs 156 &159/2012 and the enquiry report, the Applicant cannot seek any relief which is not granted to him in the earlier order. The directions are clear that "If the applicants prove that they had produced the genuine certificates, they are entitled for regularization. If the applicants failed to establish that their certificates are genuine, the respondents are at liberty to take appropriate decision in accordance with rules".
3.5. The Applicant has admitted through his own deposition before the enquiry committee as well as through the affidavit in the instant O.A that he has joined in the department after the cut-off date of 31.03.1985, after which there is ban for engaging casual labourers in the department. Hence his initial engagement in the department itself is against rules. The service 7 OA No. 375/2022 verification committee held in the year 2002 made the remarks that the date of initial entry in the department is 12.10.1990, which is after 22.06.1988.
Such entries were termed as 'back door entry' by Hon'ble Supreme Court in their Umadevi judgment. The Applicant whose entry is against rules and who entered with false certificates cannot seek regularization after retirement.
3.6. The Scheme named "Grant of temporary status and regularisation scheme" dated 07.11.1989 (TSM Scheme) by which the petitioner was granted Temporary Status Mazdoor (TSM) clearly stipulates the twin conditions required to be satisfied viz., "currently employed" and who "have rendered a continuous service at least one year" whereas the applicant herein has joined on 12.10.1990 in the department after this date, 07.11.1989 only, which clearly implies that the Applicant is not at all entitled for the TSM status or any consideration under this scheme.
3.7. The Clause 9 in Annexure of the TSM Scheme dt. 07.11.1989 mandates termination of the TSMs without show cause notice if they indulge in any misconduct. Having submitted an entirely different certificate in the year 2008 which was subsequently proved to be genuine, the applicant himself indirectly admitted that the earlier certificate produced by him during entry in the department as well as before the service verification committees are bogus. Having the genuine certificate very much in his custody and submitting bogus certificates at the time of entry into the 8 OA No. 375/2022 department shows malafide intentions which amounts to forgery liable for criminal prosecution. The Applicant, who has rendered long service of more than 20 years on the strength of bogus certificates, has no legitimate right to claim regularization after retirement. All along since 2014, the petitioner was keeping silent as he was well aware of the gravity of misconduct on his head.
3.8. In the first instant, the applicant having got the status of TSM with effect from 1991 though being ineligible under the Scheme has approached the Tribunal for the first time in the year 2011 seeking regularization after 20 years. Secondly, the applicant is filing this OA belatedly after replying to the show cause notice in 2014. The OA is barred by law of limitation and is liable to be dismissed.
3.9. It is further submitted that the DOT OM dated 20.10.2006 deals with only the casual workers who have been regularized on or after 01.10.2000, subsequent to conferment of TSM status. The Applicant who is not at all entitled for regularization cannot rely upon the said OM for seeking the pensionary benefits. Apart from this the Applicant cannot seek any other benefits extended to a regular employee who got regularization after due process and hence cannot claim parity as he belongs to a category of workers who submitted fraudulent certificates at the time of entry into the Department. It is submitted that equity cannot be claimed as a matter of right. In respect of even regular employees it has been held that such 9 OA No. 375/2022 employees are liable for termination if at any point of time it has come to the notice that they obtained employment on the strength of bogus certificates and the mere fact of rendering a lengthy service cannot be a reason for further continuance and the total service rendered is to be treated as null and void. However, the Applicant was not regularized till his retirement since his case was not genuine and had his case been genuine he could have been regularized in 2002 itself when the process of regularization was going on. Many workers got regularization whose credentials are found to be genuine. certificates at the time of entry into the Department. 3.10. Accordingly the respondents pray for dismissal of the OA as devoid of merits.
4. Heard both sides and perused the records including the written arguments filed by learned counsel for respondents.
5. Learned counsel for applicant, has relied upon the order dt. 29.03.2023 of this Tribunal in OA No. 209/2020 in the case of M. Arumugam and ors Vs. The Chairman cum Managing Director, BSNL and ors directing to regularize the services of Temporary Status Mazdoors which has been upheld by the Hon'ble High Court of Madras in WP No. 1371/2024.
6. Learned counsel for respondents has relied upon the orders of the Hon'ble Supreme Court in the cases of State of Karnataka Vs. Uma Devi 10 OA No. 375/2022 & ors., reported in (2006) 4 SCC 1 and in Civil Appeal No. 292 of 2009 in the case of BSNL Vs. Teja Singh.
7. Learned counsel for respondents specifically drew our attention to the order of the Hon'ble Madras High Court in WP No. 2478 of 2021 in the case of A. Sivakumar Vs. The Chairman-cum-Managing Director, BSNL and ors. The Writ Petition No. 2478 of 2021 challenging the order of this Tribunal in OA 51/2021 has been dismissed by the Hon'ble High Court of Madras vide its order dt. 17.12.2021 observing that if an appointment order was procured fraudulently, the incumbent may be terminated from service. The operative portion of the order dt. 17.12.2021 of Hon'ble High Court is extracted below :-
" 8. From the above particulars, it is evidenced that initially, the petitioner furnished false Date of Birth and Educational qualification with fake certificates and joined in service. Subsequently, he furnished genuine certificate in which his Date of Birth was mentioned on 02.01.1979. In the earlier false certificate his date of birth was mentioned as 30.11.1996 According to the respondents- counsel, on the date he was not eligible for appointment as he was a minor. Apart from this, knowing the serious consequences the petitioner had furnished false declaration of his Date of Birth with fake certificate.
9. There is no doubt about it, that once verification form requires certain information to be furnished, the declarant is duty bound to furnish it correctly and suppression of material facts of submitting false information may by itself lead to termination of his service. The fraud and mis-representation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in "M.Baskaran case" [Union of India Vs. M.Baskaran (1995 SUPP 4 SCC 100)]. Therefore, if an appointment was procured fraudulently, the incumbent may be terminated from service. Therefore, the person who has suppressed the material information, cannot claim unfettered right for appointment or continuity in service. Hence, the Tribunal rightly upheld the termination. We find no reason to interfere with the order of the Tribunal as there is no merit in the Writ Petition. Hence, the Writ Petition liable to be dismissed.
11 OA No. 375/2022
10. In the result, the Writ Petition stands dismissed. Consequently, connected miscellaneous petitions are closed. No costs."
8. However, it is noticed that the issue has been further revisited by the Hon'ble High Court of Madras in WP No. 1371/2024 wherein the Hon'ble High Court has upheld the order dt. 29.03.2023 of this Tribunal in OA 209/2020 and granted relief to the Temporary Status Mazdoor (TSM) employee by establishing critical distinction between TSM employees who have been allowed to retire without blemish and employees who have been dismissed by the respondents while they were in service on account of false certificate. The relevant portion of the order in WP No. 1371/2024 is extracted below :-
" 14. Heavy reliance is made by the learned counsel appearing for the petitioner on the Division Bench judgment of this Court made in W.P.No.2478 of 2021, dated 17.12.2021. On a perusal of the said judgment would show that the petitioner therein was still under the employment of the Department. Therefore, the order of dismissal passed against them had been upheld. In the present case, the respondents 2 to 4 have superannuated between 2015 and 2018. Therefore, the said judgment of the Co-ordinate Bench cannot be made applicable to the facts of the present case.
15. In fine, this Writ Petition fails and the same is dismissed. It is made clear that the direction issued by the Tribunal shall be complied with by the petitioners within a period of eight (8) weeks from the date of receipt of a copy of this order. However, there shall be no order as to costs. Consequently connected Miscellaneous Petition is closed."
(emphasis supplied)
9. In the present case, the fact of the case is that Shri. M. Thomas was granted TSM status w.e.f. 23.06.1991 based on the Secondary School Certificate showing his date of birth as 18.01.1965 from Municipal Hr. Elementary School, Arakkonam. During service verification for 12 OA No. 375/2022 regularization in the year 2002, it was found that the certificate submitted by the applicant was not genuine and he was issued a show cause notice on 27.02.2007 after which the applicant submitted another copy of school transfer certificate from Anderson High School, Kanchipuram showing his date of birth as 18.01.1960 which was later found to be genuine. Subsequently, the applicant along with other similarly placed workers were terminated from 07.02.2012 which was challenged before this Tribunal. The Tribunal vide order dt. 22.06.2012 in OA Nos. 156 & 159/2012 set aside the termination order holding that the impugned order is a stigmatic order and is violative of the principles of natural justice and not sustainable in the eye of law. In the same order, this Tribunal also granted liberty to the respondents to hold a regular inquiry to prove the genuineness of the date of birth, transfer certificate and other certificates and if the applicant failed to establish that the certificates were genuine, the respondents were at liberty to take appropriate decision in accordance with the rules. Thereafter the applicant was reinstated in service on 26.07.2012. However, it is peculiar to note that while the respondents continued their inquiry into the matter the applicant was allowed to continue in service and retired from service on attaining the age of superannuation on 31.01.2020 based on his second certificate showing his date of birth as 18.01.1960. It is only on 16.01.2021 ie., after the retirement of the applicant, orders were issued by respondent 13 OA No. 375/2022 authorities terminating the service of Temporary Status Mazdoors who were still serving by then.
10. We have carefully analysed both the orders of the Hon'ble High Court. It is to be noted that the applicant in WP No. 2478/2021 was not eligible for initial appointment as he was a minor. However, in the present case, the applicant was major on the date of his initial appointment ie., 23.06.1991 when he was granted Temporary Status his genuine date of birth being 18.01.1960. Further the respondents have accepted his date of birth as 01.06.1960 and consequently allowed him to retire peacefully on 30.05.2020. The present case will therefore squarely fall under that of WP No. 1371/2024 instead of WP No. 2478/2021.
11. During the course of arguments, learned counsel for respondents, Shri. M. Kishore Kumar, SPC vehemently argued that Hon'ble High Court of Madras while passing the order in WP No. 1371/2024 has not taken into account the fact that BSNL was formed only on 01.10.2000 and the responsibility of the BSNL prior to the year 2000 with retrospective effect is beyond BSNL purview. He further mentioned that in pursuance of the order of Hon'ble High Court of Madras in WP No. 1371/2024, they have granted benefit to the TSM w.e.f. 01.10.2000. He also argued that the Department of Telecommunications is a necessary party in the case for grant of relief prior to incorporation of BSNL and they should have been impleaded as a party in the case.
14 OA No. 375/2022
12. As regards to arraying Department of Telecommunications (DoT) as party in the case, we are of the view that BSNL while carrying forward the assets has also carried forward the liabilities of erstwhile DoT staff after incorporation. It is also a fact that BSNL is making payment of all retiral benefits to erstwhile DoT employee absorbed in BSNL. Therefore the issue raised by the learned counsel for respondents cannot be acceded to at this belated stage. As regards to the order of Hon'ble High Court of Madras in WP No. 1371/2024 any change in material fact in the case should ideally placed before Hon'ble High Court and not before this Tribunal.
13. In the light of the direction passed by the Hon'ble High Court of Madras on WP No. 1371/2024 and to secure the ends of justice, the respondents are directed to regularize the applicant as regular Mazdoor from the date of appointment as temporary status mazdoor and grant all consequential service benefits including Pension and Gratuity etc within three months from the date of receipt of a copy of this order.
14. OA is allowed. No order as to costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member (A) Member (J)
20.02.2025
SKSI