Central Administrative Tribunal - Ahmedabad
Jagdishkumar D Varadiya vs D/O Telecom on 12 November, 2020
(CAT/AHMEDABAD BENCH/OA/84/2018) 1
CENTRAL ADMIISTRATIVE TRIBUNAL
AHMEDABAD BENCH
ORIGINAL APPLICATION NO: 84 OF 2018
DATED THE 12th DAY OF November, 2020.
Reserved on: 22.09.2020
Pronounced on: 12.11.2020
CORAM:
HON'BLE SHRI JAYESH V BHAIRAVIA, MEMBER(J)
HON'BLE DR A K DUBEY, MEMBER(A)
1 Mr Jagdishkumar Devram Varadiya
Age above 48 years, Male
2 Mr Ramanbhai Sonabhai Senva
Age above 55 years, Male
3 Mr Kanayalal Revabhai Pandya
Age above 56 years, Male
4 Mr Govindbhai Kodarbhai Vankar,
Age above 57 years, Male
5 Mr Rajeshbhai Karsanbhai Utekar,
Age above 48 years, Male ... Applicants
All address to C/o.
Mr Jagdishkmar D Varatiya,
Near Ambe Mata Temple, GIDC,
Vapi, Dist. Valsad- 396 191.
By Advocate Shri P H Pathak
V/s
1) Union of India, Notice to be served
Through the Secretary,
Government of India,
Ministry of Communication,
Room No.418,Sanchar Bhavan,
20, Ashoka Road,
New Delhi - 110 001.
2) General Manager,
Valsad Telecom District,
Department of Telecom,
Vittal Road,
Valsad - 396 001. ... Respondents
By Advocate Ms R R Patel
(CAT/AHMEDABAD BENCH/OA/84/2018) 2
ORDER
Per Shri Jayesh V Bhairavia, Member (J) 1 The five applicants, aggrieved by the impugned order dated 13.11.2017 (Annexurre A/1), whereby the claim of the applicants for grant of T.S.M. Status in terms of T.S.M Scheme, 1989, has been rejected by the respondent No.1, have filed the instant Original Application, praying as under:
"(A) The Hon'ble Tribunal be pleased to declare the impugned order passed by the respondent no.1 dated 13.11.2017 at Annexure A/1 as illegal, unjust, arbitrary and be pleased to quash and set aside the same and direct the respondents to grant temporary status with all consequential benefits to the applicants with 12% interest. (B) The Hon'ble Tribunal be pleased to direct the respondents to absorb the applicants with the departments and to pay them monthly pay payable to similarly situated employees from retrospective date and grant all consequential benefits to the applicant with 12% interest. (C) Be pleased to direct the respondents to grant all consequential benefits granted to Mr R K Sheikh and similarly placed employees and fix pay of the applicants accordingly and pay arrears to the applicants with 12% interest. (D) Any other and further relief as this Hon'ble Tribunal may deem fit and proper in the interest of justice be granted."
2. The briefs facts as born out from the memo of the Original Application as well as from the arguments put forth by learned counsel for the applicants are outlined herein below:
2.1 The applicants were appointed/engaged as Casual Labourers in the year 1989-90 by the Department of Telecommunication ("DOT" for short). They were asked to work at Vapi telephone exchange, Vapi. It appear that they continued to work in such capacity and till the year 1996-97, all applicants in almost every year completed more than 240 days of actual work. On the ground that departmental authorities were trying to convert the applicants from the status of casual labourers into contract employees and were apprehending their termination, they had filed the O.A. 209 of 1997 before (CAT/AHMEDABAD BENCH/OA/84/2018) 3 this Tribunal and prayed for a declaration that such action was illegal. They further prayed for grant of benefit of regularization by treating the applicants as regular employees of the department.
During the pendency of the said OA, the applicants had moved one MA No.41/2003 for certain amendments in the OA , wherein it was contended that they are also entitled to the benefits of temporary status scheme framed by the department known as "Casual Labour (Grant of Temporary Status and Regularization), Scheme 1989 (in short TSM Scheme, 1989)." They, therefore, prayed that they may be granted temporary status with all consequential benefits. This Tribunal vide its order dated 28.01.2003 rejected the said MA mainly on the ground that same would change the nature of OA as well as on the plea that there was a delay of five years in filing the amendment. Further, the said OA was returned to be presented before the appropriate forum, as the Tribunal thought that it had no jurisdiction to intervene in a matter in which provisions of Industrial Disputes Act 1947 were involved, accordingly, said OA also came to be disposed of vide order dated 28.01.2003.
2.2 Aggrieved by this the applicants filed SCA 1348/2003 before Hon'be High Court, which was decided by the Hon'ble High Court by order dated 29.08.2011, whereby the orders dated 28.01.2003 passed by the Tribunal rejecting the MA for amendment as also order passed in the OA were set aside and quashed with a direction to the Tribunal that the amendment sought by the applicants should be allowed and to decide the OA on merits afresh.
2.3 Pursuant to said order and direction issued by the Hon'ble High Court vide order 29.08.2011, this Tribunal (CAT/AHMEDABAD BENCH/OA/84/2018) 4 allowed the applicants to carry out the necessary amendments accordingly the applicants had carried out the necessary amendment and during the pendency of the OA, they have preferred one more MA for seeking permission to implead BSNL as a party respondent, the same was allowed. However, it appears that applicants had not carried out the amendment for impleading BSNL as respondent. In the said OA, the applicants mainly contended that they may be considered for grant of benefit under the TSM scheme 1989. The said OA came to be disposed vide order dated 27.11.2012 (Annexure A/2), with the following observations and directions:
"14 In the present case, the applicants are only asking for consideration of their case for grant of temporary status as per the Scheme of 7/11/1989. They had worked for 6 to 7 years consecutively for more than 240 days almost in each year. They also fulfilled other conditions laid down in the said Scheme as such they were required to be considered and granted temporary status and other consequential benefits as per the said Scheme.
15 In view of the above discussions of law and fact, the action of the respondents in putting off the duty the applicants w.e.f. 1/4/1997 is held to be illegal, arbitrary and discriminatory and hence, violative of Articles 14 and 16 of the Constitution of India. The respondents are directed to consider the applicants in terms of the Scheme dated 7/11/1989 for grant of temporary status and on being eventually found fit, all the applicants shall be extended the benefits as envisaged under the said Scheme on notional basis. Further, the period from 1/4/1997 till the date of grant of temporary status to the applicants as directed above shall be duly treated for pensionary benefits and seniority etc as per the principles laid down in the Scheme itself. The respondents to comply with above said directions within a period of three months from the date of receipt of a copy of this order."
2.4 Aggrieved by the aforesaid order dated 27.11.2012, the respondent Telecom District Manager filed Writ Petition being Special Civil Application No. 8499 of 2013 before the Hon'ble High Court of Gujarat. The Hon'ble High Court vide its order dated 13.8.2014, dismissed the said petition (Annexure A/3).
(CAT/AHMEDABAD BENCH/OA/84/2018) 52.5 Dissatisfied with the said decision of the Hon'ble High Court of Gujarat, the respondent filed Special Leave Petition before the Hon'ble Supreme Court being SLP (CC) No. 6989 of 2015. The Hon'ble Supreme Court disposed of the said SLP vide its judgment dated 1.5.2015 with a direction to the respondents to comply with the directions of the Tribunal within four weeks.(Annexure A/4).
2.6 Pursuant thereto, the BSNL issued speaking order dated 17.6.2015 (Annexure A/8) and the claim of the applicants seeking TSM status was rejected. 2.7 In the meanwhile, the original applicants filed the Contempt Application No. 38 of 2014, contending that the BSNL was not competent to pass the speaking order and only DOT was the competent authority and that the judgment of the Tribunal was not fully complied with as the claim of the applicants for TSM Status was rejected mechanically. The said Contempt Petition was finally dropped by this Tribunal vide order dated 29th September, 2015 upon a statement made by the learned advocate appearing for the respondents that BSNL has sufficiently complied with the directions issued.
2.8 Aggrieved, by the said order dated 29.9.2015 passed in the contempt application, the applicant approached before the Hon'ble High Court by filling Special Civil Application No. 1960 of 2017 with the grievance that the DOT had not complied with the order of the Tribunal. The said petition of the applicant was disposed of by taking into consideration the statement made on behalf of the DOT to the effect that directions issued by this Tribunal in its order dated 27.11.2012 shall be carried out by the DOT within a period of eight weeks (Annexure A/9).
(CAT/AHMEDABAD BENCH/OA/84/2018) 62.9 It is after the aforesaid order that the order impugned dated 13.11.2017 (Annexure A/1) has been passed by the respondent No.1 (DoT), whereby the claim of the applicants for grant of T.S.M. Status in light of the Scheme of 1989 has been rejected. Hence, the present OA.
3. In support of the prayers, it has been contended by learned counsel for the applicants that similarly placed casual labourers were granted the benefit of temporary status whereas the applicants were discriminated.
In fortification thereof, learned advocate for the applicants draws attention of the court to the copies of the orders dated 20.11.2015 passed by the office of GMTD, BSNL, Bhavnagar, whereby the benefit of TSM Scheme was granted to 36 similarly situated casual labourers (Annexure A/10).
It is specifically pleaded by learned counsel that the applicants have put in more than 25 years of service, however, they are denied the fruits flowing from the TSM Scheme of 1989. It is further submitted that even juniors to the applicants were granted the benefits of the Scheme. Learned counsel for the applicant submits, it is settled law that "principle of equity of pay is applicable in cases of casual, temporary, adhoc or contractual employees." Therefore, it has been submitted, that the applicants are also required to be granted the benefits of the Scheme of 1989 with consequential benefits.
It has been contended that the non-action on part of the respondents in not conferring the benefits of the Scheme of 1989 is violative of Article 14, 16 and 21 of the Constitution of India.
4. On the other hand, the respondents have filed their reply and resisted the claim of the applicants for grant of TSM Status in terms of the TSM Scheme, 1989.
(CAT/AHMEDABAD BENCH/OA/84/2018) 74.1 A preliminary objection has been raised for non- joinder of the concerned party as the engagement of the casual labourers and grant of TSM status etc. was carried out at the Telecom Circles, SSA and the head of Telecom Circles i.e. the Chief General Manager (Telecom), who were empowered to carry out exercise for consideration of cases of grant of TSM status in terms of TSM Scheme of 1989 frame by the DOT.
4.2 It has been contended that the engagement of the applicants was to be terminated way back in the year 1997, however, they had to be continued due to stay granted in the OA No. 209 of 1997 against their termination (R/1). Thus, the applicants' engagement remained continued under the cover of the said order, as per the case of the respondents.
4.3 It has been further contended that the applicants have not placed any reliable document in support of their claim for grant of TSM Status viz. number of days in each year they worked as casual labourers in Telecom Circles/SSA, copies of muster roll, payment certificate etc. It has been argued, that there was ban on engagement of casual labourers w.e.f 30.3.1985. It is submitted that TSM Scheme, 1989, came into force with effect from 1.10.1989. The Scheme was applicable to those casual workers who were engaged before 30th March, 1985 (i.e. before the ban of engagement of casual workers) and to those who were satisfying the conditions mentioned in the Scheme.
4.4 Further It has been contended that the casual labourers who were not engaged as per rules, came to be granted the benefit of T.S. as a one-time measure and the list of casual labourers who had completed 10 years of service as on 31.3.1997 was prepared by the Head of (CAT/AHMEDABAD BENCH/OA/84/2018) 8 Telecom Circles-units for the purpose of grant of benefit under the scheme 1989. However, the said list did not contain the names of the present applicants. 4.5 Further It has been contended that the casual workers do not hold any post either permanent or temporary and therefore, are not entitled to the reliefs prayed for.
4.6 The learned counsel for the respondents placed reliance on the decision of the Hon'ble Apex court in the case of BSNL vs. Teja Singh being SLP(C) No. 7803 of 2006 wherein it has been held that TSM Scheme, 1989 does not come within the purview of exception carved out by the court in paragraph No. 53 of the Uma Devi's case (i.e irregular appointment). Further reliance has been placed in case of Official Liquidator s. Dayanand (2008) 10 SCC 1, in which it has been held that the law declared by the Apex Court cannot be breached or ignored by the courts below.
4.7 It is argued that in the present case, the applicants were engaged as casual labourers in the year 1990 for limited purpose of installation of telecom exchange at Vapi. After completion of work at Vapi they were about to put off from their duties with effect from 1.3.1997. The said engagement was made without following the procedure of engagement and without there being sanctioned or vacant posts.
4.8 Further it is contended that Gujarat Telecom Circle after due verification of records of engagement of the applicants, their days of engagement and continuity etc. prepared the list as per DOT letter dated 12.2.1999, which did not include the names of the applicants. The applicants have not placed any proof which may reveal that they were covered under the list of eligible casual (CAT/AHMEDABAD BENCH/OA/84/2018) 9 workers for grant of TSM status prepared by Gujarat Telecom Circle. The applicants had never challenged the list of eligible casual workers at the relevant time. 4.9 In support of their stand for rejection of the claim of the applicants, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) reported in (2006) 4 SCC 1.
5. The rejoinder has been filed opposing the reply filed by the respondents and reiterating the contentions raised in the Original Application. It is submitted that the scheme of grant of temporary status is continuous and recently large number of employees were granted temporary status and some of them were also regularised by the DOT, after the BSNL came into existence (Annexure A/10 referred). The applicant also placed reliance on orders dated 07.03.2015, 10.02.2015, whereby temporary status had been conferred to similarly placed casual labours w.e.f. 01.10.1989 and 15.12.1990 (Annexure A/13).
Additionally, it is also submitted that the judgment relied on by the respondents are not applicable in the facts and circumstances of the present case in the light of judgment passed by Hon'ble Apex Court in the case of Narendra Kumar Tiwari & Ors v/s. State of Jharkand reported in 2018(8) SCC
238. It is undisputed fact that similarly placed employees/casual labourers were granted temporary status under the TSM scheme. The claim of the applicants pertains to grant of TSM Status only and not the regularisation of services of the applicants.
It is also submitted that Hon'ble High Court of Gujarat in SCA 13222 of 2014 Virendrabhai Chaudhary & other 35 petitioners v/s Union of India rejected the objections raised by the respondents for not granting Temporary Status to similarly placed casual labourers after taking into consideration the (CAT/AHMEDABAD BENCH/OA/84/2018) 10 judgment passed by Apex Court in the case of Uma Devi. The Hon'ble High Court in the said judgment by referring the order passed in Telecom District Manager v/s Jagdishkumar D Varatiya and Ors dated 13.08.2014 in SCA 8499 of 2013 (Supra) reversed the order passed by this Tribunal and respondents were directed to grant the benefit of TSM and pay the difference in salary without interest. Against which SLP filed by respondents was dismissed and consequently the respondents had granted temporary status to all such casual labourers vide its order dated 20.11.2015 (Annexure A/10). Therefore, applicants are also entitled being considered equally.
6. Heard the learned counsel appearing for the parties and the material produced on record of the OA has been perused.
7. The facts which are undisputed in the present case are that the applicants were appointed by the DOT as Casual Labourers in the year 1989-90 and they were asked to work at Vapi. They continued to work in such capacity upto the year 1996-97 and almost all applicants in almost every year completed more than 240 days of actual work in a year. On the premise that departmental authorities were trying to convert the applicants from the status of casual labourers into contract employees, they filed the O.A. No. 209 of 1997 before contending that they are entitled to the benefits of temporary status scheme framed by the department known as "Casual Labour (Grant of Temporary Status and Regularization), Scheme 1989. The said OA came to be disposed of vide order dated 27.11.2012, relevant portion of which has been reproduced hereinabove.
7.1 Aggrieved by the aforesaid order dated 27.11.2012, the BSNL filed Special Civil Application No. 8499 of 2013 before the Hon'ble High Court of Gujarat, which came to be dismissed on 13.8.2014 upholding the order dated 27.11.2012 passed by (CAT/AHMEDABAD BENCH/OA/84/2018) 11 this Tribunal. Upon being dissatisfied with the order passed by the Hon'ble High Court of Gujarat, the respondent filed Special Leave Petition before the Hon'ble Supreme Court, which was disposed of by order dated 1.5.2015 with a direction to the respondents to comply with the directions of the Tribunal within four weeks. In between the contempt petition being C.P. No. 38 of 2014 came to be preferred by the applicant before this Tribunal alleging non-compliance of the Tribunal's order dated 27.11.2012, which contempt petition came to be dropped upon a statement made by the respondents that BSNL has complied with the directions issued by this Tribunal vide order dated 29th September, 2015. The applicants felt aggrieved with the order passed in contempt petition. Therefore, the applicants approached before the Hon'ble High Court by filling Special Civil Application No. 1960 of 2017 with the grievance that the DOT has not complied with the order of the Tribunal. The said petition came to be disposed of on 21.7.2017, relevant portion of which has been quoted herein below:
"[3.0] Having heard the learned advocates appearing on behalf of the respective parties and considering the earlier order passed by the Division Bench of this Court dated 13/08/2014 in Special Civil Application No.8499/2013, which was arising out of the order passed by the learned tribunal dated 27/11/2008 in Original Application No.209/1997 confirmed by the Hon'ble Supreme Court and as per the earlier directions issued by the learned tribunal in Original Application No.209/1997 as such the DoT was required to carryout the directions issued by the learned tribunal in its order dated 27/11/2012 in Original Application No.209/1997, no such decision has been taken by DoT.
[4.0] In view of the above undisputed facts, Shri Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of DoT /Union of India has stated at the bar that the directions issued by the learned tribunal in its order dated 27/11/2012 in Original Application No.209/1997 shall be carried out and complied with by DoT within a period of eight weeks from today. Meaning thereby, as earlier directed by the learned tribunal, DoT to consider the case of the petitioners for grant of temporary status in terms of the Scheme of the Department dated 07/11/1989 and to consider whether the petitioners should be extended the benefits flowing from the Scheme or not in (CAT/AHMEDABAD BENCH/OA/84/2018) 12 accordance with law and independently. Concerned Department, more particularly, DoT is directed to act accordingly and communicate the outcome of such decision to the petitioners within a period of two weeks from the date of such decision, which as such is required to be given within a period of eight weeks from today."
7.2 It is after the aforesaid order that the order impugned in this OA dated 13.11.2017 (Annexure A/1) has been passed by the respondent No.1 (DOT), whereby the claim of the applicants for grant of T.S.M. Status has been rejected.
8. If the impugned order is looked at, the reasons assigned for rejecting the request of the applications for grant of TSM Status in terms of the TSM Scheme, 1989, are, inter alia, that,
(i) there was ban on engagement of casual workers w.e.f. 30.3.1985 in view of letter No. 270/6/84-STN dated 30.3.1985,
(ii) engagement of casual works after 30.3.1985 in violation of instructions of Department of Telecom were viewed very seriously and the head of Telecom Circles were instructed to take disciplinary action against the delinquent officers, (iii) On the demand raised by the Union functioning in the DOT, as a one-time measure, the TSM status was granted to the eligible casual workers, however, the applicants were not figured in such eligible casual workers and the said action was taken after due verification of records of engagement, days of engagement, continuity etc. (iv) Decision of the Hon'ble Supreme Court in State of Karnataka and Ors. Vs. Umadevi (3) and in the case of State of Karnataka and others vs. M.L.Kesari and Others were relied on in arriving at the decision mentioned in the impugned order, (v) Further relied on is the decision of the Hon'ble Supreme Court in BSNL vs. Teja Singh in (SLP - Civil No. 7803/2006 and also in Official Liquidator vs. Dayanand [(2008) 10 SCC 1] and (vi) the applicants were engaged as casual workers in or about 1990 for a limited (CAT/AHMEDABAD BENCH/OA/84/2018) 13 purpose of installation of exchange at Vapi and after completion of work at Vapi they were about to put off from duty w.e.f. 1.3.1997 and that the said engagement was made without following the procedure of recruitment and without there being any sanctioned or vacant posts.
9. The impugned order is perused meticulously and thrust of the reasons for rejecting the claim of the applicants for grant of TSM status have been shortly narrated in the preceding paragraph. If, we look at the tenor of the order, it could be readily observed that the respondents have passed the impugned order without taking pain to read and understand the order passed by the Hon'ble High Court of Gujarat passed in Special Civil Application No. 8499 of 2013 decided on 13.8.2014, which petition was filed by the respondents against the order passed by this Tribunal in the first round of litigation. At this stage, it is pertinent to reproduce the observation and directions issued by the Hon'ble High Court in the said petition, which reads as under, "13. Coming to the question of merits of the decision of the Tribunal, we do not find that the Tribunal committed any error. All that the Tribunal directed the department was to consider the case of original applicants for grant of temporary status in terms of the scheme. They had put in more than six years of service, in each year exceeding 240 days. At the time they approached the Tribunal, they were protected against termination. Even without such protection, the original applicants had rendered more than six years of almost continuous service. The Tribunal, therefore, directed DOT to implement their scheme qua these applicants and grant them temporary status, if they are otherwise found suitable.
14. The judgment in case of Umadevi (supra) struck at the root of regularization of casual employees in government departments and its agencies, when such actions were without following any procedure. It was held that such regularization would amount to back-door entry in public service which would be hit by Articles 14 and 16 of the Constitution. It may be argued that, any action of employer, being a State within the meaning of Article 12 of the Constitution, regularizing service of an employee who was not selected regularly after inviting all eligible applicants who applied, would be impermissible. It may also be argued that even a scheme framed for such purpose of regularization, unless was saved by the observations of the Court in para 53, would also be unconstitutional. In the present case, we are (CAT/AHMEDABAD BENCH/OA/84/2018) 14 concerned not with the scheme of regularization, but with grant of temporary status. We have taken detailed note of various provisions contained in the said scheme. Such provisions would demonstrate that the scheme nowhere envisages regularization of casual labourers. The scheme merely grants some enhanced benefits in terms of leave, advances and bonus. Essentially, it alleviates the status of casual labaourer from merely a daily rated worker, who would be paid only for the number of days he actually worked, to that of a person who would, on completion of ten days of work, be entitled to one day paid rest who, because of his length of service with the department, can seek festival and food advances. Such welfare measures even in favour of casual labourers have not been held to be impermissible by the Supreme Court in case of Umadevi (supra). If ultimately the question of regularization of these original applicants arises in future, applicability of the decision of the Supreme Court in case of Umadevi (supra) may have to be examined.
15. In the judgment dated 09.07.2013 in State of Gujarat &Ors. v. PWD Employees Union & Ors. in Civil Appeal No.5321-5322 of 2013 arising out of SLP(C) 13619-13620 of 2012, the Supreme Court upheld the directions given by this Court for granting certain benefits under the scheme framed by the Government. Our attention is also drawn to the judgments of Division Bench of this Court in case of Bharat Sanchar Nigam Ltd. v. R.K.Shaikh dated 09.01.2014 in SCA No.5778 of 2008 and in Union of India v. Lalsingh K.Rathod dated 18.7.2013 in SCA No.6205 of 2011 where same or similar issues came up for consideration before the Court, petitions of the Government of India and its agencies were dismissed."
9.1 The above quoted order endorses the view taken by this Tribunal in OA No. 209 of 1997. Further the reliance placed by the respondents in Uma Devi (supra) also falls flat at this stage since the issue at present is for conferment of TSM status to the applicants and not the regularization.
10. At this stage, it is found necessary to discuss some of the provisions of the Temporary Status Scheme framed by DOT, which was brought into effect from 01.10.1989 onwards and was applicable to casual labourers employed by DOT. It was provided that till regular Gr.D. vacancies are available for absorption of casual labourers to whom this scheme is applicable, the benefit of temporary status will be conferred. Para 5 of the scheme envisages that such benefits would be (CAT/AHMEDABAD BENCH/OA/84/2018) 15 conferred on all the casual labourers currently employed and who have rendered continuous service or at least one year of service having worked for 240 days. Such conferment would be without creation or availability of regular Gr. D posts and would not involve any change of duty. They would be paid on daily rate on a need basis. They would have leave entitlement on a pro-rata basis of one day for every 10 days of work. They would be allowed to carry forward the leave to their credit upon regularization, if any. 50% of service rendered on temporary status would count for the purpose of retirement benefits after regularization.
After rendering three years of continuous service on attainment of temporary status, the casual labourer will be treated at par with temporary Gr.D employees for the purpose of contribution to General Provident Fund. They will also be entitled to grant of festival advance or food advance on the same conditions as are applicable to Gr.D. Staff. No other benefits would be available.
In para 8 it was provided that despite conferment of temporary status, the services of a casual labourer may be dispensed with in accordance with the provisions of the Industrial disputes Act.
11 Thus, it can be seen that the Temporary Status Scheme is a welfare scheme in tune with the concept of welfare State and model employer and also in tune with the basic philosophy of fairness by the State in the matter of employment of labourers. If looked at the from this angle, the observation of the Hon'ble High Court in Special Civil Application No. 8499 of 2013, more particularly in para-12, could be profitably referred to, which is reproduced below:
"12. It can thus be seen that the temporary status scheme was a welfare scheme prepared by the department. It was not a scheme for regularization of casual labourers. Nowhere the scheme envisaged regularization. The scheme itself recognized a degree of continuity of a casual labourer who had worked continuously for one year or for a period of 240 (CAT/AHMEDABAD BENCH/OA/84/2018) 16 days during the past one year. In such cases, instead of treating a casual labaourer as a purely daily rated workman whose relationship with the employer would be snapped at the end of each day without any further liability of the employer, some basic benefits were made available to such temporary status casual labourers. By very nature of things, organizations such as telecommunications and railways would have perennial need for casual labourers in large number. Instead of, for years together, treating their status as merely in casual employment, if some benefits of temporary status are made available to them, it was merely in tune with the concept of welfare State and model employer and otherwise also in tune with the basic philosophy of fairness by the State in the matter of employment of labourers. As noted, the scheme was to alleviate the status of a casual labourer after serving a period of continuous work under which he would be entitled to basic benefits, such as, paid leave, carry forward of leave, festival and food advances and productivity linked bonus."
12. In the first round of litigation, this Tribunal allowed the O.A. of the applicants and declared that the action of the respondents in putting the applicants off duty with effect from 01.04.1997 was illegal, arbitrary and violative of Articles 14 and 16 of the Constitution with a direction to the respondents that applicants cases be considered for grant of temporary status in terms of such scheme of the department dated 07.11.1989 and that the applicants should be extended the benefits flowing from the said scheme. The objection of the DOT that the scheme was a one-time-measure and would not be applicable to cases arising in future was not accepted. The Tribunal interpreted the expression "this scheme will come into force w.e.f. 01.10.1989 onwards" to mean that the scheme was a perennial on-going scheme and not one-time-measure.
13. The above observations of the Tribunal not only stood confirmed with the dismissal of the Special Civil Application No. 8499 of 2013 preferred by the respondents by the Ho'ble High Court of Gujarat, it also got approved by the Hon'ble Apex Court, when the Hon'ble Supreme Court disposed of the SLP preferred before it by the respondents with the observation that, "...the petitioner shall comply with the direction of the Tribunal as contained in para-15 and pass orders within four weeks from (CAT/AHMEDABAD BENCH/OA/84/2018) 17 the today, in accordance with law and communicate the same to the private respondents...."
14. The grounds mentioned in the impugned order as well as in the reply filed by the respondents in the present case, do not justify the action of the respondents in not extending the claim of grant of Temporary Status to the applicants in terms of TSM Scheme, 1989.
15. In the present case, the respondents have utterly failed to give due regard to the order passed by this Tribunal in the first round, which got confirmed upto the level of Hon'ble Supreme Court. The impugned order is passed completely ignoring the orders of the Hon'ble Supreme Court, Hon'ble High Court and of this Tribunal, which cannot be permitted to stand. The observations of the courts/tribunals are not for the sake of observation only. It must be respected and followed in its true letter and spirit. The authorities of the respondents cannot be allowed to act as an appellate authority over the orders of this Tribunal. The respondents ought to have considered the observations of this Tribunal made in the first round of litigation in its true letter and spirit, but the respondents failed to do so for the reasons best known to them, which cannot be permitted. It is apt to mention that undisputedly the applicants were engaged as casual labour in the 1989-90. The service record of the applicants produced before us by the respondents in their reply clearly indicates that sufficient proof of their continuous engagement for more than a decade is available. Under the circumstances, it is not correct on the part of respondents to contend that applicants neither produced any strict proof which may reveal that they were not entitled for the TSM scheme. Since their continuous engagement has not been denied and sufficient material is available on record with regard to long service of the applicants, we are of considered opinion, the reasons assigned by the respondents that name of the (CAT/AHMEDABAD BENCH/OA/84/2018) 18 applicants was not placed in the list prepared by Gujarat Telecom for grant of TSM status as per instructions dated 12.11.1999 is not tenable. The impugned decision is contrary to the decisions laid down by the Apex Court as well as High Court as referred to above as also the service record of the applicants. Thus, the impugned decision suffers from infirmities and same is not tenable.
16. In view of what has been discussed above, we are of the considered opinion that the interest of justice would be sub- served if the matter is remitted back before the respondent authorities for deciding the matter afresh in light of the observations made hereinabove.
17. Therefore, the impugned order dated 13.11.2017 (Annexure A/1) is quashed and set aside. The respondents are directed to apply its mind afresh keeping in mind the observations made hereinabove and decide the case of the applicants for grant of TSM status in terms of TSM Scheme, 1989 in accordance with law.
17. Before parting, we cannot restrain ourselves from observing that it is expected that the respondents shall now decide the claim of the applicants for grant of TSM status in terms of TSM Scheme. 1989 giving due regard to the observations made by this Tribunal in the earlier round of litigation and got confirmed upto the Hon'ble Supreme Court.
16. In view of above this OA stands disposed of. No costs.
(Dr A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) abp