Central Administrative Tribunal - Chandigarh
Jang Bahadur S/O Late Sh. Rattan Lal vs Bharat Sanchar Nigam Limited on 11 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH OA. 370/HR/2011 (Reserved on 07.10.2013) Chandigarh, this the 11th of October, 2013 CORAM:HONBLE MR.SANJEEV KAUSHIK, MEMBER(J) HONBLE MRS.RAJWANT SANDHU,MEMBER(A) Jang Bahadur s/o Late Sh. Rattan Lal, Age 46 years, Temporary Status Mazdoor, O/o Sub Divisional Engineer (CTSD), Bharat Sanchar Nigam Limited, Ambala Cantt, Haryana. Resident of House No. 555, Village and Post Office Babyal District Ambala (Haryana). APPLICANT BY ADVOCATE: MR. N.P. MITTAL VERSUS 1.Bharat Sanchar Nigam Limited, Corporate Office, HQs, Bharat Sanchar Bhawan, 4th Floor, Harish Chander Mathur Lane, Janpath, New Delhi 110 001, through its Chairman-cum-Managing Director. 2.Chief General Manager Telecom, Haryana Telecom Circle, Bharat Sanchar Nigam Limited, 107, The Mall, Ambala Cantt. 3.General Manager Telecom District, Ambala Telecom District, Bharat Sanchar Nigam Limited, Ambala Cantt. 4.Divisional Engineer Telecom (CTSD), Bharat Sanchar Nigam Limited, Brahman Majra Road, Ambala Cantt., District Ambala 133 001. 5.Sub Divisional Engineer (CTSD), Bharat Sanchar Nigam Limited, Ambala Cantt., District Ambala. RESPONDENTS BY ADVOCATE: MR. RAKESH VERMA ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
Respondents be directed to consider case of the applicant for appointment as Regular Mazdoor in the regular pay scale of Rs. 2550-3200(DoT) from the date his juniors and several others were considered and appointed as Regular Mazdoor and also direct respondents to consider the case of the applicant for regular absorption under Respondent BSNL and further direct to pay him all consequential benefits minus the salary received by the applicant as temporary status mazdoor and also no salary to be paid to him w.e.f. 3.5.1991 till his allowing to perform his duties from September/October, 1999 as per judgement passed by this Honble Tribunal A-5 and also direct the respondents to pay him the salary in the IDA pay scale of the post of Regular Mazdoor on his appointment as such with all consequential benefits minus the monthly salary already paid to him as temporary status mazdoor and prepare arrears and pay the same with interest @ 9% per annum in the interest of justice.
2. Brief facts of the case are that the applicant was engaged as Casual Mazdoor under respondent no. 4 and 5 w.e.f. October, 1983 and his case was considered by the respondents for grant of temporary status with reference to Government of India, Department of Telecom Order No. 269-10/89-STN dated 07.11.1989 (Annexure A-2) on the subject Casual Labourers (Grant of Temporary Status and Regularization) Scheme, which came into force w.e.f. 01.10.1989. The applicant was granted temporary status w.e.f. 1.10.1989 (Annexure A-3). At that time, he was paid in the scale of Rs. 750-940 which was further revised to Rs. 2550-3200 by the Department of Telecom. The applicant was involved in a criminal case with the allegation of causing death of his wife and he was arrested on 02.05.1991 and remained in custody till he was released on bail w.e.f. 29.03.1994. The applicant was finally acquitted by the Court of the Sessions Judge vide order dated 09.08.1996 and he submitted his representation through DET (CTSD) on 25.09.1996 seeking to be allowed to join duty, but no decision was taken in the matter by the Office of the General Manager, Telecom till 16.10.1998 when letter No. 269-31/98-STN-II (Annexure A-4) was issued rejecting the request of the applicant for re-engagement. The applicant challenged this order of 16.10.1998 through OA No. 1043/HR/1998 which was decided on 19.07.1999 (Annexure A-5) and the operative part of the judgement reads as follows:-
5. After crossing the hazard of this objection, this Bench finds that the case of the applicant on facts and on the grounds of law is squarely covered under the judgement of this Bench referred to above, Annexure A-15. In these circumstances, this OA is partly allowed by quashing Annexure A-1 and A-2 dt. 16.10.98 and 17.11.98 respectively, with a direction to respondents to allow the applicant to join as daily status mazdoor immediately on his presenting himself for joining his duties with request in writing once again in continuation of his earlier request, Annexure A-10. The claim for all the wages for the period of absence however, is not found tenable under the law on the principles of no work no pay. Applicant admittedly remained in custody for sufficiently long time and thereafter after being released on bail is also not performing his duties. Regarding his other claims as mentioned in this OA, if any are available to him under the law, he would be free to make a representation to the respondents who would consider the same under the relevant law, with reference to a decision which respondents will be at liberty to take regarding the period of absence and as to whether they wish to proceed under para 9 of the scheme, aforesaid, Annexure A-5. Pursuant to judgement dated 19.7.1999, the applicant was taken in service as Temporary Status Mazdoor in the pay scale of Rs. 2550-3200 and also allowed to perform his duties in the Circle Telecom Store Depot under respondent No. 4 and 5 from October, 1999. Since then, the applicant has been continuing as a Temporary Status Mazdoor till date.
3. Averment has been made on behalf of the applicant that respondents No. 4 & 5 have not allowed him to work for the whole month and as such, the applicant has been suffering financially although he has been present on all working days at his place of work. As per records of the respondents, the applicant was granted temporary status under 1989 Scheme (Annexure A-2) w.e.f. 01.10.1989 alongwith about 24 other casual labourers who were also granted temporary status. The name of the applicant in Annexure A-3 is placed at Sr. No. 12 and from Sr. No. 13 to 25, all are juniors to the applicant. In this context, applicant has submitted that S/Sh. Som Nath at Sr. No. 13, Randhir Singh at Sr. No. 18, Sat Pal at Sr. No. 22 and Narinder Kumar at Sr. No. 23 and others were junior to the applicant. However, they were continuing as Temporary Status Mazdoor in the Department and were also considered and appointed as Regular Mazdoors in 1992-93 and some of them had further been promoted as Phone Mechanics. As such, the applicant has prayed that during the period when he remained under trial in criminal proceedings and till he was allowed to join his duties in October, 1998, he was not allowed to work. The orders of regular appointment as Regular Mazdoor are liable to be issued by reckoning his service as Regular Mazdoor from the date that his juniors were regularized in 1992-93. However, the pay and allowances could be paid from September/October, 1999 onwards when applicant was allowed to perform his duties as Temporary Status Mazdoor pursuant to the judgement of 19.7.1999 with all consequential benefits under the rules and law since his juniors had already been promoted. Further, it is averred that Bharat Sanchar Nigam Limited came into existence w.e.f. 1.10.2000 and all the regular staff including the regular Mazdoors opted for their absorption in the BSNL. Junior colleagues of the applicant and others who were appointed as regular Mazdoors during 1992-93, had given their option for absorption in the BSNL and had been so absorbed and hence, the applicant was also entitled to be considered as regular Mazdoor in the regular pay scale and he was required to be fixed in IDA pay scale now given to regular Mazdoors by the respondent BSNL and he should also be allowed other allowances, bonus etc. that the regular employees of BSNL were getting.
4. In the written statement filed on behalf of the respondents, it has been stated that the applicant approached this Tribunal in OA No. 1043/HR/98 titled as Jang Bahadur Vs. Union of India & Others decided on 19.07.1999 whereby it was directed that the applicant would be free to make a representation to the respondent who would consider the same under the relevant law. As per the order dated 19.7.1999 passed by this Tribunal, the applicant had been reinstated as TSM (Temporary status Mazdoor) w.e.f. 28.10.1999. The applicant never made any representation for regularization before the competent authority after rejoining his duty as TSM. The applicant filed the present OA 11 years and 4 months from the date of joining mentioned above, so the present OA was hopelessly barred by the limitation and was not maintainable on this score alone. It has further been stated that the applicant was not performing his duties regularly. He is a habitual absentee and hence does not deserve any relief from this Tribunal. The Controlling Officer had issued warnings to applicant time and again for being absent from duty and also advised him again and again to join his duty, but he did not bother about the warnings of the Department. The respondents have asserted that the applicant was not performing his duties in accordance with Department of Telecom Order No. 269-10/89-STN dated 07.11.1989 (Annexure A-2) through which reference the Casual Labourers (Grant of Temporary Status and Regularization) Scheme was circulated vide which the applicant is entitled for one day leave for ten days work on pro-rata basis but the applicant remained absent without any information for many days at a time as was evident from the absentee statements for the period January, 2010 to June,2010.
5. Arguments advanced by the learned counsel for the parties were heard.
6. Learned counsel for the applicant recapitulated the facts of the case. He stated that as per the directions issued in OA. 1043/HR/1998, the applicant was allowed to re-join duties on 28.10.1999. The applicant was acquitted by the Court of the Sessions Judge in the criminal case on 09.08.1996. The applicants juniors were regularized in service in 1994 and 1995 and in view of his acquittal, the applicant was also entitled to be regularized in service from the date when his juniors were regularized. The learned counsel cited decision in OA. 548/HP/2012 wherein the facts were similar and the whole period during which the applicant was not allowed to join duty on account of being in jail or undergoing the trial was treated as duty with full pay and allowances being released and the applicant in the present OA also deserved similar treatment. He also placed reliance upon the Honble Apex Court in the case of UOI Versus K.B. Jankiraman, AIR 1991 SC 2011 wherein it had been held as under:-
When an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of no work no pay is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is not for this reasons that F.R. 17(1) will also be inapplicable to such cases. Learned counsel also stressed that the applicant should be treated as regular employee as he had been paid on regular basis as per the pay slip available with the respondents and his GPF was also being deducted as a temporary service employee.
7. Learned counsel for the respondents drew attention to decision in OA. 1043/HR/1998 (operative part of the judgement reproduced in para 2 of this order) and stated that the respondents were directed through this order to allow the applicant to join as daily status mazdoor immediately on presenting himself for joining his duties. The Tribunal had also held that the claim for the wages for the period of absence was not found tenable under the law on the principle of no work no pay and since this order of the Tribunal had never been challenged by the applicant and so had attained finality, the applicant could not, through the present OA, claim benefits falling within the date of his arrest to the date when he was allowed to join his duty in 1999. Regarding his other claims made in the OA, the Tribunal had recorded that the applicant would be free to make the representation to the respondents who could consider the same under the relevant law, but the applicant never made any representation before the respondents and had merely moved this OA before the Tribunal on 19.4.2011 after a delay of 12 years from the date of the order passed in OA. 1043/HR/1998 and his claim was barred by limitation. Besides, no application for condonation of delay has been filed. Learned counsel referred to the decision in TA No. 5/HR/2011 dated 7.7.2011 in this regard wherein it had been held as follows:-
10. Admittedly, the applicant has worked in different autonomous bodies and enterprises before joining the NOVOD Board and never sought any pay protection while leaving one organization to join the other. Nor has he explained the reasons for delay in coming to court after such a long period. He had joined the office of respondent No. 2 on 28.10.91 and his first representation dated 26.11.91 (Annexure A-5) was rejected on 28.1.93/2.2.93 (Annexure P-6). The statement that he had been making representations one after the other thereafter is of no consequence as the law is well settled that repeated representations do not revive or extend the period of limitation once it expires (See S.S. Rathore vs. state of Madhya Pradesh AIR 1990 SC page 10). Even the CWP was filed in 2000 i.e. much after rejection of the representation of the applicant in 1993, when cause of action arose to him for the first time. He has not even cared to file a petition seeking condonation of delay in filing the same. Learned counsel also stated that the track record of the applicant was very poor. He was frequently absent from duty as was evident from the absentee statement filed alongwith the OA and he did not deserve any further consideration regarding regularization of his services.
8. We have given our careful consideration to the matter. It is evident from the record that the applicant has never challenged the decision of the Tribunal dated 19.7.1999 in OA. 1043/HR/1998 and is hence bound by the directions in that judgement. The Tribunal had directed that he would be allowed to join as daily status mazdoor and the Department has re-engaged his services as Temporary Status Mazdoor. As per Rule 5(iv) of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme, such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Gr. D posts. The applicant has not undergone selection through regular selection process for a group D post till date. Although he has claimed that his juniors were regularized in service during the period 1994 to 1995, but the fact remains that during this period, the applicant was undergoing trial and even after he was acquitted, he was not allowed to join duty. It was only on the directions of the Tribunal of 19.7.1999 that he was ordered to be reinstated as a daily rated mazdoor. Hence, in view of the order of the Tribunal, his past service or his claim that some persons being junior to him have been regularized during the years 1994 and 1995, is of no relevance to the matter. Although the applicant has been working as a Temporary Status Mazdoor since 1989 to 1991 and thereafter from July 1999 till date, but he has not undergone the selection process for regularization against group D post and there is no merit in his claim for regularization from the date his so-called juniors were regularized. Consequently his claim for absorption in BSNL and for IDA scale cannot be considered. Jankiraman (supra) cited by learned counsel for the applicant is not relevant to this matter and decision in OA. 548/HP/2012 is distinguishable on facts.
9. The applicant did not also comply with the direction in judgement of 19.7.1999 to represent to the Department regarding his claim and has only pressed for the same through this OA. The claim of the applicant for regularization from 1994-95 onwards, keeping in view his re-engagement as TSM in 1999, is clearly barred by limitation as no application for condonation has been filed. Honble Supreme Court in the case of Ramesh Chandra Sharma Vs. Udham Singh Kamal reported in 2000(2) SLJ SC 89 has held as under:-
21. Limitation (1) A tribunal shall not admit an application:
(a) In a case where a final order such as it mentioned in Clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date of which such final order has been made;
(b) In a case where an appeal or representation such as is mentioned in Clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) xxx xxx xxx (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal, that he had sufficient cause for not making the application within such period. Relying upon the aforesaid provisions, it was contended on behalf of the appellants that the OA filed by the first respondent Udham Singh Kamal was barred by limitation. No application for condonation of delay was filed. In the absence of any application under sub-Section (3) of Section 21 praying for condonation of delay, the Tribunal had no jurisdiction to admit and dispose of OA on merits. It was, therefore, contended that the Tribunal has totally overlooked the statutory provision contained in Section 21 of the Act and, therefore, impugned order be set aside. The Honble Supreme Court in another case reported in 1995 Supplementary (3) SCC 231 in the case of Secretary to Government of India Vs. Shivram Mahadu Gaikwad, has held as under:-
2. .When we turn to the judgement of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7-10-1986 and the applicant was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under sub-section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the Tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the Tribunal totally overlooked this question which clearly stared in the face. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation. It is also difficult to understand how the Tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section21 of the Administrative Tribunals Act, it deserves to be dismissed.
9. Hence, this OA is rejected on merits and is also held to be barred by limitation.
10. No order as to costs.
(RAJWANT SANDHU) MEMBER(A) (SANJEEV KAUSHIK) MEMBER(J) Dated: October , 2013.
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