Gujarat High Court
Virendrabhai Chaudhari Son Of ... vs Union Of India & 3 on 23 February, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/13222/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13222 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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VIRENDRABHAI CHAUDHARI SON OF SINGHASARIBHAI CHAUDHARI &
35....Petitioner(s)
Versus
UNION OF INDIA & 3....Respondent(s)
================================================================
Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1 - 36
MS PJ DAVAWALA, ADVOCATE for the Respondent(s) No. 3 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Page 1 of 23
C/SCA/13222/2014 JUDGMENT
Date : 23/02/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This petition is filed by 36 out of 41 applicants of Original Application No.117 of 2009 filed before the Central Administrative Tribunal ('the Tribunal' for short) challenging the judgment and order dated 3rd August 2011 dismissing such original application. Considering that the issue is an old one, we have heard the learned advocates for the parties for final disposal of the petition. Brief facts are as under:
The present petitioners, originalapplicants were engaged as casual labourers by the Department of Telecommunications and worked during the period between August 1985 till April 1992 when their services were terminated by the department. They challenged such termination before the Industrial Tribunal (Central), Gujarat in Reference ITC No.15/94. The Industrial Tribunal by the judgment dated 7th April 2000, partly allowed the reference. Bhavnagar Telecom District was directed to reinstate the workmen on the original post with 30% backwages. This award has become final. Pursuant to such directions, they were reinstated.Page 2 of 23
C/SCA/13222/2014 JUDGMENT In the meantime, the department had formulated a scheme called Casual Labourers (Grant of Temporary Status & Regularization) Scheme of the Department of Telecommunications 1989 (hereinafter to be referred to as the 'Temporary Status Scheme") for granting certain benefits to casual labour after specified days of working. The scheme was circulated along with letter dated 7th November 1989 from the Government of India, Department of Telecommunications which contained certain introductory remarks. Reference to such letter and the relevant terms of the Scheme would be made at a later stage.
Upon their reinstatement in service pursuant to the award of the Industrial Tribunal, according to the petitioners, they were entitled to grant of temporary status and other benefits as per the said Temporary Status Scheme. According to them, even as per the Department of Telecommunications, by the circular dated 25.6.93, the benefits of of the Scheme would be available to casual labourers engaged between 31.3.85 to 26.3.88 and who were still continuing in service. The petitioners, thereupon approached the authorities for granting such benefits. The AGM (Admn.) from the Office of the General Manager, Telecom District, Page 3 of 23 C/SCA/13222/2014 JUDGMENT Bhavnagar under communication dated 27.12.2008 conveyed to the AGM (Admn.), Office of the Chief General Manager, Telecom, Ahmedabad that "the matter regarding status of the casual labour, according to the last decision of Industrial Tribunal Court of Gujarat, no clear status has been decided. The wordings of the award are communicated in the reply. According to this award it is not possible to confirm whether these casual labours belong to BSNL or Dot. So far no specific order has been issued for these casual labours either for absorption in BSNL or retain them in DOT as per this office record".
The petitioners thereupon approached the Central Administrative Tribunal, Ahmedabad by filing the abovementioned original application and prayed for grant of benefits under the Temporary Status Scheme in view of the office order dated 25.6.93. Such original application came to be dismissed by the Tribunal by the impugned judgment. The Tribunal was of the opinion that in view of the decision of the Supreme Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1, the prayers cannot be granted. It is this judgment of the Tribunal which the original applicants have challenged before us.
Page 4 of 23C/SCA/13222/2014 JUDGMENT Learned counsel Shri Pathak for the petitioners submitted that the Temporary Status Scheme of the department was not in challenge before the Supreme Court in the case of Umadevi (supra). Even otherwise, nothing is stated in the judgment which would render the scheme unconstitutional or illegal. It was a scheme framed by the department itself and the same has never been withdrawn by the department or declared illegal by any court. He further submitted that the petitioners were covered under the said scheme and the benefits thereof should have been accorded to them.
On the other hand, learned counsel Ms.Davawala for BSNL opposed the petition raising following contentions:
(i) The petitioners had approached the Industrial Tribunal where one of the prayers made was for permanency. No such prayer was granted.
The petitioners' prayers in the present proceedings, therefore, would be hit by the principle of constructive res judicata.
(ii) The Temporary Status Scheme was not an ongoing scheme. It was by way of a onetime measure. It cannot be made applicable to all the employees at all points of time. In this Page 5 of 23 C/SCA/13222/2014 JUDGMENT context, she relied on the decision of the Supreme Court in the case of Union of India v. Mohan Pal, (2002) 4 SCC 573 and in the case of Controller of Defence Accounts v. Dhani Ram & ors. AIR 2007 SC 2650.
(iii) She submitted that the Industrial Tribunal had directed reinstatement of workmen with 30% backwages. There was no direction for granting continuity. In any case, the services of the petitioners were terminated in the year 1992. In the circular dated 17th December 1993, one of the requirements for being covered under the Temporary Status Scheme was that the workman must be continuing in service which condition in the present case was not fulfilled.
The question whether the Temporary Status Scheme is a continuous and ongoing scheme or a one time measure is not directly at issue in the present proceedings. We, therefore, may not enter into a controversy which does not arise. In that context, the decision of the Supreme Court cited by the counsel for BSNL in the case of Mohan Pal (supra) and in the case of Dhani Ram (supra) would need no further elaboration though prima facie we notice that such judgments were rendered in the background of different Page 6 of 23 C/SCA/13222/2014 JUDGMENT schemes and not the present one. However, since we do not intend to enter into this controversy, we refuse any further elaboration on the issue. Let us test the case of the petitioners on the basis of the scheme as it stands. In this context, we may note the contents of the scheme and the decisions of the department concerning the scheme. The scheme was circulated along with a letter dated 7th November 1989, in which it was recorded that under letter dated 30th March 1985, instructions were issued to stop fresh recruitment and employment of casual labourers for any type of work in Telecom Circle/Districts. Casual labourers after 30.3.85 could be engaged in projects and Electrification Circles only for specific works and on completion of the work such labourers would be retrenched. Such instructions were reiterated later on. It was therefore stated that :
"3.2 In view of the above instructions normally no casual labourers engaged after 30.3.85 would be available for consideration for conforming temporary status. In the unlikely event of there being any case of casual labourers engaged after 30.3.85 requiring consideration for conferment of temporary status, such cases should be referred to the Telecom with relevant particulars regarding the action taken against the officer under whom authorization/approval, the irregular engagement/nonretrenchment was resorted to.Page 7 of 23
C/SCA/13222/2014 JUDGMENT 3.3 110 casual labourers who have been recruited after 30.3.85 should not be granted temporary status without specific approval from this office."
With this background, one may notice the contents of the scheme. The scheme was made effective from 1.10.89 onwards. It was applicable to the casual labourers employed by the department of Telecommunications. Under the scheme, temporary status would be conferred under the following circumstances:
"i. Temporary status would be conferred on all the casual labourers currently employed and who have rendered a continuous service or at least one year, out of which, they must have been employed on work for a period of 240 days (206 days in case of officers observing. Such labourers will be designed as temporary mazdoor.
ii. Such conferment of temporary status would be without reference to the creation / availability of regular Gr.D posts.
iii. Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The employment will be on daily rates of pay on a need basis. He may be deployed anywhere within the recruitment unit territorial circles on the basis of availability of work.
iv. Such casual labourers who work on temporary status will not however be treated in the permanent establishment unless they Page 8 of 23 C/SCA/13222/2014 JUDGMENT are protected through regular selection process for Gr. D posts.
Upon grant of temporary status, the casual labourers would be entitled to following benefits:
"i. Wages of daily rates with reference to the minimum of the pay scale for a regular Gr. D official including Dh/IRV & CC.
ii. Benefits in respect of increments in pay scale will be admissible for every one year of service subject to performance or duty for at least 240 days (206 days in administrative officers observing 5 day week) in the year.
iii. Leave entitlement will be on a prorata basis, one day for every 10 day of work. Casual leave or any other kind of leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or their quitting service.
iv. Counting of 50% of service rendered under temporary status for the purpose of retirement benefits after their regularization.
v. After rendering three years continuous service on attainment of temporary status, the casual labourers would be treated on a par with temporary Gr. D employees for the purpose of contribution to General provident fund and would also further be eligible for the grant of festival advance / food advance on the same conditions as are applicable to Page 9 of 23 C/SCA/13222/2014 JUDGMENT temporary Group - D. vi. Until they are regularized, they would be entitled to productivity linked bonus only at the rates as applicable to casual labour.
No benefits other than those specified above will be admissible to casual labourers with temporary status."
In para 8 of the said scheme, it was provided that despite conferment of temporary status, the services of the casual labourer may be dispensed with in accordance with the relevant provisions of the Industrial Disputes Act, 1947 on the ground of nonavailability of work. A casual labour with temporary status can quit service by giving one month notice.
From the contents of the Scheme read along with the letter dated 7th November 1989, it can be seen that the Scheme nowhere provided that it would be applicable only to those employees who were in service before 30th March 1985. In fact, the contents of the said letter dated 7th November 1989 would demonstrate that despite the anxiety of the department not to engage casual labourers in Telecom circles and districts, it was inevitable that some districts and circles would have made such engagements. It was, therefore, provided that in case of casual labourers who Page 10 of 23 C/SCA/13222/2014 JUDGMENT have been recruited after 30th March 1985, temporary status should not be granted without specific approval from the Head Office. This had dual purpose. Firstly, to verify the reasons for their engagement contrary to the instructions of the department and secondly for appropriate steps in connection with such engagement. This letter, however, nowhere provided that temporary status would not be granted to a casual labourer who has been engaged after 30th March 1985 even though he fulfilled all the requirements of the Temporary Status Scheme. Whatever doubt one had in mind came to be completely removed when the department issued a clarificatory circular dated 17th December 1993 which provided as under:
"I am directed to refer to this office order No.2694/93STN dated 25th June 1993, wherein orders were issued to extend the temporary status to all these Casual Mazdoors who were engaged by the project Circles/Electrification Circles during the period 31385 to 22788 and who were still continuing for such works where they were initially engaged and who were not absent for the last more than 365 days counting from the date of issue of the above said orders.
2. The matter has further been examined in this office and it is decided that all those Casual Mazdoors who were engaged by the Circles during the period from 31385 to 22 688 and who are still continuing for such Page 11 of 23 C/SCA/13222/2014 JUDGMENT works in the circles where they were initially engaged and who are not absent for the last more than 365 days counting from the date of issue of this order, be brought under the above said scheme.
3. The engagement of casual mazdoors after 30.3.85 in violation of the instructions of the Head Quarter, has been viewed very seriously and it is decided that all past cases wherein recruitment has been made in violation of instructions of the Head Quarter dated 30.3.85 should also be analyzed and disciplinary action be initiated against defaulting officers.
4. It has also been decided that engagement of any Casual Mazdoors after the issue of this order should be viewed very seriously and brought to the notice of the appropriate authority for taking prompt and suitable action. This should be the personal responsibility of the Head of Circles concerned DE/Class II officers and amount paid to such Casual Mazdoors towards wages should be recovered from the person who has recruited/engaged Casual Labour in violation of these instructions.
5. It is further stated that the services of all the casual mazdoors who have not rendered at least 240 days (206 days in the case of Administrative Offices observing 5 days a week) of service in a year on the date of issue of these orders should be terminated after following the conditions as laid down in I.D. Act, 1947 under Section 25 F, G & H.
6. These orders are issued with the concurrence of Member (Finance) vide U.O. No.3811/93FAI dated 1.12.93."
Page 12 of 23C/SCA/13222/2014 JUDGMENT This circular clarified many things. So far as we are concerned, firstly it clarified that the Temporary Status Scheme would be available also to those casual labourers who were engaged after 31.3.85 but subject to the conditions of them still continuing for such work and were not absent for the last more than 365 days counting from the date of issuance of the order. Thus, even according to the department, the said Temporary Status Scheme would be applicable to casual labourer engaged between 31.3.85 to 22.6.88 but subject to the rider that he should not be absent for more than 365 days counting from the date of issuance of the clarification.
Let us examine the facts of the present case in the background of these provisions. The petitioners were engaged in August 1985 and worked till they were terminated in April 1992. Their terminations were later on declared illegal by the Industrial Tribunal. They were directed to be reinstated with 30% backwages. The Industrial Tribunal held that the services were terminated without following the mandatory requirements of section 25F of the Industrial Disputes Act, 1947. The Industrial Tribunal concluded that the termination was illegal, improper and unjust and the workmen were entitled Page 13 of 23 C/SCA/13222/2014 JUDGMENT for reinstatement. The Industrial Tribunal further observed that though the normal rule, if the workman is reinstated, would be to award full backwages, but looking to the nature of the work and looking to the period of their working, it is desirable that 30% backwages should be awarded to the concerned workmen calculated on the basis of average of six months earning preceding the termination.
Thus by virtue of the award of the Industrial Tribunal the terminations of the petitioners were rendered illegal. If that be so, there would be no termination in the eye of law. The Industrial Tribunal was prompted to grant 30% backwages instead of 100% in view of the facts of the case though according to the Industrial Tribunal, the normal rule would be of awarding 100% backwages. We have no manner of doubt that by virtue of such award of the Industrial Tribunal, the termination of the workmen stood set aside for all purposes except for backwages which was limited to 30% backwages. In the eye of law, therefore, when the department issued circular dated 17th December 1993, the petitioners were deemed to be in service, their reinductment physically at a later point of time notwithstanding.
Page 14 of 23C/SCA/13222/2014 JUDGMENT All the petitioners thus fulfilled the basic requirements for being considered for temporary status and the benefits under the Temporary Status Scheme. The respondents, therefore, could not have denied the benefits of the said scheme to the petitioners.
The contention that the judgment and award of the Industrial Tribunal would work as a res judicata cannot be accepted. Before the Industrial Tribunal, the workman may have applied for permanency. However, the question of grant of benefits under the Temporary Status Scheme was nowhere at issue before the Industrial Tribunal. The Industrial Tribunal framed issues as under:
(a) Whether the second party has proved that the concerned 47 workmen have worked for more than 240 days in a calendar year?
(b) Whether the second party has proved that the first party has terminated the services in violation of section 25F of the Industrial Disputes Act?
(c) Whether the action of the Telecom District Manager, Bhavnagar in terminating the services of the 47 workmen is justified ?Page 15 of 23
C/SCA/13222/2014 JUDGMENT
(d) What relief should be given to the concerned workmen ? And
(e) What final order?
It can thus be seen that the question of their regularization or permanency was never at issue before the Industrial Tribunal. In any case, the question regarding grant of benefits under the Temporary Status Scheme was not an issue in the said proceedings before the Industrial Tribunal.
The conclusion of the Tribunal that by virtue of the judgment of the Supreme Court in the case of Umadevi (supra), the petitioners even though may be covered by the Temporary Status Scheme cannot claim the benefits flowing therefrom also cannot be accepted. We have noticed that the Temporary Status Scheme allowed certain limited benefits to the workmen after certain duration of work. The benefits did not include automatic regularization in service. They would be granted semipermanency benefits and better working conditions. They would still not draw salary in any regular scale. These benevolent provisions by the State employer have not been frowned upon by the Supreme Court in Page 16 of 23 C/SCA/13222/2014 JUDGMENT the case of Umadevi (supra). This issue has come up for consideration before Division Bench of this Court at least on two occasions, reference to which may be presently made.
In the case of Telecom District Manager v. Jagdishkumar D. Varatiya and Ors., in a judgment dated 13.8.2014, in Special Civil Application No.8499 of 2013, this Court held and observed as under:
"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 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 Page 17 of 23 C/SCA/13222/2014 JUDGMENT 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. In our opinion, nowhere in the scheme envisaged regularization. BSNL therefore had no locus to challenge the direction for considering their cases for grant of temporary status.
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 backdoor 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, Page 18 of 23 C/SCA/13222/2014 JUDGMENT 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 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.53215322 of 2013 arising out of SLP(C) 1361913620 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 Page 19 of 23 C/SCA/13222/2014 JUDGMENT 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."
Likewise, in the case of Ashok Virambhai Kargatia v. Union of India, in a judgment dated 12.1.2015 in Special Civil Application No.9721 of 2014, this Court observed as under:
"15. Coming to the issue, on merits we have recorded the petitioners service history. After being initially engaged as a casual labourer, his services were terminated. He had to move one forum after another to have the question of legality of the termination decided on merits. The Civil Suit was transferred to the Tribunal. The Tribunal dismissed the Original Application as involving issues of Industrial Disputes Act. The petitioner, thereupon, raised an industrial dispute. The Industrial Tribunal held that the department is not an industry. The High Court corrected the view and remitted the matter back to the Industrial Tribunal for decision on merits. The Tribunal, thereupon, declared that the termination was illegal and directed reinstatement of the workman with continuity of service but without backwages. The case of the petitioner, therefore, ought to have been considered for temporary status in terms of the departments scheme considering his continuous service from his inception. His Page 20 of 23 C/SCA/13222/2014 JUDGMENT case could not have been excluded from the consideration basing reliance on the judgment of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra). Even in the Constitution Bench judgment in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra), the Supreme Court has kept a window open for consideration of regularization of those workmen who had rendered more than 10 years of service. While doing so, it was, of course, provided that such benefit would not flow in favour of litigious employees. The basis of this was that one who enjoyed interim protection of Courts successively by challenging termination from service, cannot then argue that having rendered continuous service for years together, he should be considered for regularization. The facts of the present case were starkly different. The petitioner had to battle before different Courts for having his termination declared illegal. Once such declaration was made, he was entitled to full benefits flowing from the final directions of reinstatement with continuity. Such judgment of the Industrial Tribunal had become final. The department could not have taken shelter of the exclusion clause contained in the judgment of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra) nor could have the Tribunal nonsuited the petitioner on this ground. To reiterate, the petitioner had succeeded before the Court of competent jurisdiction in establishing that his termination by the department was illegal with further direction for reinstatement with continuity. That being so, he was entitled to all consequential benefits. It is not the case of the respondents that he was not covered by the scheme of temporary status and Page 21 of 23 C/SCA/13222/2014 JUDGMENT regularization in service. They have also not denied that other employees engaged after him have got such benefit of temporary status and regularization long back. Unfortunately, since the case of the petitioner for reinstatement got tangled in one legal dispute after another, the final direction for reinstatement got delayed. He, therefore, did not get the same benefits which his co workers and juniors received. He has, by now, put in 28 years of service without any benefit of permanency or even regular salary.
16. Under the circumstances, the judgment of the Tribunal dated 10.5.2013 passed in Original Application No.439 of 2010 is set aside. The respondents are directed to grant the benefit of temporary status and regularization to the petitioner in terms of the scheme of the department from the respective date when his immediate juniors received such benefit with all consequential benefits including actual difference in salary. These directions shall be carried out latest by 31.3.2015. Petition is disposed of accordingly."
In the result, the impugned judgment dated 3.8.2011 of the Tribunal is reversed. The respondents are directed to grant the benefits of Temporary Status Scheme to the petitioners and pay the difference in salary but without interest. These directions shall be carried out latest by 30th April 2015. The petition is disposed of accordingly.
(AKIL KURESHI, J.)
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C/SCA/13222/2014 JUDGMENT
(MS SONIA GOKANI, J.)
(vjn)
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