Central Administrative Tribunal - Lucknow
Ravindra Kumar Verma vs Bharat Sanchar Nigam Limited on 1 July, 2022
O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI
Central Administrative Tribunal
Lucknow Bench, Lucknow
Reserved on 24.04.2022
Pronounced on __________
Original Application No. 74 of 2022
Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member(J)
Ravindra Kumar Verma, aged about 62 years, son of Sri
Ram, Resident of Village Kathideeh Post Obari, District -
Barabanki. Presently retired in the office of Divisional
Engineer, Telecom Bharat Sanchar Nigam, Limited,
Azamgarh (U.P).
.............. Applicant
By Advocate: Sri Ashok Kumar Mishra Balediha
Versus.
1. Bharat Sanchar Nigam Limited, Ministry of Tele
Communication, Sanchar Bhawan, New Delhi, through
its Chairman & Managing Director.
2. Bharat Sanchar Nigam Limited, Northern India Telecom
Project, Sanchar Bhawan, 2nd Floor, Kidwai Nagar, New
Delhi, through its Chief General Manager.
3. Assistant General Manager (HRD), Office of Chief
General Manager (NRT), Bharat Sanchar Nigam
Limited, Sanchar Bhawan, 2nd Floor, Kidwai Nagar,
New Delhi.
4. Chief General Manager, Bharat Sanchar Nigam
Limited, East Circle, U.P Hazratganj, Lucknow.
5. Senior General Manager (MTC), Bharat Sanchar Nigam
Limited, Northern Telecom Project, Hazratganj,
Lucknow.
6. Divisional Engineer, Telecom, Bharat Sanchar Nigam
Limited, Kaiserbagh, Lucknow.
7. Divisional Engineer, Telecom, Bharat Sanchar Nigam
Limited, Azamgarh (U.P).
.............Respondents
By Advocate: Sri G.S Sikarwar
Page 1 of 10
O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI
ORDER
By Hon'ble Sri Devendra Chaudhry, Member-A This O.A. has been preferred against letter dated 25/08/2014 to the extent that while it grants Temporary status to the Applicant from 01/08/2014 but the period of 13/02/1991 to 06/07/2000 has not been considered as per Casual Labourers Grant of Temporary status Regularisation Scheme 1989. The prayer is to consider the same.
2. The relief sought is as under:
Para 8.1 of O.A.:
"..Issue an order or direction to set aside / quash part of letter No. Estt/M-15-4/General/01/Ch-1 dated 25.08.2014 only partly of the mentioned for reengagement (remarks column) dated 25.08.2014 w.e.f. 01.08.2014 about grant of temporary status mazdoor in place considering w.e.f. 13.02.1991 to 06.07.2000 post of Temporary Status Mazdoor/Mazdoor as per Casual Labourers Grant of Temporary Status Regularisation Scheme 1989..."
Para 8.2 of O.A. :
"..Issue an order or direction to the Opposite Parties to regularize the applicant since 06.07.2000 and promotion on the post of Phone Mechanic since juniors of the applicant have been provided with all consequential service benefits with arrear and salary differences of salary with 9% interest..."
3. Along with the O.A. a condonation of delay application M.P. No 283/2022 has also been filed. At the outset the same is allowed as the related order in this connection is by the Hon' High Court Allahabad, Lucknow Bench in year 2016 and thereafter the Applicant filed representation dated 28/08/2019 to the Respondents which had not been disposed till the filing of this O.A. on 04/02/2022. While the Page 2 of 10 O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI Applicant did choose to sleep between 2016 and at least 2019 even if we accept his plea that the period 2019 to 2021 has been affected by Covid pandemic impact, nothing prevented him for filing an O.A. in 2019 since hundreds of O.As have been filed in various Benches of CAT and even this Lucknow Bench in the said period. Further, as per Objections to the delay condonation application filed by the Respondents it is indeed trite to observe that CAT Act 1985 permits only one year delay, while, we have a clear six years of delay in the filing of this O.A. even if we take the order of Hon' High Court Allahabad of 2016 as the final effective order in the matter per the Applicant. The plea of the Applicant that he filed a representation in 2019 is the lamest of possible excuse and speaks of his conduct in approaching his relief. To sleep for three years even after filing of the said representation is also not acceptable. This is beyond all normal cannons of accepting delay. However, since the Applicant has been agitating the matter right upto the Hon Apex Court since its initiation 2000, hence in the interest of justice the O.A. is admitted albiet with great indulgence and as an exception of exception.
4. Brief facts per the Applicant are that he was initially engaged as casual labour - Lorry driver since 13/02/1991 and at some stage he was terminated along with some others whereupon the CAT was approached in the year 2000 by filing of O.A. The CAT directed for filing of representation Page 3 of 10 O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI with direction to Respondents for disposal of same. The Respondents decided the representation so file and communicated their decision in February/March 2001. The order of the Respondents was challenged by another O.A. along with some other O.As by similarly placed petitioners.
All these O.As were decided by a common judgement and order of this Tribunal vide 21/12/2001 in which while refusing the claim of the petitioners, it was directed that the petitioners file a representation to the Respondents with respect to their claim for grant of Temporary Status. This order of the Tribunal was challenged before the Hon' High Court Allahabad, Lucknow Bench, by one of the similarly place petitioners - Phool Kunwar - vide WP No.34/2003 (SB) which was however later withdrawn with liberty to file afresh in some alternative forum. Thereafter the matter travelled to the Central Govt Industrial Tribunal-cum-Labour court which found that the claim for temporary status could not be sustained. Therefore, a writ was filed in the High Court which, vide order dated 13/05/2013 directed grant of temporary status to the Applicant as also one another who had also filed a writ in the matter. The relevant extracts of the order are reproduced below:
"........ Phool Kunwar thereafter preferred Writ Petition No. 34 (SB) of 2003 before this Court challenging the order passed by the CAT dated 21.12.2001. He thereafter preferred an application for withdrawal of writ petition No. 34 (SB) of 2003 with liberty to the petitioner to approach another alternative forum.
The petitioner later on filed Writ Petition No. 5721 (SS) of 2005, praying for quashing the orders dated 26.6.2005 and 27.7.2001. The order dated 27.7.2001 happens to be the disengagement order of the petitioners as Casual Lorry Driver. Writ Petition No. 5721 (SS) of 2005 was dismissed vide judgment and order dated 12.9.2005. Through this petition, the petitioner has challenged the advertisement made for selection on the post of Lorry Driver. The said writ Page 4 of 10 O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI petition was dismissed vide judgment and order dated 12.9.2005. In the said writ petition, advertisement dated 26.6.2005 was challenged by means of which, applications were invited from the candidates working in Staff Car/Lorry Driver cadre for the purpose of promotion on the post of Staff Car Driver Grade-I and II. The petitioners thereafter approached the conciliation officer and the Ministry declined to adjudicate the issue vide letter dated 16.6.2004. Subsequently, the said decision was reviewed by the Ministry of Labour and Employment, Government of India and the dispute was referred to the Central Government Industrial Tribunal-Cum-Labour Court (for short 'CGIT') by means of order dated 4.8.2006.
During pendency of the claim before the CGIT, petitioner preferred Writ Petition no. 7321 (SS) of 2007 (Phool Kunwar vs. Union of India and two others). The said writ petition was transferred to the CAT by means of order dated 3.12.2008 and the same was registered as T.A. No. 01 of 2009. The petitioner preferred an application for withdrawal of the T.A. No. 01 of 2009 and the same was allowed by the CAT by means of order dated 21.4.2009. Thereafter industrial dispute proceeded and the parties were given opportunity to adduce evidence. In respect of their claims, the parties adduced oral as well as documentary evidence and after considering the evidence on record, CGIT came to the conclusion that the claim of the petitioners for grant of temporary status was not made out. Hence these petitions.
Submission of learned counsel for the petitioners is that the Tribunal has failed to consider the evidence which was placed before it in the correct manner and the CGIT has been misled while appreciating the evidence in regard to the claim of the petitioners for being granted temporary status. The claim of the petitioners for regularization on the post of Lorry Driver was refused by the CGIT, but so far the grant of temporary status to the petitioners is concerned, that was directed to be decided by means of order dated 21.12.2001. Against the said order, a writ petition was preferred, but the same was dismissed as not pressed. Writ Petition no. 7321 (SS) of 2007 was preferred by the petitioners during the pendency of industrial dispute, which was transferred to the CAT and thereafter an application was moved for withdrawal of the said transfer application no. 01 of 2009. The same was ordered to be withdrawn.
Contention of learned counsel for opposite parties that no liberty was given to the petitioners by the CAT while withdrawing the transfer application cannot be accepted as the same was filed during the pendency of industrial dispute and as the same was dismissed as withdrawn, that will not create any bar or resjudicata in respect of the claim before the CGIT, which was pending.
Initially the order passed by the CAT was to consider and grant temporary status to the petitioners and, therefore, it was incumbent upon the opposite parties to consider the case of the petitioners for grant temporary status labour. The Tribunal has misdirected itself in recording a finding that the claim of the petitioners was rejected on both count i.e. in respect of grant of temporary status and for regularization, whereas learned counsel for the petitioners submits that the order passed by the CAT is very clear that temporary status was to be considered and granted.
Counsel for the opposite parties, on the other hand, submits that temporary status could not have been granted to the petitioners as their claim stood rejected and they got their writ petition dismissed as withdrawn against the order dated 21.12.2001, therefore, that order is binding upon them. They filed writ petition before this Court, which was subsequently transferred and they got the said transfer application dismissed as not pressed, therefore,it will operate as resjudicata, as the Tribunal has not given liberty to the petitioners to press their claim. He further submits that the claim of the petitioners has been rejected rightly and they have failed to make out their case, as the writ petition filed by them challenging the appointment of temporary lorry driver was dismissed by means of judgment and order dated 12.9.2005. The CGIT has correctly appreciated the facts and once no liberty was given to the petitioners to agitate their claim, it will amount to res judicata and the claim before the CGIT would be barred.
Page 5 of 10O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI I have heard learned counsel for the parties and perused the record.
Argument of counsel for opposite parties that no liberty was given by the High Court as well as by the Tribunal, therefore, the petitioners are precluded to raise their claim in regard to grant of temporary status before the CGIT, cannot be accepted on account of the fact that earlier judgment and order dated 21.12.2001 clearly stipulated that the representation in regard to grant of temporary status was to be considered by the opposite parties. The same was rejected by the opposite parties. The order dated 21.12.2001 was put to challenge in Writ Petition No. 34 (SB) of 2003. The said writ petition was dismissed as not pressed. Thereafter the petitioners approached the opposite parties. Their claim was rejected for grant of temporary status. The petitioners thereafter made a futile attempt to challenge the selection on the post of Lorry Driver again by means of Writ Petition No. 5721 (SS) of 2005, which was dismissed, but in the said writ petition, no question was raised in regard to grant of temporary status, which stood decided by the opposite parties against the petitioners. Grant of temporary status to the petitioners was under
consideration during that period and the writ petition was filed in 2005, whereas the dispute referred to the CGIT was refused by the Government of India by means of order dated 16.6.2005, which was later on reviewed and the dispute was referred by means of order dated 4.8.2006. The said reference was pending and during the pendency of the reference, it is alleged that a writ petition was preferred before this Court numbering as 7321 (SS) of 2007, which was transferred to the CAT and the said OA was got withdrawn by the petitioners on account of pendency of the case before the CGIT. There was no question of seeking any permission during the pendency of industrial dispute. The industrial dispute was pending and, therefore, the CAT rightly refused to interfere in the matter and before it, petitioners got their OA dismissed as not pressed. Apart from it, there is no iota of evidence to indicate that opposite parties have ever considered the case of the petitioners in the right perspective, whereas similarly situated persons junior to the petitioners have been granted temporary status. The petitioners have been working since 1991 till 2001. They were being paid Class-IV wages i.e. Rs.134/- alongwith bonus.
Learned counsel for the petitioners has placed on record a letter dated 20.5.1999, which goes to indicate that the wages of Casual Mazdoor/Temporary Mazdoor was Rs. 134.20. Thus, it cannot be said that the petitioners are drawing salary on the post of Lorry Driver. They were only drawing salary of Casual Labour and as such, according to their own admission, if similarly situated persons have been granted temporary status, then the petitioners are also entitled for the same. The refusal of the opposite parties is without any basis and neither the said right of the petitioners can be denied as they had worked since 1991 to 2001.
The Tribunal while considering the question in regard to grant of temporary status has recorded an erroneous finding whereby it has been said that the petitioners have failed to prove that they were engaged as Casual Labour and they worked as such in Group-D post. The aforesaid finding recorded by the CJIT is wholly baseless and it has to be seen as to what payment was received by the petitioners. If the petitioners were receiving Group-D wages then they were to be treated in Group-D. Though their claim for absorption on the post of Lorry Driver has been refused, but that does not mean that they were working on the post of Lorry Driver. A specific stand was taken by the opposite parties in the counter affidavit in the earlier writ petition that the petitioners were working as Casual Labours. When they have taken a specific stand in the earlier round of litigation that the petitioners were working on daily wages, when they raised their claim for regularization on the post of Lorry Driver, then from the own pleadings of the opposite parties, in the order dated 21.12.2001, a specific finding has been recorded to the effect that during the course of argument it was admitted by the counsel for the parties that the post of Lorry Driver was Group-C post. It was also admitted that three applicants were engaged as Casual Lorry Driver. If the petitioners were working as Casual Labour and they were receiving the said salary, then the contention of the opposite parties that they were working as Casual Lorry Driver cannot be accepted. Annexure-7 has been placed on record to indicate that vide order dated 29.6.2000, 14 persons were granted temporary status of Labour.
Page 6 of 10O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI In these circumstances, the writ petitions are allowed and the impugned orders dated 25.1.2011, and 11.1.2010/10.3.2010 cannot be sustained in law and are hereby quashed. The opposite parties are directed to grant temporary status to the petitioners like other similarly situated persons after considering their wages etc., which have been paid to them, within a period of four months from the date of receipt of a certified copy of this order."
It is evident from the extracts above, that the matter has been finally decided and so there is no jurisdiction now left for this Tribunal to adjudicate any matter with regards to the issue of the Applicant on his temporary status and related aspects as claimed in relief para-8.1/8.2 of O.A. extracted above. Importantly, the Respondents preferred an SLP in the Hon Apex Court against the order of the Hon' High Court of Allahabad, Lucknow Bench concerning the similarly placed petitioner - Phool Kunwar - which was dismissed vide order dated 29/11/2013 (Annexure A-6) and later a Review petition regarding the same was also dismissed by the Hon Apex Court. Thereupon the Applicant filed a Contempt Petition No- 2247 of 2013 wherein vide order dated 28/07/2014 (Annexure A-8), it was directed as under:
"Sri Asit Kumar Chaturvedi, learned counsel for opposite parties submits that vide order dated 15.4.2014, the applicant was advised to report to the Chief General Manager/Telecom, Bharat Sanchar Nigam Ltd. Northern Telecom Region, New Delhi at the earliest so that necessary action may be taken for grant of temporary status to him.
Learned counsel for the applicant submits that the applicant will submit his joining before the Authority concerned on 1.8.2014.
List this case after one week".
5. This CP was subsequently dismissed along with two others filed by similarly placed petitioners vide order dated 18/05/2016 of the Hon' High Court of Allahabad, Lucknow Bench. Relevant portions of the order are extracted below:
".......... In view of the aforesaid facts, the submissions made by the learned counsel for the petitioners that petitioners should have been granted temporary status with retrospective date and having not done so, the respondents have committed contempt of the order passed by this Court dated 13.05.2013 do not appear to be appealing to the Court. The direction contained in the order dated 13.05.2013 is only to the effect that the petitioners should be granted temporary status like other similarly situated persons. However, the said order nowhere directs the respondents to grant temporary status to the petitioners with any retrospective date. In view of above, in my considered opinion, the facts pleaded in this case, do not make out a case for proceeding any further against the respondents in this Page 7 of 10 O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI contempt petition.
The contempt petition is, thus, dismissed.
However, so far as the claim of the petitioners for grant of temporary status with retrospective date is concerned, I find that since there has been no adjudication by this Court in its judgement and order dated 13.05.2013 on this issue, dismissal of the instant contempt petition notwithstanding, it will be open to the petitioners to claim the said benefit taking recourse to any other legal remedy which may be available to them."
As may be seen, the Hon' High Court of Allahabad, Lucknow Bench has gone into elaborate detail with respect to the claim of the Applicant and two others and has also given liberty to take recourse to any other legal remedy which may be available.
6. It is in pursuance of this liberty that the Applicant is before this Tribunal now.
7. With regards to the Applicant now appearing before this Tribunal, the Ld Respondent counsel has argued that the matter is already seminally decided by the Hon' High Court of Allahabad, Lucknow Bench vide its order dated 13/05/2013. Para-4 of the Objections filed by the Respondents is relevant and so the same is reproduced below for ready reference:
Para-4 of Objections:
"4. That the contents of para 3 of the Affidavit of the Misc. Application are not admitted as stated and in reply, it is submitted that in accordance with orders contained in BSNL HQ New Delhi No. 7- 14/2013-LE dated 05.03.2014, No. 7-14/2013-LE dated 12.03.2014 and on approval CGMT UP (E) Circle Lucknow the applicant and 2 others casual labours who have been re-engaged in pursuance of Hon'ble High Court Allahabad (Lucknow Bench) order dated 13.05.2013 have been granted status of Temporary status Mazdoor from 01.08.2014."
The relevant order in the context of the Objections is reproduced below:
Impugned order dated 25.08.2014 "In accordance with orders contained in BSNL H.Q. New Delhi No. 7-14/2013-LE dated 05.03.2014, No. 7-14/2013-LE dated 12.03.2014 and on approval of CGMT U.P. (E) Circle Lucknow, the following casual labour who have been re-engaged in pursuance of Hon'ble High Court Allahabad (Lucknow Bench) order dated 13.05.2013 are hereby granted status of Temporary Status Mazdoor from 01.08.2014 as under:Page 8 of 10
O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI S. Name Father's Unit where Date of Remarks No. Name re-engaged granting TSM 1 Shri Shri Shree DET OFC 01.08.2014 Re-engagement Ravindra Ram (Mtcs) NTR intimated by GM Kumar Azamgarh NRT Lw Vide letter Verma No. DGMM/LW/Court Case/Ch-III/2014- 15 dt. 11.08.2014 2 Om Shri Deep DET OFC 01.08.2014 - do-
Prakash Narain (Mtcs) NTR
Awasthi Jhansi
3 Phool Late Shri DET OFC 01.08.2014 - do-
Kunwar Ram (Mtcs) NTR
Samujh Robertaganj
Chaudhary
Terms & Conditions:
(1) TSM Status has been granted to, comply the verdict Hon'ble High Court Allahabad judgement dated 13.05.2013 delievered in case No. 4094 of 2011 connected with 2019 (SS) of 2010 and 2920 (SS) of 2010.
(2) Grant of TSM status doesn't confer any right or claim for subsequent regularization in Group 'D' post.
25.08.14 Dy. General Manager (Admn)"
8. As may be seen, the impugned order is in connection with the order dated 12/03/2014 / order dated 05.03.2014 of the BSNL Hq, New Delhi of the Respondents filed in compliance of the order of the Hon' High Court dated 13/05/2013 and the connected writs. Therefore, the assertion of the ld Respondents counsel has much logic that now, at least this Tribunal does not have any jurisdiction to further adjudicate the matter after the orders of the Hon' High Court of 2013 on the matter in detail. The challenge to the orders of the Respondents in compliance of the order of the Hon' High Court of 2013 has also been dismissed.
Therefore, while the Hon' High Court has given the liberty to the petitioners vide its order of 2016 to approach appropriate fora, at least this Tribunal in all humility cannot convince itself to be a forum now, with respect to further adjudication Page 9 of 10 O.A No. 74 to 2022, Ravindra Kumar Verma Vs. UoI of the matter as pleaded in the O.A. In this context it is noteworthy moreso, that it was the Central Labour Tribunal which was the forum which passed the seminal order which was challenged in the Hon' High Court who decided upon it vide order of 2013. Therefore, in all humility it is our considered opinion that at least this Tribunal is not the forum which would have jurisdiction for settlement of the matter further to the impugned or the connected orders already referred to by the Hon' High Court.
9. In the event therefore, it is a clear conclusion that this Tribunal does not have jurisdiction in the matter from any angle and view point. In result the O.A. is liable to be dismissed at the admission stage and is therefore dismissed.
10. Ordered accordingly.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member - J Member-A
RK
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