Central Administrative Tribunal - Cuttack
Rajendra Kumar Mallik vs Bharat Sanchar Nigam Limited on 7 November, 2024
1 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00725 of 2023
&
OA No. 260/00448 of 2021
Reserved on 06.11.2024 Pronounced on 07.11.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
O.A.No. 260/00725 of 2023
Rajendra Kumar Mallik, aged about 45 years, Son of
Late Dinabandhu Mallik, At/PO- Prbatipur, PS- Simulia,
District-Balasore, PIN- 756001. At present continuing
as Temporary Status Mazdoor (T.S.M) under Sub-
Divisional Engineer, Telecom, Optical Fibre Cable
Centre, Bharat Sanchar Nigam Limited (BSNL),
Balasore Station Chhak, At/PO/District-Balasore, Pin-
756001.
......Applicant
VERSUS
1. Union of India represented through its Secretary-
cum-Chairman, Telecommunication, At I.T.-20, Ashoka
Road, Sanchar Bhawan, New Delhi, PIN-110001;
2. Chief General Manager (MTCE), Eastern Telecom
Region, 7th Floor, Telephone Bhawan, 34 BBD Bag,
Culcatta, Pin-700001.
3. Chief Managing Director, Bharat Sanchar Nigam
Corporate Office, 5th Floor, Bharat Sanchar Bhawan,
Harischandan Matur Lane, Janapath, New Delhi, Pin-
110001;
4. Deputy General Manager, Eastern Telecom Region,
(MTCE), Bhubaneswar, Old Microwave Campus, Unit-
VIII, Nayapalli, Bhubaneswar-12, District-Khurda, Pin-
751012;
2 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021
5. Sub-Divisional Engineer, Telecom, Optical Fibre
Cable Centre, Bharat Sanchar Nigam Limited (BSNL),
Balasore Station Chhak, At/PO/District-Balasore, Pin-
756001.
......Respondents
For the applicant : Mr. A.Swain, Counsel
For the respondents: Dr. C.R.Mishra, Counsel
Mr. S.B.Jena, Counsel
OA No. 260/00448 of 2021
Durllava Charan Mohanty, aged about 49 years, Son of
Late Ananta Mohanty, At-Elamapur, P.O.-
Ramakrushnapur, P.S.-Salipur, District-Cuttack; At
present continuing as Temporary Status Mazdoor,
Bhawanipatna Division, Telecom Network (N/W)
At/P.O./P.S.-Bhawanipatna, District-Kalahandi, Pin-
766001.
......Applicant
VERSUS
1. Union of India Department of Telecommunication,
Represented through its Secretary-cum-Chairman,
Ministry of Telecommunication and I.T.-20, Ashoka
Road, Sanchar Bhawan, New Delhi, PIN-110001;
2. Chief General Manager (MTCE), Eastern Telecom
Region, 7th Floor, Telephone Bhawan, 34 BBD Bag,
Culcatta, Pin-700001.
3. Chief Managing Director, Bharat Sanchar Nigam
Corporate Office, 5th Floor, Bharat Sanchar Bhawan,
Harischandan Matur Lane, Janapath, New Delhi, Pin-
110001;
4. Deputy General Manager, Eastern Telecom Region,
(MTCE), Bhubaneswar, Old Microwave Campus, Unit-
VIII, Nayapalli, Bhubaneswar-12, District-Khurda, Pin-
751012;
5. Divisional Engineer, Telecom, Net Work (N/W),
At/P.O.-Bhawanipatna, District-Kalahandi, Pin-766001.
3 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021
......Respondents
For the applicant : Mr. A.Swain, Counsel
For the respondents: Mr. D.K.Sahoo, Counsel
Mr. S.B.Jena, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Since common question of fact and issues were involved in both the O.A.No. 260/00725 of 2023 and OA No. 260/00448 of 2021, although we have heard the OAs one after the other, this common order is passed, which would govern both the cases. O.A.No. 260/00725 of 2023 The applicant has filed this OA on 21.11.2023 praying to direct the respondents to extend him temporary status mazdoor from the date of his eligibility so far continuance and entry into the department respectively as per letter dated 14.11.2000 (A/1) and 30.03.2001 (A/2).
2. The case of the applicant in the pleadings (OA, rejoinder and written note) and reiterated in course of hearing by the Ld. Counsel for the applicant is that on 01.10.1996 he was engaged as a casual labourer in the Microwave Project and discharged his duties, as such, uninterruptedly, becoming eligible for conferment of temporary 4 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 status having completed 240 days in a year. His request for conferment of temporary status did not yield any result, the matter was agitated before the Central Govt. Industrial Tribunal-cum-Labour Court, Bhubaneswar through Telecom employees Union in TRID Case No. 268/2001, which was disposed of vide order dated 19.05.2003 with following directions:
"9. After perusal of the evidence both oral and documentary placed on record and after hearing of both the parties, I am of the opinion that there is a relationship of employee and employee between the 1st Party- Management and the 2nd Party-disputants and the disputants have completed 240 days and that the work of the 1st party-Management is of permanent and perennial in nature and they are entitled for regularization by giving temporary status, Hence, this issue is answered accordingly."
10. No materials have been placed before this Tribunal that the posts against which the disputants are claiming are vacant. This Tribunal lacks jurisdiction to pass any order for creation of post for regularization of all the disputants, but this Tribunal can pass order that the disputants can be given temporary status as prayed for. As regards regularization the 1st party-Management is directed to consider their case if posts are created/sanctioned in future."
3. The aforesaid order was challenged by the respondents department before the Hon'ble High Court of Orissa in W.P(C) No. 9101/2003 and the Hon'ble High Court vide order dated 22.06.2007 held as under:
5 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021 "12. In view of what has been decided by the Hon'ble Apex Court in the aforesaid judgement, no direction can be issued for regularization of the workmen. I, accordingly, set aside that part of the order in which the Tribunal directed the management-petitioner to consider regularization of the workmen if posts are created/sanctioned in future. It is for the Management to decide as to whether such workmen should be regularized in posts they are holding or not and the Court cannot issue mandamus directing regularization.
Accordingly, it is left open to the Management to take a decision as to whether the workmen in dispute can be regularized in future or not."
4. Again Writ Appeal No. 53/2007 was filed by the respondents department before the Hon'ble High Court of Orissa which was dismissed vide order dated 07.11.2008. The matter was carried to Hon'ble Apex Court by the Respondents-department, which was numbered as Special Leave to Appeal (Civil) No. 9790/2009 and vide order dated 08.05.2009, it was directed that the judgment of the Hon'ble High Court of Orissa dated 22.06.2007 in W.P(C) No. 9101/2003 shall be worked out. In compliance of the order, the respondents conferred temporary status in respect of 13 workmen vide order dated 04.12.2009 pending final outcome of the aforesaid SLA. The Special Leave to Appeal (Civil) No. 9790/2009 was converted to Civil Appeal No. 3600/2009 and the same was disposed of on 06.02.2020 with the direction as under:
6 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021 "Learned counsel for the respondents states that the High Court interfered with the judgment of the Industrial Tribunal as affirmed by the Central Administrative Tribunal by granting them only temporary status and not permanent absorption. That temporary status has been granted to them, more so in view of the orders passed by this court on 08.05.2009 desiring that the interim judgment of the learned Single Judge shall be worked out.
In view of the aforesaid position, we see no reason to unsettle that position and thus dispose of the appeals in terms of the aforesaid leaving the question of law open."
5. Since, temporary status was granted to a few workmen only, the Union moved before the Hon'ble High Court of Orissa in CONTC. No. 2084/2021, which was disposed of on 16.02.2023 with the following observations:
"10. And, in the facts of the present case it is seen that the orders passed by this Court, both by the learned Single Judge in the writ petition as well as by the Division Bench in the Writ Appeal, merged with the order passed by the Apex Court. The Apex Court while disposing of the Civil Appeal by order dated 06.02.2020 as referred to hereinabove has clearly stated that since temporary status has been granted to them, it requires no interference by the Apex Court. The said order was passed while leaving the question of law open.
11. In view of the same, this Court is of the considered opinion that no further order need be passed in this contempt petition.
12. If the Petitioner-Workmen have any subsisting grievance, it shall be open for them to agitate the same, 7 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 which shall be considered on its own merit and also keeping in view the pendency of the present contempt petition and series of litigations upto the Apex Court.
13. The CONTC is accordingly disposed of."
6. According to Ld. Counsel for the applicant, since the applicant were in engagement in casual basis from 01.10.1996 and completed 240 days in a calendar year, in terms of the letter dated 30.03.2001, he was entitled to conferment of temporary status but the department for one reason or the other did not grant the same despite the order f the Hon'ble Apex Court, which is highly illegal and arbitrary. It is submitted that temporary status is conferred based on the completion of days of work on casual basis, the detailed data of the working days is very much available with the department and the department ought not to have discriminated the applicant while granting the same benefits to the similarly situated causal labourers. The name of the applicant is placed at Sl. No. 36 forwarded by the department. He was granted temporary status provisionally vide letter dated 02.12.2009 at Sl No. 119. But, he has not been given the temporary status on permanent basis thereby he was deprived of attending the departmental examination for the post of Phone Mechanic and he was also not granted the financial benefits as per 6th CPC. Since the applicant was not given temporary status 8 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 permanently, after disposal of the CONTC. No. 2084/2021 he has filed the instant OA. Ld. Counsel for the applicant has placed reliance on the decisions as under:
(i) State of Karnataka Vs. C.Lalitha, 2006-SCC 747;
(ii) K.C.Sharma Vs UOI & Ors, 1997 SCC 721;
(iii) Prasanna Kumar Pattanaik Vs. The Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court, Bhubaneswar, WP(C) No. 28448 /2013.
(iv) Smt. Subhankari Das Vs. UOI & Ors, OA No. 163/2018 of CAT, Cuttack Bench;
In view of the facts stated above, Ld. Counsel for the applicant has prayed for the relief claimed in the OA.
OA No. 448 of 2021
7. Ld. Counsel for the applicant has submitted that like the case of the applicant in OA 725/2023, the applicant in this OA was granted temporary status vide letter dated 02.12.2009 as at Sl. No. 41 and, therefore, on the same analogy, he has prayed for similar relief in this OA, i.e. to direct the respondents to extend him temporary status mazdoor from the date of his eligibility so far continuance and entry into the department respectively as per letter dated 14.11.2000 (A/1) and 30.03.2001 (A/2).
9 O.A.No. 260/00725/2023 &
O.A.No. 260/00448/2021
8. In both the cases, respondent No.1 filed counter stating therein that as per New Telecom Policy-1999, the business of providing telecom services were transferred to newly formed BSNL and the staff working at various circles were transferred on deemed deputation w.e.f. 01.10.2000 to BSNL for smooth transition of administration and operations. The casual workers who were not holding any post were brought under BSNL as casual workers. The grant of temporary status/regularization are dealt and maintained by BSNL itself. Hence, Ld. Counsel appearing for Resp. No.1 has submitted that in view of the stand taken by the BSNL, the applicant is not entitled to the relief claimed in the OA.
9. In both the cases, counter has been filed by the respondents- BSNL questioning the very maintainability of this OA on the ground of delay, laches/limitation besides opposing the prayer of the applicant on merit. The stand taken in the counter has been focused emphatically by the Ld. Counsel for the respondents in course of argument to the effect that in compliance of the orders of the Hon'ble Apex Court directing to work out the order of the High Court of Orissa, temporary status was granted to the applicants and many others vide letter dated 04.12.2009 and based on the same, the SLP was disposed of. Thereafter, review petition was filed by the BSNL, 10 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 which was also dismissed. Therefore, if the applicants had any grievance with regard to the order issued granting him temporary status, they could have agitated the matter before the Hon'ble Apex Court at the relevant point of time but, having failed to do so, filing the present OAs after a long gap of 10/12 years with the prayer to direct the respondents to grant them temporary status in terms of the letters dated 14.11.2000 (A/1) and 30.03.2001 (A/2) is hit by the principle of limitation and res judicata and would tantamount for this Bench to sit over the order of the Hon'ble Apex Court, which is not permissible in the eyes of law. It has been submitted that applicant is praying for extending temporary status from the date of his eligibility so far as his continuance and entry into department retrospectively without any basis and supportive documents/rules/law. The prayer of the applicants is virtually the same as was in earlier round of litigation. They were granted temporary status in terms of interim orders of the Hon'ble Apex Court and there was no order for retrospective grant of temporary status and the said order reached finality in terms of order dated 06.02.2020. Ld. Counsel for the respondents has also submitted that the decisions relied on by the applicants is no application in the case in hand since the facts and issues involved in those cases completely different to the present 11 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 case. Accordingly, Ld. Counsel for the respondents has prayed for dismissal of this OA.
10. After giving thoughtful consideration of the stand point of the respective parties, we have perused the records. The prayer of the applicants in the OAs is to direct the respondents to grant them temporary status from the date of his eligibility so far continuance and entry into the department as per letters dated 14.11.2000 (A/1) and 30.03.2001 (A/2). In other words, their prayer is to nullify the earlier order granting them temporary status, which has already been approved by the Hon'ble Apex Court and, based on the said order, the C.P. filed before Hon'ble High Court of Orissa was also disposed of. If, according to the applicants, the order granting them temporary status was in any manner not in accordance with the letters/law, they could have taken the matter in appropriate proceedings known to law before the Hon'ble Apex Court and, certainly, not before this Tribunal, that too, after a lapse of more than 10/12 years by filing the instant OAs even without availing the opportunity by way of making any such appeal before the authority concerned as required under Section 20 of the AT Act before approaching this Tribunal. The Hon'ble High Court of Orissa did not incline to entertain the CPNTC. No. 2084 of 2021 on the ground that 12 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 the Hon'ble Apex Court while disposing of the Civil Appeal by order dated 06.02.2020 has clearly stated that since temporary status has been granted to them, it requires no interference by the Apex Court. The applicant has produced a copy of the letter dated 23.09.2024, which was passed in compliance of the order dated 08.09.2023 in W.P.(C) No. 28448 of 2013, which was upheld by the Hon'ble Apex Court vide order dated 16.07.2024. According to Ld. Counsel for the respondents, the said letter is no bearing to the case in hand. On examination, we also find that the said letter is of no help to the present applicant since the petitioners in the said Writ Petition was not conferred with temporary status in compliance of the order of the Hon'ble Apex court as discussed above rather the applicant in the W.P.(C) No. 28448 of 2013 was a retrenched employee of the BSNL. It may be recorded that Nemo Debet Bis Vexari Pro Una Et Eadem Causa means nobody should be vexed twice for the same cause and Res Judicata Pro Veritate Occipitur means a judicial decision must be accepted as correct is a well sound principle accepted in law. Further, it is well settled law that a second round of litigation for the same cause of action that has been directly or indirectly decided in a previous case will be hit by law of res judicata. We are also reminded by a decision of the Hon'ble Apex Court rendered in the case of 13 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association and Ors, (2024) 1 SCC (L&S) 819, wherein it has been held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way and, that, one cannot do indirectly what one cannot do directly ["Quando aliquid prohibetur ex directo, prohibetur et per obliquum"]. The applicants, in these OAs, did not challenge the order granting them temporary status by virtue of the interim order of the Hon'ble Apex Court. The entire efforts of the applicants is to direct the Respondents to re-do the entire exercise once again, which had been set at rest by the order of the Hon'ble Apex Court which is beyond the authority of this Tribunal. This apart, the law of res judicata hits on the face of the record. This Tribunal is also reminded by a decision of the Hon'ble Apex Court in the case of Bhavnagar University vs Palitana Sugar Mill Pvt Ltd, (2003) 2 SCC 11, wherein the Hon'ble Apex Court was pleased to hold that a decision is an authority for which it is decided and not what can logically be deduced therefrom because a little difference in the facts may make a lot of difference in 14 O.A.No. 260/00725/2023 & O.A.No. 260/00448/2021 the precedential value of a decision. In view of such legal position, it is to be examined that in a given facts and circumstances of the case as to how far the cases relied on by the applicants lend any support to their cases. On examination, it is found that the facts of the cases relied on by the applicants, noted above, are completely different and distinct to the case in hand and, hence, have no application to the cases in hand. In view of the facts and the order of the Hon'ble Apex Court in Civil Appeal No. 3600/2009 dated 06.02.2020 and the Hon'ble High Court in CONTC No. 2084/2021, dated 16.02.2023, we find that this Tribunal lacks any authority to interfere in these matters.
11. In the result, both the OAs are dismissed by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS