Central Administrative Tribunal - Delhi
Dharam Veer vs Bharat Sanchar Nigam Limited on 31 May, 2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1837/2015
MA No.1663/2015
Reserved on: 03.05.2016
Pronounced on: 31.05.2016
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Dr. B.K. Sinha, Member (A)
Dharam Veer s/o Sh. Chiranji Lal,
Group ' D', Department - BSNL,
Designation - Casual Labour,
Nature of Grievance: Promotion
R/o 8465, Arya Nagar, Paharganj,
New Delhi - 110 055. ...Applicant
(By Advocate: Mrs. Rani Chhabra)
Versus
1. Bharat Sanchar Nigam Limited,
Thru. General Manager,
Corporate Office, 102-B,
Statesman House,
New Delhi - 110 001.
2. Assistant General Manager (LE),
Corporate Office, 102-B,
Statesman House,
New Delhi - 110 001.
3. The Chief General Manager,
BSNL, Northern Telecom Region,
Kadwai Bhawan,
New Delhi.
4. The Assistant Director General (Pers.IV),
Bharat Sanchar Nigam Limited,
Government of India Enterprises,
Corporate Office, 102-B,
Statesman House,
New Delhi - 110 001. ...Respondents
(By Advocate: Shri R.N. Singh)
2
ORDER
By Hon'ble Dr. B.K. Sinha, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 being aggrieved by the order dated 13.06.2013 of respondent no.2 that regularization of the applicant was not possible, which is against the decision of Hon'ble High Court in Dharam Veer Vs. Chief General Manager & Ors. [WP(C) No.11774/2004 decided on 26.10.2005].
2. The case of the applicant, in brief, is that he was engaged as Part Time Casual Labour [hereinafter referred to as PTCL] w.e.f. October, 1995 in the DTO, Paharganj, New Delhi and continued to work upto December, 2001. There was a common seniority list of PTCL wherein one Naresh Kumar, who had been engaged on 10.05.1996, was shown at serial no.12 and one Smt. Guddi engaged in the same year was shown at serial no. 14. The DTO Office, Paharganj had been closed down in the year 2001 and the applicant was declared surplus w.e.f. October, 2001. It is the contention of the applicant that said Naresh Kumar, who was junior to him and disengaged on 10.09.1998, was re-engaged on 22.02.2001. Likewise, said Smt. Guddi, who had been engaged in 1995 as Safaiwala in the office of DTO, Parliament Street was engaged in Central Telegraph 3 Office as Part Time Safaiwala following closer of the office of DTO, Parliament Street on 14.07.2001. It is the case of the applicant that the respondents failed to consider the case of surplus PTCL in terms of 'last come first go' principle despite there being common seniority list. The case of the applicant, as he contends, is that he should have been considered as 'last come first go' principle in matters of employment. Further, there was a communication dated 17.11.2003 from Assistant Director General (Pers. IV) to Chief General Manager intimating that CGM, Northern Telecom Region had been authorized to convert six (6) PTCL with four (4) or more hours per day or with less than four hours per day into Full Time Casual Labourers [hereinafter referred to as FTCL]. The Assistant General Manager, in this very proposal, had also proposed that one time relaxation should also be granted to 17 PTCL who had worked for 240 days in preceding 12 months may be converted into FTCL.
3. Apart from above, the applicant earlier in point of time also filed WP(C) No.11774/2004 before the Hon'ble High Court of Delhi, which was disposed of vide order dated 26.10.2005 making reference to the policy of BSNL dated 10.10.2003 that those who have worked on part time basis could be treated as FTCL provided they had worked 4 for 240 days in the preceding 12 months prior to the date of issuance of the letter. The Hon'ble Court held that the petitioner in that case could not take advantage of this order as he had been terminated and the Unit had been closed. The Hon'ble High Court found that the respondents had acted in a discriminatory manner while they had regularized one Naresh Kumar, who had been engaged only for two years and terminated on account of lack of devotion to duty and one Guddi who had been terminated on account of office being shut. It is the case of the applicant that in partial compliance of the order dated 26.10.2005 passed by the Hon'ble High Court, the respondents had re-engaged the applicant as PTCL but had not regularized him nor given the treatment at par with the said Naresh and Guddi. Rather, the respondents vide their communication dated 13.06.2013 declined to regularize the applicant in the changed context of the decision of the Hon'ble Apex Court in Secretary, State of Karnataka and Others versus Umadevi and Others [2006 (4) SCC 1] despite the fact that the judgment of the Hon'ble High Court dated 26.10.2005 had attained finality as it has not been challenged.
4. The applicant also filed Contempt Petition bearing Cont.Cas (C) No.7402013 wherein the Hon'ble High Court 5 directed that it related to a fresh cause of action and needed to be re-adjudicated.
5. The grounds adopted by the applicant, inter alia, include that the judgment dated 26.10.2005 of the Hon'ble High Court had attained finality; it could not be challenged at a later date on account of the law having been changed subsequently; the action of the respondents is bad in law because the respondents by not implementing the order have allowed the discrimination to continue; the judgment passed in Uma Devi's case (supra) has no application to the facts of the instant case and could not have prevented the grant of benefits to the applicant as it was anterior to the decision of Uma Devi's case (supra). The applicant has further relied upon the decision of the Hon'ble Supreme Court in T.R. Vasudevan Vs. J. Vasudevan [1995 (6) SCC 234] that the judgment of the Court is required to be complied with in both letter and spirit. The applicant has, therefore, sought the following relief(s):-
"a. Quash the order F.No.272-46/2004-Pers.-IV/LE dated 13.06.2013 passed by respondent nos. 1 & 2;
b. Direct the respondents to regularize the applicant and grant him same benefits as are given to Sh. Naresh Kumar and Smt. Guddi according to the judgment and order dated 26.10.2005 passed by Hon'ble High Court of Delhi in Writ Petition No.11774 of 2004; and c. Pass such other or further order/s as your Lordships may deem fit and proper."6
6. The respondents have filed a counter affidavit submitting that the applicant had been re-instated in service and converted into a FTCL vide order dated 30.03.2007 by the respondents. He, however, could not be regularized on account of the bar imposed by the decision of the Hon'ble Supreme Court in Uma Devi's case (supra), Official Liquidator Vs. Dayanand [2008 (10) SCC 1] and B.S.N.L. Vs. Teja Singh. The respondents submit that a proposal to this effect had been sent to the Head of Office which having examined the matter in light of aforementioned judgments particularly para 43 of Uma Devi's case (supra) and BSNL Vs. Teja Singh (supra) had declined to regularize the applicant. The respondents have also submitted that the instant OA is time barred and have relied upon the decisions of the Hon'ble Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh [AIR 1990 (SC) 10], D.C.S. Negi Vs. Union of India [SLP (Civil) No.7956/2011 CC No.3709/2011 decided on 11.3.2011] and Union of India Vs. M.K. Sarkar [2010 (1) SCC (L&S) 1126]. The respondents also submit that the Contempt Petition filed by the applicant has been dismissed and the issue at hand stands finally settled. Hence, there is no cause of action for the applicant to file the instant OA. 7
7. The applicant has also filed MA No. 1663/2015 seeking condonation of delay in filing the instant OA on the ground that he had been pursuing the matter through applications and finally by filing contempt petition No.740/2013 before the Hon'ble High Court of Delhi which was disposed of vide order dated 14.10.2014 holding that fresh cause of action had arisen to the applicant and he should challenge before the appropriate forum.
8. The respondents have also filed their reply to the aforesaid MA stating that no fresh cause of action had arisen to the applicant and that the case of the applicant had been rightly considered at the level of the Head Office and declined on the ground that the decision of Uma Devi's case (supra) is fully applicable to the facts of the instant case and has been further buttressed by the case of BSNL Vs. Teja Singh (supra).
9. We have carefully gone through the pleadings of the rival parties and have patiently heard the oral arguments advanced by the learned counsel for both the sides on the basis whereof the twin issues to be decided by us are as follows:-
(1) Whether the instant OA is barred by limitation?
8
(2) Whether the order of the Hon'ble High Court
dated 26.10.2005 passed in WP(C)
No.11774/2004 has been given effect to or not?
10. Insofar as the first of the issues is concerned, the respondents have relied upon S.S. Rathore Vs. State of Madhya Pradesh (supra), D.C.S. Negi Vs. Union of India (supra) and Union of India Vs. M.K. Sarkar (supra). It is true that in these cases, the Hon'ble Supreme Court have taken a consistent view that the rule of law has to be strictly adhered to; repeated applications and petitions do not serve to condone the delay and that the delay has to be satisfactorily explained. In this regard, we have to consider a certain pertinent facts. The respondent had re-engaged the applicant in March, 2007 but thereafter they refused to regularize his services vide order dated 13.06.2013, which reads as under:-
"I am directed to invite your attention to your office letter referred above on the above subject and to say that the matter has been examined in consultation with legal Branch of BSNL C.O and it is informed that regularization of Shri Dharam Vir, Casual labourer is not possible in view of the changed position post Hon'ble Apex Court's decision in the case of Uma Devi wherein the rules for regularization of Casual Labourers have become untenable which was further substantiated by the Hon'ble Apex Court's decision in the case of BSNL Vs. Teja Singh."
Thereafter, the applicant moved a Contempt Petition which was decided by the Hon'ble High Court of Delhi vide order 9 dated 14.10.2014. From perusal of the aforesaid order, we find that the Hon'ble High Court took note of the delay and dropped the contempt petition. Other cases cited by the petitioner including T.R. Vasudevan Vs. J. Vasudevan (supra) were also found discussed in the body of the order. For the sake of adequate clarity, the relevant portion of the decision is reproduced hereunder:-
"9. I have thoughtfully considered the submissions made. However, I am not in agreement with the submission made by the learned counsel for the petition that the present contempt petition is maintainable. This is on account of the fact that Section 20 of the Contempt of Courts Act, 1971 specifically lays down that a contempt petition has to be filed within a period of one year from the date of accrual of cause of action. In the instant case, there was a two-fold direction passed by the learned single judge. The first direction passed was that the petitioner will be offered a suitable post within a period of three months from the date of the order dated 26.10.2005 and the second direction was that the petitioner was to be granted the same treatment as was given to Sh. Naresh Kumar and Smt. Guddi. It is not in dispute that the petitioner was re-engaged by the respondents after passing of the order dated 26.10.2005. Once the petitioner was re-engaged by the respondents, the petitioner ought to have approached the court within a reasonable period of time and not beyond a period of one year from the date of passing of the order dated 26.10.2005 for the purpose of regularization of his services in terms of the cases referred to by the learned single Judge in its order. This has not been done by the petitioner. On the contrary, he remained silent for almost seven years and has chosen to wake up only in the year 2013. The contempt petition cannot be entertained only on the ground that the respondents have passed an order in the year 2013 and this will give rise to a cause of action in favour of the petitioner. The order to which reference is made for the purpose of filing the present contempt petition has been passed by the Supreme court in State of Karnataka vs. Uma Devi;10
2006(4) SCC1. If at all, it gives rise to any cause of action in favour of the petitioner against his non- regularization, it is only a fresh cause of action which can be agitated by him in an independent writ petition. However, no contempt action would lie in the instant case. The present contempt petition is hopelessly barred by time and, therefore, the same is not maintainable. So far as the judgment in T.R. Vasudevan v. J. Vasudevan's case (supra), I have gone through the said judgment. The proposition of law in the said judgment cannot be disputed that the judgment of the court has to be complied in both letter and spirit. However, it nowhere lays down that the cause of action to file the contempt petition which is circumscribed by the outer limit of one year from the date of accrual of cause of action under Section 20 of the Contempt of Courts Act, 1971 can be enlarged so as to entertain a contempt petition after the expiry of seven years. For these reasons, the said judgment does not help the petitioner in any manner."
It emerges clearly that the Hon'ble High Court referred to its earlier order dated 26.10.2005 and ruled in favour of the applicant. For the sake of clarity, relevant part of the order dated 26.10.2005 is reproduced as under:-
"10. In view of these factors the charge of discrimination and unequal treatment has been established. If the BSNL had policy not to engage any one where unit or office has been shut down and had applied that policy uniformly there would not have any grievance for the petitioner. Yet it has chosen the policy of singling out a few employees for favourable treatment and regularizing them even while denying the benefit to others. No principles or yardsticks have been indicated in support of this practice.
11. Ì am, therefore, of the opinion that the respondents have acted in a discriminatory manner while denying the petitioner re-engagement and the benefit of the treatment as full-time worker pursuant to the policies.
12. For the reasons indicated above, the respondents are directed to offer a suitable post to the petitioner within a period of three months from today and grant the same treatment as was given to Sh.11
Naresh Kumar, Smt. Guddi whose instances having discussed above."
11. However, having considered the matter in Contempt Petition preferred by the applicant before the Hon'ble High Court and ruled as above, the Hon'ble High Court was clearly of the opinion that whatsoever might have been the merits of the case, the delay of seven years could not have been condoned. Once the Hon'ble High Court has taken a position, it is not for the Tribunal to rule otherwise as it amounts to modification of the order of the High Court for which this Tribunal is not competent.
12. Insofar as the second of the issues is concerned, the matter has already been discussed above and ruled as per Issue no.1.
13. In totality of facts and circumstances of the case and in view of above discussion, the instant OA is dismissed without there being any order as to costs.
(Dr. B.K. Sinha) (V. Ajay Kumar) Member (A) Member (J) /AhujA/