Central Administrative Tribunal - Jodhpur
Pukhraj Sen vs Praveen Kumar Poorwar & Ors on 2 August, 2024
1- CONTEMPT PETITION NO. 23 OF 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
CONTEMPT PETITION no. 23/2019 in
Original Application No.84/2017
Date of Pronouncement : 02nd August, 2024
Date of Reserve : 19th July, 2024
CORAM :
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (JUDICIAL)
HON'BLE DR. AMIT SAHAI, MEMBER (ADMINISTRATIVE)
Pukhraj Sen S/o Sh. Mohan Kishan Sen, aged about 55 years, resident of
Moti Chowk, Opposite Mardiya Hospital, Jodhpur, presently working as
Casual Labour at BSNL Office, Bhopalgarh.
....Applicant
[By Advocate: Mr.Anirudh Purohit ]
Versus
1-Sh. Praveen Kumar Poorwar, Chief Managing Director, Bharat Sanchar
Nigam Limited, Harish Chandra Mathur Lane, Janpath, New Delhi.
2-Sh. O.P.Gupta, Chief General Manager, Bharat Sanchar Nigam
Limited, Rajasthan Telecom Circle, Jaipur.
3-Sh. N. Ram, General Manager, Telecom District, Jodhpur, Office of
GMTD, Subash Nagar, Pal Road, Jodhpur.
.....Respondents
[By Advocate: Mr. Kamal Dave]
O R D E R
Per Rameshwar Vyas :
Heard learned counsel for the parties and perused the material available on record.
2. Counsel for respondents has submitted that vide order dated 26 th February, 2024 (Annex.R/2), applicant's services has already been regularised, therefore, nothing survives for consideration in this Contempt Petition.
2- CONTEMPT PETITION NO. 23 OF 2019
3. On the contrary, learned counsel for the applicant submitted that respondents have deliberately, with a view to deprive the applicant from pension and other service benefits, regularised him w.e.f. 17th May, 2005 instead of his date of initial appointment in the year 1989.The act of the respondents is a deliberate attempt to flout the directions of this tribunal which amounts to contempt of Court.
4. Having regard to the submissions made by learned counsel for the parties and perusal of the material available on record, it emerges that applicant was initially appointed as a Casual Labour in the year 1983 but, his services were terminated on 31st of December, 1994. Aggrieved whereby, he raised an industrial dispute which was referred by the Government of India for adjudication to the Industrial Tribunal-cum- Labour Court, Jodhpur, vide notification dated 23rd December, 1999.The Labour Court, vide its Award dated 3rd December, 2002 arrived at the finding that termination of services of Sh. Pukh Raj (applicant herein) was in contravention of the provisions of Section 25(F) of the Industrial Disputes Act, 1947, and it directed the BSNL to reinstate him with continuity of service and 50% back wages from the date of reference. The legality of the award was questioned by the applicant before the Hon'ble Rajasthan High Court by filing a Writ Petition which stood dismissed vide order dated 17th March, 2005. Thereafter, the applicant joined his duties on 17th May, 2005. When the grievance of the applicant with regard to his regularisation was not redressed, he again preferred a Writ Petition before the Hon'ble Rajasthan High Court seeking relief of regularisation and payment of salary in the regular pay scale. In view of the assurance made by the Department, the said Writ Petition was disposed of on 9th November, 2009 .Despite assurance given by the authorities, no relief was extended to him, therefore, he again raised a dispute before the Dy. Chief Labour Commissioner (Central), Ajmer.
3- CONTEMPT PETITION NO. 23 OF 2019 After submitting a failure report by the conciliation officer, the matter was referred for adjudication to the Central Industrial Disputes Tribunal. Thereafter, applicant, after withdrawing the reference, approached this Tribunal claiming relief for regularisation which was allowed in the following manner :-
"6. In view of above facts and circumstances of the case, we deem it proper to direct the respondents that after extending benefits on the basis of the award passed by the Labour Court, which has been upheld by the Hon'ble High Court vide order dated 17.3.2005, the case of the applicant shall be considered for regular pay scale/regularisation on the basis of the provisions applicable on the date of attaining the finality of the judgment. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
5. Aggrieved with the above order, the Department, filed D.B Civil Writ Petition No. 313 of 2020 before the Hon'ble High Court at Jodhpur, which dismissed the writ observing as under :-
"10. It is not in dispute that the respondent is continuing in service of the petitioners for all these years without any interruption in terms of the award passed by the Labour Court, which has attained finality and therefore, at this stage, when he has already completed 37 years of service and became age barred for any other public employment, he cannot be denied the regularisation of his services. In any case, the respondent's case for regularization has to be considered by the petitioners in accordance with the Scheme for regularization in force in the BSNL at the relevant time when the award passed by the Labour Court had attained finality and the respondent was treated to be in continuous service. Moreso, when the services of similarly situated employees have already been regularised, the respondent cannot be picked up for different treatment being given and thus, viewed from any angle, in the considered opinion of this Court, the petitioners are under obligation to consider the case of the respondent for regularization. In case non-availability of the post of Regular Mazdoor is an impediment in consideration of the respondent's case for regularization, the petitioner employer must create a supernumerary post so as to extend the relief to him for which he is legitimately entitled.
11. For the aforementioned reasons, the impugned order passed by the CAT does not warrant any interference by this Court in (9 of 9) [CW-313/2020] exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India."
In compliance with the above order, order dated 26.02.2024 was issued giving appointment on regular basis to the applicant w.e.f. 17.05.2005. He was also promoted w.e.f. 17th May, 2013 and was further granted upgradation w.e.f. 17th May, 2021. On his superannuation w.e.f.
4- CONTEMPT PETITION NO. 23 OF 2019 31st May, 2023, gratuity and leave encashment were also paid to him .He was also allowed to contribute towards EPF as per the revised pay.
6. It seems that the applicant is not satisfied with the date of regularisation. It is his stand that he should be regularised from the date of his initial appointment in the year 1983. In our considered view, the grievance of the applicant is not a subject matter of this C.P. Hon'ble Rajasthan High Court directed the department for considering his case for regularisation in accordance with the scheme for regularisation in force in the BSNL at the relevant time when the award passed by the Labour Court attained finality. In view of this, we cannot say that the respondents have wilfully disobeyed the directions. The direction for regularisation have already been allowed w.e.f. 17th May, 2005 and, if he is not satisfied with the date of his regularisation, a new cause of action arises in his favour for which he may avail suitable remedy.
In the matter of J.S.Parihar Vs. Ganpat Duggar and Ors. (Civil Appeal Nos. 12494-96 of 1996 [SLP (C) Nos. 17204-17206 of 1996] reported in [1996(6)Supreme 133] relied upon by learned counsel for the respondent , Hon'ble the Apex Court observed as under :-
"5. ........................The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order."
Similarly, in the case of Kapildeo Prasad Sha & Ors. Vs. State of Bihar & Ors.(Civil Appeal No. 4706 of 1999 [SLP (C) Nos. 16242 of 1998] reported in 1999 (7) Supreme 382, Hon'ble Apex Court held as under :
5- CONTEMPT PETITION NO. 23 OF 2019 "9.For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied."
7. Keeping in view the principles as propounded by Hon'ble Supreme Court , we are of the view that this is not a case of wilful disobedience. If the applicant is not satisfied with the date of his regularisation, he may avail a remedy available to him before the appropriate forum. After passing of the order on 26th February, 2024, nothing survives for consideration in this Contempt Petition, hence, the same is dismissed. Notices issued to the respondents are now discharged.
(Amit Sahai) (Rameshwar Vyas)
Member(A) Member (J)
jrm
6- CONTEMPT PETITION NO. 23 OF 2019