Gujarat High Court
Ashok Virambhai Karagatia vs Union Of India & 2 on 12 January, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/9721/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9721 of 2014
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ASHOK VIRAMBHAI KARAGATIA....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR ANAND B GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR BB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR RB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 1 - 2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 12/01/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Heard learned counsel for the parties for final disposal of the petition.
2. Petitioner has challenged the judgment of the Central Administrative Tribunal, Ahmedabad ("the Tribunal" for short) dated 10.5.2013 passed in Original Application No.439 of 2010.
3. Brief facts are as under:-
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3.1 The petitioner was engaged as casual labourer on or around 25.6.1983 by the Department of Telecommunication ("DoT" for short). His services came to be terminated on 28.6.1984. He challenged such termination by filing Civil Suit before the Civil Court, Rajkot. The Civil Suit was transferred to the Tribunal and renumbered as T.A.No.13 of 1996. The Tribunal dismissed the T.A. It appears that against such judgment of the Tribunal, the petitioner approached the Supreme Court but withdrew the proceedings for raising industrial dispute. The petitioner, thereupon, raised industrial dispute as ITC No.3 of 1991. Such reference was dismissed by the Industrial Tribunal on the ground that DoT was not an industry. The petitioner thereupon challenged such decision before the Gujarat High Court by filing Special Civil Application No. 10719 of 1997. The petition was allowed by the High Court by the judgment dated 4.10.1997. The reference was remitted back to the Industrial Tribunal for fresh consideration. The Tribunal rendered its judgment on 23.4.2002 allowing the reference partially in following terms:-
" The reference is therefore partly allowed. The concerned employee of the case Shri Ashok Page 2 of 14 C/SCA/9721/2014 ORDER V., Kargatia is ordered to reinstated by first party on his original post with continuity of service from the date of his appointment without backwages with the intervening period."
4. It is undisputed that such decision of the Industrial Tribunal was not challenged by either side. The award of the Tribunal thus achieved finality. The petitioner was reinstated in service on or around 5.2.2003.
5. It is the case of the petitioner that his case was also taken up by the committee of the department meeting of which was convened on 17.3.2004 for granting benefit of regularization in service. According to the petitioner, he was entitled to the benefits of temporary status followed by regularization as per the scheme of DoT. Number of persons, engaged after the petitioner, were granted such benefits. In some cases, the workmen also had to resort to Court proceedings for getting their terminations set aside. However, the petitioner was not granted such benefit for some reason or the other. After representations to the department, the petitioner eventually approached the Tribunal by filing Original Application No.439 of 2010. In such Page 3 of 14 C/SCA/9721/2014 ORDER Original Application, the petitioner prayed for direction of regularization in service from the date his juniors were granted such benefits. The petitioner also prayed for conferment of temporary status from due date i.e. June, 1984 on completion of one year of service as casual labourer. In such Original Application, respondent No.1 was joined as Union of India through Bharat Sanchar Nigam Limited ("BSNL" for short). BSNL appeared before the Tribunal in response to the said Original Application and filed reply dated 28.5.2011. In such reply, the stand taken was that the scheme for regularization dated 1.10.1989 would cover the case for grant of temporary status only of those employee, who had rendered continuous service of at least one year. In case of the petitioner, he was reinstated in service in the year 2002. After completion of actual date of 240 days, his case was forwarded to the Circle office. The scheme for temporary status and regularization was not an ongoing scheme. It was framed, at the relevant time, as per the directions issued by the Supreme Court. Now, by virtue of the decision of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others reported in (2006) 4 SCC 1, Page 4 of 14 C/SCA/9721/2014 ORDER the question of granting temporary status to the employee would not arise.
6. In reply filed by BSNL, no stand was taken that DoT was a necessary party and in absence of DoT, the Original Application should be dismissed. However, during the course of final hearing of the Original Application, it was argued on behalf of the respondents that in absence of DoT, no effective relief should be granted to the petitioner. On account of such stand, the petitioner filed Miscellaneous Application No.292 of 2011 seeking permission to join Union of India through DoT as one of the respondents. In the application it was clarified that to avoid any technical objection in future, such request was made. This application was opposed by BSNL by filing reply dated 11.11.2011 stating that the application was belated and the decision to join DoT was an afterthought. On 23.11.2011, the petitioner chose not to press this application. Permission to withdraw the application was granted.
7. The Tribunal disposed of the Original Application by the impugned judgment dated 10.5.2013 holding that by virtue of the decision of the Supreme Court in the Page 5 of 14 C/SCA/9721/2014 ORDER case of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra), prayers cannot be granted. Paragraph 53 of the judgment of the Supreme Court in Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra) was referred to and relied upon. However, it was held and observed as under:-
" In the instant case, the applicant, as per his own pleadings admit that he has been appointed as a casual labour in 1983 but was terminated in 1984. He was reinstated in service as per the order of the Industrial Tribunal. Therefore, no doubt his case comes within the zone of "litigious employment" as castigated by the Hon'ble Apex Court in Uma Devi's case."
8. The petitioner had placed reliance on the decision of the Tribunal rendered in Original Application No.209 of 1997. Such decision was distinguished on the ground that relief granted in such application was for temporary status, whereas in the present case, the petitioner had requested for regularization. Inter alia on such grounds, the Original Application came to be dismissed.
9. Ms. Patel, learned counsel appearing for BSNL raised preliminary objection to the maintainability of Page 6 of 14 C/SCA/9721/2014 ORDER the petition contending that in absence of DoT, the original application itself was not maintainable. The petitioner was engaged as a casual labourer by DoT. BSNL was only a successor. Only if a casual labourer was regularized, the question of his switch over to the employment of BSNL would arise. In the present petition, since the petitioner was agitating his claim for regularization in service, it was only DoT which could have opposed such claim. She relied on the decision of Division Bench of this Court dated 13.8.2014 in the case of Telecom District Manager through General Manager vs. Jagdishkumar D. Varatiya and 5 rendered in Special Civil Application No.8499 of 2013 where in the context of the judgment of the Tribunal granting the benefit of temporary status to the original applicant, who was engaged by DoT, it was held that BSNL could not challenge such a judgment.
10. On the other hand, learned counsel Shri Gogia opposed this contention contending that Union of India was joined as party before the Tribunal. No contention regarding non-joinder of DoT was raised in the reply filed by the respondents. In any case the contention was wholly technical.
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11. With respect to the merits of the matter, Shri Gogia submitted that the petitioner was illegally terminated from his casual employment. Such termination was declared illegal by a competent Court. Pursuant to such judgment of the Tribunal, he was reinstated in service with continuity. He was thus entitled to all benefits of the temporary status and regularization as per the scheme of the department. Such benefits were wrongly withheld. The Tribunal, therefore, committed an error in dismissing the original application. Counsel pointed out that large number of persons junior to the petitioner, in the sense of having been engaged after the petitioner, had been given full benefits of temporary status and regularization in service.
12. Ms. Patel for the respondents opposed the petition contending that by virtue of the decision of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra), the question of regularization of the petitioner in service does not arise.
13. Having heard learned counsel for the parties, we Page 8 of 14 C/SCA/9721/2014 ORDER may first deal with the preliminary contention of the respondents. We have noted that the petitioner had joined Union of India as respondent No.1 in the original application before the Tribunal. It is true that full description was Union of India through BSNL. It is thus correct that DoT was not joined as a party respondent. It is equally true that in the case of Telecom District Manager through General Manager vs. Jagdishkumar D. Varatiya and 5 (supra) this Court has held that the question of grant of temporary status and regularization under the scheme of DoT is an issue between the workman and DoT. In the said case, the Tribunal had granted the prayer of the employee which decision BSNL wanted to challenge before the High Court. After examining the terms on which BSNL had succeeded DoT, it was held that unless and until the employee is regularized in service from the engagement as a casual labourer, the question of giving an option to be absorbed in BSNL did not arise.
14. However, in the reply filed by BSNL to the Original Application, no such stand was taken. We have perused the short reply of the respondents. Nowhere has any contention been taken that BSNL is not Page 9 of 14 C/SCA/9721/2014 ORDER contesting party and that in absence of DoT, no relief can be granted to the petitioner. Full reply on all points of merits was filed by BSNL as successor of DoT. It was only when the original application was taken up for final hearing that the counsel for BSNL orally took such a contention. When the petitioner, to overcome this technical objection, filed an application, respondent BSNL opposed such application contending that the same was belated and an afterthought. BSNL cannot be allowed to take contradictory stand. Had in the reply filed before the Tribunal, at the outset, a stand of DoT being a necessary party been taken, we would have carried the issue to its logical conclusion. However, in response to the notice from the Tribunal in the form of Union of India through BSNL, respondents filed its full reply on merits raising no ground of non- maintainability of the petition for non-joinder of necessary party. Even when the petitioner tried to overcome such an objection taken belatedly, the stand of BSNL was that such application should be dismissed having been filed late. We would not allow substantial cause to be defeated by such contradictory stand of the respondents who are Government organization. When Page 10 of 14 C/SCA/9721/2014 ORDER Union of India was joined as a respondent; may be not through DoT but through BSNL and when BSNL had filed full reply on merits with full access to dates and details of the employment of the petitioner, the Tribunal was required to and correctly rendered its judgment on merits.
15. Coming to the issue, on merits we have recorded the petitioner's 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 Page 11 of 14 C/SCA/9721/2014 ORDER considered for temporary status in terms of the department's scheme considering his continuous service from his inception. His 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 Page 12 of 14 C/SCA/9721/2014 ORDER 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 non-suited 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 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.
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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.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR Page 14 of 14