Gauhati High Court
Page No.# 1/13 vs Bidhyadhar Tanti And 51 Ors on 28 October, 2021
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/13
GAHC010015322015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3386/2015
BHARAT SANCHAR NIGAM LTD. BSNL and ANR
REP. BY CHAIRMAN CUM MANAGING DIRECTOR, SANCHAR BHAWAN, 20,
ASHOKA ROAD, NEW DELHI.
2: GENERAL MANAGER
BHARAT SANCHAR NIGAM LTD
ARUNACHAL PRADESH SECONDARY SWITCHING AREAS SSA ITANAGAR
VERSUS
BIDHYADHAR TANTI and 51 ORS
S/O- LT. BHARAT TANTI, P.O. and P.O.- MAHADEVE PUR, DIST.- LOHIT,
ARUNACHAL PRADESH.
2:SMTI RUP MALA
D/O SRI GANESH BASFOR
P.O. LAL BAZAR
P.S. NAGARANA GHAT
DIST DEBORIA
UTTAR PRADESH
3:PURANDAR SONWAL
S/O SRI NOMAL SONWAL
P.O. AND P.S. BIHPURIA
DIST NORTH LAKHIMPUR
ASSAM
4:NIYA YANGFO
DON OF SRI KAMKU YANGFO
P.O.SEWA
DIST EAST KAMANG
Page No.# 2/13
ARUNACHAL PRADESH
5:NAGENDRA BARMAN
S/O LT. JAYRAM BARMAN
P.O. SAMATA
DIST NALBARI
ASSAM
6:RAM CHANDA ROY
S/O LT. YOGI RAY
P.O. BIDUPUR
P.S. RAJAPAKAR
DIST VAISHALI
BIHAR.
7:JADAV SAIKIA
S/O LT. T. SAIKIA
P.O.DEOTOLA
DIST NORTH LAKHIMPUR
ASSAM
8:PROMOD DUWARAH
S/O SRI BHUDHESWAR DUWARA
P.O. NAPAM BOKAJAN
P.S.GORISAGAR
ASSAM
9:SANJOY KUMAR RAY
S/O LT. M. RAY
P.O.BIDUPUR DIST VAISHALI
BIHAR.
10:SRI SUNIL KUMAR
S/O SRI D. RAY P.O.LAKHANI
P.S. BIDUPUN BAZAR
DIST VAISHALI
BIHAR.
11:ARABIND PRASAD
S/O B.P. SINGH
P.O.BIDUPUR
DIST VAISHALI
BIHAR.
12:SIBA PRASAD MAHANTA
S/O SRI P.D. MAHANTA
P.O.GONAKPUKURI
Page No.# 3/13
DIST GOLAGHAT
ASSAM
13:MATHUR MAHAJAN
S/O LT. GAURANGA MAHAJAN
P.O. HANGLAR BAZAR
DIST KARIMGANJ
ASSAM
14:RATAN RABHA
S/O SRI SUKAR RABHA
P.O. MAZBAT
DIST DARRANG
ASSAM
15:DANDI RAM NATH
S/O LT.H. NATH
P.O. CHANJANI
DIST NALBARI
ASSAM
16:JOGEN BORAH
S/O LT. DULAL BORAH
P.O. CHAMARAJAN
DIST DHEMAJI
ASSAM
17:NIBU TUNGI
S/O SRI CAIYA TUNGI
P.O.SEWA
DIST EAST KAMANG
ARUNACHAL PRADESH
18:IMDAD ALI
S/O MD. NIZMUDDIN ALI
P.O.SILGHAT
DIST NAGAON
ASSAM
19:DHAN BAHADUR TAMANG
S/O SRI PREM RAJ TAMANG
P.O.SEEPAKHUA
DIST TINSUKIA
ASSAM
20:MOHAN CH.DAS
S/O SRI J.R. DAS
P.O. BALIPARA
Page No.# 4/13
DIST SONITPUR
ASSAM
21:GOPI CHAND
S/O SRI G. RAJPUT
P.O.KHANPUR DIST KANPUR UTTAR PRADESH
22:PRANABJIT DEKA
S/O LT. B. DEKA
P.O. AND DIST DHEMAJI
ASSAM
23:KAMAL DAS
S/O SRI DADHI RAM DAS
P.O. BARBARI
DIST NALBARI
ASSAM
24:ANIL KUMAR RAY
S/O LT. B.N. RAI
P.O.CHANDOLI
DIST SHAMISTIPUR
BIHAR.
25:BIREN BORO
S/O LT. MOHAN BORO
P.O. DANUBHANGA
DIST GOALPARA
ASSAM
26:LAL BABU SAH
S/O L. SAH
P.O. DUNBI
DIST MADUBANI
BIHAR
27:TARUN SHARMA
S/O LT.TULSI SHARMA
P.O. JAMAGURI
PASALI
DIST DHEMAJI
ASSAM
28:PABITRA BORAH
S/O LT. S. BORAH
P.O.DEOTOLA
DIST NORTH LAKHIMPUR
ASSAM
Page No.# 5/13
29:MADAN SHARMA
S/O SRI RUDRA SHARMA
P.O.BALIJURI
DIST SONITPUR
ASSAM
30:ROMA GOGOI
S/O SRI JAGAT GOGOI
P.O. MAHADEVE PUR
DIST LOHIT
ARUNACHAL PRADESH
31:GANGPHA WANGSA
S/O SRI WANGEY WANGSA
P.O. PONGEHAU
DIST TIRAP
ARUNACHAL PRADESH
32:ANANTA DEKA
S/O LT. H. DEKA
P.O.TEOGHAT
DIST SIBSAGAR
ASSAM
33:SANJOY RAY
S/O LT. NARSHING RAY
P.O. PANAPUR LANGA
DIST VAISHALI
BIHAR
34:KIRAN PRATAP SINGH
S/O LT. B. SINGH
P.O. LANKA DIST NAGAON
ASSAM
35:BHOJ BIR SONAR
S/O D.R. SONAR
P.O.MOKUM
DSIT TINSUKIA
ASSAM
36:BIREN MECH
S/OSRI DENESH MECH
P.O. PHIALOBARI
DIST TINSUKIA
ASSAM
Page No.# 6/13
37:PARWATI D.ARYA
S/O LT. M.R. ARYA
P.O. JANTI
DIST ALMORA
UTRAKHAND
38:BIDYA HAZARIKA
SON OF SRI B. HAZARIKA
P.O.BORDOLONI
DIST DHEMAJI
ASSAM
39:LITESWAR SAIKIA
S/O SRI NILAKANTA SAIKIA
P.O.KUMURAGURI
DIST MORIGOAN
ASSAM
40:SAILESH KUMAR SINGH
S/O SRI RAMDHAIN SINGH
P.O.BORUAH
DIST CHAPRA
BIHAR.
41:PROMOD KUMAR
S/O LT. NARSHING RAJPAT
P.O.MARIO
DIST BHAGALPUR
BIHAR
42:RAM BABU PASWAN
SO SRI BINDESWAR PASWAN
P.O. NARAR
DIS MADHUBANI
BIHAR.
43:PRASAD SHARMA
S/O SRI H.P. SHARMA
P.O.PHOLBARI
BHKANODI
DIST NORTH LAKHIMPUR
ASSAM
44:RABIN NATH
S/O LT. GOLAP NATH
P.O. CHAKLA GHAT
DIST NAGAON
ASSAM
Page No.# 7/13
45:TALOKO DARANG
S/O OYAR DARANG
P.O.ALONG
DIST WEST DIANG
ARUNACHAL PRADESH
46:DIPAK DUTTA
S/O TARUN DUTTA P.O. GOBINDAPUR
DIST NORTH LAKHIMPUR
ASSAM
47:MAN BALIAN LAL
S/O SRI SOIKHHOLIAN
P.O. TAIRIPOK DIST IMPHAL EAST
MANIPUR.
48:BABUL DEORI
`S/O LT.S.R. DEORI
P.O.LIKHAK CHAPORI
DIST NORTH LAKHIMPUR
ASSAM
49:SMTI MOYO RIBA
D/O CHINO RIBA
P.O. BASASR, DIST WEST SIANG
ARUNACHAL PRADESH
50:DAKTO RIBA
S/O MODAK RIBA
P.O. DAING DIST WEST SIANG
ARUNACHAL PRADESH
51:TEK BAHADUR GIRI
S/O L.B.GIRI
P.O. LOKHARA, DIST SONITPUR
ASSAM
52:MIKIR TADA
S/O SRI GOMI TADA
P.O. NARI
DIST EAST SIANG
ARUNACHAL PRADES
Advocate for the Petitioner : MR.S DUTTA
Advocate for the Respondent : MR.G GOSWAMI
Page No.# 8/13
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE KAKHETO SEMA
ORDER
Date : 28-10-2021 Heard Mr. S. Dutta, learned senior counsel, appearing for the writ petitioners. Also heard Mr. N. Nath, learned counsel for respondent nos. 1 to 21, 24 to 50 and 52.
2. The writ petition has been filed by the Bharat Sanchar Nigam Limited (BSNL) challenging the order dated 08.04.2014 passed by the learned Member, Central Administrative Tribunal (CAT), Guwahati Bench, in Original Application No. 205/2009.
3. The private respondents before this court were working as part-time Casual Workers in BSNL. The admitted position is that a part-time casual employee has to work for at least 240 days without break in a calendar year for being entitled to temporary status/regularization as Casual Workers. Since the private respondents before this court were not being given temporary status or regularized as Casual Workers, they filed an Original Application, being O.A. No. 205/2009, before the CAT, Guwahati Bench. The pleaded case of the petitioners before the Tribunal was that they had worked under the BSNL for 240 days continuously in a calendar year and were entitled for regularization. Moreover, the grievance of the petitioners was that many part-time Casual Workers, who were junior to the petitioners, were retained by the BSNL but the petitioners were placed under the contractors without following the "Last Come First Go"
principle. The Original Application was allowed by the Tribunal vide its order Page No.# 9/13 dated 8th April, 2014. The order of the Tribunal was challenged by the BSNL before this court in a number of writ petitions, the lead case being WP(C) 2945/2011. The writ petitions were disposed of by a Division Bench of this court vide order dated 19.03.2013 observing that since the subject matter of the writ petitions was conferment of temporary status/regularization to the writ petitioners and since the only dispute between the parties was whether the writ petitioners, who were working as contractual workers/part-time Casual Workers in the BSNL had worked for 240 days continuously in a given calendar year, the Tribunal was competent to decide the question as the Tribunal has got powers to appreciate evidence. Accordingly, the Tribunal was directed to decide the matter and pass appropriate order on the basis of evaluation of evidence. The relevant part of the order of the Division Bench is reproduced below:
"34. In the case at hand, however, the disputed questions of fact were decide d by the learned Tribunal without recording any evidence. This was, we have no hesitation to hold, and we do hold, wholly illegal and untenable in law (See Section 22 of the Administrative Tribunal Act, 1985).
35. For the purpose of clarifying the position of law, one may take note of sub-Section (3) of Section 22 of the Administrative Tribunal's Act, 1985, which contains the procedure and power of the Central Administrative Tribunal. Sub-Section (3) of Section 22 reads as under:
22. (1) **** **** **** (2) **** **** **** (3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, Page No.# 10/13 in respect of the following m matters, namely: (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; **** **** ****
36. On a bare reading of Clause (c) of sub-Section (3) of Section 22, it becomes clear that the Central Administrative Tribunal has the power to receive evidence on affidavits and it has also the power to requisition any public record or document or any copy of such record or document from any office and that it has also the power to summon and enforce attendance of any person and examining hi m on oath. There is, thus, no impediment in determining and settling the disputed questions of fact by the learned Tribunal by taking recourse to it powers as embodied in sub-Section (3) of Section 22.
37. Because of what have been discussed and pointed out above, it is appropriate, in our considered view, that having clarified the scheme for conferment of Temporary Status on casual labourers under the 1989 Scheme and also under the 1999 Scheme, the matter be remanded back to learned Tribunal, which has the requisite jurisdiction to adjudicate such disputed questions of fact, by recording evidence, which may be adduced by the parties concerned and/or by obtaining such evidence as may be necessary for a just decision of the case.
38. In the result, the order, dated 22.01.2010, passed by the learned Page No.# 11/13 Central Administrative Tribunal, Guwahati Bench, is set aside and quashed and the learned Tribunal is hereby directed to decide the Transfer Applications and Original Applications, namely, TA No. 39/2009 [WP(C) No. 2945/2011], OA No. 195/2009 [WP (C) No. 6918/2010], TA No. 62/2009 [WP(C) No. 1363/2010], OA No. 205/2009 [W P(C) No. 4059/2010], TA No. 10/2009 [WP(C) No. 18/2012], TA No. 03/2009 [WP( C) No. 2163/2011] and TA No. 29/2009 [WP(C) No. 849/2012] in the light of the observations made, directions contained in this order and the law relevant thereto.
39. With the above observations and directions, all these writ petitions shall stand disposed of."
4. Pursuant to the aforesaid order of the Division Bench, the matter was taken up by the Tribunal once again and it came to the conclusion that the private respondents had worked for 240 days continuously in a calendar year and, therefore, temporary status was liable to the granted to them. Since it is a short order, the entire order dated 08.04.2014 passed by the Tribunal is reproduced below:
"In O.A. No. 205/2009 the main grievance of the applicants is that they were working under the respondents for about more than 15 years. However, out of 228 Casual employees as mentioned in the list enclosed in the original application, 150 junior employees have been retained by the respondents and the applicants who are senior to them have been placed under the contractor from the year 2007. If the respondents wanted to place the applicants under the contractors they should have followed the settled principles of law "Last Come First Go". It is also submitted that the Page No.# 12/13 applicants have completed 180 days in a year under the respondents. It is further submitted that in the file No. A-642, N/S 1 to 6 maintained in the office of the SDE (A) Arunachal Pradesh, it has been recorded that the applicants have completed 240 days in a year. Hence the respondents while calculating the 180 working days of the applicants shall take into account the above mentioned note sheets and for placing the Casual Employees under the contractor the respondents shall follow "Last come First Go" principles.
2. Under these circumstances, the matter has once again been examined and it has been decided by the Department as a one-time measure on special consideration to further delegate powers to all the Heads of the Department to create posts of Regular Mazdoors for regularizing the Casual Labourers (Grant of Temporary Status and Regularization) Scheme 1989 to the extent of numbers indicated.
3. The O.A. is allowed."
5. The writ petitioners (BSNL) have challenged the aforesaid order passed by the Tribunal inter alia on the ground that the Tribunal had not considered valid evidence while passing the order. Moreover, the counsel for the BSNL was not even heard before passing the order. It is also urged by Mr. S. Dutta, learned counsel for the writ petitioners that the Tribunal ought not to have relied upon the statements of the learned counsel for the petitioners (private respondents before this court) and have referred to File No. A-642, wherein it is allegedly recorded that the private respondents had completed 240 continuous working days without seeking the explanation from BSNL since the BSNL was not given any opportunity to rebut this point.
Page No.# 13/13
6. Admittedly, the order dated 08.04.2014 has been passed by the Tribunal without giving a hearing to the BSNL and, therefore, it cannot be said that the finding arrived at by the Tribunal is based on appreciation of evidence as directed by this court in its order dated 19.03.2013. Therefore, we set aside the order dated 08.04.2014 passed by the CAT, Guwahati Bench, in O.A. 205/2009 and direct the Tribunal to consider this aspect afresh after hearing both the parties. Let the BSNL be given opportunity by the Tribunal to show as to how the evidence in File No. A-642, N/S 1 to 6, which has been referred to by the Tribunal in its order, is incorrect.
7. The Tribunal will also look into the aspect as to how fresh part-time Casual Workers, who are junior to the private respondents, were retained by the BSNL directly under them while the services of the private respondents were taken through contractors since this could be one of the reasons as to why in some cases the private respondents could not complete 240 continuous working days.
8. Let the Tribunal decide the matter as expeditiously as possible but definitely within a period of six weeks from the date of receipt of this order.
9. Writ petition is disposed of in terms of the above.
JUDGE CHIEF JUSTICE Comparing Assistant