Central Administrative Tribunal - Allahabad
Masan Ali vs The Union Of India Through The Secretary on 14 May, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 14th day of May 2015
Honble Mr. Shashi Prakash, Administrative Member
Honble Dr. Murtaza Ali, Judicial Member
Original Application No. 817 of 2009
1. Masan Ali, S/o Sri Hamid, R/o Sankat Mochan Band Ki Gali, Wasliganj, District Mirzapur.
2. Smt. Gudia, W/o Sri Sonu, R/o Chet Ganj Amamwarda (Khandwa Nala) District Mirzapur.
3. Guddu, S/o Laxman Prasad, R/o Telephone Colony Angarh Mirzapur. Presently is working as Casual Mazdoor (C.L.) in the office o G.MT. Bharat Sanchar Nigam Ltd. (B.S.N.L.) District Mirzapur UP.
4. Smt. Parmila, W/o Sri Shambhoo, R/o Robertsganj, District Sonbhadra UP. Presently is working as Casual Mazdoor (CL) in the office of S.D.E. (B.S.N.L.) Robertsganj, District Sonbhadra UP under control of G.M.T.D. (B.S.N.L.) Mirzapur.
5. Santosh Kumar Hella, S/o Sri R.P. Halla, R/o Mohalla Sector B Quarter No. 20 Post Office Dala Robertsganj, District Sonbhadra, presently is working as Casual Mazdoor (CL) in the office of Dala Exchange (B.S.N.L.) Robertsganj, District Sonbhadra UP working under control of G.M.T.D. Mirzapur UP.
6. Smt. Asha Devi W/o Sri Moti Lal, R/o Northern Railway Colony House No. 425, Chunat, District Mirzapur, presently is working as Casual Mazdoor (CL) in the office of Telephone Exchange (B.S.N.L.) Chunar, District Mirzapur.
7. Nindu Kumar, S/o late Masicharan, R/o By the site of Hydel Workshop Hut Turra Pipri, District Sonbhadra presently is working as Casual Mazdoor (CL) in the office of Telephone Exchnage (B.S.N.L.) Renu Kota, District Sonbhadra working under control of G.M.T.D. Mirzapur.
8. Subhash Kumar, S/o Sri Chotey Lal Adalpura, P.O. Thirashpur Chunar District Mirzapur, UP. Presently is working as Casual Mazdoor (CL) in the office of SDO (P) (BSNL), Chunar, Mirzapur UP.
. . . Applicants
By Adv: Shri N.P. Singh & Shri M.K. Dhrubvansi
V E R S U S
1. The Union of India through The Secretary, Ministry of Telecommunication and I.T. (Information Technology), Govt. of India, Sanchar Bhawan, New Delhi 110001.
2. The Chief Managing Director (CMD) Bharat Sanchar Nigam Limited (BSNL), an Govt. of India Enterprise, A-601, Statesman House, Bara Khamba Road, New Delhi.
3. The Chief General Manager, Telecom (East) CGMT, Bharat Sanchar Nigam Limited (BSNL), Office of the CGMT (E) BSNL UP Telecom Circle (East), Lucknow.
4. The General Manager, Telecom District (GMTD) BSNL District Mirzapur.
5. The S.D.O. B.S.N.L. Telephone Exchange Pipri, Renukut, District Sonbhadra.
6. The SDO, BSNL, Telephone Exchange Angarh, District Mirzapur.
7. The SDO, BSNL Telephone Exchange, Chunar, District Mirzapur.
8. The S.D.O. Bharat Sanchar Nigam Limited, Telephone Exchange Dala, District Sonbhadra.
9. The SDO, Bharat Sanchar Nigam Limited, Telephone Exchange, Robertsganj, District Sonbhadra.
10. The Account Office (Cash), Office of GMTD (BSNL), Mirzapur.
. . .Respondents
By Adv: Shri Anil Kumar
O R D E R
By Honble Dr. Murtaza Ali, Judicial Member In the instant OA filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, they have sought to quash the impugned order dated 06.07.2009 issued by the A.G.M. (Admn.) by which the services of the applicants were terminated w.e.f. 31.07.2009 on the ground of non-fulfillment of basic conditions of Scheme of 1989 for conferring temporary status/regularization.
2. Brief facts of the case are that the applicants were engaged as Part Time Sweepers in the Department of Telecommunication between the years 1985 & 1998. The department formulated a scheme for conversion of Part Time Casual Labourers into Full Time Casual Labourers vide letter dated 25.08.2000 (Annexure R-6) and thereafter all the Full Time Casual Labourers were considered for regularization against Group D vacancies and a list of such labourers was issued on 23.01.2006 (Annexure A-35). The General Manager, B.S.N.L. issued the orders of regularization on 20/31.07.2006 (Annexure A-42) and the pay was also fixed accordingly vide order dated 03.08.2006 (Annexure A-43). Later-on, the respondents cancelled the order of regularization and reverted the applicants to their original posts as casual labourers vide order dated 02.01.2007 (Annexure SA-3) and further directed the Accounts Officer to recover the excess amount paid to the applicants, vide order dated 15.01.2007 (Annexure SA-2). These two orders were challenged in Civil Misc. Writ Petition No. 4271/2007 Masan Ali and others vs. Union of India and other connected Civil Misc. Writ Petition No. 8643/2007 and Civil Misc. Writ Petition No. 8307/2007 and both the Writ Petitions were disposed of by a common order dated 16.11.2007 (Annexure A-50) by a Single Judge Bench of High Court. In the said order, the Honble Single Judge allowed the Writ Petitions and quashed the impugned orders relating to reversion and recovery of amount already paid. Aggrieved by the said order, the department filed Special Appeal No. 308/2008, Special Appeal No. 309/2008 and Special Appeal No. 310/2008. The said Appeals were disposed of by a common Order dated 04.12.2008 (Annexure A-52). The respondents issued show cause notices dated 28.02.2009 (Annexure A-53) which were replied by the applicants vide letter dated 19.03.2009 (Annexure A-54). The respondent No. 4 issued the impugned order dated 06.07.2009 (Annexure A-1) wherein it has been stated that the applicants were not found eligible for conversion to Full Time Casual Labourers and for regularization and their services were also terminated from the department to work as Casual Labourers w.e.f. 31.07.2009.
3. Aggrieved by the said termination order dated 06.07.2009, the applicants have filed OA No. 817/09 and on the strength of interim order passed on 28.07.2009, they are still working and discharging their duties with the respondents.
4. In the counter reply filed on behalf of respondents, it has been stated that in the light of observations made by Honble High Court in its order dated 04.12.2008, the respondents issued detailed show cause notices dated 28.02.2009 (Annexure A-53) to all the applicants for submitting their working certificates and other documents but they had failed to provide necessary details. A four members Committee was constituted for verification of working days from Payment vouchers/ administrative sanctions/ attendance supported by Payment record etc. It was found that the applicants did no fulfill the conditions provided in Casual Labourers (Grant of Temporary Status and Regularization) Scheme of 1989 which was framed and circulated by the Department of Telecommunication vide Circular dated 29.11.1989 (Annexure A-3). The said scheme clearly provides that no casual Labourer, who has been recruited after 30.03.1985, should be granted temporary status without specific approval from the competent authority. As the applicants were not engaged as Part Time/Full Time Casual Labourer with the approval of competent authority, they were not entitled to avail the benefit of Scheme of 1989. They were neither on the roll on 01.08.1998 nor completed 240 days in a year prior to 01.08.1998. It has further been submitted that they were also absent from time to time and their absences were not condoned by the competent authority. It has also been submitted that a ban was also imposed upon the engagement of Part Time Casual Labourer vide order dated 14.08.1984 (Annexure R-4) and it was decided that the existing Part Time Casual Labourers could be absorbed against regular vacancies and in future there would be no further recruitment of Part Time Mazdoor in the department. Thus, they were not found eligible for conversion of Full Time Casual Labourers and further for regularization and accordingly their services have been terminated w.e.f. 31.07.2009.
5. Heard Shri M.K. Dhrubansi and Shri N.P. Singh learned counsel for the applicants and Shri Anil Kumar learned counsel for the respondents and perused the entire record.
6. Learned counsel for the applicants submits that the letter dated 25.08.2000 (annexure R-6) relates to the conversion of Part Time Casual Labourers working for less than four hours per day into Full Time Casual Labourers and it has also been provided in para-8 of aforesaid letter that no Part Time Casual Labourer will be engaged hereinafter which shows that intake of fresh Casual Labourers was allowed till 25.08.2000. It has further been submitted that a circular dated 14.05.2001 (Annexure A-22) was issued by the C.G.M.T., B.S.N.L. for conversion of Part Time Casual Labourers to Full Time Casual Labourers who were working for not less than four hours and thereafter, Part Time Casual Labourers working for less than four hours were also considered for conversion to Full Time Casual Labourers as well as for regularization. The applicants (except applicant No. 4) were recommended for conversion from Part Time Casual Labourers to Full Time Casual Labourers vide letter dated 27.07.2001 (Annexure A-24) and the G.M.T.D., Mirzapur had given the approval for conversion of applicants from Part Time Casual Labourers to Full Time Casual Labourers w.e.f. 25.08.2000 (Annexure A-29) treating them as temporary status Casual Labourers. They were considered for regularization against vacant posts of regular Mazdoors, which was approved by the C.G.M.T. U.P. (East) Circle, Lucknow vide order dated 23.01.2006 (Annexure A-35) and 07.05.2006 (Annexure A-36). It has further been argued that the regularization of applicants was approved by the C.G.M.T. (East Circle), Lucknow, and the A.G.M. (Administration) had no power to cancel the approval accorded by the C.G.M.T. (East Circle), Lucknow.
7. From perusal of record, it appears that initially the respondents reverted the applicants from Full Time Casual Labourers to Part Time Casual Labourers on the sole ground that the applicants were not found eligible for regularization in view of the Judgment delivered in Uma Devis case. The said impugned order was quashed by the Honble Single Judge vide Order dated 16.11.2007 passed in Civil Misc. Writ Petition No.4271/2007 connected with Civil Misc. Writ Petition No. 8643/2007 and Civil Misc. Writ Petition No. 8307/2007. The Honble Single Judge has categorically held that the ratio laid down in Uma Devis case is inapplicable in the instant case and while relying on the decision of Honble Supreme Court in Puran Chand Pandeys case, it was held that the impugned order is nothing but mechanically following the Judgment passed in Uma Devis case. The relevant paras of the Judgment are on pages 249 250, of O.A., which are being reproduced below: -
There is one more aspect of the matter for consideration. Petitioners have been non-suited on the ground that regularization was not permissible after 10.04.2006. On the recommendation of the Committee as contained in Annexure SRA-1 to the Supplementary rejoinder affidavit, in all six respondents have been regularized. It is true that said incumbents who have been regularized were working for the long period, but as far as petitioners are concerned, their claim was covered under the policy decision, and they had been extended the benefit of regularization, then mechanically by applying the judgment of Uma Devis case, it was wholly inappropriate to cancel the regularization of petitioners, which cannot be subscribed, as each case has to be decided on its facts, looking to the peculiar characteristic and the dominant factors of the aforementioned case, which in the present case has been ignored by the authorities that there was agreement between Federation and BSNL and as per policy decision petitioners had been absorbed on regular basis.
At last Sri Subodh Kumar has contended that large scale manipulations have been committed in extending the benefit of regularization. The sole ground on which regularization has been cancelled is the judgment in Uma Devis case and no other ground has been disclosed. In case there is any fraud or misrepresentation, then it is open to the authorities to issue show cause notice and thereafter cancel the regularization, but here said grounds have not been taken in the impugned order, and impugned order is nothing but mechanically following of the judgment in Uma Devi (supra), which cannot be subscribed, as Honble Apex Court in the case of U.P. Secondary Education Service Selection Board v. Pooran Chandra Pandey (supra) has held that each case has to be decided on its fact and not by blindly following the Uma Devis case.
Consequently, writ petitions succeed and are allowed. The impugned orders are quashed. It is apparent that a Policy Decision was taken by the Department of Telecom on 29.09.2000 to regularize the services of Casual Labourers working in the Department and a scheme was also framed to this effect. BSNL came into existence in the year 2000 and pursuant to the meeting held between BSNL Management and Employees Union, some proposals regarding regularization of casual Labourers were approved on 02.01.2001. The CGMT, BSNL issued a letter dated 14.05.2001 for conversion of Part Time Casual Labourers working for not less than 04 hours duty into Full Time Casual Labourers and therefore a letter dated 21.06.2002 was issued by DGM, BSNL, UP (East) Circle, Lucknow for conversion of Part Time Casual Labourers who were working for less than 04 hours with certain conditions. Thus all those casual labourers who were working as Part Time Casual Labourers, were converted into Full Time Casual Labourers vide letter dated 10.10.2002 (Annexure A-28) issued by G.M. Telecom, Mirzapur. Thereafter, the G.M. Telecom, Mirzapur also issued letter dated 20.07.2006 (Annexure A-42) converting all the Casual Labourers to regular Mazdoors. Their salary was accordingly fixed and they were paid regular pay. After some time, the impugned order dated 06.07.2009 was issued for cancelling the regularization order dated 31.07.2006. In the order passed in the Writ Petition filed on behalf of applicants, it has clearly been held that the regularization of applicants was done under Policy Decision taken by the BSNL and on the basis of an agreement arrived at between Federation and BSNL and therefore the eligibility criteria mentioned in the Scheme of 1989 or other conditions do not come in the way of regularization of casual labourers. It has clearly been held by Honble Single Judge that the impugned order is nothing but mechanically following of the judgment in case of Uma Devi, which cannot be subscribed.
8. It has also been noted that there was no allegation of any manipulation in extending the benefit of regularization in the writ filed by the respondents and during the course of argument, the issue of manipulation was raised. While quashing the impugned orders in respect of reversion of petitioners and recovery of excess amount paid, Honble Single Judge had also observed that if any fraud or misrepresentation had been committed, then it was open to the authorities to issue show cause notice and thereafter cancel the regularization.
9. It is observed that on the basis of an agreement arrived at between Federation and BSNL a policy decision was taken to regularize the casual labourers and in pursuant to this decision a 07 Member Committee comprising of senior officers of the department was constituted which scrutinized and verified the working days of different casual labourers and payment made to them. The said report is annexed as Annexure A-28 with the OA which is being reproduced below for ready reference:
List of Part time casual labours performing hrs per day who are to be full time casual labourers pertaining to the ..
Sl no Name of PTCL Working Place Date of engagement Sectioning authority Whether completed 240 days in the preceding as on 25.8.00 Payment verified by A.O. (C) w.e.f.
Payment particulars Shortage of Gr. D post existing
1.
Asha Devi Chunar 10.2.85 Head of SSA Yes 4/99 By Department Yes
2. Asha Devi Shaktinagar 10.2.85 Head of SSA Yes 2/99 By Department Yes
3. Guddu O/O GMTD 10.2.98 Head of SSA Yes 3/99 By Department Yes
4. Masan Ali DTO, MRZ 10.2.96 Head of SSA Yes 5/99 By Department Yes
5. Nindu Renukoot 10.7.96 Head of SSA Yes 3/99 By Department Yes
6. Santosh Kr. Hela Dalla 4.2.98 Head of SSA Yes 3/99 By Department Yes
7. Devi Prasad Ahraura 10.2.96 Head of SSA Yes 2/99 By Department Yes
8. Gudia Angarh 10.2.97 Head of SSA Yes 6/99 By Department Yes
9. Munna Churk 1.4.92 Head of SSA Yes 8/99 By Department Yes
10. Gulab Chand DTO RKT 1.4.92 Sanction of Head of SSA not Traceable Yes 12/98 By Department Yes
11. Kiran Angarh 10.2.96 Sanction of Head of SSA not Traceable Yes 5/2000 By Department Yes Check List of Part time casual labours performing duty more than 4 hrs. per day who are to be converted as full time casual labourers pertaining to this unit.
Sl no Name of PTCL Working Place Date of engagement Sectioning authority Whether completed 240 days in the preceding as on 25.8.00 Payment verified by A.O. (C) w.e.f.
Payment particulars Shortage of Gr. D post existing
1. Krishna Anpara 10.2.97 Sanction of Head of SSA not Traceable Yes 12/98 By Department Yes
2. Jai Murti Devi Obrar 10.9.97
---do---
Yes 3/99 By Department Yes Sd/-
D.A. Sd/-
SDE (HRD) Sd/-
A.O. (C) Sd/-
A.G.M. (A&P) Sd/-
C.A.O. (IFA) Dy G.M. Sd/-
Sd/-
GM
10. The learned counsel for the respondents has failed to establish that this 07 Members Committees recommendations were ever rejected by any superior authority or by another Committee having larger number of Members. In this circumstance there is no reason to infer that the data mentioned in the said recommendation was not according to record of BSNL. We do not find any substance in the arguments of learned counsel for the respondents that the applicants could not produce the required documents as desired in the notices issued to them. As the applicants were mostly illiterate and working as sweepers and it cannot be expected of them to keep the record of working days and the payment they received from the department. In these circumstances we are of the view that issuing notices to the applicants for furnishing the details of working days and payment received was merely in nature of a formality therefore a futile and idle exercise not amenable to acceptance.
11. Considering all the facts and circumstances of the case we are of the view that the termination of the services of the applicants was uncalled for on the ground of not fulfillment of basic conditions of scheme of 1989 since they were regularized on the basis of policy decision taken by the BSNL after an agreement arrived at between Federation and BSNL.
12. Accordingly, the OA is allowed and the impugned order dated 06.07.2009 is hereby quashed. The respondents are directed to treat the applicants in service deeming that no order dated 06.07.2009 was ever passed and pay them salary accordingly.
13. There is no order as to costs.
Member (J) Member (A) /pc/ ?? ?? ?? ?? Page 11 of 11 OA No. 817/09