Gujarat High Court
Bharat Sanchar Nigam Limited vs R.K. Shaikh on 9 January, 2014
Author: V.M.Sahai
Bench: Vijay Manohar Sahai, K.J.Thaker
C/SCA/5778/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5778 of 2008
With
SPECIAL CIVIL APPLICATION NO. 5383 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHARAT SANCHAR NIGAM LIMITED....Petitioner(s)
Versus
R.K. SHAIKH....Respondent(s)
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Appearance:
MS ROOPAL R PATEL, ADVOCATE for the Petitioner(s) No. 1
MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 09/01/2014
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER) Page 1 of 10 C/SCA/5778/2008 JUDGMENT
1. Since, the issue involved in both the petitions is common, they are heard together and disposed of by this common judgment and order.
2. By way of Special Civil Application No. 5778 of 2008, the petitioner-Union of India has challenged the judgment and order of the Central Administrative Tribunal, Ahmedabad, Dated :
24.06.2007, rendered in O.A. 195 of 2006, whereas, by way of Special Civil Application No. 5383 of 2008, the petitioner-Union has challenged the judgment and order of the Central Administrative Tribunal, Ahmedabad, Dated 12.03.2003, rendered in O.A. No. 367 of 1997 and in Review Application No. 29 of 2006.
3. The case of the original applicant before the Tribunal was that he joined the services with the petitioner-Union in the year 1980 as casual and he worked continuously upto 1981. Pursuant thereto, his services came to be terminated due to non-availability of work. Somewhere in 1990, an advertisement was given in newspapers by the petitioner-Union to re-employ the old ones or the fresh persons. The original applicant was re-employed w.e.f. 01.01.1990 upto 31.01.1991 and was posted at SDO(T), Billimora, from where he was transferred to Vapi in Page 2 of 10 C/SCA/5778/2008 JUDGMENT February, 1991. According to the original applicant he was in service continuously from 1990 onwards and there was no break. He, therefore, preferred O.A. 204 of 1993, seeking temporary status and regularization of his services. Said application came to be disposed of by the Tribunal with a direction to the petitioner-Union to consider the case of the original applicant within six months. The original applicant made a representation on 22.04.1993 and as no decision was taken thereon, as per the order of the Tribunal, he issued a notice to the petitioner-Union through Advocate on 04.11.1993. Thereafter, the original applicant made several representations repeatedly, but, same were of no avail. Thereafter, the petitioner-Union pursued the remedies available to them under the law, wherein, the impugned orders came to be passed. Despite that, since, the petitioner-Union did not consider the case of the original applicant for regularization of services etc., the present petitions are preferred.
3. Heard, Ms. Patel, learned Counsel for the petitioner-Union, and Mr. Pathak, learned Advocate for the respondent- original applicant. The petitioner-Union of India appears to have taken a bold stand even after they lost before Page 3 of 10 C/SCA/5778/2008 JUDGMENT the Tribunal, they are not giving the benefits to the respondent, and therefore, the respondent- original applicant preferred O.A. 195 of 2006, the operative portion whereof reads as under;
"13. We accordingly quash and set asie the order dated 10.02.2006 and direct respondents to refix the pay in accordance with law as explained above. This exercise be completed in 3 months. The OA is disposed of accordingly with no order as to costs."
4. It is the aforesaid order, which is sought to be assailed by the petitioner-Union of India on various grounds and more particularly, as stated hereunder;
"C. It is most respectfully submitted that the Hon'ble Tribunal has committed a grave error in comparing the present case with the case of H.B. Chauhan versus UOI and others" in O.A. No. 587 of 1998 decided by the Hon'ble Tribunal on 20.04.2001 and subsequently upheld by this Hon'ble Court. In the most respectful submission of the petitioner herein, the case of H.B. Chauhan is altogether on a different footing inasmuch as in the said case the applicant therein was not engaged as casual driver to serve as driver. The person who filed the aforesaid O.A. No. 587 of 1998 was serving right throughout as a casual labourer. But in the present case, the applicant was admittedly serving as a casual driver under ACG-17 and therefore the Deptt.'s temporary Page 4 of 10 C/SCA/5778/2008 JUDGMENT status scheme cannot be applied to group C posts. ...
XXX XXX XXX D. It is submitted that insofar as the conferment of temporary status on the casual labourers are concerned, the scheme of casual labourers (Grant of Temporary Status & Regularisation, 1989) issued by the Deptt. Of Telecom of the Govt. of India is pari materia with the casual labourer (Grant of Temporary Status and Regularization) Scheme of 1993 framed and issued by the Dept. of Personnel & Tfg. Of the Government of India on 10.09.1993. Recently, the Hon'ble Supreme Court of India in its judgment dated 29.04.2002 in the case of " Union of India Vs. Mohan Pal, etc.", held that the said Scheme of the Dept. does not envisage that it is an on going Scheme and further held that from Clause 4 of the Scheme it does not appear to be a general guideline to be applied for the purpose of giving "Temporary" status to all the casual workers as and when they complete one year's continuous service. Annexed hereto and marked as Annexure-1 is a copy of the aforesaid judgment of the Hon'ble Supreme Court of India. In the present case also, it is most respectfully submitted that the Scheme of 1989 framed and issued by the DOT is not an ongoing Scheme. Without prejudice to the petitioner's contention that the said Scheme does not apply to Group 'C' posts, it is sbumitted that merely because the respondent herein has worked 240 days at a particular point of time does not entitle him to be granted temporary status."
5. In above view of the matter, here, it Page 5 of 10 C/SCA/5778/2008 JUDGMENT would be relevant to refer to the observations made by the Hon'ble Apex Court in the matter of similarly situated persons such as the respondent, herein, vide its judgment and order Dated : 29.04.2002, rendered in Civil Appeal No. 3168 of 2002 between "Union of India and Anr. Vs. Mohan Pal" and allied matters, which reads as under;
"Having regard to the general scheme of 1993, we are also of the view that the casual labourer who acquire temporary status cannot be ---- merely on the whims and fancies of the employer. If there is sufficient work and other casual labourers are still to be employed by the employer for carrying out the work, the casual labourer who have acquired temporary status shall not be removed from service as per Clause 7 of the Scheme. If there is serious misconduct or violation of service rules, it would be open to the employer to dispense with the services of a casual labourer who had acquired temporary status. ..."
6. The Hon'ble Apex Court further observed as under;
"... The condition in Clause 4 of Scheme. Some of them were engaged by the Department even after the commencement of the Scheme. But these casual labourers had also rendered service for more than one year and they were not given temporary status pursuant to the directions issued by the Court. We do Page 6 of 10 C/SCA/5778/2008 JUDGMENT not propose to interfere with the same this distance of time. However, we make it clear that the Scheme of 1.9.93 is not an ongoing Scheme and the temporary status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions incorporated in Clause 4 of the Scheme, namely they should have been casual labourers in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at least one year i.e. at least 240 days in a year or 296 days (in case of office having 5 days a week). We also make it clear that those who have already been given temporary status on the assumption that it is an ongoing Scheme shall not be stripped of the temporary status pursuant to our decision."
7. It is pertinent to note that the matter was carried before the Apex Court, even before the filing of the Review and even before the petitioner-Union sought to resort to recovery or to deny the benefits. Our attention is drawn to the judgment of this Court (Coram : Hon'ble the Chief Justice, D.M. Dharmadhikari, and Hon'ble Mr. Justice, D. H. Waghela), Dated : 27.11.2001, rendered in Special Civil Application Nos. 6063 and 6251 of 2001, which reads as under;
"1. Heard Mr. Bipin Mehta, learned counsel appearing for the Union of India-Telecom Department and Mr. P.H.Pathak, learned counsel appearing for the respondent-employee.Page 7 of 10
C/SCA/5778/2008 JUDGMENT
2. The Central Administrative Tribunal, by the impugned order dated 20.4.2001/12.2.2001, had granted relief to the respondent-employees directing the present petitioner-employer that the respondents be granted temporary status from the date they completed 240 days of work as full time casual labourer in a year. Directions have also been issued to give all consequential benefits of temporary status.
3. The mention to be made is that temporary status to casual labourer was given under three schemes prepared by the Department pursuant to the directions made by the Supreme Court. The Tribunal while allowing the applications of the respondent-employees held that a cut-off date could be adopted in different schemes for granting benefits to casual labourers. From the schemes which are made applicable to the present respondent- employees, we do not find that there is any cut-off date specifically mentioned in this scheme. Admittedly, the present respondent claims status of temporary labourer after promulgation of the scheme. In such circumstances, it was reasonable on the part of the Tribunal to have directed that the petitioners should be granted temporary status of casual labourer from the date they completed 240 days of working as full time casual labourer in a year. Amongst the various categories of casual labourers, inter alia, no distinction can be made while giving effect to the relevant scheme.
4. In the aforesaid circumstances, we Page 8 of 10 C/SCA/5778/2008 JUDGMENT find no error in the conclusion reached by the Tribunal. Both the petitions are accordingly dismissed. Notice is discharged with no order as to costs."
8. Under the circumstances, the case of the petitioner-Union was rightly not believed by the Tribunal and it rightly stayed the recovery of any amount from the respondent, by placing reliance on the decision of the Apex Court in "SHYAM BABU VERMA VS. UOI & ORS.", 1994(2) SCC 521 and of the Hon'ble Kerala High Court, "P.J. SHANTAKUMARI VS. UOI & ORS.", 2006 (1) AIJ 321. The orders passed by the Tribunal are just and proper and in consonance with the service jurisprudence. We do not find any perversity or illegality in the same, and hence, both the petitions deserve dismissal.
9. In the result, both the petitions stand DISMISSED. It is, however, hoped that after losing the 4th round of the litigation, the petitioner-Union of India shall comply with the orders passed by the Tribunal and by this Court. Interim relief, if any, stands vacated. Rule is discharged in each petition. No order as to costs.
(V.M.SAHAI, J.)
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C/SCA/5778/2008 JUDGMENT
(K.J.THAKER, J)
UMESH
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