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Supreme Court of India
Bharat Sanchar Nigam Ltd. vs Sri Deo Kumar Rai @ Deo Kumar Ray on 14 December, 2021Author: R. Subhash Reddy
Bench: R. Subhash Reddy, Hrishikesh Roy
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7707-7708 OF 2021
(Arising out of SLP (C) Nos. 28616-28617 OF 2019)
BHARAT SANCHAR NIGAM LTD. APPELLANT(S)
VERSUS
SRI DEO KUMAR RAI @ DEO KUMAR RAY RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
Leave granted.
2. Heard Mr. Dinesh Agnani, learned Senior Counsel
appearing for the appellant. Also heard Mr. Surendra
Patri, learned counsel representing the respondent
Signature Not Verified
(original applicant before the Central Administrative
Digitally signed by
Rajni Mukhi
Date: 2021.12.14
17:28:39 IST
Reason:
Tribunal (for short “the Tribunal”)).
Page 1 of 18
3. The challenge here is to the judgment and order
dated 31.5.2018 whereunder, the Gauhati High Court in
the Writ Petition (Civil) No. 991/2017 filed by the
appellant upheld the order passed by the Tribunal on
25.8.2015 and had directed conferment of temporary
status to the respondent, under the Casual Labourers
(Grant of Temporary Status and Regularization) Scheme
of the Department of Telecommunications, 1989
(hereinafter referred to as “the 1989 Scheme”). The
appellant also impugns the order dated 4.6.2019 by
which the Gauhati High Court rejected the Review
Petition 59/2019, against the order dated 31.5.2018.
4. Under the 1989 Scheme, the casual workers who are
working in the BSNL on the day of coming into force of
the Scheme i.e. 1.10.1989 and who had rendered
continuous service of at least one year, and out of
this one-year period those, who have been engaged for
at least 240 days, are entitled to be conferred the
temporary status. The Union of Casual Labourers were
Page 2 of 18
agitating on behalf of the casual workers for securing
the temporary status. To address the issue, a Committee
was constituted to verify the records of the casual
workers to determine as to who amongst them satisfy the
eligibility criteria for securing the benefit under the
1989 Scheme.
5. The respondent herein had appeared before the
Committee on 19.1.2004 and on verification of the
records available with the Department, the Committee
members concluded that the respondent was engaged for 4
days in the year 1989; 29 days in 1992; 17 days in
1993; 38 days in 1994; 38 days in 1995; 34 days in
1996; 37 days in 1997 and 17 days in 1998, well below
the required 240 days in the year. It was also noted
that in support of the claim for temporary status,
engagement for much longer periods in the concerned
year from 1995 (239 days), 1996 (240 days), 1997(250
days), 1998(89 days) was claimed but the respondent
Page 3 of 18
failed to produce any original documents before the
Committee.
6. Upon verification of the service records, the
Committee in its Report dated 29.8.2005 observed that
the respondent did not fulfil the eligibility criteria
since he had not completed “240 days” in 12 calendar
months. Before the Committee, the BSNL authorities
additionally contended that the photostat copies of the
certificates relied upon by the respondent, were never
issued by any officer of the BSNL. The relevant part of
the Committee’s final finding is extracted below:-
“In view of the above proof and
evidence, the Committee has found that
the applicant Shri Deo Kumar Rai has
completed maximum 38 days in 12 calendar
months during 01.01.1995 to 31.12.1995
and as such the applicant is not
entitled to grant of temporary status as
per the provisions of the Scheme,
1989……..”
7. The above decision of the Committee was challenged
by the respondent in the High Court by filing the Writ
Petition(C) No.2158 of 2006 which was transferred on
Page 4 of 18
8.4.2009 to the Tribunal and the petition was numbered
as TA No. 30/2009. Similar such cases were analogously
considered by the Tribunal and in the common order
(22.1.2010) the Tribunal adverted to the Committee’s
conclusion and opined that since the Committee had
considered all relevant materials placed before it by
either side, no case is made out by the applicants to
claim temporary status and accordingly the TA and the
connected petitions were dismissed by the Tribunal on
22.1.2010.
8. When this was challenged, the High Court vide its
common order dated 19.3.2013 in Writ Petition(C) No.
2945/2011, set aside the Tribunal’s order and remanded
the matter back to the Tribunal for fresh adjudication.
In the remand order, the High Court noted that in view
of the diametrically contradictory factual assertion of
the applicants and the Department (on the entitlement
to the benefits under the Scheme), evidence of the
parties will have to be recorded as permitted under
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Section 22(3) of the Administrative Tribunals Act, 1985
(for short “the 1985 Act”). Accordingly, fresh
adjudication of the issue was directed by recording
evidence of the parties.
9. Following the above, the Tribunal reconsidered the
matter, by once again perusing the Report of the
Committee dated 29.8.2005, and noted that as per the
genuine records verified from the office of G.M.T.D.,
Kamrup, the applicant was engaged for 4 days in the
year 1989; 29 days in 1992; 17 days in 1993; 38 days in
1994; 38 days in 1995; 34 days in 1996; 37 days in 1997
and 17 days in 1998. Adverting next to the photocopy of
the certificates produced by the applicant, it was
observed that the applicant was made to work from 1989
to 1998, with some artificial breaks. With such cryptic
observations and without any further evidence or
material, the Tribunal passed an order in favour of the
applicant on 25.8.2015 in the TA No. 30/2009.
Page 6 of 18
10. The Tribunal’s order was challenged by the
appellant by filing the WP(C) No. 991/2017 where a
specific plea was raised about the Tribunal failing to
follow the procedure under Section 22(3) of the 1985
Act in terms of the High Court’s earlier directions in
the remand order (19.3.2013).
11. The Department again contended before the High
Court that the respondent does not fulfil the
eligibility criteria of having worked for 240 days in
12 months and that he had relied on fabricated
certificates which do not correspond with the official
records and without recording any evidence to conclude
otherwise, the Tribunal chose to record a finding which
was not supported by any acceptable material. In fact,
an erroneous conclusion was drawn purporting to draw
support from the contrary conclusion drawn by the
Committee, which categorically held that the applicant
is disentitled to temporary status, as per the
provisions of the 1989 Scheme. The Department also
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relied on the decision of this Court in Secretary,
State of Karnataka & Ors. vs. Umadevi & Ors. 1 to
contend that the foundation of the 1989 Scheme stood
demolished and no relief can be claimed under the said
Scheme.
12. The High Court under the impugned judgment dated
31.5.2018, had however dismissed the writ petition
filed by the BSNL, where the Court adverted to the
xerox copies of the documents produced by the applicant
to erroneously observe that the authenticity of those
documents have not been disputed by the Department.
With such finding, the judgment of the Tribunal dated
25.8.2015 in favour of the respondent was upheld and
the Writ Petition was dismissed with the following
observation:-
“ **** **** **** ****
By the impugned judgment and order
dated 25/08/2015, the learned
Tribunal had allowed the application
filed by the respondent by recording
categorical finding of fact that the
1 (2006) 4 SCC 1
Page 8 of 18
petitioner had worked for more than
240 days under the department during
the period from 1989 to 1998. Such
finding of fact was recorded after
considering the report dated
29/08/2005 submitted by the
“Responsible Committee” constituted
by the Department to look into such
matters as well as the documentary
evidence produced by the SDE/JTO.
The learned counsel for the writ
petitioner has not been able to
invite our attention to any material
which would go to dislodge the
factual finding recorded by the
learned Tribunal.”
13. Thereafter, the High Court dismissed the Review
Petition filed by the Appellant, vide order dated
4.6.2019, and this order is also under challenge in
this case.
14. Mr. Dinesh Agnani, learned senior counsel for the
appellant points out that both the Tribunal and the
High Court failed to appreciate that the 1989 Scheme is
intended as a one time measure specifying the
eligibility criteria for conferment of temporary status
on the casual workers and the respondent had not worked
Page 9 of 18
for 240 days in 12 months and is therefore ineligible
for any benefits under the Scheme. Moreover, such also
being the finding of the competent committee, there was
no justification either for the Tribunal or for the
High Court to give an incorrect factual finding
favouring the respondent, without recording any
evidence or adverting to any acceptable material,
notwithstanding the specific direction issued by the
High Court on 20.11.2013 when it remanded the matter
back to the Tribunal, for fresh adjudication. The
learned counsel argues that the photostat copies of the
documents produced by the applicant does not correspond
to the departmental records and therefore without
recording any evidence to determine the authenticity of
the xerox copies of the relied documents, neither the
Tribunal nor the High Court could have concluded that
the applicant fulfilled the eligibility criteria under
the Scheme.
Page 10 of 18
15. Per contra, Mr. Surendra Patri, the learned
counsel for the respondent argues that the respondent
is litigating since long to secure the benefit under
the 1989 Scheme and since the Tribunal, as well as the
High Court, have granted relief in his favour,
interference by this Court is not merited.
16. In order to secure the benefit of the 1989 Scheme,
it was necessary for the respondent to establish that
he satisfied the eligibility criteria prescribed under
the Scheme and had worked for at least 240 days in 12
months. To resolve the factual controversy, the High
Court in its earlier round while remanding the matter,
directed the Tribunal to record evidence. However, the
Tribunal’s order dated 25.8.2015 shows that the only
basis for concluding in favour of the respondent was
the Report/proceedings of the Committee dated
29.8.2005. The Committee however upon verification of
the Records concluded that the respondent has completed
maximum 38 days in 12 calendar months during 1.1.1995
Page 11 of 18
to 31.12.1995 and as such he is disentitled for the
temporary status under the Scheme. Yet, by misreading
the specific recording of the Committee and without any
basis for a contrary view, the Tribunal cryptically
observed that the applicant was made to work with
artificial breaks during 1989 to 1998 and on that
basis, relief was granted to the respondent. But the
Tribunal never recorded any evidence to determine the
factual controversy and instead respondent’s service
during 10 years from 1989 to 1998 were erroneously
taken into account to compute the requirement of 240
days service in 12 calendar months.
17. The Review application filed by the appellant to
challenge the incorrect conclusion of the Tribunal and
the High Court viz-a-viz the finding given by the
Committee was summarily brushed aside. Moreover,
although it was pointed out that the finding is
contrary to the material on record, the same was
disregarded with the observation that both the Tribunal
Page 12 of 18
and the High Court had considered the Report and
granted relief to the applicant. The Review petition
accordingly came to be dismissed on 4.6.2019.
18. The Committee as noted earlier had clearly
recorded that the respondent “has completed maximum 38
days in 12 calendar months during 1.1.1995 to
31.12.1995 and as such the applicant is not entitled to
grant of temporary status as per the provisions of the
Casual Labourers (Grant of Temporary Status and
Regularization) Scheme of the Department of
Telecommunications, 1989.” Although this categorical
finding of the Committee was noted both by the Tribunal
as also by the High Court, regularization was
surprisingly ordered for the respondent. For the
contrary finding, the Tribunal did not make any inquiry
or record any evidence, in terms of the remand order
dated 19.3.2013 of the High Court in the earlier round.
It is therefore seen that the conclusion is drawn
without any material foundation.
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19. In the above circumstances, we are of the
considered opinion that the conclusion drawn by the
High Court and by the Tribunal favouring the respondent
is contrary to the factual finding recorded by the
Committee on 29.8.2005. The Committee Report also
discloses that the Applicant had failed to produce
records in original, to support his claim. The
Committee further noted that certificates were issued
by unauthorised persons and the authenticity of such
documents have not been established.
20. At this stage, it is apposite to extract Clause
5(i) of the 1989 Scheme which prescribed the
requirements for conferring temporary status to casual
workers.
“5. Temporary Status
(i) Temporary status would be conferred on
all the casual labourers currently employed
and who have rendered a continuous service
of atleast one year out of which they must
have been engaged o work for a period of
240 days (206 days in case of offices
observing five days week) such casual
Page 14 of 18
labourers will be designated as Temporary
Mazdoor.”
The above clause makes it clear that the Applicant
was required to have been engaged for 240 days in a
given calendar year. The Committee’s findings showed
that the respondent had served for a maximum of 38 days
in a calendar year and was ineligible.
21. The Tribunal in its order (25.8.2015) has relied
upon the judgement in Uma Devi (supra) to consider the
service period during 1989 to 1998, to compute 240 days
of engagement. However, this manner of considering
eligibility does not gain support from the ratio in Uma
Devi. To understand this, we benefit by reading the
opinion of Justice P.K. Balasubramanyan, who speaking
for the Constitution Bench, made the following
observation on the issue of regularisation of
irregularly appointed workmen as a one time measure,
“ 53. …There may be cases where irregular
appointments (not illegal appointments) as explained
in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
Page 15 of 18
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2
SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more
but without the intervention of orders of the courts
or of tribunals. The question of regularisation of the
services of such employees may have to be considered
on merits in the light of the principles settled by
this Court in the cases abovereferred to and in the
light of this judgment. In that context, the Union of
India, the State Governments and their
instrumentalities should take steps to regularise as a
one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of
the courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion
within six months from this date. We also clarify that
regularisation, if any already made, but not sub
judice, need not be reopened based on this judgment,
but there should be no further bypassing of the
constitutional requirement and regularising or making
permanent, those not duly appointed as per the
constitutional scheme.”
22. The above ratio as is seen, was concerned with
irregular appointments, which issue however is not very
relevant in this matter. Furthermore, the ratio does
not lay down a ten-year service yardstick for
determining the eligibility of casual workers, as has
been understood by the Tribunal. As such, the period of
engagement spreading across several calendar years (and
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not one year as mandated under the Scheme) could not
have been accepted by treating the gaps in service over
those years, as ‘artificial breaks’. This manner of
computation is inconsistent with the diktat of Uma Devi
as well as the prescribed criteria governing the
Respondent. It is also seen that the Tribunal in its
order (22.01.2010), while dismissing the regularisation
claim of the respondent amongst other applicants, had
noted the admission therein that they had not satisfied
the requirement of engagement of 240 days in any year.
It was finally held that the applicants had failed to
establish any infirmity in the Committee’s findings.
For the sake of completion, we may note that the above
order of the Tribunal was interfered with and remanded
by the High Court, as was previously mentioned.
23. Such being the situation, the impugned judgments
dated 31.5.2018 and 4.6.2019 of the High Court as also
the order dated 25.8.2015 of the Tribunal in T.A. No.
Page 17 of 18
30/2009 are found to be unsustainable. The same are
accordingly set aside and quashed.
24. The appeals are allowed with the above order
without any order on cost.
……………………………………………………J.
[R. SUBHASH REDDY]
……………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
DECEMBER 14, 2021
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