* THE HON’BLE MRS. JUSTICE T. MEENA KUMARI AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Writ Petition No. 2339 of 2003 % 28-07-2010 # The General Manager Telecom Bharath Sanchar Nigam Limited, Eluru and another ..… Petitioners Vs. $ K. Sudarshana Rao and another …Respondents ! Counsel for the Petitioners: Sri R.S. Murthy ^Counsel for the Respondent No.1: Sri Y.V. Raviprasad Counsel for the Respondent No.2: GP for Labour <Gist : >Head Note: ?Cases Referred: 1. AIR 1961 Supreme Court 1457 2. AIR 1970 Supreme Court 512 3. 2007(3) ALD 173 = 2007(2) ALT 386 4. 1997(3) ALT 556 5. 2000-II-LLJ 193 THE HON’BLE MRS. JUSTICE T. MEENA KUMARI AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Writ Petition No. 2339 of 2003 Order: (per Hon’ble Sri Justice B. Chandra Kumar) The first respondent herein is the workman who approached the Central Government Industrial Tribunal-cum- Labour Court, Hyderabad, (for short ‘Labour Court’) and filed I.D. No. 20 of 2001 challenging his termination and seeking reinstatement with continuity of service and attendant benefits. The Labour Court passed the impugned award dated 10.01.2002, directing the petitioners herein, to take back the first respondent as temporary casual labourer without back wages and to consider his case if permanent vacancy arises considering his seniority from the date of his original appointment. Challenging the same, this writ petition has been filed by the General Manager, Telecom, Bharath Sanchar Nigam Limited, Eluru, and the Sub-Divisional Officer Phones, Eluru. The parties hereinafter will be referred to as they are arrayed before the Labour Court for the sake of convenience. The petitioner/workman filed an application under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’) challenging his retrenchment and to reinstate him with back wages and attendant benefits. The petitioner’s case, in brief, is as follows. The petitioner was employed as casual Mazdoor from 14.11.1980 to 13.06.1981 on daily wage basis. He was paid wages known as ACG-17 payment vouchers. From 21.06.1981 to 07.10.1981 he was employed showing his name on muster rolls. By letter in Ex.W1 dated 05.10.1981 he was selected as Casual Mazdoor on temporary basis and his name was shown in muster rolls except for the period from 01.06.1982 to 31.08.1982 i.e., for 69 days for which he was paid wages on ACG-17 vouchers. However, his name was shown in the muster rolls from 01.09.1982 to 17.03.1990 without break. He was granted temporary status with effect from 01.10.1989. The petitioner was suffering from Hypertension, partial paralysis and mental disturbances and he could not attend his duties from 18.03.1990 to 31.12.1994. However, by letter Ex.W.7 dated 24.12.1990, the petitioner was informed that since he did not turn up for work without any sort of permission from 18.03.1990 onwards till 24.12.1990 his services were dispensed with, with effect from 24.01.1991. The further case of the petitioner is that the services of a temporary status mazdoor cannot be terminated without specifying his misconduct, if any, and without giving him reasonable opportunity to defend himself on the allegations made against him. The further case of the petitioner is that since he was suffering from ill-health from 18.03.1990 to 31.12.1994, he could not give his reply to the said notice immediately and that he reported to duty only on 01.01.1995 along with medical certificate issued by Dr. S.Suryanarayana of Swati Clinic. However, his request was rejected on 05.01.1995. Then he submitted a written representation on 10.01.1995 to the Telecom District Manager, now designated as General Manager, but his application was returned directing him to submit the same through SDOP, Eluru. Then the petitioner filed O.A. No. 1175 of 1995 before the Central Administrative Tribunal, challenging the letter dated 24.12.1990 and seeking reinstatement. However, the said O.A was disposed of on the representation of the petitioner that he would like to make representation to the respondents, however with a direction to the first respondent to consider the representation of the petitioner in accordance with law. Then the petitioner made a representation to the first respondent on 31.07.2000, but his request was rejected stating that his services were already terminated basing on misconduct. Then the petitioner approached the Labour Court and filed I.D. No. 20 of 2001 challenging the action of the respondents in terminating his services. The respondents filed a counter contending, inter alia, that a reference under Section 10 of the Act is contemplated for adjudication of disputes by the Labour Court in respect of the Industries covered by the Central Government and therefore the petition under Section 2-A(2), by an amendment brought of A.P.Government to the Act, is not maintainable. It is also contended by the respondents that O.A. No.1175 of 1995 operates as res judicata. However, it was admitted that the petitioner was engaged as casual labour from 14.11.1980 to 06.10.1981 and subsequently from 07.10.1981 to 17.03.1990 and that he was granted temporary status with effect from 01.10.1989. The further case of the respondents is that the petitioner was unauthorisedly absent from duty from 18.03.1990 leading to issue of notice – cum – termination order to him as such he ceased to be a casual labour with effect from 24.01.1991. It is also contended that the services of the petitioner have been terminated with due notice in accordance with the scheme provided for action against misconduct and that the action taken is just, proper and valid. However, it is also admitted that the petitioner made a representation on 03.01.1995 and that the said representation was rejected as there was no scope for reengagement as his services were terminated with effect from 24.01.1991. It is also the case of the respondents that O.A. No.1175 of 1995 was disposed of with a direction to consider the case of the petitioner, but the petitioner did not approach them after the disposal of the said OA and after a gap of three years he filed M.A. No.306 of 2000 in O.A. No.1175 of 1995 seeking extension of time to prefer his representation as per the orders dated 29.08.1997 in O.A. No.1175 of 1995 and that the said application was allowed by the Tribunal and thereafter the petitioner made a representation on 31.07.2000, which was considered on merits and rejected by orders dated 12.09.2000. Thus, the specific case of the respondents is that the petitioner was unauthorisedly absent from duty from 18.03.1990 and that the conduct of the petitioner shows that he himself abandoned the service and that the medical certificate produced by him is an after thought and that he is guilty of laches. It is also contended that the Telecom Department has taken a policy decision to discontinue the engagement of casual labour on regular establishment and that the power of engaging casual labourers are withdrawn by letter dated 12.02.1999. On behalf of the petitioner/workman, the petitioner himself was examined as WW.1 and Exs.W1 to W18 were marked. On behalf of the management, MW.1 was examined, but no documents were marked. The Labour Court, on appreciation of the entire oral and documentary evidence on record, having observed that the procedure for removal of casual labourer with temporary status was not followed and that the statement of the management witness itself shows that no notice was issued and no enquiry was conducted and no opportunity was given to the petitioner and, held that the termination of the petitioner is illegal. Sri R.S. Murthy, learned Standing Counsel for BSNL, vehemently argued that the petitioner himself abandoned the job and that he produced the medical certificate after lapse of considerable period and that the medical certificate is not worth acceptance. His second submission is that the Labour Court has no jurisdiction to entertain an application under Section 2-A(2) of the Act, since the amendment has been made by the Government of A.P., and that the BSNL works are under the control of the Central Government and therefore unless and until the dispute has been referred by the Central Government under Section 10 of the Act, the Labour Court does not get jurisdiction and therefore on this ground alone the award passed by the Labour Court is liable to be set aside. It is also his submission that since the petitioner is working as casual labourer the question of conducting enquiry or following the procedure contemplated under Section 25-F of the Act does not arise. It is also his submission that the order passed by the Tribunal in O.A. No.1175 of1995 operates as res judicata. It is also his submission that there are clear directions from the General Manager, BSNL not to engage the casual labourers continuously for more than 60 days and that no casual worker should be employed for more than 240 days in a year and in view of those directions even if a direction is given by the Labour Court, the petitioner cannot be engaged as casual worker. It is also his submission that the casual labourers are not being engaged as per the policy decision taken vide letter No.270/6/84-STN, dated 30.03.1985 and that the Telecom Department has further decided not to engage any fresh casual labourer. Sri Y.V. Ravi Prasad, learned counsel for the petitioner/workman, submitted that admittedly the petitioner worked from November 1980 to March 1990 and that he had put in more than 10 years of service and that unfortunately he was suffering from mental illness, partial paralysis and Hypertension and therefore he was under legal disability and there were none to support him and in the above circumstances he could not make any effective representation to condone his absence. It is also his submission that without issuing any notice the petitioner’s services were terminated with effect from 24.01.1991 and that the petitioner was already conferred with temporary status with effect from 01.10.1989 and as per the scheme, the services of temporary status mazdoor cannot be terminated without specifying his misconduct and without giving him an opportunity to defend his case. His main submission is that the services of the petitioner have been terminated without issuing any notice and without giving him an opportunity to defend his case and thus there is violation of principles of natural justice and in the above circumstances the award of the Labour Court is perfectly justified. It is also his submission that though the respondent is the Central Government Organization, Section 2- A(2) of the Act is applicable to all the workers irrespective of the fact whether they are working in an industry under the control of the Central government or the State Government and any worker can approach the respective Labour Court. It is also his submission that the order passed in O.A. No. 1175 of 1995 does not operate as res judicata since the same was not disposed of on merits. It is also his submission that there is violation of Section 25-F of the Act and particularly when misconduct is alleged conducting of enquiry was compulsory. The points that arise for consideration are; (1) Whether the order passed by the Central Administrative Tribunal, Hyderabad, in O.A. No.1175 of 1995 operates as res judicata?; (2) Whether the Labour Court has jurisdiction to entertain the application filed by the workman under Section 2-A(2) of the Act when the dispute is not referred by the Central Government? and (3) Whether there is violation of principles of natural justice and whether the impugned award is liable to be set aside? Point No.1: Section 11 of CPC deals with res judicata. Section 11 of CPC envisages that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VIII reads that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit. Admittedly, O.A. No.1175 of 1995 was not decided on merits. The case of the petitioner is that at his request, the Tribunal passed an order directing the respondents to consider the representation, if any, made by him in accordance with law. However, the petitioner, on condonation of the delay by the Tribunal, made an application, but in vain. Since the Tribunal has disposed of the matter on the request of the petitioner, it is clear that the matter was not disposed of on merits. Therefore, it is clear that the Tribunal has not exercised its judicial mind and not decided the matter on merits. To attract the principle of res judicata, it is essential that the case should have been heard and finally decided. Therefore, a matter, which is not heard and finally decided, appears to be not hit by the principles of res judicata. It is settled law that where a suit or claim is dismissed for default or on some technical ground such as availability of alternative remedy to the plaintiff / petitioner or on the ground of delay or laches or without recording any reasons or when permitted to be withdrawn, it cannot be said that the matter was heard and finally decided (Refer Daryao v. State of U.P[1]). In case between Agra Electric Supply Co. Ltd., v. Sri Alladin[2], it was held that the decision of Labour Court does not operate as res judicata. Thus, when a suit is permitted to be withdrawn by a Court, findings of Courts in such case will not operate as res judicata. Therefore, it is clear that the petition is not hit by res judicata and hence maintainable. POINT NO.2: Industrial dispute has been defined under Section 2(k) of the Act, which is as follows. “2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.” Section 2-A of the Act is as follows. “2-A. Dismissal, etc., of an individual workman to be deemed to be an Industrial Dispute: - (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Notwithstanding anything in Section 10, any such workman as is specified in Sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in. accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute." (Inserted by A.P. Act No. 32 of 1987 w.e.f. 27-7-1987)” Section 10 of the Act is as follows. 10. Reference of disputes to Boards, Courts or Tribunals:- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Labour Court for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c): Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.” It is true that under Section 10 of the Act where the appropriate government is of opinion that any industrial dispute exists or is apprehended, the dispute has to be referred by the Central Government to the Labour Court or to the Industrial Tribunal. This Court in Municipal Corporation of Kurnool, rep. by its Commissioner v. A. Padma Reddy and others[3], observed as follows. “With the insertion of Section 2-A by the Industrial Disputes (Amendment) Act, 1965, an individual dispute in the matter of dismissal, discharge, retrenchment or termination of service, which was hitherto treated as an individual dispute, came to be treated as an 'industrial dispute'……………. Sub-section (2) of Section 2-A, which begins with a non-obstante clause qua Section 10, removed all the bureaucratic hurdles in the raising of an industrial dispute by an individual workman in matters involving dismissal, discharge, retrenchment or termination of service. This sub-section facilitates direct making of application by the workman to the Labour Court for adjudication of the dispute referred therein. It lays down that on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute by deeming it to be a dispute referred to it under Section 10. The plain language of Sub-section (2) of Section 2-A makes it clear that it is procedural in nature. This sub-section does not create any new right in favour of the workman. It merely lays down the mode of making an application for raising a dispute which is deemed as an industrial dispute by virtue of Section 2- A. What was earlier required to be done through the machinery of conciliation has been dispensed with. Now the individual workman can directly make an application and seek adjudication of the dispute relating to discharge, dismissal, retrenchment or termination of his service without going through the tardy and cumbersome procedure of conciliation.” I n U. Chinnappa v. Cotton Corporation of India and others[4], the Hon’ble Sri Justice P. Venkatarama Reddi, as he then was, while dealing with a similar question observed as follows. “9. The next aspect is whether the operation of sub-section (2) of Section 2-A shall be confined only to the workmen employed in the industrial undertakings of the State Government, as interpreted by the Labour Court or it would govern all workmen irrespective df whether he is a workman engaged in an industry run by or under the authority of the Central Government or the State Government or any other industry located in the State. We find no warrant to restrict the scope and amplitude of the wide phraseology "any workman" employed in sub-section (2) of Section 2-A of the Act so as to hamper the right of ably workman who was discharged, dismissed, retrenched or terminated from employment or service. We do not think that any incongruity or anomaly would result by applying sub- section (2) to the cases of discharge, dismissal, termination or retrenchment of the workmen employed in an industry run by or under the authority of the Central Government. On the other hand, the purpose of the Act will be better served in placing an interpretation that it would apply to all categories of workmen. It is to be remembered that the State Government is as much concerned as the Central Government with the maintenance of industrial peace and welfare of the workmen. That is why the subject of Labour and Industrial disputes is assigned to the Concurrent List. Within the State, there need not be diversity approach in the matter of providing remedies to the aggrieved workmen. There is no good reason why the ambit and operation of Section 2-A should be restricted only to the workmen other than those employed in an industry run by or under the authority of the Central Government.” However, in Singareni Collieries Co. Ltd., v. Andelingaiah[5], the apex Court left open the question whether a direct application would lie to the State Labour Court under the A.P. Amended provisions of Section 2-A(2) of the Act with regard to a dispute of dismissal of ‘badli’ mazdoor engaged by the Company which is a Central Government company. Sri R.S. Murthy, learned standing counsel for the writ petitioners-BSNL, did not cite any decision in support of his contention. Therefore, we rely on the earlier decision of this Court referred supra and hold that the petition under Section 2- A(2) of the Act is maintainable though the dispute is not referred by the Central Government. POINT NO.3: Now coming to the issue as to whether the award of the Labour Court is justified and whether the termination or disengagement of the petitioner is in accordance with law, it is not in dispute that the petitioner was engaged as casual labour in Telecom Department, Eluru from 14.11.1980 to 06.10.1981 and again from 01.09.1982 to 17.03.1990. It is also not in dispute that having regard to the policy to regularise and grant temporary status to the casual labourers, who have rendered a continuous service of at least one year in the Department of Telecommunications, vide letter No.269-10/89-STN, datd 07.11.1989, the petitioner was conferred with temporary status with effect from 01.10.1989. Paras 8 and 9 of the above referred scheme are as follows. “8. Despite conferment of temporary status, the services of a Casual Labourer may be dispensed with in accordance with the relevant provisions of the Industrial Disputes Act, 1947 on the ground of non-availability of work. A casual labourer with temporary status can quit service by giving one month’s notice. 9. A labourer with temporary status commits a misconduct and the same is proved in an enquiry after giving him reasonable opportunity his service will be dispensed with. They will not be entitled to the benefit of encashment of leave on termination of services.” The above paras make it clear that a casual worker’s service can be dispensed with on the ground of non-availability of work. The non-availability of work does not apply in this case. As per Para 9 if a labourer with temporary status commits a misconduct an enquiry has to be conducted giving him reasonable opportunity before his services are dispensed with. As seen from the contents of the counter itself the petitioner’s services have been terminated with due notice but not in accordance with the scheme provided for action against misconduct. Admittedly, a notice-cum-termination letter was issued to the petitioner. It shows that the petitioner ceased to be a casual labourer with effect from 24.01.1991. Of course, this letter is dated 24.12.1990. Thus, it is clear that one month notice was given to the petitioner. Admittedly, no show cause notice was issued and no enquiry was conducted. Thus, it is clear that there is violation of procedure prescribed in para 9 of the above scheme, which contemplates of holding an enquiry after giving the workman a reasonable opportunity. Thus,