Case: BHARAT SANCHAR NIGAM LTD Vs. SRI DEO KUMAR RAI @ DEO KUMAR RAY

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 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. 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 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 Committees 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 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 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 Committees 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 Tribunals 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 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 respondents 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 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.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.The above clause makes it clear that the Applicant was required to have been engaged for 240 days in a given calendar year. The Committees 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 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 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 Committees 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.