Bombay High Court High Court

The General Manager (Telecom); vs Zarir on 15 July, 2011

Bombay High Court
The General Manager (Telecom); vs Zarir on 15 July, 2011
Bench: R. M. Savant
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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                              NAGPUR BENCH, NAGPUR

                      WRIT PETITION NOS.1721/2011 & 3055/2011




                                                                
                               ------------------------------------------------

WRIT PETITION NO.1721/2011

PETITIONERS: 1. The General Manager (Telecom);

Telecom Bhavan, Zero Mile,
Civil Lines, Nagpur – 440001.

ig 2. The Divisional Engineer (Telecom),
Microwave Project,
C.T.O. Compound, Nagpur – 1.

[As mentioned in statement of claim]

…VERSUS…

RESPONDENTS : 1. Zarir S/o Pesi Mawalwala,
Aged about 43 years,

R/o. Quarter No.72, New Empress
Mill Quarters, Bezonbagh,
Nagpur.

2. The Central Government Industrial

Tribunal-cum-Labour Court, Nagpur.

3. Shri Y. R. Bagade,
District Secretary,
Bharat Sanchar Nigam Ltd. Worker’ Union,

P & T Colony, Qr. No.A/8, T-I Katol Road,
Nagpur.

—————————————————————————————————–

Mrs. B. P. Maldhure, learned counsel for the petitioners.
Shri. P. D. Meghe, learned counsel for the respondent Nos.1 and 3.

—————————————————————————————————–

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                                 WRIT PETITION NO.3055/2011




                                                                                          
     PETITIONERS:                 1.      Zarir S/o Pesi Mawalwala,
                                          Aged about 45 years,




                                                                
                                          resident of Quarter No.72, 
                                          New Empress Mills Quarters, 
                                          Bezonbagh, Nagpur. 




                                                               
                                  2.      Shri Y. R. Bagade, 
                                          District Secretary, 
                                          BSNL Workers Union, 
                                          P & T Colony, Quarter No.A/8-1, 
                                          Katol Road, Nagpur. 




                                               
                                          ...VERSUS... 

     RESPONDENTS :
                          ig      1.      General Manager Telecom
                                          (Now Principal General Manger Telecom),
                                          BSNL, Telecom Bhavan, 
                        
                                          '0' Mile, Civil Lines, 
                                          Nagpur.

                                  2.      The Divisional Engineer Telecom,
      

                                          Microwave Project, CTO Compound, 
                                          Nagpur. 
   



—————————————————————————————————–

Shri P. D. Meghe, learned counsel for the petitioners.
Mrs. B. P. Maldhure, learned counsel for the respondents

—————————————————————————————————–

CORAM : R. M. SAVANT J.

                                                   DATED   : 15.07.2011 





     O R A L     J U D G M E N T



     1)        Rule   with   the   consent   of   the   parties   made   returnable   forthwith   and 

     heard. 




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     2)       The above petitions filed under Articles 226 and 227 of the Constitution 




                                                                                        

of India take exception to the order dated 20/01/2011, by which the Presiding

Officer, Central Government Industrial Tribunal, Nagpur answered the

Reference, which was referred to it for adjudication, in favour of the workman

i.e. the petitioner No.1 in Writ Petition No.3055/2011.

3) The petitioner No.1 in Writ Petition No.3055 was initially appointed on

21/01/1986 as casual labour with the Chief General Manager, Railway

Electrification Project Telecom and thereafter he was transferred to the

Divisional Engineer Telecom, Microwave (Survey) from the year 1989. He has

worked with the respondent BSNL up to 25/06/1993 when he was given the

temporary status by a letter dated 02/03/1988 under the provisions of the

Casual Labourer (Grant of Temporary Status and Regularization) Scheme. It

appears that by order dated 18/02/1989, regularized 69 mazdoors similarly

situated as the petitioner No.1 was, issued with the order of regularization,

however, the petitioner No.1 was not. It is the case of the petitioner No.1 that

he was deprived of various facilities of the regular employees and suddenly on

02/12/2002 the BSNL terminated his services with immediate effect by written

order on payment of one month salary on 08/11/2002. He submitted a

representation against the said termination as he has already put in 16 years of

service continuously. It was his case that prior to the said termination, no

chargesheet was issued to him and if any enquiry was completed, then such

enquiry was conducted without compliance of principles of natural justice, as at

no point of time the depositions or statements were recorded on behalf of the

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party No.1 in his presence and no opportunity of cross-examination was granted

to him and thus the alleged enquiry was in utter disregard to the settled

principles applicable to the conduct of the departmental enquiries. The issue of

the termination of the services of the petitioner No.1 was referred to the Central

Government Industrial Tribunal, Nagpur. The statement of claim was

accordingly filed by the petitioner No.1 in the said Reference.

4) In the written statement filed by the BSNL, the said respondents

admitted that the petitioner was continuously working from 21/01/1986 till

02/11/2002 and his services were utilized as casual motor driver on daily rates

basis. It was the case of the respondents that an incident took place on

26/07/2002 in respect of the loss of some laptops from the vehicle, which the

petitioner No.1 was driving and, therefore, an enquiry was initiated against the

petitioner No.1 and after following the procedure, his services came to be

terminated. It is further the case of the respondents that the procedure as

prescribed under the Central Civil Services (Temporary Services) Rules, 1965

was applicable, as the petitioner No.1 at the relevant time was working as a

temporary status mazdoor, which status stands apart from the status of a

confirmed employee. It was further the case of the respondents that to such a

class of employee the chargesheet also need not be issued and a termination can

be ordered in terms of the said Rules.

5) The said Reference was tried by the Central Government Industrial

Tribunal, Nagpur and by the impugned judgment and order dated 20/01/2011,

the said Reference came to be allowed inasmuch as the termination of the

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petitioner No.1 dated 02/11/2002 was set aside. It was ordered that the

petitioner No.1 be reinstated in service with continuity in service including

regularization of service within one month of the publication of the Award. As

indicated above, it is the said order, which is challenged in both the petitions, in

so far as Writ Petition No.3055/2011 is concerned, the petitioner No.1-workman

is aggrieved by the fact that full back wages have been denied to him and in so

far as Writ Petition No.1721/2011 is concerned, the petitioners BSNL are

aggrieved by the impugned Award of the Tribunal in toto.

6)

Heard the learned counsel for the parties.

The learned counsel for the petitioner in the Writ Petition No.3055/2011

Shri Meghe would contend that once the termination was set aside on the

ground that the said termination order was passed in violation of the principles

of natural justice, the natural corollary to the same would be the reinstatement

of the petitioner with full back wages. For the said purposes Shri Meghe, the

learned counsel for the petitioner placed reliance on the judgment of the Apex

Court reported in 2007 AIR SCW 137 in the matter of J. K. Synthetics Ltd. v. K.

P. Agrawal and anr. wherein the Apex Court has held that once the Labour

Court comes to a conclusion that the charges are not proved, the grant of back

wages in such cases would be automatic. The learned counsel would therefore

contend that the Central Government Industrial Tribunal, Nagpur erred in not

awarding full back wages, in so far as the challenge to the reinstatement is

concerned, the learned counsel for the petitioner workman Shri Meghe

submitted that in view of the fact that no modicum of procedure was followed

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prior to the termination of the services of the petitioner No.1, the Award of the

Central Government Industrial Tribunal in directing the reinstatement with

continuity of service cannot be faulted with.

Per contra, it is submitted by learned counsel Mrs. B.P. Maldhure for the

respondent BSNL that it was incumbent on the part of the Tribunal to frame a

preliminary issue as regards the fairness of the enquiry as to whether the

enquiry was just, fair and proper according to the learned counsel if the Tribunal

had recorded a finding against the respondent BSNL, it would have been open

for the respondent BSNL to prove the charges by leading evidence in Court. The

learned counsel would contend that though in terms of the status of the

petitioner No.1, an elaborate procedure need not be followed nevertheless the

BSNL has followed the procedure by holding an enquiry and thereafter the

termination order dated 02/11/2002 came to be issued. The learned counsel

would then contend that in view of the fact that the preliminary issue as to

whether the enquiry was just, fair and proper was not framed, the matter be

relegated back to the Tribunal for a de novo consideration.

7) Having considered the rival contentions advanced by the learned counsel

appearing for the petitioner workman and the respondent BSNL, I have

bestowed my anxious consideration to the same.

In the instant case, as can be seen from the record the cause for the

termination order was the enquiry conducted on account of the loss of some

laptops from the vehicle, which the petitioner workman was driving. The stand

of the respondent BSNL as can be seen from the record is consistent throughout

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viz. that the petitioner No.1 was a temporary status mazdoor and, therefore, the

Central Civil Services (Temporary Services) Rules, 1965 was applicable. It is on

the application of the said Rules, that it is the stand of the BSNL that no enquiry

is postulated against such a temporary status mazdoor and his services could

have been terminated by giving him one month’s notice with pay.

8) However, the fact of the matter is that an equiry has been held into

complicity of the petitioner in the loss of the laptops in the said enquiry,

witnesses were examined and who were admittedly not offered for cross-

examination to the petitioner. It is further pertinent to note that the enquiry was

not proceeded with a chargesheet, which ought to be issued to the petitioner. It

is an admitted fact that it is on the basis of the said enquiry that the termination

order dated 02/11/2002 had been issued to the petitioner, the said termination

order was outcome of the said enquiry, which has been conducted against the

petitioner. The Tribunal has gone into the said aspect and recorded a finding,

which can be seen from paragraph No.9 of the impugned Award. The Tribunal

has recorded that no chargesheet has been issued for the alleged misconduct,

the petitioner was not intimated the appointment of the enquiry officer and that

the workman was not given any chance for cross-examination of the witnesses

or to lead evidence in his defence. The Tribunal, therefore, reached a conclusion

that the workman was never given any reasonable opportunity to defend himself

in the said enquiry.

9) The Tribunal has also taken into consideration the fact that though it was

stated that an FIR has been filed with the Police, nothing was put on record to

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show as to what was the result of the investigation and as to whether the

workman was held responsible by the Police for such theft or that the theft of

the laptops was committed due to the negligence of the workman. It is on the

basis of the said findings that the Tribunal has quashed and set aside the

termination order dated 02/11/2002 and was ordered the reinstatement of the

respondent No.1 with continuity of service and regularization.

10) In so far as the submission of the learned counsel for the respondent

BSNL is concerned, that the Tribunal ought to have framed the preliminary issue

as regards the fairness of the enquiry and if the said issue was to have been held

against the respondent BSNL, the Tribunal should have granted liberty to the

BSNL to prove the misconduct in Court. In my view, in the context of the fact

that the defence of the respondent BSNL is replete with the fact that the

petitioner workman was a temporary mazdoor and was governed by the

Temporary Service Rules and in the teeth of the stand of the respondent BSNL

that even an enquiry was not contemplated prior to the services of the petitioner

workman, the said submission cannot be countenanced. In making the said

submission, the respondent BSNL is approbating and reprobating, on one hand,

it is sought to be contended that no enquiry is postulated against a workman of

the kind to which the petitioner belongs and on the other hand, it is sought to be

contended that if the enquiry was not found to be just and proper, the petitioner

No.1 ought to have been given the opportunity to lead evidence in Court. In my

view, both the things cannot be urged at the same time either the respondent

BSNL sticks to its stand that it is entitled to terminate the services without

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following the usual procedure of holding the enquiry, etc. or adopts the stand

that an enquiry is contemplated. Having chosen to hold the enquiry without

adhering to the basic principles of issuing a chargesheet, etc. and the said

procedure having been found to be illegal and in violation of the principles of

natural justice by the Tribunal, it is now not open to the BSNL to contend that it

should have been permitted to lead evidence in Court. In my view, there is no

substance in the said contention of the respondent BSNL. The Tribunal also took

into consideration the conditions applicable to a temporary employee of the

BSNL which provide that a temporary employees services can be terminated by

holding an enquiry into the misconduct alleged by giving him a reasonable

opportunity.

11) However, in so far as the issue of regularization is concerned, that was an

issue, which was not even referred to the Tribunal in the Reference order. It is

also required to be noted that in the statement of claim what is sought by the

petitioner workman is only reinstatement and continuity of service. Hence, in

ordering regularization, the Tribunal has gone beyond the scope of Reference

and the statement of claim as filed before it. The learned counsel for the

petitioner Shri Meghe fairly accepts the said position. The said direction would

therefore have to be quashed and set aside.

12) In so far as the aspect of the back wages is concerned, the Tribunal

considered the fact that the petitioner had not averred that he was unemployed

during the pendency of the Reference and in that view of the matter the Tribunal

was of the opinion that the interest of justice would be served, if the back wages

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are denied to the petitioner workman. It is well settled that the grant or refusal

of the back wages is within the discretion of the Tribunal to be exercised in the

facts and circumstances of the present case. In my view, in the facts and

circumstances of the case, the discretion exercised by the Tribunal in refusing

the back wages cannot be faulted with.

13) In that view of the matter, the Writ Petition No.3055/2011 is dismissed.

Rule is discharged. In so far as Writ Petition No.1721/2011, which is filed by

the BSNL is concerned, the same is partly allowed to the extent that the

direction of regularization issued in the impugned order is quashed and set

aside. Rule is accordingly made partly absolute in the said writ petition in the

said terms with parties to bear their respective costs.

14) It is expected that since sufficient time has already elapsed, the

respondent BSNL would implement the Award in question as modified herein

above within a period of one month from date.

JUDGE

KHUNTE

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