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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NOS.1721/2011 & 3055/2011
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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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