BHARAT SANCHAR NIGAM LTD.versusSRI DEO KUMAR RAI @ DEO KUMAR RAY

882                       [2021]
               SUPREME COURT     9 S.C.R. 882
                              REPORTS                     [2021] 9 S.C.R.


A                    BHARAT SANCHAR NIGAM LTD.
                                       v.
               SRI DEO KUMAR RAI @ DEO KUMAR RAY
                     (Civil Appeal Nos. 7707-7708 of 2021)
B                           DECEMBER 14, 2021
          [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
            Casual Labourers (Grant of Temporary Status and
      Regularization) Scheme of the Department of Telecommunications,
      1989 – Regularization – Casual workers – Conferment of temporary
C
      status – Committee constituted for verification of service records
      found that respondent did not fulfil the eligibility criteria –
      Challenged by respondent – Petitions dismissed by Central
      Administrative Tribunal – Order set aside by High Court, matter
      remanded back for fresh adjudication – Tribunal ordered
D     respondent’s regularization – Writ petition filed by appellant,
      dismissed by High Court – Review Petition – Dismissed – On appeal,
      held: Conclusion drawn by the High Court and the Tribunal
      favouring the respondent is contrary to the factual finding recorded
      by the Committee – Committee Report disclosed that the respondent
      failed to produce records in original to support his claim –
E
      Certificates were issued by unauthorised persons and the
      authenticity of such documents were not established – Respondent
      was required to have been engaged for 240 days in a given calendar
      year however, he had served for a maximum of 38 days in a calendar
      year and was ineligible – Further, period of engagement spreading
F     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 – Impugned judgments
      and orders are quashed – Administrative Tribunals Act, 1985 –
      s.22(3).
G           Allowing the appeals, the Court
             HELD: 1.1 In order to secure the benefit of the Casual
      Labourers (Grant of Temporary Status and Regularization)
      Scheme of the Department of Telecommunications, 1989, it was
      necessary for the respondent to establish that he satisfied the
H     eligibility criteria prescribed under the Scheme and had worked
                                       882
BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @                        883
               DEO KUMAR RAY

for at least 240 days in 12 months. The Committee clearly               A
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,
                                                                        B
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. The conclusion is drawn         C
without any material foundation. 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
                                                                        D
his claim. The Committee further noted that certificates were
issued by unauthorised persons and the authenticity of
such documents have not been established. [Paras 16, 18 and
19][888-F-G; 889-D-G]
      1.2 Clause 5(i) of the 1989 Scheme prescribed the
requirements for conferring temporary status to casual workers.         E
The 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.
The Tribunal in its order (25.8.2015) relied upon the judgement         F
in Uma Devi 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. The ratio of the said judgment 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             G
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
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884            SUPREME COURT REPORTS                       [2021] 9 S.C.R.


A     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
B
      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. The
      above order of the Tribunal was interfered with and remanded by
      the High Court. The impugned judgments dated 31.5.2018 and
C     4.6.2019 of the High Court as also the order dated 25.8.2015 of
      the Tribunal in T.A. No. 30/2009 are found to be unsustainable.
      The same are accordingly set aside and quashed. [Paras
      20-23][889-G-H; 890-B-D]
            Secretary, State of Karnataka & Ors. vs. Umadevi &
D           Ors. (2006) 4 SCC 1: [2006] 3 SCR 953 – referred
            to.
                             Case Law Reference
      [2006] 3 SCR 953                referred to            Para 11

E           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.7707-
      7708 of 2021.
            From the Judgment and Order dated 31.05.2018 of the High Court
      of Gauhati (High Court of Assam, Nagaland, Mizoram and Arunachal
      Pradesh) in WP(C) No.991 of 2017.
F            Dinesh Agnani, Sr. Adv., Piyush Sharma, Ms. Leena Tuteja, Advs.
      for the Appellant.
            Surendra Patri, Ram Kishore Chaudhuri, Ms. Taruna Kant
      Samantray, Ms. Kiran Mahato, Velasree S., Ms. Baby Devi Bonia, Ms.
      Saloni Saran, Robin Khokhar, Advs. for the Respondent.
G           The Judgment of the Court was delivered by
            HRISHIKESH ROY, J.
            1. Leave granted.

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BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @                                885
       DEO KUMAR RAY [HRISHIKESH ROY, J.]

      2. Heard Mr. Dinesh Agnani, learned Senior Counsel appearing              A
for the appellant. Also heard Mr. Surendra Patri, learned counsel
representing the respondent (original applicant before the Central
Administrative Tribunal (for short “the Tribunal”)).
      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/        B
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          C
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        D
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 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         E
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                 F
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             G
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                 H
886            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     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
B           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
C     2006 which was transferred on 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
D     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
E     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
      Section 22(3) of the Administrative Tribunals Act, 1985 (for short
F     “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.,
G     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
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BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @                               887
       DEO KUMAR RAY [HRISHIKESH ROY, J.]

or material, the Tribunal passed an order in favour of the applicant on        A
25.8.2015 in the TA No. 30/2009.
       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        B
(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     C
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 relied on the decision of this Court          D
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            E
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:-
       “ ****             ****               ****              ****            F
       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 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                G
       “Responsible Committee” constituted by the Department to look
       into such matters as well as the documentary evidence produced
       by the SDE/JTO.

1
    (2006) 4 SCC 1                                                             H
888             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A            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
B     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 for 240 days in 12 months and is
C
      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
D     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
E
      High Court could have concluded that the applicant fulfilled the eligibility
      criteria under the Scheme.
             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
F     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
G     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
H
BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @                               889
       DEO KUMAR RAY [HRISHIKESH ROY, J.]

however upon verification of the Records concluded that the respondent         A
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
                                                                               B
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      C
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              D
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                 E
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        F
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      G
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.      H
890            SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A            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
B           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.”
C           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
D     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
E     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
F           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
G           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
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BHARAT SANCHAR NIGAM LTD. v. SRI DEO KUMAR RAI @                               891
       DEO KUMAR RAY [HRISHIKESH ROY, J.]

      worked for ten years or more in duly sanctioned posts but not            A
      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
                                                                               B
      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            C
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)         D
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        E
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.                                       F
       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. 30/2009 are found to be unsustainable. The
same are accordingly set aside and quashed.
       24. The appeals are allowed with the above orderAppeals
                                                        without    any         G
Divya Pandey                                                   allowed.
order on cost.




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