Bharat Sanchar Nigam Ltd vs Draupadi Harichandan
2023 Latest Caselaw 11324 Ori

                   ORISSA HIGH COURT: CUTTACK

AFR                      W.P(C) NO. 15091 OF 2019

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                              ---------------

Bharat Sanchar Nigam Ltd., New Delhi and Ors. ..... Petitioners

-Versus-

Draupadi Harichandan and Ors. ..... Opp. Parties

For petitioners : Mr. S.B. Jena, Advocate

For opp. parties : M/s. S. Patra & S. Rath, Advocates [O.P.1]

Mr. S.B. Panda, Central Government Counsel [O.Ps.2 & 3]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

DECIDED ON : 15.09.2023

DR. B.R. SARANGI, J. Bharat Sanchar Nigam Limited (BSNL)

and its functionaries, who were respondents no.3 to 8

before the Central Administrative Tribunal, Cuttack

Bench, Cuttack, by means of this writ petition, seek to

quash the order dated 10.05.2019 passed in O.A.

// 2 //

No.136 of 2017 under Annexure-1, by which the

Tribunal, while allowing the Original Application, has

directed the petitioners to sanction and disburse the

family pension in favour of opposite party no.1 as per

the rules within a period of three months from the date

of receipt of the order, subject to condition that the

actual payment of family pension will be made w.e.f.

01.01.2016, in view of delay on the part of opposite

party no.1 to approach the Tribunal.

2. The factual matrix of the case, in brief, is

that the deceased husband of opposite party no.1,

namely, Bishnu Kumar Harichandan was working as a

Casual Labourer since 15.06.1993 in the office of the

Deputy General Manager (Microwave Project),

Bhubaneswar-opposite party no.6 and the said office

was a subordinate office under the office of the Chief

General Manager (CGM), Telecom Projects, Eastern

Zone, Kolkata. The said CGM Office, Kolkata was

functioning under the Department of

Telecommunication, Government of India (DOT),

whose jurisdiction extends to Odisha. From the date of // 3 //

joining, the deceased husband of opposite party no.1

was working in the Microwave Project of DOT

(Department of Telecommunication) at Bhubaneswar

and, thereafter, in BSNL. His services were regularized

w.e.f. 01.10.2000, vide order of the CGM, Telecom

Project, Eastern Zone, Kolkata, in Memo No. G/FM-

115/TSM-RM/16 dated 14.02.2001, as regular

mazdoor. The said regularization was held in

pursuance of the letter dated 29.09.2000 of

Department of Telecom Services (DTS).

2.1 Due to agitations and repeated demand of

casual employees for regularization of their services,

the Central Government moved a scheme in

September, 2000 to regularize the services of the

casual employees working in different projects/circles

of DOT. In letter dated 29.09.2000 of the Department

of Telecom Services, a scheme for regularization was

floated, basing upon which the services of deceased

husband of opposite party no.1 was regularized w.e.f.

01.10.2000. In the said letter of DTS, it was mentioned

that "it has been decided to regularize all the casual // 4 //

labourers working in the Department, including those

who have been granted temporary status, with effect

from 01.10.2000, as specified in clause-(1) to (5) in the

said letter."

2.2 BSNL was formed in the year 2000 and

thereafter the employees of the Department of

Telecommunication joined BSNL by giving option.

Accordingly, the deceased husband of opposite party

no.1 joined in BSNL by giving option and his option for

absorption was accepted w.e.f. 01.10.2000 by the

Govt. of India on 28.02.2001. Thereafter, the

Presidential Order dated 04.02.2002 of Govt. of India,

Department of Telecommunication was issued in his

favour designating him as regular mazdoor w.e.f.

01.10.2000 forenoon specifying terms and conditions

of absorption of a Govt. Servant in BSNL. Since he had

served under the Central Government from

15.06.1993 to 01.10.2000 forenoon, he was absorbed

in BSNL.

2.3 The husband of opposite party no.1, while

working under opposite party no.4, died on // 5 //

03.04.2006, after which opposite party no.1 applied

for family pension to opposite party no.3, who, vide

letter dated 15.02.2007, refused family pension stating

that the ex-official started his service on 01.10.2000

as BSNL employee. Against the said order/letter,

opposite party no.1 preferred appeal before the

General Manager, Bhubaneswar Telecom District,

BSNL and CGM, BSNL, Bhubaneswar. The CGM,

BSNL, Bhubaneswar referred her case to the office of

opposite party no.3-Controller of Communication

Accounts, Odisha Telecom Circle, Bhubaneswar, who,

vide letter dated 08.05,2009, again rejected the claim

for family pension of opposite party no.1, as her

deceased husband-Late Bishnu Kumar Harichandan

was regularized on 01.10.2000, without having

temporary status of mazdoor, and requested to settle

the claim of opposite party no.1 as per the rules

applicable to BSNL recruits. Opposite party no.1

again, on 05.10.2015, submitted a detailed

representation to petitioner no.4 with a copy to

petitioner no.2 and opposite party no.3.

// 6 //

2.4 On the basis of the request of opposite party

no.1, the Dy. GM (Rural & Admn.) wrote letter dated

12.02.2016 to petitioner no.2, with a copy to opposite

party no.3, justifying the claim of opposite party no.1.

After receipt of the said letter, the Asst. General

Manager (HR & A), for petitioner no.2, rejected the

claim of opposite party no.1 for family pension stating

that the Presidential Order shall be treated as null and

void. He also communicated the said rejection order to

petitioner no.4 on 04.04.2016.

2.5. Aggrieved by the aforesaid order dated

04.04.2016, opposite party no.1 approached the Central

Administrative Tribunal, Cuttack Bench, Cuttack by

filing O.A. No.136 of 2017 and the Tribunal, vide order

dated 10.05.2019, while allowing the said O.A., directed

the petitioners to sanction and disburse the family

pension in favour of opposite party no.1 as per the rules

within a period of three months from the date of receipt

of the order, subject to condition that the actual

payment of family pension will be made w.e.f.

01.01.2016, in view of delay on the part of opposite // 7 //

party no.1 to approach the Tribunal. Hence, this writ

petition.

3. Mr. S.B. Jena, learned counsel appearing

for the petitioners vehemently contended that the

status of the deceased husband of opposite party

no.1 as on 30.09.2000 was a casual labourer, but

not a casual labourer with temporary status.

Therefore, the Presidential Order for regularization of

his service w.e.f. 01.10.2000 could not have been

issued. Thereby, it is contended that the Presidential

Order dated 04.02.2002 was void and

consequentially opposite party no.1 is not entitled to

get family pension. It is further contended that after

formation of BSNL w.e.f. 01.10.2000, the staff to be

transferred to BSNL were asked to exercise option

either for permanent absorption in BSNL or to

continue with Government as per the provisions of

the fundamental rules. But the employees do not

include casual labourers. The casual workers

transferred to PSU are not considered as

Government servants and they are not entitled for // 8 //

permanent absorption in BSNL. They were

transferred as casual workers to BSNL, which was

classified vide letter dated 20.10.2006, that only

those casual workers with temporary status on or

before 30.09.2000 would be absorbed in BSNL and

their 50% of temporary status period can be included

for pensionary benefits, and that some orders were

issued erroneously for absorption in BSNL which are

void. Therefore, the Tribunal has committed gross

error apparent on the face of the records in passing

the order dated 10.05.2019 in O.A. No.136 of 2017,

for which interference of this Court has been sought

for at this stage.

4. Mr. S. Patra-1, learned counsel appearing for

opposite party no.1 contended that once the benefit has

been extended, the same cannot be denied to the

deceased employee. More so, there was no dispute that

the deceased husband of opposite party no.1, who was

working as full time casual labourer, was taken over by

the BSNL without any condition. Therefore, after taking

over by the BSNL, the deceased husband of opposite // 9 //

party no.1 was working as full time casual labourer. As

such, the decision taken for withdrawal of the benefit

from the deceased husband of opposite party no.1

cannot be sustained in the eye of law. It is further

contended that to justify the action of the petitioners,

reliance has been placed on paragraphs 3 & 4 of the

judgment dated 17.09.2012 passed by the Karnataka

High Court in W.P. No.28602 of 2011 (The Managing

Director-cum-Chairman, Bharat Sanchar Nigam

Limited & Ors. v. Renuka P Garg), which is not

applicable to the present case. Therefore, the writ

petition filed by the petitioners should be dismissed.

5. This Court heard Mr. S.B. Jena, learned

counsel appearing for the petitioners and Mr. S. Patra-

1, learned counsel appearing for opposite party no.1 in

hybrid mode. Pleadings having been exchanged between

the parties, with the consent of learned counsel for the

parties, the writ petition is being disposed of finally at

the stage of admission.

6. Based on the pleadings available on record,

as well as the rival contentions raised by the learned // 10 //

counsel for the parties, it is to be considered whether

the deceased employee, viz., the husband of opposite

party no.1 was absorbed on regular basis and in the

event of his premature death, his family members are

entitled to get family pension or not?

7. The deceased husband of opposite party no.1

was a full time casual labourer since 1993 and he was

eligible for temporary status and regularization as per

the circular dated 29.09.2000 although he was not

formally granted temporary status prior to 01.10.2000.

The deceased employee was taken over by the present

petitioners. Therefore, after his demise his legal heirs

are entitled to get the benefit as due and admissible to

them in accordance with law. The ratio decided by the

Karnataka High Court in Renuka P. Garg (supra), on

which reliance has been placed by the petitioners, has

no application to the present case, in view of the fact

that the petitioner therein was a part-time casual

employee working for two hours per day and was

treated as full time casual employee and his services

were regularized w.e.f. 20.04.2000 by BSNL after // 11 //

01.10.2000 and he was not eligible for regularization as

per the circular dated 29.09.2000. However, the

Presidential Order was issued in favour of the said

employee inadvertently, as observed in paragraph-3 of

the said judgment.

8. The petitioners have relied upon the letter

dated 20.10.2006 issued by the Department of

Telecommunication, Government of India, to state that

the Presidential Order dated 04.02.2002 was wrongly

issued in respect of the deceased employee and,

thereby, the same is null and void. The said letter dated

20.10.2006 reads thus:-

"In supersession to previous orders for absorption in respect of Temporary Status Mazdoors (TSMs), it has been decided that those Temporary Status Mazdoors who have been regularized in pursuance of this office letter No.269-94/98-STN-II dated 29.09.2000 were to be absorbed in BSNL w.e.f. 1.10.2000 as per their status existing on 30.09.2000. Accordingly Presidential Orders may be issued in respect of those Temporary Status Mazdoors who were having TSM status prior to 30.09.2000 so as to allow them benefit of counting of 50% of the TSM period for pensionary benefits Related service matters of those TSMs absorbed in BSNL w.e.f. 01.10.2000 may8 be resolved accordingly. It is further clarified that in respect of those Casual labourer who were not having TSM status as on 30.09.2000 and who have been regularized in BSNL after 1.10.2000, their // 12 //

status will be of a PSU appointee and therefore Presidential Order need be issued in such cases.

Prior to issue of Presidential Orders, the cases of eligible TSMs may be examined and forwarded through BSNL HQ for approval for issue of Presidential Orders. In individual Presidential Orders will be issued at circle level under the signature of the director (Estt.) designated for the issue of P.O.".

In view of aforementioned letter, the

Presidential Orders of eligible temporary status casual

workers are to be issued after careful examination by

BSNL. It does not specify any thing that casual workers

are entitled to be granted with temporary status, as per

the circular dated 29.09.2000. There is nothing on

record to prove that the Presidential Order dated

04.02.2002 was issued inadvertently or wrongly in

respect of opposite party no.1, who, based on the

materials on record, was entitled for regularization as

per the circular dated 29.09.2000 and, therefore, his

services were rightly regularized w.e.f. 01.10.2000 by

the Presidential Order dated 04.02.2002.

9.        Similar      question     had      come         up   for

consideration    before      the   Central     Administrative

Tribunal, Ernakulam Bench in O.A. No.289 of 2012 // 13 //

(Rejilamoni v. Union of India & Ors.) and, vide order

dated 11.12.2012, the employee therein, who was

working as casual worker under the Government, was

absorbed in BSNL as per the Presidential Order.

Therefore, in the case at hand, the Tribunal has come

to a conclusion, by applying the said principle, that

opposite party no.1, being stood on the same footing, is

entitled to get similar benefit.

10. Learned counsel appearing for the petitioners

raised another question with regard to opposite party

no.1 approaching the Tribunal in delay, i.e., after 11

years of the death of her husband. But fact remains,

since the claim for family pension is a recurring cause

of action, the issue of delay in approaching the Tribunal

will not apply except for the claim for arrears, in view of

judgment of the apex Court in M.R. Gupta v. Union of

India, AIR 1996 SC 669.

11. As the deceased employee was notified as

permanent/temporary status employee, pursuant to the

Presidential Order dated 04.02.2002, and no material

whatsoever, to the effect that the said order was issued // 14 //

wrongly or inadvertently, has been placed, the claim of

opposite party no.1 that services of her deceased

husband were regularized, as per circular dated

20.09.2000, is justified. The fact that services of the

deceased employee was regularized, vide Presidential

Order dated 04.02.2002, has not been disputed by the

present petitioners by filing any other documents

contrary to the same. Thereby, the argument advanced

by Mr. S.B. Jena, learned counsel appearing for the

petitioners, that the Presidential Order dated

04.02.2002 in respect of the deceased husband of

opposite party no.1 is null and void, has no leg to stand

and, as such, the said contention is hereby rejected.

12. A further contention was raised by learned

counsel appearing for the petitioners that such

Presidential Order dated 04.02.2002 had been

cancelled/ withdrawn subsequently. But in regard to

the same no material has been produced by the

petitioners before this Court to substantiate such

contention. Even assuming that Presidential Order

dated 04.02.2002, so far it relates to the deceased // 15 //

employee, had been cancelled, but before cancellation

there was non-compliance of the principle of natural

justice and, as such, it violates the minimum

requirement of law, i.e., compliance of principle of

natural justice to be followed, when the benefit had

already been extended to the deceased employee by

regularization of his services. Thereby, the family

members of the deceased employee are entitled to get

pensionary benefits, including family pension, as due

and admissible to them and the same cannot be denied

on mere assertion made without producing any

supporting materials before this Court that Presidential

Order, by which the services of the deceased employee

were regularized, has been cancelled/withdrawn. In

absence of such materials, the contention raised by

learned counsel for the petitioners cannot be sustained

in the eye of law.

13. In the aforesaid facts and circumstances of

the case, as well as in view of the discussions made

above, this Court is of the considered view that the

Tribunal has not committed any error in passing the // 16 //

order dated 10.05.2019 in O.A. No.136 of 2017 so as to

cause interference of this Court at this stage. The

petitioners are accordingly to implement the order dated

10.05.2019 passed by the Tribunal in O.A. No.136 of

2017 within a period of three months from the date of

communication/ production of this judgment.

14. In the result, the writ petition merits no

consideration and the same stands dismissed. But,

however, in the circumstance of the case there shall be

no order as to costs.

                                                             (DR. B.R. SARANGI)
                                                                 JUDGE

            M.S. RAMAN, J.            I agree.

                                                               (M.S. RAMAN)
                                                                   JUDGE




                           Orissa High Court, Cuttack
                           The 15th September, 2023, Alok



Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 18-Sep-2023 16:26:21