Jagrit
Mazdoor Union & Ors Vs. Mahanagar Telephone Nigam Ltd. & Anr [1989] INSC
365 (29 November 1989)
Misra
Rangnath Misra Rangnath Sawant, P.B. Ramaswamy, K.
CITATION:
1989 SCR Supl. (2) 329 1990 SCC Supl. 113 JT 1989 Supl. 364 1989 SCALE (2)1455
ACT:
Casual
Labourers (Grant of Temporary Status) Regulation Scheme, 1989.' Reserve Trained
Pool Telephone Operators--Regularisation of--Directions by Court.
HEAD NOTE:
The
Petitioners in first two Writ Petitions are Reserve Trained Pool Telephone
Operators (RTPTOS) of Delhi and Bombay Mahanagar Telephones who are seeking
directions that after their absorption as regular employees following the
implementation of the directions of this Court dated 28.7.1986 in an earlier
Writ Petition No. 11764 of 1985 filed by the All India Telegraph Engineering
Employees Union Class III of Bombay Telephones, they are entitled to be brought
on par with the regular Staff for grant of all other service benefits as well
since they have been performing the same duties as performed by regular
operators.
The
other two Petitions pertain to the Department of Posts. One is by the Reserve
Trained Pool Operators (RTPOS) and the other by the Substitute Employees and
Casual Labourers in that Department. While the RTPOS have claimed relief of
being placed at par with regular, permanent or temporary employees in the
matter of service conditions, the substitute employees and casual labourers
claim that they be paid the same emoluments as the regular employees.
Disposing
of the Petitions, this Court,
HELD:
The scheme known as Casual Labourers (Grant of Temporary Status in Regularisation)
Scheme has been formulated and put into operation from 1.10.1989. Hence no
further specific direction is necessary as regards applicants covered by the
Telephone Nigams of Delhi and Bombay except
calling upon the respondents 10 implement every term of the Scheme at an early
date. [332E-F] As per existing recruitment rules, extra-departmental agents are
330 given preference in the matter of absorption as Group 'D' postmen.
Directions have already been issued for their absorption against the vacancies.
[333H] The claim to bonus may be left to arbitration or for being dealt with by
a Consultative Council. [334F] After rendering three years of continuous
service with temporary status, the casual labourers shall be treated at par
with temporary Grade 'D' employees of the Department of Posts and would thereby
be entitled to such benefits as are admissible to Group 'D' employees on
regular basis. [335B]
CIVIL
ORIGINAL JURISDICTION: Writ Petition No. 1119 of 1986 etc. etc.
(Under
Article 32 of the Constitution of India).
G. Ramaswamy,
A.S.G., N.C. Sikri, N.S. Das Bahl, B.D. Sharma, Ms. Madhu Sikri, B.W. Vaidya,
R.B. Misra, Ms. A. Subhashini (not present) and Dalveer Bhandari for the
appearing parties.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. The first of these
applications under Art. 32 of the Constitution is on behalf of the Delhi
Reserve Trained Pool Telephone Operators (RTPTOs) asking for a direction to the
Mahanagar Telephone Nigam Limited to treat all the telephone operators at par
after their absorption as regular employees. Three letters addressed to the
learned Chief Justice of this Court have been treated as writ petitions and are
the remaining one under Art. 32 of the Constitution. The first one (1276/86) is
by the Reserve Trained Pool Telephone Operators of Bombay. They claim the
self-same relief as asked for in the earlier case; the second one (1623/86) is
on behalf of the Reserve Trained Pool Operators in the Department of Posts and
they have .claimed relief of being placed at par with regular, permanent or
temporary employees in the matter of service conditions. The third one
(1624/86) is on behalf of substitute employees and casual labourers in the
Department of Posts. They have claimed that substitute employees and casual labourers
be paid the same emoluments as regular employees.
331 In
an earlier Writ Petition No. 11764 of 1985 filed by the All India Telegraph
Engineering Employees Union Class III of Bombay Telephone where the prayer for
treating the Reserve Trained Pool Telephone Operators at par with regular staff
had also been asked for, this Court made the following order on 1.5. 1986:
"The
matter is adjourned to 28.7. 1986 to enable the newlyadded respondent No. 3 to
file counter-affidavit on or before 15.7. 1986.
Rejoinder,
if any, will be filed within one week thereafter. Meanwhile, the respondent
will pay to the operators drawn from the Reserve Trained Pool of the Telephone
Operators from Bombay and Delhi Telephones Rs.4.90 per
hour provided that the total salary of the Telephone Operators from the Reserve
Trained Pool shall not exceed the salary of regularly appointed Telephone
Operators." On 23.7. 1986, this Court in that Writ Petition further
ordered:
"The
order passed by the Court on 1.5. 1986 shall be final. The wages shall be paid
in accordance with the terms contained in that order. We, however, make it
clear that if the Dearness Allowance and other allowances are varied hereafter
the workers concerned shall get D.A. and other allowances accordingly subject
to the limit that the total emoluments would not exceed the salary of regularly
appointed Telephone Operators. If the petitioners have any other grievance they
are at liberty to agitate. This order will apply to all RTPA employees who'are
similarly situated." It is the stand of the respondents that that order of
this Court has been implemented with effect from 28.7. 1986.
After
that was done, the RTPTOs of Bombay and Delhi have in their respective Writ
Petitions applied for further reliefs as already indicated. According to the
petitioners in these two Writ Petitions, the RTPTOs are entitled to be brought
on par with the regular staff for grant of other service benefits as they have
been performing the same duties as performed by regular operators.
The
two petitions have been opposed by the relevant Ministry by filing
counter-affidavits where the stand taken is that RTPTOs are a special class by
themselves with their own incidents of service and they cannot be treated at
par with regular employees. The differences between the two services have been
highlighted in the counter-affidavits.
332 It
is also the stand of the respondents that the order of this Court referred to
above dated 28.7.1986 finally disposed of the major claim raised in the two
petitions of the employees of the two Telephone Nigams and fresh action was not
appropriate. It is also pointed out that on 10th of February, 1986, there was
an agreement of settlement and the present petition was an attempt to reopen
the matter. On 31.1. 1989, when Writ Petition No. 1276 of 1986 came up for
hearing before this Court, the following order was made:
"Learned
counsel for the petitioners concedes that the regularisation of 21,000
employees in the Department of Telecommunications has been effected but
complains that no such proceeding has taken place in respect of the postal
employees. He states that there is pressing need for a parity of service
conditions including pay, house rent allowance and other allowances between the
temporary employees and the regular employees covered by this category. The
learned Additional Solicitor General of India assures us that the scheme will
be finalised latest by first week of April, 1989 and that complete position
will be placed before the Court at that stage ...... " The scheme known as
Casual Labourers (Grant of Temporary Status in Regularisation) Scheme has been
formulated and put into operation from 1.10. 1989 and a copy thereof has been
placed for our consideration. We find that the scheme is comprehensive and
apart from provision for conferment of temporary status, it also specifies the
benefits available on conferment of such status. Counsel for the respondentNigams
have told us that the scheme will be given full effect and other benefits
contemplated by the scheme shall be worked out. In these circumstances, no
further specific direction is necessary in the two applications relating to the
two Nigams of Bombay and Delhi except calling upon the respondents to implement
every term of the scheme at an early date.
The
two remaining writ petitions relate to the Department of Posts. Though an
assurance had been held out by the learned Additional Solicitor General that a
separate scheme for the postal employees would be prepared and placed before
the Court within a time frame, that has not been done. At the hearing, a note
containing tentative proposals and a statement as to what has been done by way
of improving the conditions of service have, however, been placed before the
Court. The statement relating to improvements brought about 333 indicates that
after April, 1986, about seven thousand RTPs have been absorbed. Since the RTP
category is no more expanding, only about 2,900 of them remain to be absorbed.
We have been told by learned counsel for the Department that equal number of
justified and supernumerary posts are being created and the Ministry's proposal
is in the hands of the Ministry of Finance for approval and is expected to be finalised
soon. This has to be done within a time frame. and we direct the posts of both
the categories to be created by the end of January, 1990, and the process of
absorption to be completed by 31.3. 1990. With such absorption made, the RTPs
will become regular employees. All their claims would, thereafter, be regulated
on the basis of entitlement in accordance with extant rules.
So far
as the claim of earned leave is concerned, we find that Telecommunications Regularisation
Rules provide for leave entitlement on pro-rate basis--one day for every ten
days of work. The same benefit would be admissible to the employees of the
Department of Posts as we find no reason to adopt a different basis.
In
National Federation of P & T Employees & Anr. v. Union of India & Anr.,
[1988] 1 SCC 122, this Court directed:
"The
Union of India and other respondents are directed to pay wages to the workmen
who are employed as casual labourers belonging to the several categories of
employees in the Posts and Telegraphs Department at the rates equivalent to the
minimum pay in the pay scales of the regularly employed workers in the
corresponding cadres but without any increments with effect from February 5,
1986 on which date the first of the above two petitions, namely, Writ Petition
No. 302 of 1986 was filed. The petitioners are entitled to corresponding
dearness allowance and additional dearness allowance, if any, payable thereon.
Whatever
other benefits which are now being enjoyed by the casual labourers shall
continue to be extended to them ." It has been stated that in compliance
with that direction the Department has alredy formulated a scheme for
absorption of casual labourers and about a thousand justified posts are being
created with concurrence of the nodal Ministry. As per existing recruitment
rules, extra-departmental agents are given preference in the matter of
absorption as Group 'D' postmen. Directions have already been issued for their
absorption against the vacancies. It has been pointed out 334 again that casual
labourers are being paid bonus while substitutes are not entitled under the
existing scheme.
The
other note placed before us at the bearing indicates:
1.
Justified (by necessity) posts in Groups 'C' and 'D' will be created in the
administrative and operative establishments as per the existing norms for
creation of posts in consultation with the Finance Ministry,
2. On
creation of the posts, recruitment will be done following the existing
recruitment rules giving preference to extra-departmental agents over casual labourers;
3. If
on the basis of established norms, casual labourers are in excess, their
services shall be dispensed with in accordance with law; and
4. If
any casual labourers cannot be retrenched straightaway, they shall be paid
wages for three months at the existing rates.
This
tentative scheme does not take into account the several specific claims
advanced by the petitioners in the two writ petitions. These are House Rent
Allowance, City Compensatory Allowance, Bonus and Earned Leave. There are also
demands for weekly off day, postal holiday and maternity leave. Weekly off has
now been given to RTPs, casual labourers and substitutes under order of this
court and the claim does not survive for adjudication. All these three
categories in these two writ petitions are also being given three national
Holidays. For the remaining postal holidays, the claim has been pressed but we
are of the view that until absorption, they may not be granted. It has been
agreed before us that the claim of bonus may be left to arbitration or for
being dealt with by the Consultative Council.
As
regards House Rent Allowances, City Compensatory Allowance and Maternity Leave,
we see. no justification for treating the employees of the Postal Department
differently from those covered under the Regularisation Rules in the
Telecommunications Department. Temporary status would be available to the
casual labourers in the Postal Department on completion of one year of
continuous service with at least 240 days of work (206 days in the case of
officers observing five days' week) and on conferment of temporary status,
House Rent Allowance and City Compensatory Allowance shall be 335 admissible.
There would be no justification to withhold Maternity Leave as that is an
obligation of the employer under the law and the State as an ideal employer
fulfilling the Directive Principles of State Policy envisaged in PartIV of the
Constitution should provide the same. After rendering three years of continuous
service with temporary status, the casual labourers shall be treated at par
with temporary Grade 'D' employees of the Department of Posts and would thereby
be entitled to such benefits as are admissible to Group 'D' employees on
regular basis.
So far
as the substitutes are concerned, it has been stated to us that orders have
been issued for considering their claims against Group 'D' vacancies and a copy
of the Department's letter has been produced. We hope and trust that the
direction shall be implemented in its true spirit.
The
claim on behalf of substitutes ordinarily is not entertainable but we have been
told that there are substitutes who work for long periods continuously. We are
inclined to agree with counsel for the petitioners that in such cases their
claims should have been appropriately considered by the Department.
The
writ petitions are disposed of with the aforesaid directions without any order
as to costs.
R.N.J.
Petitions disposed of.
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