Judgment & Order (Cav)

Arun Dev Choudhury, J.

1. We have heard Mr. H. K. Das, learned counsel for the petitioners. Also heard Mr. B. Pathak, learned Standing Counsel for the Bharat Sanchar Nigam Limited (BSNL).

2. The petitioners herein are casual workers employed by the respondent, BSNL. They approached the Central Administrative Tribunal (hereinafter referred to as Tribunal) praying for the grant of temporary status and resultant regularisation in terms of a scheme formulated and circulated by the respondent employer, namely, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Department of Telecommunications, 1989 (hereinafter referred to as the Scheme, 1989).

3. Such scheme was prepared pursuant to a direction by the Apex Court in Daily Rated Casual Labour Employed under P&T Department -vs.- Union Of India reported in 1988 1 SCC 122, wherein the respondent Union of India was directed to prepare a Scheme on a rational basis for absorbing the casual labourers who have been continuously working for more than one year in Department of P&T. In the judgment above, the Hon’ble Apex Court categorically recorded that the management, particularly, the governmental agencies should not allow workers to remain as casual or temporary employees for an unreasonable period of time.

4. Accordingly, to provide such benefits to casual workers, which include temporary status and consequential regularisation, the Scheme 1989 was introduced, providing that casual workers who have completed 240 days of work in a particular year within the prescribed cut-off date are entitled to the benefit of temporary status and subsequent regularisation. By an order dated 01.09.1999, the cut-off date to grant benefit under the Scheme, 1989, was extended for those casual labourers recruited up to 01.08.1998.

5. The petitioners claim to have been appointed between 1988 and 1992 and were not extended the benefits of the Scheme. It is to be noted that the petitioners were engaged as casual workers after being sponsored by the respective Employment Exchanges and after a selection process.

6. The services of the petitioners were sought to be terminated on 18.06.2002, which was challenged in OA No. 198/2002 with a further prayer to extend the benefit of the Scheme, 1989.

7. By an order dated 22.08.2003, the aforesaid OA was allowed, holding that the petitioners had completed 240 days of service and were entitled to get the benefit of temporary status under the Scheme, 1989.

8. Subsequently, the petitioners approached this Court by filing WP(C)/8886/2005, alleging non-implementation of the order dated 22.08.2003. Such a writ petition was transferred to the Tribunal for adjudication and was registered as T.A. No. 62/2009.

9. The aforesaid T.A. No. 62/2009 was disposed of by an order dated 08.04.2014 holding that the petitioners are entitled to benefit under the Scheme of 1989, which the employer assailed before this Court in WP(C) No. 1273/2015.

10. This Court, under its order dated 28.03.2018, remanded the matter to the Tribunal to decide the issues taking recourse to provisions of Section 22(3) of the Administrative Tribunal Act, 1985, as the employer raised disputes regarding the documents relied on by the petitioners, which were finally decided under the impugned order dated 03.06.2020, rejecting the claim of the petitioners, primarily for the reason of non admissibility of such documents in evidence.

11. The petitioners specifically contend that the petitioner No. 1 was initially engaged in May’ 1995 under Sub Divisional Officer, Telecom (SDOT), Tezpur, the petitioner Nos. 2, 3, 4 and 5 were employed under the Divisional Engineer, Telecom, (TP-II), Guwahati, in March’ 1993, March’ 1994, March’ 1993, and August’ 1993 respectively. The petitioners Nos. 6 and 7 were engaged under the Divisional Engineer, Telecom, Silchar, in March 1993 and May 1993, respectively. They were paid a salary commensurate with that of a regular Group-D employee, as reflected on pay slip ACG-17 and the pay bill, and they completed 240 days within the cut-off date prescribed.. In support of their claim, the petitioners relied upon certain documents, such as certificates showing their continuous engagement with the employer, findings of the Verification Committee affirming their continuation, Bank statements showing receipt of wages etc.

12. In the aforesaid backdrop, it is the contention of the petitioners before this Court that they had discharged their primary burden by producing the photocopies of the relevant documents, and now, it is for the respondent employer to establish that such documents were/are not in existence.

13. The respondent employer took the stand that the documents produced by the petitioners in support of their claim were photocopies without authentication and, therefore, they were not entitled to any relief based on such documents. It is important to note that the respondent employer has only stated that the originals of such documents are not available with them, but has not disputed their existence at any time. Further, they admit that the petitioners have continued to work as casual labourers since their initial engagement to date.

14. The learned Tribunal upheld the respondent-employer's contention and rejected the petitioners' claim for regularisation on such grounds.

15. The primary ground for the Tribunal's rejection of the petitioners' claim is that they failed to prove the documents; they relied on Xerox copies, thereby seeking proof of documents in strict adherence of the Evidence Act.

16. The fact remains that the documents relied on by the petitioners i.e. the Attendance Register, Bank Statement, payment of wages etc., are not termed by the respondent employer as fraudulent or manufactured; rather, it is their stand that they do not have the original records.

17. The fact that the petitioners were engaged, sought to be terminated, and continued in service till date, is not in dispute. Therefore, the Tribunal’s approach, in our view, suffers from legal infirmity. The petitioners discharged their primary evidentiary burden by producing contemporaneous records demonstrating continuous engagement. In fact, such documents were accepted, and the claim of the petitioners was allowed by the Tribunal in OA No. 198/2002, which was also not challenged by the employers in a higher forum; however, in altogether different circumstances, Section 22(3) of the Administrative Tribunal Act, 1985, was applied to the case of the petitioner.

18. In the proceeding before the Tribunal, where the records were produced even in photocopy form, the onus shifted to the employer, the custodian of the original service record, to show that such documents never existed or that the petitioners did not work for the period claimed. Once the employer admits the engagement and continuation of the petitioners as casual workers till date, the burden shifts to the employer to justify why the benefit of the Scheme, 1989 should be denied.

19. As recorded hereinabove, the respondent employer does not deny that the petitioners were indeed engaged, nor do they assert that the petitioners did not complete 240 days in any particular year. Their only stand is that the originals are “not traceable” in their office. In our opinion, such a plea cannot defeat substantive rights flowing from a statutory/departmental regularisation Scheme, that too when it was introduced in compliance of a dicta of the Apex Court.

20. The learned Tribunal relied on a verification report, pertaining to June 2000; however, that verification report was held to be extraneous in its earlier order dated 22.08.2008, passed in O.A No. 198/2002, inasmuch as the respondents admitted in their affidavit that some of the petitioners completed 240 days of services as mandated under the Scheme, 1989. The findings of the learned Tribunal that the petitioners did not complete 240 days as per the Scheme 1989 appear to be beyond the record of the case.

21. The Administrative lapses or missing records should not prejudice employees who have actually rendered service. It is apposite to record here that the Scheme, 1989, has the force of a binding policy framed under the direction of the Hon’ble Apex Court. Therefore, the right created under the Scheme, 1989, is vested in favour of eligible casual workers, and the refusal of such status to workers who have completed 240 days would amount to an arbitrary action.

22. In the considered opinion of this Court, when it is not disputed that the petitioners have been continuously rendered their service since the year 1992 and when the employer fails to furnish records to deny the claim of the petitioners, an adverse inference can be drawn under well-established beneficial labour jurisprudence. In Shripal and Another –Vs- Nagar Nigam Ghaziabad [2025 SCC Online SC 21], the Apex Court held that Indian Labour Law strongly disfavors perpetual daily wage or contractual engagement in circumstances where the work is permanent in nature.

23. In the case in hand, it is also an admitted position that the work for which the petitioners are engaged is permanent in nature. In fact, the scheme of 1989 was framed for the grant of permanent status and the resultant regularisation, in the backdrop of a finding by the Hon’ble Apex Court that the management and government agencies in particular, should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period. It is also not in dispute that petitioners are part of this casual labour force for which the scheme was formulated; the only dispute is whether they had the required 240 days of engagement. Therefore, in the context in which the scheme was introduced, together with the admitted fact that petitioners are still serving since their initial engagement, this court is of the opinion that petitioners are entitled to the benefit of permanent status as well as regularisation.

24. In the given facts of the present case, this court can aptly place reliance on the decision of the hon’ble Apex Court in Jaggo –Vs- Union of India, [2024 SCC OnLine SC 3826], wherein, the Hon’ble Apex Court cautioned that when the government institutions are entrusted with upholding the principle of fairness and justice, they bear a greater responsibility compared to the private entities to avoid exploitative employment such as temporary employment, contracts affecting workers’ rights and job security.

25. In the case in hand, the appointment of the petitioners cannot be said to be a backdoor or illegal appointment, as they were engaged as casual workers between 1988 and 1992 through sponsorship by Employment Exchanges and after undergoing a selection procedure. They were engaged against available work and continued uninterruptedly for several years. The cut-off date for eligibility under the Scheme, 1989, was extended to include all casual labourers recruited up to 01.08.1988. The petitioners, having been engaged between 1988 and 1992, come clearly within the enlarged coverage scheme.

26. The petitioners produced before the Tribunal certificates regarding continuous engagement, pay records (ACG-17 Pay Bills) etc., confirming their continued deployment under various Telecom Divisions. The Tribunal, however, rejected their claim solely on the ground that the documents produced were photocopies without authentication, which do not find favour with this Court as recorded hereinabove.

27. We are constrained to hold that the Tribunal’s approach suffers from legal infirmity, more particularly, in the backdrop of the stand of the respondent employer of not having the original records and non-denial of authenticity of such documents. In our opinion, when the employer has framed the Scheme for the grant of temporary status and regularisation, the authorities cannot deny its benefits on a hyper-technical ground, particularly when the workers have served for long years in perennial work. The employer's failure to maintain the original record cannot prejudice employees who otherwise had established their engagement and continuity of service through secondary materials.

28. In the circumstances, the order of the Tribunal dated 03.06.2020, passed in T.A. No. 62/2009, rejecting the petitioner’s claim, is not sustainable both in law and on the facts of the present case. Accordingly, the same stands set aside and quashed.

29. Resultantly, it is held that the petitioners are entitled to a grant of temporary status from the date they completed 240 days of service in accordance with the Scheme, 1989. The respondents are further directed to confer such status with consequential benefits. The respondents shall thereafter consider the petitioners' case for regularisation in terms of the Scheme, 1989, and in the light of the principles laid down in Jaggo (supra), Shripal (supra), and Daily Rated Casual Labour (supra).

30. The entire exercise be carried out within a period of 60 days from furnishing of a certified copy of this order before the respondent/competent authority by the petitioners.

31. Accordingly, the present petition stands allowed to the extent indicated hereinabove. Parties to bear their own cost.