- (1.) This order will dispose of 6 petitions cited above as common questions of law and fact are involved in all these petitions:- 1. CWPNo. 3569 of 2011 2. CWP No. 3608 of 2011 3. CWP No. 3579 of 2011 4. CWP No. 3607 of 2011 5. CWP No. 3610 of 2011 6. CWP No. 3609 of 2011 In this batch of cases filed by Bharat Sanchar Nigam Limited (BSNL for short), the Labour Court has answered the industrial reference in favour of the workmen, who are the respondents in these cases, and findings have been returned on evidence adduced by the parties that the workmen were part time employees of BSNL on contract and had put in more than 10 years of service before cessation of their services by the erstwhile employer the Department of Telecom Services, Government of India in its local State offices. The theory propounded by BSNL, the successor-in-interest of the Department of Telecom, was that the workmen were employed through contractors and, therefore, there was no direct relationship of employer and employee existing between the parties. In order to answer the questions raised the facts are culled out from CWP No. 3569 of 2011 for convenience. The respondent Suresh Kumar was engaged by the Department of Telecom Services as a part time Sweeper and he was paid wages on hourly basis. BSNL became a body corporate with perpetual seal with a right to sue and be sued in its name on its incorporation under the Companies Act, 1956 with effect from 1.10.2000 on a certificate issued by the Registrar of Companies. It was hived from its parent body i.e. the Department of Telecommunication, New Delhi in a reorganization exercise. There can be hardly any dispute that the respondent's came over by deeming fiction from the Department of Government of India to the newly incorporated BSNL when rights to sue and causes of action subsisted in the new organization. The respondent's services were discontinued by the parent department on its winding up accommodating the creation of a new juristic identity and transfer of assets and liabilities from one to the other.
(2.) The primary objection taken before the Labour Court on disputes being raised by the respondent in the present petition and the respondents in the connected cases by BSNL was that it was not a party to the reference made prior to its creation nor was the Union of India through the Department of Telecom Services, made a party to the reference. The action was, as noticed in the cause title, brought against the General Manager Telecom, Bathinda but which was sent for adjudication to the Labour Court as framed by the appropriate government without notice to the workmen when it made the reference under section 10(1) (c) of the Industrial Disputes Act, 1947 (in short 'the Act') to test the legal validity of the termination order. The services of Suresh Kumar were terminated by the Department of Telecom while it was in existence to operate with effect from 1.3.1999 vide order dated 22.2.1999 passed by the appointing authority. Before that event, he had been engaged as a Sweeper to work in Phul Mandi, Telephone Exchange Area since 1.8.1990 onwards like the other respondents in the connected cases. At the time of entry into service, Suresh Kumar, like the rest, gave an undertaking that they will not claim any right of permanent absorption in the Department and he could be disengaged without notice. His work timings were only for 0.824 hours in a day and were paid wages accordingly. In proof of duration of working hours in a given day, reliance was placed on a letter of BSNL addressed to DE (Legal) O/o GMT, Bathinda dated 28/29th June, 2001 on the subject of part-time employees. This letter reveals that the respondent/s worked for less than 4 hours except Raju who worked for 6 hours a day. It was also disputed by BSNL that none of the present respondents completed 240 days in a year and they were not workmen by definition as per the Industrial Disputes Act, 1947 (for short, "the Act"). They were part-time employees and could not claim temporary status or the benefit of regularization. It is said that Suresh Kumar and his ilk were contract labour. After their services were discontinued, no person junior to the aggrieved workmen was retained or appointed by BSNL. In fact, there was no legal necessity for maintaining their seniority list by BSNL on its incorporation. In fact, the Department of Telecom has imposed a partial ban on 30th March, 1985 for engagement of casual labour for any type of work and a complete ban was imposed on 26th June, 1988 and it was decided that there should be no recruitment for casual labour even for a specific job. After the issuance of the letter dated 26th June, 1988, a need was felt in amending paragraph 193 of P & T Manual, Volume 10 which permitted engagement of casual labour directly or through contractors. Accordingly, the issue was examined in detail and it was decided vide DOT letter No. 269-4/93-STN-IT(PT) dated 12th February, 1999 to delete paragraph 193 of PNT Volume III, Part-I Chapter 5 dealing with the payment of casual labour engaged on muster rolls which required deletion because of the recruitment ban imposed vide above said letters and the consequential abolition of the system of engaging casual labour through contractors vide letter dated 12th February, 1999. The claim of respondent No. 1 is said to be totally false as the petitioner is bound by a policy decision and the petitioner did not engage respondent No. 1 etc. in its workplace to do the job of janitors in their office.
(3.) Disputes having arisen between the parties as a consequence of retrenchment, the appropriate Government made a reference to the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh in six industrial references bearing Nos. 254, 249, 251, 252, 255 and 257 of 2001.;