MANAGEMENT OF DIRECTOR, MICROWAVE (MAINTENANCE) Vs. WORKMEN REPRESENTED THROUGH THE PRESIDENT, ORISSA TELECOM MICROWAVE MAZDOOR SANGH

JUDGEMENT

(1.) THIS writ application is directed against the award dated 19.5.2003 passed by the Central Government Industrial Tribunal -cum -Labour Court, Bhubaneswar in Tr. I.D. Case No.268 of 2001 directing the petitioner to give temporary status to the second party -workmen and consider their regularization if posts are created/sanctioned in future.

(2.) THE Department of Telecommunication of the Government of India in the Ministry of Communication now known as Bharat Sanchar Nigam Limited runs the Microwave system of telecommunication, which exists throughout the country. The Telecommunication system has got three wings namely Project, Maintenance and Circle. The departmental activities have been divided into different regions, such as Assam, Bihar and West Bengal. Case of the second party -workmen is that a person can work either in Project or in Maintenance or in the Circle and such service is inter -transferable. If a workman is transferred from one Department to other, there is continuity in service. Similarly in Orissa under the Eastern Telecom Region there are three activities such as Project, Maintenance and Circle. The activity of the telecom system starts from the Project. Project work covers laying of optical fiber cable line, tower orientation, power plant installation of general system Radio Relay Bay and others. The manual work like digging of earth, construction of microwave building, base of the tower are done by the contractor. The works being technical in nature, ordinary people cannot perform such work and some technical knowledge is required for the purpose. After the project work is over, it is handed over to the Maintenance Section for administrative convenience. It is also the case of the workmen that the workers working in the project are allowed to continue in employment under the Maintenance Department. Ordinarily services of such workers working in the project are not terminated even after completion of the project. According to the workmen 85% of the project workers are taken over to the Maintenance Department and rest are mostly retained for the purpose of uncompleted work at the project site and for needs of other projects. Claim of the workmen is that after completion of the project they are continuing in the Maintenance department and as such are entitled to temporary status as well as regularization having worked in the department for several years. Case of the petitioner which is the Management is that the workmen who have raised disputes are not their employees. According to the petitioner said workmen are working in M/s. Oriental Security Service and on the basis of contract with the said security service they have been deployed and are working in the Project. According to the Management -petitioner said Security Service is working under the Department by virtue of a contract, and provides security service on need basis as per terms and conditions of the contract. It is also case of the Management that the Project division undertakes the construction work of microwave towers and stations etc. in different Telecom Divisions and the control of the Divisions vest with the Chief General Manager, Microwave Project, Calcutta. After closure of the project the work of the stations with the other equipments and machineries are handed over to the Microwave Maintenance Division under the Chief General Manager, E.T.R., Calcutta. The Project and Maintenance Divisions are two separate and distinct wings of the telecom Department being controlled by two different chief General Managers. The Project Division looks to work departmentally or through Contractors and during continuance of the project work some casual workers used to be engaged on need basis for other miscellaneous work since the work of the Project is not of perennial in nature. After closure of the Project work the same is handed over to the Maintenance Division for the purpose of maintenance. The Management emphatically pleads that the workmen had never worked in the Maintenance Division and had been engaged as casual labourers in the project only for manual work and the technical works are done by the qualified persons of the Department. It is also the case of the management that the casual labourers engaged in one project division cannot be engaged in Maintenance division simultaneously and they were never taken by the Maintenance even after closure of the Project except on few occasions. From the written statement filed by the petitioner -Management it appears that similar contention was taken before the Tribunal that the opposite parties -workmen are employed by the Security Agency as stated above and had never been employed by the petitioner -Management and as such are not entitled to the relief claimed.

(3.) SHRI P. N. Mohapatra, learned counsel appearing for the petitioner submitted that it is admitted case of the parties that the Telephone system has three wings, namely Project, Maintenance and Circle and for each department there is a head known as Chief General Manager. In view of such admitted position, finding of the Tribunal that the three wings are not separate is erroneous. It was also contended that prior to 1997 the project work had not been handed over to the petitioner and therefore if at all the petitioners were working prior to 1997 in the project, their employment ceased to have in effect after completion of the project and moreover the workmen having worked under a private organization, they cannot be treated as employees of the petitioner, even in the project wings. Learned counsel further relied upon the documents exhibited in course of hearing and with reference to the Ext.14, the letter dated 30.3.2001 it was submitted that the said letter contains list of casual labourers having temporary status as on 1.8.1998 having completed 240 days in the preceding year as well as the number of casual labourers without temporary status as on 1.8.1998. The workmen in dispute having not completed the required number of days cannot be given temporary status even if they are treated to be employees under the petitioner. This argument was advanced as an alternative argument by the learned counsel appearing for the petitioner. The basic objection raised by the learned counsel for the petitioner is that the Managing Partner of M/s. Oriental Security Service was examined in the disputed case and in his evidence it is stated that he had no acquainenance with the workmen in dispute prior to 1997. He has also stated in his evidence that after formation of the organization no advertisement has been issued calling for applications from the persons to work under them and the workmen in dispute had themselves submitted applications and on the basis of such applications they were given employment by the organization. In view of such evidence it was contended that the workmen in dispute never worked directly under the petitioner -Management. Shri Mohapatra also contended that even if the contention of the workmen in dispute is accepted to the extent that they had been engaged prior to project work, after completion of the project their employment ceased and they could not have been employed any further. There is nothing on record to say that after completion of the project the workmen in dispute had been brought over to the Maintenance Department or they worked in the Maintenance Department under the petitioner -management. Findings of the Tribunal that the introduction of Security Agency for the purpose of the case is a sham transaction is also disputed seriously by the learned counsel for the petitioner. It is stated that there have been agreements with the said Security Agency from time to time and the security agency had a licence to engage people for maintenance of towers and ancillary works. On the basis of such licence the security agency had engaged people and all payments were made by the security agency and the petitioner never played a role either in giving employment to the workmen in dispute for the purpose of maintenance nor had paid salary to them at any point of time. In this connection, learned counsel also referred to the documents exhibited in course of hearing of the dispute case, specifically those agreement which had been entered not between the petitioner and the security agency as well as salary slip issued by the security agency to the workmen in dispute. As an alternative argument it was also submitted by the learned counsel for the petitioner that even if for the sake of argument it is admitted that casual labourers had been engaged, they cannot be regularized in view of the decision reported in AIR 2006 SC 1806.