The Chief General Manager (Telecom), Bharat Sanchar Nigam Ltd., Kerala Circle, Trivandrum & The Divisional Engineer (TT), BSNL v The Central Government Industrial Tribunal cum Labour Court, Ernakulam & G. Baburajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938** **WP(C).No. 18049 of 2010 (E)** **----------------------------** **AGAINST THE ORDER/JUDGMENT IN ID 6/2008 of LABOUR COURT, ERNAKULAM DATED 20.11.2009** **PETITIONER(S):** **-------------** **1. THE CHIEF GENERAL MANAGER (TELECOM), BHARAT SANCHAR NIGAM LTD.,, KERALA CIRCLE, P.M.G JUNCTION,, TRIVANDRUM.** **2. THE DIVISIONAL ENGINEER (TT), BHARAT SANCHAR NIGAM LTD.,, CENTRAL TELEGRAPH, OFFICE, KOLLAM.** **BY ADV. SRI.SAJI VARGHESE** **RESPONDENT(S):** **--------------** **1. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT,, KARSHAKA ROAD, ERNAKULAM.** **2. G. BABURAJAN, S/O. SRI.N. GOPALAPILLAI,, PUTHUMANGALATHU VEEDU,, MARANADU.P.O, EZHUKONE, KOLLAM.** **R,R1 BY ADV. SMT.LALY VINCENT, CGC R,R2 BY ADV. SRI.M.R.HARIRAJ R,R2 BY ADV. SRI.P.A.KUMARAN R,R2 BY ADV. SRI.NIRMAL V NAIR R,R2 BY ADV. SRI.SURAJ.S R BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-09-2016, ALONG WITH WPC. 22879/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 18049 of 2010 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.29812 OF 2003** **EXT.P2 COPY OF APPLICATION FILED BY THE 2ND RESPONDENT BEFORE THE ASSISTANT LABOUR COMMISSIONER (CENTRAL)** **EXT.P3 COPY OF CLAIM STATEMENT FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** **EXT.P4 COPY OF COUNTER STATEMENT FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** **EXT.P5 COPY OF THE AWARD PASSED BY THE FIRST RESPONDENT IN ID NO.6O OF 2008.** ## **RESPONDENTS EXHIBITS:** **EXT.R2(A) COPY OF THE ORDER NO.269-94/98-STN-II DTD.29.09.2000 EXT.R2(B) COPY OF THE FINAL ORDER DTD.5.4.10 IN O.A NO.778/09 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM** ## **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) Nos.18049-E and 22879 of 2010-H** ## **====================== Dated this the 28[th] day of September, 2016** ## **J U D G M E N T** An identical cause of action, in which similar claims were answered differently by the very same Central Government Industrial Tribunal-cum-Labour Court (for brevity 'the Tribunal) is before this Court. Both the workmen, who approached the appropriate Government for a reference; claimed regularisation. The reference was made and allowed partly in favour of the workman in one instance and the other was rejected for reason of the reference being bad. 2. The work engaged in by the workmen were part time sweeping. The workmen contended that they were casual employees under a scheme formulated by the B.S.N.L and that they were entitled to be regularised. The B.S.N.L however contended that they were contract employees. The workmen **2** W.P.(C) Nos.18049-E and 22879 of 2010-H contended that the contract employment was alleged only on the basis of a quotation obtained from them, which they were forced to execute, so as to continue in employment, especially both the workmen being engaged in the work of sweeping. 3. The issue referred was with respect to the demand of the workmen for regularisation of his/her services by the Management of B.S.N.L Kerala Circle /B.S.N.L Central Government Office, Kollam, whether is justified and the relief of the workmen are entitled to. 4. The Tribunal first adjudicated the reference in the case of the 2[nd] respondent in W.P.(C) No.18049 of 2010 and Ext.P5 award was passed. The claim of regularisation was negatived. However, the workman was found to be a person, who was continued for long years with more than 240 days service in every year. The workman was found to be liable to be continued unless terminated under the provisions of the Industrial Disputes Act, 1947 (for brevity I.D. Act). The workman **3** W.P.(C) Nos.18049-E and 22879 of 2010-H is said to be continuing even thereafter. The workman has not challenged the award. The B.S.N.L challenged the award on the ground that the reference could not have been made for reason of the workman having approached the appropriate Government. A reference could be sought for by a workman directly, only when there is a termination as provided under Section 2A of the I.D Act. Any other dispute would require a reference to be sought for by the union of workmen as is discernible from a reading of Section 10 of the I.D Act and the definition of industrial dispute as indicated in sub-clause (k) of Section 2 of the I.D Act. Admittedly such a contention was not taken up by the Management before the Industrial Court at that point of time. 5. The other workman also sought for a similar reference and obtained the same, which was adjudicated by Ext.P5 order produced in W.P(C) No.22879 of 2010. There the Management took up the contention as to whether an industrial **4** W.P.(C) Nos.18049-E and 22879 of 2010-H dispute exists and the Tribunal answered in favour of the Management and against the workman. The reference was hence rejected. Both the workmen in the two writ petitions stand on the same footing; but were treated differently on an identical reference made and hence raise different contentions in challenge of the respective awards. 6. The learned Counsel appearing for the workmanrespondent in W.P.(C) No.18049 of 2010 would contend that the question of maintainability having not been raised before the Tribunal, there could be no consideration of the same under Article 226 of the Constitution of India. In this context, it is to be noticed that the workman has a claim for regularisation, which was declined in Ext.P5 order. There is also no challenge against the refusal of the Tribunal to consider the claim for regularisation. What is directed in I.D No.6 of 2008, is the continuance of the workman as a casual employee. The writ petition if one filed under Article 226, the Management is **5** W.P.(C) Nos.18049-E and 22879 of 2010-H entitled to take up the contention that the reference was not proper, which they have taken up. As was noticed above, the claim for regularisation does not fall under Section 2A of the I.D Act and there could have been no reference made on the claim raised by the workman before the appropriate Government. 7. A dispute had to be raised properly under Section 10 of the I.D Act by the Union of workman and only then the appropriate Government could have exercised power to refer the dispute for consideration. The jurisdictional aspect with respect to the reference itself has to be found against the workman; but that is no reason to upset the order passed under Article 226 **Mohammed Swalleh** v. **IIIrd Additional District Judge {(1988) 1 SCC 40}** . The finding that the workman who was continued for long cannot be terminated without following the procedure under the I.D. Act is unassailable and hence upheld. The findings with respect to the workman being a part-time casual employee however would stand vacated. In such circumstance, Ext.P5 in **6** W.P.(C) Nos.18049-E and 22879 of 2010-H W.P.(C) No.18049 of 2010 would stand set aside only to that extend. On the issue of regularisation, the workman would be entitled to take up appropriate proceedings in accordance with law. 8. W.P.(C) No.22879 of 2010 found the reference to be not maintainable. The learned Counsel for the petitioners would rely on **National Engineering Industries Ltd.** v. **State of Rajasthan and Others [2000(1) SCC 371]** to contend that on a reference being made, the Tribunal was not entitled to go into the question of validity of the reference. The learned Counsel appearing for the respondent B.S.N.L would rely on **ANZ Grindlays Bank Ltd.** v. **Union of India and Others [2005 (12) SCC 738]** to contend that the Industrial Tribunal would be entitled to look into whether there was any objection to make a reference and the evidence could be laid on that basis also. This Court need not examine the aforesaid decisions, since even if this Court finds the Tribunal to be not competent to go into the **7** W.P.(C) Nos.18049-E and 22879 of 2010-H validity of the reference, there would have to be a remand made to the Tribunal. In exercise of the jurisdiction under Article 226, if such a remand is made to the Tribunal for consideration of the reference, then the same would be an exercise directed by this Court in violation of the provisions of the I.D Act, which this Court would not attempt especially since the relief under Article 226 is an excecise of discretion. In such circumstance, this Court refuses to exercise discretion insofar as interfering with the order of the Tribunal and cannot at all exercise the power under Article 227, since it is supervisory and has to be within the four corners of the law as established by the statute. However, it is made clear that the claim for regularisation of the petitioner in the said writ petition would also be left open for being agitated before the appropriate forum. The said order is passed especially since the petitioner was terminated from her employment only on the basis of the rejection of the dispute by the Tribunal. The petitioner would also be entitled to challenge the termination, if **8** W.P.(C) Nos.18049-E and 22879 of 2010-H so advised. In the result, W.P.(C) No.18049 of 2010 would stand partly allowed and W.P.(C) No.22879 of 2010 would stand dismissed with the above reservations. No costs. **Sd/K. VINOD CHANDRAN, JUDGE** SB/29/09/2016 // true copy // P.A to Judge