IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SIXTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 2096 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated ______ in WP NO : 1211 OF 1995 on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT Counsel for the Appellant:MRS.B.VASANTHA LAKSHMI Counsel for the Respondent No.: MR.R.S.MURTHY The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.2096 OF 2002 JUDGMENT: (Per SK,J) The Award dated 05.10.1993 of the Industrial Tribunal-I, Hyderabad, in I.D.No.50 of 1991, a reference made by the Government of India under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’), was modified by the Order dated 07.08.2002 passed by the learned single Judge in Writ Petition No.1211 of 1995, setting aside the finding of the Industrial Tribunal that the first respondent in the writ petition (hereinafter referred to as ‘the workman’) was entitled to absorption as a Telephone Operator. The learned Judge also modified the Award to the extent of denying back wages to the workman during the period of pendency of the writ petition. Aggrieved thereby, the workman is in appeal. The case of the workman before the Industrial Tribunal was that he was engaged as a casual labourer in the Telecom Department at Mustabad, Medak from 01.04.1986 but he was asked to perform the duties of a Telephone Operator from 02.05.1986 and continued as such till 09.05.1987. He was then employed for miscellaneous works till the end of May, 1987. He was discharged from service without complying with the provisions of the Act of 1947 and accordingly, the matter came to be referred to the Industrial Tribunal. The Industrial Tribunal found that the workman had been in the service of the Telecom Department as casual labour and thereafter, as a Telephone Operator for over 240 days during the twelve calendar months prior to his discharge from service and that he was entitled to the protection of the Act of 1947. As his discharge from service was in violation of Section 25-F of the Act of 1947, the same was held to be unsustainable in law. Accordingly, the Industrial Tribunal held that the workman was entitled to reinstatement in service with full back wages, continuity of service, protection of seniority and other attendant benefits. The Industrial Tribunal also gave a finding that the workman was entitled to absorption as a regular Telephone Operator. Aggrieved by the Award of the Industrial Tribunal, the Union of India preferred W.P.No.1211 of 1995 before this Court from which the present appeal arises. The learned single Judge found that the Industrial Tribunal had exceeded it’s jurisdiction in rendering a finding as to the entitlement of the workman to regularization/absorption in service. The learned Judge also opined that the workman was only engaged as a casual labourer and not as a Telephone Operator. This finding appears to be incorrect in the light of the evidence adduced by the Telecom Department itself, through M.W.1, who spoke of the engagement of the workman as a casual Telephone Operator from May, 1986 to February, 1987. The learned Judge however found that there was no defect or lacuna in the Award as regards the direction of reinstatement of the workman as a casual labourer with continuity of service and other attendant benefits but held that the workman was not entitled to back wages during the period of pendency of the writ petition. The learned Judge therefore modified the Award of Industrial Dispute to that extent, confirming the Award in all other aspects. Aggrieved by the denial of back wages for the period during which the writ petition was pending and the finding of the learned Judge that he was not entitled to regularization/absorption, the workman is in appeal. Reliance is placed upon the policy decision of the Telecom Department, presently the Bharat Sanchar Nigam Limited (hereinafter referred to as ‘the BSNL’), with regard to absorption of Short Duty Telephone Operators who had rendered 120 days of service in a period of 6 months. We have already indicated hereinabove our disagreement with the finding of the learned Judge that the workman was not engaged as a Telephone Operator. In the light of the evidence of M.W.1, the workman is deemed to have worked as a Telephone Operator, though on casual basis. The entitlement of the workman to be considered under the above policy of absorption has not been examined either by the Telecom Department or thereafter, by the BSNL. The finding of the Industrial Tribunal that the workman was entitled to absorption as a Telephone Operator was clearly in excess of jurisdiction and beyond the scope of the dispute which had been referred to it under Section 10(1)(d) of the Act of 1947. The learned Judge therefore rightly held so. The finding of the learned Judge with regard to the denial of back wages during the period of pendency of the writ petition also does not call for interference in as much as the workman had refused to join duty as a casual labourer in spite of the willingness of the BSNL to re-induct him as such. The writ appeal therefore does not warrant interference in so far as the above aspects are concerned. However, as stated supra, the BSNL has not undertaken the exercise to examine the entitlement of the workman for regularization/absorption as a regular Telephone Operator as per it’s policy, keeping in mind the fact that he worked for more than the required period of 120 days in six months as a Telephone Operator. The writ appeal is therefore disposed of directing the first respondent BSNL to consider the case of the workman for absorption as a regular Telephone Operation in the light of it’s policy of absorbing Short Duty Telephone Operators who have rendered 120 days of service in a period of six months. This exercise shall be undertaken, giving due notice and opportunity to the appellant workman to put forth his case and shall be completed within a period of two months from the date of receipt of a copy of this order. The first respondent shall pass a reasoned order upon such consideration under intimation to the workman and shall take necessary consequential action thereupon. In the circumstances of the case, there shall be no order as to costs. _____________________ B.PRAKASH RAO, J. ____________________ SANJAY KUMAR, J. 6th October, 2009. VGSR/PGS