IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 OP (CAT).No. 217 of 2010(S) --------------------------- OA.90/1992 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/RESPONDENTS 1 TO 3 IN T.A. NO.43/08 ------------------------------------------------------------------- 1. GENERAL MANAGER, TELECOM DISTRICT, BHARAT SANCHAR NIGAM LIMITED, KANNUR-670 002. 2. CHIEF GENERAL MANAGER, TELECOMMUNICATIONS, KERALA CIRCLE, BHARAT SANCHAR NIGAM LIMITED, THIRUVANANTHAPURAM-695 033. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF TELECOMMUNICATIONS, NEW DELHI-1. BY ADV. SRI.P.J.PHILIP RESPONDENT(S): APPLICANT IN TA NO.43/2008 ----------------------------------------- A.PADMANABHAN, S/O. KANARAN, AYYATHAN HOUSE, THIRUVANGAD P.O., THALASSERY, KANNUR DISTRICT, REGULAR MAZDOOR, OFFICE OF THE UPPALA SUB-DIVISIONAL ENGINEER GROUP, BSNL, KANIYALA EXCHANGE, KASARAGOD. MR.P.K.MADUSOODANAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- OP(CAT) No.217 of 2010 --------------------------------- Dated, this the 2nd day of November, 2010 J U D G M E N T Ramachandran Nair, J. Order under challenge is Ext.P1 issued by the Central Administrative Tribunal on 21/01/2010 directing petitioners to grant backwages for the period respondent's reinstatement was delayed pursuant to the Tribunal's order, in the first round of litigation. 2. We have heard learned standing counsel appearing for the BSNL and learned counsel appearing for the respondent. 3. The respondent was a casual employee under the BSNL up to 1999. Though he was not re-employed after 1999, he found that those juniors to him as casual labourers were regularised by the BSNL. He, therefore, approached the CAT, which issued directions to the petitioners to regularise OPCAT 217/2010 -2- the respondent and grant him consequential relief, if those who were juniors to him were regularised. Even though this order was challenged by the petitioners before the High Court, the same was dismissed. The respondent had to initiate even contempt proceedings to get favourable orders, which were ultimately passed by the petitioners regularising the respondent with effect from 01/10/2000 as a Regular Mazdoor. However, since backwages were not paid, respondent initiated another round of litigation by filing an OA before the CAT, which led to Ext.P1 order, which is under challenge in this original petition. 4. Petitioners' case is that no pay could be given to the respondent for the period he has not worked. The CAT, on the other hand, found that the petitioners' unnecessarily delayed the respondent's regularisation in service in spite of orders issued by the CAT, which got confirmed by this Court. After hearing both sides, we find that what the Tribunal has now ordered under the impugned order is to conduct an enquiry as OPCAT 217/2010 -3- to whether the respondent was gainfully employed after his release as temporary Mazdoor with the BSNL, and after taking into consideration the benefits that he got in such employment, the petitioners were directed to grant the difference between what the respondent would have got had he been employed with the petitioners and the amount infact he got in his employment elsewhere. Learned counsel for the petitioners submitted that the petitioners will not be able to conduct any enquiry or find out as to whether casual employees like the respondent relieved by them were employed elsewhere. Even though we find force in this contention, we are of the view that the respondent is entitled to regularisation within a reasonable period from the date of the Tribunal's order, which has become final by virtue of the judgment of this Court confirming the Tribunal's order. 5. The only question to be considered is whether the respondent could be denied the benefit of backwages during the period the High Court stayed the operation of the order of OPCAT 217/2010 -4- the Tribunal issued in the first round of litigation directing regularisation of the respondent. On this issue, we are in agreement with the finding of the Tribunal that the stay obtained by the petitioners from the High Court, which later got vacated when the writ petition was dismissed, should not be a ground for denying the benefit of the Tribunal's order to the respondent. In other words, the consequences of an untenable litigation and the temporary orders obtained by the petitioners should not go to their benefit, and loss of litigation should always be accountable to the person, who failed in such litigation. Since the original order of the Tribunal was passed on 16/11/2000, we feel the petitioners are entitled to three months' time to implement the order. In our view, the respondent is not entitled to any backwages for the period during which he had not worked. The regularisation, if at all granted with retrospective effect, will entitle the respondent for fixation of pay for other purposes, but shall not lead to any claim for backwages for the OPCAT 217/2010 -5- period he had not worked. We, therefore, hold that the respondent is entitled to re-employment with wages from 15/02/2001 onwards, i.e. three months' after the date of the original order of the Tribunal. The enquiry ordered by the Tribunal vide the impugned order cannot be pursued by the petitioners. We, therefore, vacate the same, and the original petition is disposed of modifying Ext.P1 order with a direction to the petitioners to give backwages to the respondent from 15/02/2001 onwards till his actual re-employment. This original petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg