IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 36920 of 2004(S) -------------------------- OA.831/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ L.SREEKUMARAN NAIR, AGED 39 YEARS, SON OF SHRI. LAMBODARAN NAIR, CASUAL LABOUR, OFFICE OF THE SUB DIVISIONAL ENGINEER (PHONES) (EXTERNAL), PARUTHIPARA, THIRUVANANTHAPURAM-695025 BY ADV. SRI.M.A.SHAFIK SRI.K.M.ANTHRU SRI.P.C.KUNJAPPAN RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF TELECOM, NEW DELHI. 2. THE CHAIRMAN CUM MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED (BSNL), NEW DELHI. 3. THE CHEIF GENERAL MANAGER, TELECOM, BHARATH SANCHAR NIGAM LIMITED (BSNL), THIRUVANANTHAPURAM. 4. THE GENERAL MANAGER, BHARATH SANCHAR NIGAM LIMITED (BSNL), TELECOM DISTRICT, THIRUVANANTHAPURAM - 695 023. 5. THE SUB DIVISIONAL ENGINEER (PHONES) (EXTERNAL), BHARATH SANCHAR NIGAM LIMITED (BSNL), OFFICE OF THE SUB DIVISIONAL ENGINEER (PHONES) (EXTERNAL), PARUTHIPARA, THIRUVANANTHAPURAM-695025 BY ADV. SRI.K.RAMAKUMAR (SR), SC, BSNL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 36920/2004 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE ORIGINAL APPLICATION NO.831 OF 2002 ALONG WITH ITS ANNEXURES AND INDEX FILED BY THE PETITIONER BEFORE THE HONOURABLE CENTRAL ADM INISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 - TRUE COPY OF THE REPLY STATEMENT DATED 27.2.2003 WITH ALL ITS ANNEXURES BY THE RESPONDENTS FILED BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 - TRUE COPY OF THE REPLY STATEMENT DT.22.10.2003 WITH ALL ITS ANNEXURES BY THE RESPONDENTS FILED BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P4 - TRUE COPY OF THE REJOINDER DATED 10.5.2003 FILED BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P5 - TRUE COPY OF THE ORDER DATED 27.10.2003 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.831 OF 2002. /TRUE COPY/ K.BALAKRISHNAN NAIR & K.T.SANKARAN, JJ. ----------------------------------------- W.P.(C) NO. 36920 OF 2004-S ----------------------------------------- Dated 22nd February, 2008. JUDGMENT Balakrishnan Nair, J. The writ petitioner was the applicant in O.A.No.831/2002 before the Central Administrative Tribunal, Ernakulam Bench. Ext.P1 is the copy of the said O.A. The main prayer in the O.A was that he should be treated as a casual labourer, who is entitled to regularization in service, in the light of Annexure-R3 scheme dated 7.11.1989 read with Annexure-A3 clarification. 2. It is not in dispute that the petitioner had worked for 71 days as casual Mazdoor between November, 1981 and March, 1982. Thereafter, he was re-engaged for the first time only on 18.11.1991. It is common case that the said engagement was on contract basis. It means, he agreed to do the work at a rate quoted by him and he was allotted the work. The payment was made on piece rate basis with reference to the work done. The petitioner claims, the said engagement should be treated as engagement on casual basis, for the purpose of Annexure-A3. He does not dispute that he is WPC 36920/2004 2 not entitled to get the benefit of Annexure-R3 scheme, unless the benefit of Annexure-A3 clarification is available. But, going by Annexure-R3 scheme, it is meant only for casual workers and not for persons engaged on piece rate basis, on the basis of the quotations submitted by them. In that context, the learned counsel for the petitioner prayed that this Court should lift the veil and find that his engagement was actually as a casual labourer. For want of bargaining power, he was compelled to give quotation and accept the engagement on piece rate basis. The claim of the writ petitioner/applicant was resisted by the respondents, contending that he is not covered by Annexure-R3 or Annexure-A3. The said stand was upheld by the C.A.T also. Hence this Writ Petition. 3. We find it difficult to accept the contention of the petitioner that his engagement on piece rate basis in 1991 and subsequently should be treated as engagement on casual basis, in terms of Annexure-A3. It is elementary that the petitioner can claim remedy when there is a right. He claims the right flowing from Annexure-R3 scheme and Annexure-A3 clarification. We notice that the said scheme and the clarification issued to it do not cover the case of the petitioner, who was engaged on casual basis only for 71 days in 1981-82 and later on piece rate basis in 1991 and subsequently. We hold that the view taken by the Tribunal is a plausible WPC 36920/2004 3 view on the facts, with which we cannot interfere. Unless the petitioner's case is squarely covered by some scheme, we are not justified in directing his regularization in the light of the recent decision of the Apex Court in Secretary, State of Karnataka v. Umadevi [(2006)4 SCC 1]. In the result, the writ petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. K.T.SANKARAN, JUDGE. Nm/