IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 6721 of 2010(S) ------------------------- TA.36/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS: 1. BHARATH SANCHAR NIGAM LTD. REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR SANCHAR BHAVAN, NEW DELHI. 2. THE CHIEF GENERAL MANAGER, TELECOM BHARATH SANCHAR NIGAM LTD. TRIVANDRUM. 3. THE PRINCIPAL GENERAL MANAGER BHARATH SANCHAR NIGAM LTD. ADMIONISTRATION WING, BSNL BHAVAN KALATHIPARAMBIL ROAD, ERNAKULAM, KOCHI 682 016. 4. THE DEPUTY GENERAL MANAGER (ADMINISTRATION) O/O.THE PRINCIPAL GENERAL MANAGER TELECOM BHARATH SANCHAR NIGAM LTD.,ERNAKULAM. 5. THE ASST. GENERAL MANAGER O/O.THE PRINCIPAL GENERAL MANAGER TELECOM BHARATH SANCHAR NIGAM LTD.,ERNAKULAM. KOCHI-16. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SMT.SMITHA GEORGE SRI.T.RAMPRASAD UNNI RESPONDENTS: 1. THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR. 2. SMT. ANNAMMA P.M W/O.JAMES FRANCIS, PEREPILLY HOUSE CHILAVANNUR ROAD, KOCHI 682 020. ADV. SHRI.P.C.CHACKO, CGC FOR R1 R2 BY ADVS. M/S. T.C.GOVINDA SWAMY , G.SHYAM RAJ & SRIT.R.MOHANAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.8.2011, THE COURT ON 27/09/2011, DELIVERED THE FOLLOWING: W.P.(C) 6721/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORIGINAL APPLICATION SUBMITTED BY THE 2ND RESPONDENT, IN THE CAT, ERNAKULA BENCH. EXT.P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS HEREIN TO EXT.P1. EXT.P3 TRUE COPY OF THE ORDER DATED 18.12.2009 IN T.A. NO. 36/2008 OF THE CAT, ERNAKULAM BENCH. EXT.P4 TRUE COPY OF BOOKLET ON WELFARE MATTERS ISSUED BY THE GENERAL MANAGER, TELECOMMUNICATIONS, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = W.P.(C) 6721 OF 2010 = = = = = = = = = = = = DATED THIS, THE 27TH DAY OF SEPTEMBER, 2011. J U D G M E N T P.S. Gopinathan, J. Respondents in T.A. 36 of 2008 on the file of the Central Administrative Tribunal, Ernakulam Bench are the petitioners herein. The Tribunal is the first respondent in this writ petition under Article 226 of the Constitution of India. The second respondent herein who was the applicant before the Tribunal, was initially engaged on 1.7.1989 as a contractual employee in the canteen/tiffin room under the 5th petitioner, the Assistant General Manager, Bharat Sanchar Nigam Ltd., Ernakulam. She continued so, till 31.12.1992, when the running of the canteen was outsourced to a contractor. The second respondent continued to be an employee even under the contractor. She continued so and at present she is working as sweeper, water girl etc. on contract basis. She had made so many representations to regularise her in service. Though some of her juniors were regularised, the claim of the second respondent was not considered. Alleging that conduct of the petitioners in declining the claim of the second respondent is arbitrary, illegal and liable to be interfered in exercise of the powers under W.P.(C) 6721/2010 2 Article 226 of the Constitution of India, she moved a writ petition in 2005 before this Court. Having found that the dispute would come within the jurisdiction of the first respondent, the writ petition was transferred to the first respondent wherein it was numbered as T.A. 36 of 1986. 2. First respondent, by an elaborate order, which is impugned in this case found in favour of the second respondent. In finding so, the Tribunal had also given reliance to the decision reported in M.M.R. Khan and Others v. Union of India and others (AIR 1990 SC 937). Consequently, the application was allowed. Now this writ petition. 3. We have heard either side and perused the documents. It is not in dispute that the second respondent was engaged in the canteen by the managing committee from 1.7.1989 to 31.12.1992. Thereafter, though the canteen was outsourced, she continued under the contractor and at present, it is stated that the second respondent is engaged as sweeper/water girl etc. on contract basis. In M.M.R. Khan's case the Apex Court had held as follows: “Even where the employees are appointed by the staff committee/Co-operative Society, it will have to be held that their appointment is made by the Department through the agency of the committee/society as the case may be.” It is a case relating to Railway Canteens. The Apex Court had even held W.P.(C) 6721/2010 3 that employees in the non statutory recognized canteens are to be treated at par with those in statutory canteens. Pursuant to the above judgment, Department of Personnel and Training had issued O.M. 12/5/91-Dis(c) dated 29.1.92 wherein there is direction to treat the employees of the non- statutory department/Co-operative Canteens/Tiffin rooms located in Central Government Offices as Government servants. There is no case for the petitioners that the canteen in which the 2nd respondent was engaged is a non recognized one. Therefore, the 2nd respondent is entitled to the benefit of the O.M. referred above. O.M. No. 3/4/96-Dis-(c) dated 20.3.1997 is also in line with the O.M. referred above. It is relying upon the above decision of the Apex Court coupled with the given set of facts and the O.Ms. referred above, the Tribunal allowed the application. We find no reason to arrive at a divergent conclusion. The order impugned directing the petitioners to regularize the service of the second respondent is not at all vitiated by any error or illegality to be rectified in exercise of the jurisdiction vested on this Court under Article 226 of the Constitution of India. Whereas the orders impugned is in tune with the ruling of the Apex Court and the O.M. Referred which was issued in pursuance of the decision of the Apex Court. At the same time, we notice that the petitioners were directed to pay back wages with effect from 1.10.1991. That period covers W.P.(C) 6721/2010 4 the period during which the second respondent was working even under the contractor who was paying for the services. Petitioners cannot be held liable for back wages. Taking into account of the facts and circumstances, including the delay to approach the Tribunal, we find that it would be appropriate to restrict back wages from the date of the order of the Tribunal ie. 18th December, 2009. In the result, the writ petition is allowed in part. While confirming the order of the Tribunal to regularize the 2nd respondent, arrears of wages is restricted from 18.12.2009, the date of the order of the Tribunal. Petitioners shall complete the process of regularization, including disbursement of wage arrears within two months from today. Sd/- C.N. RAMACHANDRAN NAIR, (JUDGE). Sd/- P.S. GOPINATHAN, (JUDGE) knc/-