IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 7700 of 2005 Between: M.Raju, S/o.Sri M.Muniswamy R/o.E 12/1, Servant Quarters, Lab Quarters, Kanchanbagh, Hyderabad. ..... PETITIONER AND The Bharat Dynamics Limited, Ministry of Defence, Kanchanbagh, Hyderabad Rep. by its General Manager. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order direction or writ particulalry one in the nature of writ of Mandamus or any other appropriate writ declaring the action of the respondents in not regularizing the services of the petitioners on part with similarly situated persons Viz., Mr.Waheed and Mr.M.Chandra Nayak (Petitioners in W.P.No.15699 of 1996 ) as illegal and arbitrary and consequently direct the respondents to regularize the services of the petitioner in terms of settlement dt.11.2.1997 with all consequential benefits and pass other order or orders in the interest of justice. Counsel for the Petitioner:MR.G.VIDYASAGAR Counsel for the Respondent No.: MR.K.SRINIVASA MURTHY The Court made the following : ORAL ORDER: This writ petition is filed seeking a Mandamus declaring the action of the respondents in not regularizing the services of the petitioner on par with other similarly situated persons viz. Waheed and M.Chandra Nayak (petitioners in W.P.No.15699 of 1996) as arbitrary, illegal and consequently direct the respondents to regularize the services of the petitioner in terms of Settlement dated 11.2.1997 with all consequential benefits. This case has a checkered history. It appears, petitioner joined in the service of Respondent organization as casual labour in the year 1981 and worked as such till 13.3.1990 and on that day, his services were terminated orally on the ground that he was involved in a criminal case, which arose outside the employment. However, the criminal case ended in acquittal on 26.6.1991. Therefore, petitioner approached the respondents seeking employment, but there was no response. Ultimately the matter was referred to the Industrial Tribunal- cum-Labour Court-III under Section 10(1)(c) for adjudication of the issue; “Whether the termination of services of M.Raju, workman by the management of Bharat Dynamics Limited, Hyderabad is justified? If no, to what relief is he entitled to?”. The dispute was numbered as I.D.No.118 of 1994. The Labour Court passed award dated 28.10.1995 holding that apparently there is no termination and yet no job is provided to the petitioner, which is not justified, therefore directed the management to take back the petitioner into service on consolidated pay on par with the employees mentioned in Ex.M.W.1. Aggrieved by the same, management filed W.P.No.3322 of 1997, however the same was dismissed on 26.8.2003. Aggrieved by the same, management further carried the matter in Writ Appeal No.1567 of 2003. The Division Bench of this Court, while dismissing the appeal further observed; “it is needless to observe that the appellant herein shall also consider the case of the respondent-workman for regularization of his services on par with other workmen as has been directed by this Court in a related matter”. Even then, petitioner was not taken into service, therefore, he filed a Contempt Case No.600 of 2004. The said contempt case was disposed of by order dated 2.8.2004 holding; “As per the directions of this Court dated 28.7.2004, it is reported that the petitioner appeared before the Respondent Company, and he was taken back into service. In that view of the matter, the contempt case does not survive and therefore the same is closed. However it is made clear that it is always open to the petitioner to take appropriate steps for getting the monetary benefit, if he is entitled under the orders of the Court”. Now the grievance of the petitioner in the present writ petition is that the respondents in spite of the above directions and in spite of the fact that similarly situated persons were regularized in four phased manners viz. on 1.4.1997 the services of 120 workmen were regularized; on 1.4.1998 services of 50 workmen were regularized; on 1.4.1999 services of 41 workmen were regularized and on 1.4.2000 services of 28 workmen were regularized, but his services were not regularized on par with other similarly situated persons as mentioned in Ex.MW1 (petitioners in W.P.No.15699 of 1996). Hence this writ petition. A detailed counter affidavit has been filed by the respondent stating that the petitioner cannot be allowed to canvass that the management absorbed 17 juniors to him, without arraying them as party respondents in the writ petition. The settlement arrived at between the management and union under Section 18(3) read with Section 12(3) of I.D. Act for absorption of casual workmen is a matter of record and in fact, the said fact was also brought to the notice of the Court in Contempt Case No.600 of 2004. The allegation of the petitioner that similar benefit was not extended to him in terms of the order passed in W.A.No.1567 of 2003 dated 26.9.2003 is wholly untenable. It was further stated that the petitioner cannot claim the scale of pay on par with petitioners in W.P.Nos.15699 and 27178 of 1996, inasmuch as he was not in the list of casual employees who were eligible to seek absorption nor he was a party to the said writ petitions. It is not that respondent declined to absorb the services of the petitioner. In the fifth phase of absorption under the scheme evolved by the management with the union under Section 18(3) and 12(3) of the I.D. Act, the services of the petitioner would be regularized. Thus, the plea of respondent is that when the regularization in four phases was taken up, petitioner was not in service, therefore his case was not considered and his case will be considered only when the fifth phase regularization is taken up, which is not the purport of the order passed in W.A.No.1567 of 2003. In fact, while dismissing the appeal, the Division Bench made it clear that the petitioner was also entitled for regularisation on par with others. Though the petitioner was taken into service, his services were not regularized and it is more than four (4) years and fifth phase regularization was not taken up for the last eight (8) years. A combined reading of the above facts would indicate that in all fairness, the respondent ought to have considered the case of petitioner for regularization at least from the date of reinstatement i.e. on 30.7.2004 instead of dodging the matter and putting the petitioner to hardship. The respondent simply stated that as and when fifth phase regularization is taken up, petitioner’s case will be considered. It is not stated anywhere that since there are no vacancies available, the exercise of regularization is not taken up. Under those circumstances, I am of the opinion that simply because petitioner was involved in a criminal case, which however ended in acquittal, it cannot be said that he is not entitled for regularization. Since the services of the petitioner were terminated without any notice, the Labour Court directed reinstatement on payment of consolidated pay on par with other similarly situated persons. In Writ Appeal, the Division Bench of this Court directed the respondent to consider petitioner’s case for regularization on par with other similarly situated persons. According to the respondent, the Writ Petitions and Writ Appeal were pending earlier before this Court, but nothing prevented them from regularizing petitioner’s services at least from 30.7.2004. The learned counsel for petitioner brought to the notice of the Court that the petitioner was not paid with any wages. Immediately after award was passed in I.D.No.118 of 1994 dated 28.10.1995, management filed writ petition before this Court and the same was dismissed. Questioning the same, W.A.No.1567 of 2003 was filed. During the pendency of the said writ appeal, only wages under Section 17-B of I.D. Act were paid to the petitioner. Ultimately on filing contempt case, petitioner was reinstated into service on 30.7.2004. Thus, practically petitioner was not paid with any wages till 30.7.2004. But this issue cannot be adjudicated in this writ petition. However, it is always open for the petitioner to raise such issue before the respondent and the respondent shall consider the same as per law. For all the above reasons, I am of the opinion that the petitioner is entitled for regularization of his services at least from 30.7.2004. Therefore the respondents are directed to consider for regularization of services of the petitioner in the existing vacancy notionally with effect from 30.7.2004 and extend all the benefits as per law, within a period of three months from the date of receipt of a copy of this order. The writ petition is accordingly disposed of. No order as to costs. ____________ C.V.RAMULU, J Date: 21.4.2008 DA THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION No. 7700 of 2005 21.4.2008