Kerala High Court

Union Of India vs Suhara Bheevi on 27 February, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                     2025:KER:16984
OP (CAT) NO. 28 OF 2023
                                  1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                   &
         THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
 THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
                        OP (CAT) NO. 28 OF 2023
        AGAINST   THE   ORDER/JUDGMENT    DATED   28.11.2022   IN   OA
NO.322 OF 2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH

PETITIONERS (RESPONDENTS 1 TO 4):

    1      UNION OF INDIA,
           REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
           INDIA, DEPARTMENT OF POSTS, NEW DELHI, PIN - 110001

    2      CHIEF POSTMASTER GENERAL,
           KERALA CIRCLE, THIRUVANANTHAPURAM, PIN - 695033

    3      SUPERINTENDENT,
           RMS EK DIVISION, KOCHI, PIN - 682011

    4      HEAD RECORD OFFICER,
           RMS EK DIVISION, KOCHI, PIN - 682011

           BY ADV T.C.KRISHNA


RESPONDENTS/(APPLICANTS):

    1      SUHARA BHEEVI,
           AGED 39 YEARS, D/O SAIDHA,
           WORKING AS CASUAL DAILY WAGED MAZDOORS,
           RMS EK DIVISION, KOCHI, 682 011,
           RESIDING AT NIKARTHIL HOUSE,
           NAMBIAYAPURAM ROAD, PALLURUTHY-, PIN - 682006

    2      RAJESH.R.,
           AGED 30 YEARS, S/O RAJAN,
           WORKING AS CASUAL DAILY WAGED MAZDOORS,
                                              2025:KER:16984
OP (CAT) NO. 28 OF 2023
                             2



         RMS EK DIVISION, KOCHI, 682 011,
         RESIDING AT HOUSE NO. 27, SNEHA NAGAR,
         KADAVANTHARA, PIN - 682020

    3    JISHNU V.G.,
         AGED 28 YEARS,D/O. V.K.GOKULAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI,682 011,
         RESIDING AT VALIYAPARAMBIL HOUSE,
         AYYAPPANKAVU, CHITTOOR ROAD, PIN - 682018

    4    MIDHUN K.M.,
         AGED 31 YEARS, S/O.MURALEEDHARAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI,682 011,
         RESIDING AT KIZHAKKE VETTIKAPULLIL,
         THEKKUM BHAGOM, THRIPUNITHURA, PIN - 682301

    5    IVIN SURESH,
         AGED 26 YEARS, S/O. SURESH,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI - 682 011,
         RESIDING AT VATTAKKATTUTHARA HOUSE,
         KUZHUPPILLY PO. PIN-, PIN - 682501

    6    ASWIN KUMAR T.A.,
         AGED 30 YEARS, S/O.T.B.ANILKUMAR,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI - 682 011,
         RESIDING AT TEJUS NIVAS, LG PAI ROAD,
         CC 9/11, COCHIN, PIN - 682002

    7    TOMY THOMAS,
         AGED 24 YEARS, S/O THOMAS,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT KOOLIYATH HOUSE, VYPIN VALAPPU,
         MALIPPURAM PO, PIN - 682511

    8    VINU T.V.,
         AGED 28 YEARS, S/O. VIJAYAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI - 682 011,
         RESIDING AT THEKKETHERUVIL HOUSE,
         AZHEEKKAL PO, MURIKKUMPADOM, PIN - 682508
                                              2025:KER:16984
OP (CAT) NO. 28 OF 2023
                             3




    9    SUDARSAN V.R.,
         AGED 26 YEARS, S/O.V.A.RAVEENDRAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI,- 682 011,
         RESIDING AT VELIYIL PARAMBU,
         ELAMAKKARA PO., PIN - 682026

   10    NUHMAN SAAD P.N.,
         AGED 26 YEARS, S/O.NASSIR.P.H.
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI, - 682 011,
         RESIDING AT PUZHITHARA HOUSE, VYPIN VALAPPU,
         MALIPPURAM PO, PIN - 682511

   11    JAYAPRASAD J
         AGED 24 YEARS, S/O.JAYAPRAKASH G,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT LAILAVILASAM HOUSE,
         KAANNARA PO, THRISSUR, PIN - 680652

   12    SARATH T.S.,
         AGED 23 YEARS, S/O.SHIBUT.S,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT THATTADIKKAL HOUSE,
         MALIPURAM PO, PIN - 682511

   13    SEBASTIAN M.E.
         AGED 51 YEARS, S/O.EASHY,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT MALATHURUTH HOUSE, PANAMBUKAD,
         VALLARPADAM PO, KOCHI, PIN - 682504

   14    VINOD KUMAR K.M.,
         AGED 30 YEARS, S/O.K.G.MUKUNDAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI, - 682 011,
         RESIDING AT KUNNATH HOUSE,
         KETTEZHATHUMKADAVU ROAD,
         MARADU P.O., PIN - 682304
                                              2025:KER:16984
OP (CAT) NO. 28 OF 2023
                             4



   15    VISHNU VENUGOPAL
         AGED 24 YEARS, S/O.VENUGOPAL,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT VADAKKENEDUNGAL HOUSE,
         AMBALLOOR PO., PIN - 682315

   16    VIJITHA P.S.,
         AGED 37 YEARS, D/O.RATHNAM,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI, - 682 011,
         RESIDING AT PEEDIKAPARAMBIL HOUSE,
         VADAKKUMPURAM PO, NORTH PARAVUR, PIN - 683521

   17    TONY THOMAS
         AGED 23 YEARS, S/O.THOMAS,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI,
         RESIDING AT KOOLIYATH HOUSE, VALAPPU,
         MALIPPPURAM PO., PIN - 682511

   18    ASHIK RAJ M.,
         AGED 28 YEARS, S/.M.N.RAJAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI- 682 011,
         RESIDING AT MADATHILPARAMBIL HOUSE,
         THURUTHIYIL LANE, VENNALA P.O., PIN - 682028

   19    SHAFEEQ.S,
         AGED 30 YEARS, S/O.SULAIMAN,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI - 682 011,
         RESIDING AT SHAFEEQ MANZIL, THOTTUNGAL PURAYIDOM,
         BAZAR PO, ALAPPUZHA., PIN - 688012

   20    SARATH N.B.,
         AGED 25 YEARS, S/O.BIJUN.B.,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
         RMS EK DIVISION, KOCHI, - 682 011,
         RESIDING AT NIKATHITHARA HOUSE,
         NAYARAMBALAM PO., PIN - 682509

   21    SELVARAJ,
         AGED 25 YEARS, S/O.VENUGOPAL,
         WORKING AS CASUAL DAILY WAGED MAZDOORS,
                                                           2025:KER:16984
OP (CAT) NO. 28 OF 2023
                                    5



             RMS EK DIVISION, KOCHI - 682 011,
             RESIDING AT THOPPIL VADAKKATHIL,
             CHERAVALLI, KAYAMKULAM PO., PIN - 690502

   22        AKSHAY KUMAR,
             AGED 25 YEARS, S/O.MADHUSUTHAN,
             WORKING AS CASUAL DAILY WAGED MAZDOORS,
             RMS EK DIVISION, KOCHI,
             RESIDING AT KUMBATHIRIPARAMBIL HOUSE,
             POOYAPPILLY, VADAKKEKARA PO., PIN - 683522

             BY ADVS.
             M.R.HARIRAJ
             THANUJA ROSHAN(K/1446/2002)
             VISWAJITH C.K(K/001253/2018)
             GISHA G. RAJ(K/000402/2020)
             REJIVUE K.C.(K/000387/2020)
             ALINA ANNA KOSE(K/001413/2021)
             VIDYA A.K(K/453/2020)
             AKHILA S.(K/2942/2022)
             MEGNA MARIYAM M.(K/002917/2022)
             GAYATRI VISWANATHAN(MAH/5239/2021)
             C.C.REJINOLD(K/1633/2021)



     THIS     OP   (CAT)   HAVING       COME   UP   FOR    ADMISSION    ON
27.02.2025,     THE   COURT   ON    THE    SAME     DAY   DELIVERED    THE
FOLLOWING:
                                                             2025:KER:16984
OP (CAT) NO. 28 OF 2023
                                     6




                                JUDGMENT

Amit Rawal, J.

1. Present OP(CAT) at the instance of Union of

India, Postal Department, is directed against the judgment

dated 28.11.2022 rendered in O.A.No.322 of 2022, whereby

following reliefs claimed by the respondents/applicants have

been allowed, though according to the petitioner, in a

different manner:

I. To call for records leading to any proceedings directing termination of services of the applicants and quash the same;

II. To direct the respondents to reinstate the applicants in employment and to continue them in service in preference to freshers and juniors with all consequential benefits including back wages for the period they were kept on service;

III. grant such other reliefs as may be prayed for and the court may deem fit to grant, and IV. To grant the costs of this Original Application.

2. For adjudication of the lis, the facts, in

narrow compass, are enumerated herein below:

Respondents - applicants, twenty two(22) in 2025:KER:16984 OP (CAT) NO. 28 OF 2023

number, who have been employed as casual daily waged

Mazdoors for 5 to 11 years, had set up their claim before the

Labour Commissioner for grant of minimum wages as has

been granted to their counterparts in other departments.

During the pendency of the matter before the Labour

Commissioner, the department attempted to disengage their

services giving cause to invoke the jurisdiction of the Central

Administrative Tribunal by preferring aforementioned O.A

claiming the reliefs aforementioned. Petitioners -

respondents raised the objection qua maintainability, as the

aforementioned reliefs, as per Section 7 and 7A of the

Industrial Dispute Act, could have been agitated either

before the Labour Court or Industrial Tribunal.

3. Learned Tribunal, on appreciation of the

pleadings as well as the case laws cited by either of the

parties much less by overruling the objection, allowed the

O.A. with a direction to the petitioners to re-engage the

employees till the scheme with regard to engagement 2025:KER:16984 OP (CAT) NO. 28 OF 2023

through the outsourcing agencies is finalised/approved.

However, while granting such relief in paragraph No.12, as

extracted herein below, referred to the provision of Section

33 which is the point of challenge in the present O.P. as the

pendency of the claim before the Labour Commissioner may

not result into an adjudication without noticing the objection

of the petitioner:

"12. Section 33 of the Industrial Disputes Act is sacrosanct. The applicants are entitled get protection under Section33 of the Industrial Disputes Act. Their preferential claim cannot be ignore. Therefore, till modalities for outsourcing through approved agencies are finalised, the respondents are directed to re-engage the applicants in preference to freshers and juniors.

The application is allowed as above. No costs."

4. Sri.T.C.Krishna submits that finding

paragraph No.12 are required to be expunged. Even

otherwise, the ratio in Ghaziabad Development Authority

and others v. Vikram Chaudhary and others [AIR 1995

SC 2325] relied upon by the Tribunal would not be

applicable, as, the entire engagement had been through the 2025:KER:16984 OP (CAT) NO. 28 OF 2023

outside agencies.

5. On the other hand, Sri.Hariraj, learned

Senior Counsel assisted by Adv.Akhila submitted that the

claim, though according to the instructions, before the

Labour Commissioner is still pending, the fact remains that

it is settled law that a set of contractual employees or daily

wagers cannot be replaced by another set of employers

either through outsourcing or through notifications, until and

unless the posts have been filled up through regular

employment, that too, against sanctioned posts. In support

of the contention, relied upon the judgment of the Supreme

Court in Hargurpratap Singh v. State of Punjab and

Others [(2007) 13 SCC 292] and urged this Court for

dismissal of the O.P.(CAT).

6. We have heard the learned counsel for the

parties and appraised the paper book.

7. On perusal of the extracted portion of the

findings of the Tribunal, we are in agreement with regard to 2025:KER:16984 OP (CAT) NO. 28 OF 2023

the findings recorded in paragraph No.11 but as far as

paragraph No.12 is concerned, those findings, in our

considered view, are obiter for the reason that the matter

with regard to the claim of minimum wages is still pending

or have been agitated before the Labour Commissioner. For

claiming minimum wages, the remedy lies elsewhere ie., in

terms of Section 33 of the Industrial Dispute Act. The

Supreme Court in Hargurpratap Singh (supra) has also

reiterated the findings rendered in Ghaziabad

Development Authority and others (supra).

8. As far as the objection with regard to the

maintainability is concerned, have already been pondered

and rejected while culling out the ratio decidendi in

Telecom District Manager and others v. Keshab Deb

[(2008) 8 SCC 402], in paragraph Nos.24 to 28. The same

reads as under:

24. We are, therefore, of the opinion that grant of compensation in stead of a direction of reinstatement with back wages would meet the ends of justice.

2025:KER:16984 OP (CAT) NO. 28 OF 2023

25. In Atyant Pichhara Barg Chhatra Sangh and another vs. Jharkhand State Vaishya Federation and others this Court while opining that affirmative action is subject to judicial review and while stating that unequals cannot be treated as equals upon noticing the decision of this Court in Indra Sawhney vs. Union of India stated the law in the following terms :(Jharkhand case, SCC p.725, para 23)

"23. Mandal Commission case has specifically noted that there is no constitutional bar to a State categorising the Backward Classes as backward and more Backward Class. The State of Jharkhand by its actions seeks to disempower communities that have been extended the benefits of reservation after a conscious adoption of the Bihar Act. What GO No. 5800 seeks to do by combining the Extremely Backward Class and Backward Class into one group is to treat unequals as equals thus violating the notion of substantive equality and Article 14 of the Constitution of India bringing it within the purview of judicial review by the Court."

26. This Court in Ajoy Kumar Banerjee v. Union of India:

has held as under: (SCC pp.159-60, paras 50 & 52)

"50. Differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution.

2025:KER:16984 OP (CAT) NO. 28 OF 2023

This principle is too well- settled now to be reiterated by reference to cases. There is intelligible basis for differentiation. Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature. Had it been held that the scheme of 1980 was within the authority given by the Act, we would have rejected the challenge to the Act and the scheme under Article 14 of the Constitution." It was further held :- (Ajoy Kumar case, SCC p.160, para

52)

" 52. It was further submitted on behalf of the respondents that the rationale, justification and the genesis of the law of nationalisation being the creation of economic instrumentalities to subserve the constitutional and administrative goals of governance in a social welfare society, the running of public sector undertakings is neither for profit earnings of the management nor for sharing such profits with the workmen alone but to utilise the investible funds available as a result of such ventures and undertakings for socially-oriented goals laid down by the governmental policies operating on the said sectors. In this connection reference was made before us to the decision in the case of State of Karnataka v. Ranganatha Reddy."

27. Even if the provisions of Section 25-F of the Industrial 2025:KER:16984 OP (CAT) NO. 28 OF 2023

Disputes Act had not been complied with, respondent was only entitled to be paid a just compensation. While, however, determining the amount of compensation we must also take into consideration the stand taken by the appellants. They took not only an unreasonable stand but raised a contention in regard to absence of jurisdiction in the Tribunal. They admittedly did not comply with the order passed by the Tribunal for a long time. It had raised contention which are not otherwise tenable.

28. We, therefore, are of the opinion that in the peculiar facts and facts and circumstances of the case interest of justice shall be subserved if respondent is directed to be paid a compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only). The said sum should be paid to him within four weeks failing which it will carry interest @ 9% per annum.

9. For the reason aforementioned, we are of the

view that the petitioners - respondents cannot be permitted

to indulge into replacing the daily wagers/casual labours by

another set of casual labours, until and unless the said post

are filled up through regular vacancies. Preference has to be

given to the experienced casual labours who had rendered

more than 5 to 11 years of service as in the instant case. As 2025:KER:16984 OP (CAT) NO. 28 OF 2023

far as finding in paragraph No.12 of the judgment is

concerned, we declare it to be an obiter. Petition sans

merit, accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE