Rajasthan State Road Transport Corporation and Others vs K.K. Nagpal and Others

Jaishree Thakur, J—The present writ petition has been filed challenging award dated 19.10.1994 passed by the Labour Court allowing the reference of the respondent-workman.

Briefly put, the respondent-workman was appointed as Lower Division Clerk on 10.7.1968 with Rajasthan State Road Transport Corporation. He was thereafter appointed to the post of Assistant Traffic Inspector on 12.6.1973 and subsequently confirmed on the said post w.e.f. 12.8.1974. A provisional seniority list of Assistant Traffic Inspector/Sub Inspectors was prepared by the petitioner and after inviting objections, the final seniority list was published on 12.7.1975. The name of the respondent was reflected at S. No. 97.

A meeting of the Departmental Promotion Committee was convened for consideration of the candidatures of the eligible candidates for promotion to the post of Traffic Inspector/Assistant Depot Manager. On the recommendation of the Departmental Promotion Committee, 21 eligible persons were promoted and appointed on the post of Traffic Inspectors/Assistant Depot Managers on an ad hoc basis vide an order dated 3.8.1976. The respondent was also considered for promotion by the Departmental Promotion Committee but was not found fit and, therefore, his name was not recommended. All incumbents who were accorded promotion were subsequently confirmed on 26.9.1978. Seven more persons were also promoted to the post of Traffic Inspectors/Assistant Depot Managers on the same day and vide the same order.

On 19.4.1979, the respondent was promoted as Traffic Inspector/Assistant Depot Manager and in the said order it was laid down that the seniority of the respondent will be fixed in order of seniority applicable to him in the list of Traffic Inspectors/Assistant Depot Managers promoted vide the order dated 26.9.1978. Thereafter, a provisional seniority list of Traffic Inspectors/Assistant Depot Managers was prepared on 11.1.1982 after inviting objections. The respondent made his representation on 23.1.1982 against the said seniority list. After due consideration of the objection, a final seniority list of Traffic Inspectors/Assistant Depot Managers was published on 27.8.1982 wherein the name of respondent No. 1 was shown at S. No. 115. The respondent raised an industrial dispute before the Conciliation Officer on 8.12.1987 claiming therein that he is entitled to be placed in between S. No. 72 and 73 in the seniority list of the Traffic Inspectors/Assistant Depot Managers. On failure of conciliation proceedings, a failure report was submitted and the appropriate government vide a Notification dated 31.7.1990 referred the dispute for adjudication to the Industrial Tribunal, Bikaner in the following terms:-

"Whether in compliance of the order dated 19.4.1979, by not fixing the seniority of Mr. K.K. Nagpal on the post of Assistant Depot Manager in the seniority list between S. No. 72 and 73 by the General Manager, Rajasthan State Road Transport Corporation, Jaipur and by not giving all benefits to him, is legal or valid. If not, then what relief the workman is entitled to?"

The respondent filed the statement of claim contending that when he was accorded promotion to the post of Assistant Depot Manager, it had been specifically laid down that seniority would be fixed in order of seniority applicable to him in the list of Traffic Inspectors/Assistant Depot Managers who were promoted on 26.9.1978 and claimed that he is entitled to be placed in seniority list of the Traffic Inspectors/Assistant Depot Managers in between S. No. 72 and S. No. 73 published by the Corporation on 27.8.1982, while at the same time, stressed that he had been denied promotion on the post of Depot Manager as persons junior to him had been promoted vide order dated 2.12.1987.

A detailed reply to the statement of claim was filed by the respondent stating that the respondent was placed at S. No. 97 in the cadre of Traffic Inspectors/Assistant Depot Managers in the seniority list published on 22.7.1975. He was considered for promotion on the post of Traffic Inspectors/Assistant Depot Manager but on the basis of appraisal he was not found fit for promotion. It is further stated that the name of the respondent was at S. No. 115 in the seniority list of Traffic Inspectors/Assistant Depot Managers but the said seniority list had been cancelled on 26.4.1990. It was also submitted that the respondent could not claim seniority on the post w.e.f. 23.8.1976 when other candidates were promoted. Apart from filing a detailed reply to the statement of claim, the Corporation also raised issues inter alia regarding the dispute being highly belated, Non-impleading of necessary parties who would be effected and also that the matter being of promotion could not be entertained by the Labour Court.

The Labour Court after hearing the parties, allowed the claim. Aggrieved against the order passed by the Labour Court, the present writ petition has been filed.

It is contended by Mr. Vivek Shrimali learned counsel appearing for the petitioner that the Labour Court has exceeded its jurisdiction in passing the impugned award and has gone beyond the reference made to it. Further submitted the Labour Court has allowed the claim of the respondent without going into the questions raised about the maintainability of the claim itself, the delay in agitating the dispute, non impleading of the necessary parties being those candidates whose seniority would be affected and the question whether the respondent who is working as a manager would be a workman as defined within the ambit of the industrial Disputes Act 1047? It is argued that the respondent was placed at S. No. 97 in the seniority list prepared and published on 12.7.1975 of Assistant Traffic Inspectors/Sub Inspector. 21 eligible candidates were promoted by the Departmental Promotion Committee vide order dated 3.8.1976 to the post of Traffic Inspectors/Assistant Depot Managers. The name of the respondent was considered for promotion but not approved as he was not found fit by the Departmental Promotion Committee. Subsequently, these promotees were confirmed vide order dated 26.9.1978 on which date seven more incumbents were promoted on the post. The respondent was promoted on 19.4.1979 wherein it was ordered that the seniority would be applicable to them in the list of Traffic Inspectors/Assistant Depot Managers who were promoted vide order dated 26.9.1978.

Per contra, the respondent-workman has filed a reply to the writ petition stating that there is no infirmity in the award passed by the Labour Court. It has further been argued that the writ petitioner cannot raise issues of delay and maintainability of the claim itself, as these points were never argued before the Labour Court and if once given up, the same cannot be agitated in the present proceedings. Counsel for the respondent has further submitted that the Labour Court is competent to hear the matter since a manager is a supervisor and has been held to be a workman.

I have heard learned counsel for the parties and with their assistance, have gone through the record of the case.

Admittedly, the respondent-workman raised an industrial dispute claiming that he should have been assigned seniority between 72-73 in the seniority list of Assistant Depot Managers/Traffic Inspector as prepared by the department on 27.8.1982 on the basis of the of the order dated 19.4.1979 by which the promotion was accorded to him.

It is noticed that a Departmental Promotion Committee was held and 21 candidates were promoted to the post of Assistant Depot Managers/Traffic Inspectors on 3.8.1976 and they were confirmed on the said post on 26.9.1978. On the same day, i.e., 26.9.1978, seven more persons were promoted on an ad hoc basis to the post of Assistant Depot Managers/Traffic Inspectors. The respondent-workman was promoted to the post of Assistant Depot Manager/Traffic Inspector only on 19.4.1979 and in the letter it was stipulated that seniority would be assigned in order of seniority applicable to him in the list of Assistant Depot Managers/Traffic Inspector who were promoted vide order dated 26.9.1978. As per the respondent-workman his seniority is to be reckoned with those candidates who were promoted on 3.8.1976 and confirmed on 26.9.1978. A perusal of the document annexed with the petition shows that by letter No. F/P-11/Traf./Mu/78/976 dated 26.9.1978, 21 persons were confirmed on the post of Assistant Depot Managers/Traffic Inspectors and by the same letter, seven persons were promoted on the post of Assistant Depot Managers/Traffic Inspectors and ten persons were transferred and posted, on promotion to the post of Assistant Depot Managers/Traffic Inspectors. The said office order clearly mentions that "it will be fixed in the seniority list in order of seniority applicable to them in the list of Assistant Depot Managers/Traffic Inspectors promoted vide order No. F/P-11/Traf/Mu/78/976 dated 26.9.1978." (italics supplied). The Labour Court while deciding the reference came to the conclusion that the Departmental Promotion Committee had wrongly ignored the workman and on rectification of the same, had accorded him promotion to the post of Assistant Depot Manager/Traffic Inspector. Holding that Departmental Promotion Committee had wrongly ignored the respondent workman, the Labour court held that the respondent workman would be entitle for promotion w.e.f. 3.8.1976 along with the others as recommended by the Departmental Promotion Committee and fixed seniority in between 72-73.

As per the terms of the reference, the Labour Court is required to examine whether or not the respondent was entitled to be placed in the seniority list in between S. No. 72 and 73 on the basis of the order dated 19.4.1979. The question of examining whether or not the Departmental Promotion Committee had been correctly conducted or not or whether the respondent had been unjustly ignored for promotion was not within the purview of the Labour Court, especially when no challenge has been made to the proceedings held by the Departmental Promotion Committee on 3.8.1976. On this ground alone, it is sufficient to hold that the findings arrived at by the Labour Court are perverse and beyond the jurisdiction of the reference.

It has been held in Mahendra L. Jain and Others Vs. Indore Development Authority and Others, (2005) 1 ESC 1 : (2005) 104 FLR 53 : (2005) 1 LLJ 578 : (2004) 9 SCALE 579 : (2005) 1 SCC 639 : (2005) SCC(L&S) 154 : (2005) 3 SLJ 71 , by Hon''ble the Supreme Court that the Labour Court cannot enlarge the scope of reference nor can deviate therefrom. Reliance can also been placed on a judgment reported as Mukand Ltd. v. Mukand Staff & Officers'' Association, (2004) 10 SCC 460 to conclude that that the Industrial Tribunal being a creature of State of Rajasthan Vs. Ucchab Lal Chhanwal, (2013) 11 AD 253 : (2013) 14 JT 255 : (2013) 5 LLN 1 : (2013) 13 SCALE 272 : (2014) 1 SCC 144 : (2014) 1 SCC(L&S) 34 : (2014) 1 SCT 342 : (2014) 1 SLJ 232 that any order passed without arraying persons as parties who will be directly affected is liable to be set aside. The impugned award takes note of the objections raised in the pleadings regarding non-joinder of parties but it is held that the matter was not argued. Even if this matter was not argued, it was incumbent upon the Labour Court to have taken note of this fact that the respondent had failed to implead the affected parties. The argument raised by counsel for the respondent Mr. R.S. Saluja, that all persons have since retired and it is only the notional promotion that he is seeking, does not waive the fact that there was nonjoinder of necessary party. The impugned award is liable to be set aside on this account as well.

Without touching any other issue, I am of the considered opinion that the impugned award is liable to be set aside. The workman may approach the Appropriate Government for demanding the reference. As the matter is very old, if the workman makes such an application, the Appropriate Government is requested to pass appropriate order on his application expeditiously and in case the reference is made, the Labour Court is requested to dispose of the matter expeditiously preferably within a period of one year.

With the above observations, the above noted writ petition is allowed and the award dated 19.10.1994 is set aside. With no orders as to costs.