Rakesh Kumar vs Union Of India & Ors.

Delivered by Hon’ble Dr. Sanjiv Kumar, Member (A)

As the subject matter in all the connected O.As are one and the same and the relief/s sought by the applicants are similar, merely having different dates and events would not in any way disturb the ultimate finding to be given by this Tribunal. Therefore, as requested by the counsel for either sides, all the O.As have been heard together and decided by a common order. For ready reference the facts of the O.A No. 101/2021 are taken.

By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the impugned order dated 04.05.2017 passed by the respondent no. 1 as well as order dated 09.01.2021 passed by the respondent no. 4. Prayer has also been made for a direction to the respondents to allow the applicant to remain a member of employee union and he may be permitted to work as General Secretary of COD Employees Union, Kanpur.

The facts of the case are that applicant, who was initially appointed as LDC/Steno Grade-III, was promoted as UDC and he was posted as Office Superintendent w.e.f. 01.01.2019 in pay level-6 (PB Rs. 35400-112400). The applicant became General Secretary of COD Karmachari Union, a recognized federation of Trade Union of the employees of defence establishment under the Ministry of Defence. It is stated that ever since 1971, after introduction of CPRO 25/71, the circumstances did not change and the Office Superintendents were allowed to become members of the Joint Consultative Machinery (JCM) and the Trade Unions. It is stated that as per the letters dated 22.04.2008 and 29.08.2013 (Annexure A-6 of OA), the persons employed in industrial establishment with GP Rs. 4200/- or less shall be eligible to participate in trade union of DLWC/JCM. The Ministry of Defence has also issued office order dated 30.10.2014 that the employees under the Ministry with grade pay Rs. 4200/- or less were eligible to participate in JCM. The Office Superintendents working with AOC were also held to be eligible to participate in the JCM. It is stated that the Adjutant General‟s branch integrated HQs of MoD (Army) vide letter dated 13.04.2016 determined the eligibility criteria for employees to participate in the works committee by which OSs are eligible to participate in JCM activities. It is averred that the DTA General of Ordinance Service/OS-10A (I&II) vide letter dated 22.08.2016 clarified that as per Industrial Dispute Act, 1947 and Trade Union Act, the categories except AOC drawing pay scale of Rs. 4200/- and below are covered under the definition of work man. It is further submitted that as per the minutes of the meeting held on 02.03.2017 of Integrated Headquarters of MOD (ARMY) Adjutant General‟s Branch on eligibility criteria for the employees to participate in Works Committees Depot Works Committees in Defence industrial Establishment, O.S. were allowed to participate in the Works Committee (Annexure A-9 of OA). It is stated that since 1971, the OSs are not discharging supervisory duties, and they are doing only clerical work, hence the O.S has been permitted to become a member of trade union and avail the benefit of JCM, but vide impugned order dated 4.5.2017, he has been disallowed to participate in JCM activities, without application of mind and it has curtailed the right of the applicant. Hence, prayer has been made to quash the said order and to restore his right to participate in the union activities.

Upon notice, the respondents have filed counter in which basic facts of the case are not denied but they state that the applicant is holding post of Office Superintendent and this post of clerical in nature and as per CPRO No. 25/1971, Officer Superintendents were allowed to participate in the union activities and JCM. However, the Nodal Ministry i.e. Ministry of Labour and Employment vide letter No. S-13011/1/2017-IR(PL) dated 16.03.2017 clarified to the Ministry of Defence that Office Superintendent is predominantly supervisory in nature hence this post cannot be classified as “Workman” under the Industrial Dispute Act 1947. Thereafter, the Ministry of Defence vide ID No. 21(05)/2017-D (JCM) dated 04.05.2017, re-examined the case for participation of Office Superintendent in union activities /JCM and decided to withdraw their previous correspondence circulated vide letters dated 30.10.2014 and 29.12.2012 and to disallow Office Superintendent to participate in union activities/JCM.

The respondents further raised preliminary issue that the Central Administrative Tribunal has been created under the Administrative Tribunals Act, 1985 enacted by the Parliament under Article 323-A of the Constitution of India which stipulates that the Parliament may , by law, provide for adjudication or trial by Administrative Tribunals of disputes and complaints on service matter whereas, in the instant case, impugned Letter dated 04.05.2017 was issued on the basis of Ministry of Labour and Employment letter dated 16.03.2017 vide which Nodal Ministry clarified that the Office Superintendent is predominantly supervisory in nature, hence this post cannot be classified as „Workman‟ under the Industrial Dispute Act 1947.

The contention of the respondents is that this case is not maintainable before this Tribunal as it is not within the service law as the order dated 04.05.2017 has been issued in reference to Industrial Dispute Act 1947. To support their contention, the respondents have place reliance on the judgment dated 29.01.2020 passed by Hon’ble High Court, Allahabad in WRIT A No. 6515/2019 – Mazdoor Union Through General Secretary and another Vs. The Central Administrative Tribunal and 2 others wherein, it has been held that the petitioners are not raising any service dispute but it is only for constitution of Redressal Forum and not claiming benefit on their own and in view of the same, the Hon‟ble High Court did not find any merit in the case and dismissed the writ petition. The respondents have further relied upon the judgment of Hon’ble High Court dated 08.11.2013 passed in Writ Petition No. 29883/2006 – Yashwant Singh Vs. Union of India and Others, in which following has been observed: -

In the said judgment, Hon‟ble High Court further quotes that the legal position have been settled by the Supreme Court in the case of Council of Scientific & Industrial Research Vs. Padma Ravindra Nath – (2001) 9 SCC 526 wherein the Apex Court referring to its earlier decision in the case of Rajasthan SRTC Vs. Krishna Kant reported in (1995) 5 SCC 75 has approved the view taken by the Central Administrative Tribunal, Hyderabad Bench in A. Padmavalley Vs. C.P.W.D reported in (1990) 14 ATC 914 (Hyd) wherein Full Bench of the Central Administrative Tribunal, Hyderabad Bench has held that Administrative Tribunals constituted under the Administrative Tribunals Act are not substitutes for authorities constituted under the Industrial Disputes Act.

Rejoinder has been filed by the applicant where facts of the OA have been reiterated. However, learned counsel for applicant has relied upon the order passed by CAT Bangalore Bench on 24^th July, 2018 in O.A. No. 241/2017 - Smt. G.V. Gayathri Vs. Union of India & others and submitted that in a similar matter, quoting Apex Court judgments in Smt. Damayanti Naranga Vs. UOI & Ors – AIR 1971 SCC 966, O.K. Gosh & Anr. Vs. E.X. Joseph – AIR 1963 SCC 812, Kameshwar Prasad & Ors. Vs. State of Bihar & Anr – AIR 1962 SCC 1166, Telco Convoy Drivers Mazdoor Sangh & Anr. Vs. State of Bihar & Ors – AIR 1989 SCC 1965, Ram Avatar Sharma & Ors Vs. State of Harayayana & Anr – AIR 1985 SCC 915 and Management of Karnataka State Road Transport Corporation Vs. KSRTC Staff & Workers Federation & Anr. – AIR 1999 1059, this Tribunal quashed the impugned order with direction that the ‘applicant can while being an Office Superintendent be a member of Trade Union also‟.

Supplementary Counter Affidavit has also been filed by the respondents wherein nothing new has been added. .

The case came up for final hearing on 24.04.2023. Shri M.K. Upadhyay with Shri Ashish Srivastava, learned counsel for the applicant in OA No. 741/2017 and Shri Anil Kumar Singh, learned counsel for the applicant in OA No. 101/2021 and Shri Chakrapani Vatsyayan and Shri Raghvendra Pratap Singh, learned counsel for the respondents were present. None present for the applicant in OA No. 832/2017. Heard learned counsel for the parties.

We have carefully gone through and examined the rival contentions, written arguments and all the materials available on record.

For our primary consideration, it emerges that in view of the nature of dispute, whether the category of employees i.e. Office Superintendent can be considered under the Industrial Dispute Act as the impugned order tries to state that as per the order of the Ministry of Labour, the Office Superintendents are not eligible to be considered as Workman and cannot participate in the union activities.

On simple perusal of the prayer, it is evident that a direction is sought to quash the impugned order dated 04.05.2017 and to permit the applicant to continue to be a member of trade union and to permit to participate in JCM, as it was prior to the impugned order. On perusal of the impugned order dated 04.05.2017, it is evident that based on the advice of the Nodal Ministry i.e. Ministry of Labour and Employment wherein they had said that the OSs cannot be classified as Workman and hence they should not be allowed to participate in the union activities. The instructions were as follows: -

Clearly, the issue raised before this Tribunal is whether the Office Superintendents are within the meaning of Workman as defined under the Industrial Dispute Act 1947 and whether they should be allowed to participate in union activities and JCM activities?

Clearly, this matter pertains to broad area of labour jurisprudence and not service jurisprudence as no service laws are being dealt. The circular dated 04.05.2017 is clearly a circular by the employer under Industrial Dispute Act recognizing within their organization, if certain categories of employees are Workman or not and whether they should be allowed to participate in union activities and JCM activities? Thus facts being such, one has to seek remedy to the same under Industrial Dispute Act and not within the purview of Central Administrative Tribunal which deals with service laws about appointment and service conditions from joining government employment to their retirement, pension or dismissal etc. Clearly the subject matter raised before this Tribunal is not pertaining to any service matter or service law. This view is also supported by the order dated 04.04.2019 passed by this Tribunal in OA No. 232/2019 wherein, the applicant Mazdoor Union, 508, Army Base Workshop, Allahabad and another sought direction to the respondents to constitute Grievance Redressal Machinery at 508, Army Base Workshop, Allahabad in consultation with the Union and Assistant Labour Commissioner (Central), Allahabad and the Tribunal had considered that this matter is a labour matter and not a service matter, hence the OA was dismissed. The above order of the Tribunal was challenged before Hon’ble High Court by way of Writ Petition No. 6515/2019, which was also dismissed vide order dated 29.01.2020 and the order of the Tribunal was upheld. While dismissing the said writ petition, Hon‟ble High Court observed as under: -

In another judgment dated 08.11.2013 passed in Writ Petition No. 29883/2006 – Yashwant Singh Vs. Union of India & Ors, wherein the petitioner had challenged the order of Central Administrative Tribunal dated 28.03.2006 rejecting the OA for want of jurisdiction, the Hon‟ble High Court observed as under: -

The learned counsel for the applicant has relied on the order dated 24.07.2018 passed by Bangalore Bench of this Tribunal in OA No. 241/2017 – Smt. G.V. Gayathri Vs. U.O.I & Ors wherein same subject matter was discussed on the question that whether can an Office Superintendent be a member of a Trade Union. As the respondents object to it on the ground that the Office Superintendent being in-charge of certain type of employees, must be held to be part of supervisory agent and management and therefore, cannot come under the ambit of Trade Union Act 1926. The said OA was allowed in favour of the applicant with following direction: -

But the above order of the Tribunal is in variance with the two preceding judgments of Hon‟ble High Court wherein it has been held that the labour matters should be dealt within the ambit of labour laws and resolved accordingly and they are not service matter to be dealt before Central Administrative Tribunal.

Taking in to account the ratio of the judgment of Hon‟ble High Court, we are of the considered view that the present subject of dispute that whether the applicant is a Workman under the Industrial Dispute Act and is entitled to participate in labour union activities within the government organization is not a service matter and is not a subject matter to be brought before this Tribunal.

Section 2(S) of Industrial Dispute Act, 1947 defines Wrokman as under: -

Under the Industrial Dispute Act, a whole set of conciliation and adjudicatory authorities including labour courts and Tribunals are defined and having different functions, the present dispute must be raised under that law as per the existing provisions. Under Industrial Dispute Act only certain type of matters can be raised by the individual workman which relates to their removal, dismissal etc. All other disputes, only the trade unions can raise, and in essence dispute regarding who is workman and who should get benefit of workman and be permitted to participate in labour union activities is an issue of dispute between the employer and the trade union and to be raised by the trade union before appropriate labour authorities first in conciliation as an industrial dispute and if conciliation fails, then through reference by the appropriate Government to the labour court for its adjudication. Hence, such subject of definition of Workman and who all constitute Workmen, cannot be brought as service matter before this Tribunal.

In view of the forgoing discussions, the OA including two connected OAs is dismissed for want of jurisdiction. The applicants may seek expert advice as to how to take up such matters before the appropriate forum defined under Industrial Dispute Act and other labour laws. All other matters and contentions raised are not relevant at this stage as the OA is not maintainable before this Tribunal, hence they are not dealt and left open.

There shall be no order as to costs. All pending MAs, if any, in these O.As are also stand disposed off.

Registry is directed to keep a copy of this order in other two connected OAs. Member (A) Member (J)