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Judgment
Sangeeta Chandra, J
Heard the learned counsel for the petitioner, Sri Chandra Shekhar Sinha and Sri D.P. Awasthi who appears for the opposite party no. 1.
The petitioner has challenged the Award dated 3.9.2012 passed by the Central Industrial Tribunal, Labour Court in Industrial Dispute No. 11 of 2007 arising out of Reference dated 7.2.2007.
It has been submitted by the learned counsel for the petitioner that the opposite party no. 1 was initially engaged as a Casual Labour Blacksmith on daily rated basis on 16.10.1972 and was granted temporary status w.e.f. 16.9.1984. The opposite party no. 1 was later on regularised on the post of Gangman by order dated 10.12.1997.
It has been submitted that the post of Blacksmith falls in Artisan category and as per Rules of recruitment, 50% of the post are to be filled by direct recruitment and the rest of the 50% are to be filled on the basis of option given by the Regular Departmental Group D Employee / Artisan Helpers after passing a test. The opposite party no. 1 was illiterate and had no qualification for the post of Blacksmith i.e. he was not ITI qualified, therefore he was given regularisation on a group-D post of Gangman.
The opposite party no. 1 filed an application under the Industrial Disputes Act before the Regional Labour Commissioner, Central Lucknow which was registered and a Reference dated 7.2.2007 was made thereafter to the CGIT.
While the case was pending before the Industrial Tribunal also approached the Central Administrative Tribunal, Lucknow Bench, Lucknow by filing an Original Application No. 231 of 1998 challenging the validity of the order dated 10.12.1997 on the ground that since he was working for several years on a group-C post and had also been granted temporary status on a group-C post, he could not have been regularised on a group-D post by the order dated 10.12.1997.
It has been submitted by the learned counsel for the petitioner that the Central Administrative Tribunal by its judgment and order dated 3.12.2008 rejected the challenge to the order of regularisation dated 10.12.1997 and observed that in view of the law settled by the Hon'ble Supreme Court in Union of India & others Vs. Moti Lal & others reported in 1996 (7) SCC 481 and the judgment rendered by the Hon'ble Supreme Court in Badri Prasad Vs. Union of India 2005 (11) SCC 304, the original applicant had no case. While dismissing the original application, the Central Administrative Tribunal advised the applicant to accept his order of regularisation dated 10.12.1997 and to join on the post of Gangman with pay protection so that his case for retirement benefits could be considered by the employer later on.
It has been submitted that although the Central Administrative Tribunal rejected the Original Application No. 213 of 1998 on 3.12.2008, this fact was not brought to the notice of the CGIT, Lucknow which passed the Award impugned observing that the workman was entitled for regularisation w.e.f. 16.9.1984 i.e. the date when he had been given temporary status.
In the Award impugned dated 3.9.2012, a direction was issued for granting him Pension, Death-Cum-Retirement Gratuity, and other retiral benefits as admissible for the post and to make all related payments to the workman within a period of four weeks from the date of notification of the Award, failing which the workman was entitled to simple interest at the rate of Rs. 7% per annum on the dues admissible to him. Till the date payment was actually made.
It has been submitted that when the petitioner approached this Court by filing the aforesaid Writ Petition No. 2135 (M/S) of 2013, this Court had passed an interim order on 22.3.2013 directing the parties to maintain status quo as on date.
It has been submitted that in pursuance of the orders passed by the Central Administrative Tribunal, Lucknow, the opposite party no. 1 had been offered appointment on 5.3.2009 which he had accepted on 6.3.2009 and his pay was fixed thereafter and he also retired on 30.4.2009 from the post of Gangman which is a group-D post.
It has also been submitted by the learned counsel for the petitioner that the opposite party no. 1 having himself accepted his appointment in group-D on the post of Gangman, he could not have claimed regularisation on the post of group-C i.e. artisan i.e. blacksmith.
It has also been submitted that the opposite party no. 1 had filed at least 2 more applications under Section 10 of the Industrial Disputes Act, 1947 which were also concealed from the CGIT.
It has also been submitted that the learned Tribunal while allowing the claim set up by the opposite party no. 1, failed to consider the fact that the order of regularisation was not challenged before the Tribunal and without setting aside the order of regularisation, there could not have been any direction to consider the opposite party no. 1 as regularised w.e.f. from the date he was granted temporary status. The direction issued for grant of retiral benefits including Death-Cum Retirement Gratuity could also not have been issued as the opposite party no. 1 was although offered regularisation in 1997 actually joined on the post on 6.3.2009 and the New Pension Scheme came into effect from 1.1.2004.
Learned counsel for the opposite party no. 1 on the other hand has submitted that there was no concealment of fact before the CGIT. Infact the workman had never approached the CGIT, it was the Union which had sponsored the cause of the opposite party no. 1 and the Reference was made thereafter by the Ministry of Labour under clause (d)(1)2(A) of Section 10 of the Industrial Disputes Act.
It has also been submitted that the dispute before the Industrial Tribunal was completely different from the dispute which was adjudicated by Central Administrative Tribunal, Lucknow Bench, Lucknow.
Learned counsel for the opposite party no. 1 has read out the Reference as quoted in the order of the CGIT.
"Kya Prabandhan Poorvottar Railway, Lucknow Dwara Shri Lotan, Putra Swa. Mahavir, T.S. Lohar Se Dinank 16.5.1984 Ke Baad Lagataar Karya Liye Jaate Rahne Ke Baad Bhi Lohaar Ke pad Par Niyamit Na Karna Naayochit Evam Vaidh Hai? Yadi Nahi, To Kaamgaar Kis Rahat Ko Pane Ka Haqdar Hai?"
Learned counsel for the opposite party no.1 has also referred to paragraphs 15, 16 & 17 of the impugned Award. He says that it has been admitted by the North Eastern Railways that the workman had been working on the post of blacksmith for more than twenty five years and was being paid the salary of blacksmith. Although he was illiterate and did not possess ITI Certificate, no fault was found in his working as a blacksmith. After working for 25 years as a blacksmith, he could not have been regularised as a Gangman.
Learned counsel for the opposite party no. 1 has referred to a judgment rendered in Mohd Ali Vs. State of Rajasthan passed by the Rajasthan High Court reported in 2008 (119) FLR 43 where after being granted regular pay scale on the post of cum-driver regularisation was denied to the writ petitioner therein. The Rajasthan High Court had referred to the observations made by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 that it was the duty of the respondents therein to take proper action for granting regularisation and pay scale to all employees who had completed ten to fifteen years of service and had directed regularisation of writ petitioner as driver.
Learned counsel for the opposite party no. 1 has also submitted that the original application although filed by the opposite party no. 1 before the Central Administrative Tribunal could not have been decided by it, as it was a dispute between a workman and the employer as has been held by the Himachal Pradesh High Court in H.P. Agro Industries Corporation Ltd. & others Vs. Raj Kumar & other 2002 LAB. I.C. 1342.
The Division Bench of the Himachal Pradesh High Court had referred to the jurisdiction of Central Administrative Tribunal as defined under the judgment in L. Chandra Kumar Vs. Union of India 1997 (3) SCC 261 and after referring to the judgment rendered in Premier Automobile Ltd. Vs. Kamlakar Shanta Ram Wadke 1976 (1) SCC 496 had come to a conclusion that the Central Administrative Tribunal had no jurisdiction. The Industrial Disputes Act was a self contained Code where remedy was provided under the Statutes itself. In Rajasthan State Road Transport Corporation Vs. Krisna Kant 1995 (5) SCC 75, the Supreme Court had observed that where the dispute involved recognition and enforcement of any of the right or obligation created by the Industrial Disputes Act, the only remedy is to approach the forum created by the said Act.
I have perused the judgment as rendered by the Division Bench of the Himachal Pradesh High Court. The Division Bench was considering the contention of the State Authority / Employer that the Administrative Tribunal had no power, authority or jurisdiction to entertain applications claiming relief which could ordinarily be granted under the Industrial Disputes Act, 1947.
The facts of the case were that certain workmen had approached the Central Administrative Tribunal and were indeed granted relief of setting aside the order of termination of service.
In the case of the opposite party no. 1, there was no termination order, and no allegations of violation of the provisions of giving retrenchment compensation. There was a dispute revolving around "Unfair Labour Practice" as recognised under the Central Act. The allegation before the Industrial Tribunal was that after working for more than 20 years, a Blacksmith has not been regularised on the post of group-C Artisan, although he was being given the pay scale of group-C / Artisan. The dispute was raised by the Association of workman / Union on behalf of the workman, but the benefit was granted by the CGIT to the workman, therefore it could not be said that the dispute did not relate to the workman, but related to the Union. If the workmen had brought to the notice of the CGIT that in the Original Application filed by him against his regularisation on a group-D post, the Central Administrative Tribunal had already rejected his claim on 3.12.2008 i.e. during the pendency of the labour dispute, the order of CGIT would have been different. It is perhaps for this reason that regularisation order was not challenged. Only a positive relief was sought for regularisation on a group-C post.
This Court has perused the judgments rendered in similar circumstances by the Supreme Court as referred to in the order of the Central Administrative Tribunal while rejecting the opposite party no. 1's claim for regularisation on a group-C post.
In Union of India Vs. Moti Lal 1996 (7) SCC 481, the Rules with regard to regularisation on a group-C post was considered, but at the same time the Supreme Court observed that it would be inequitable for the employer to regularise the workman who had been working on casual basis on group-C post of Mates, against the post of Gangman which is a group-D post. The Supreme Court declined to interfere in the ultimate conclusion of the Tribunal on equitable grounds only in the facts and circumstances of the case and observed that the directions issued could not be treated as a precedent. The matter related to Northern Railway and the Railway Authorities had taken a stand before the Tribunal that the post of Mate is a promotional post and can be filled on regular basis only by considering the employee from the lower grade of Gangman / Keyman / Senior Keyman. It was not disputed that the respondents therein was granted temporary status against the post of Mate and was also being given pay scale as admissible to Mates, but when the case for regularisation was considered after rendering more than 20 years of service, the post of Gangman was offered.
In Badri Prasad Vs. Union of India 2005 (11) SCC 304, the Supreme Court again referred to earlier judgments passed by it and the stand of the Railways that the post of Gangman is a promotional post, it cannot be filled by regularisation. It could be filled by promotion of an employee substantively holding a group-D post after qualifying the trade test.
The Supreme Court observed that the appellant could not be granted relief of regularisation of his services on a group-C post merely because he was working on ad-hoc promotion from open line on the higher post in the project. However, the Supreme Court granted pay protection to the appellants.
It is apparent from the Rules as cited by the Railways before the Hon'ble Supreme Court and also referred to in the pleadings in this writ petition, that for group-C posts, the appointment is either by way of direct recruitment (25% by ITI qualified and 25% from these working under Apprentices Act 1961 if they are High School passed) and the rest 50% of the posts were to be filled up on the basis of option given by Regular Departmental Group-D Artisan Helpers after regular commercial examination.
The opposite party no. 1 was illiterate and not qualified, but admittedly he had worked and without any complaint with regard to his efficiency. This fact weighted with the CGIT in granting relief as prayed for by the workman finding the Railway action to be covered under Unfair Labour Practice. It is another thing that before such relief could be granted, regularisation had already been offered to the workman in 1997 on a group-D post, the workman had challenged the regularisation order dated 10.12.1997 and it was affirmed by CAT and he had accepted his regularisation order and acted upon it.
Even if CAT's order is to be treated to be without jurisdiction since, it is admitted fact that the regularisation order dated 10.12.1997 was neither challenged nor set aside by any competent Court and the workman had accepted regularisation in pursuance thereof, on 6.3.2009, it was his duty to have informed the Tribunal of such acceptance before the Award was actually delivered on 3.9.2012. It was a relevant factor to be considered by the CGIT. Had the CGIT been informed of such regularisation order of 1997 and the fact that it was upheld by the Central Administrative Tribunal and that the workman had joined on the said Group-D post and retired thereafter, it would perhaps have come to a different conclusion.
The CGIT relied upon observations made by the Hon'ble Supreme Court in Uma Devi's case (supra) which could not have been applied as the observation made by the Hon'ble Supreme Court was in the nature of a direction that as one time measure all employers should consider regularisation, in terms of the Rules applicable for the post, for persons who had been working from ten to fifteen years and were yet to be regularised.
This Court finds the Award having been rendered in ignorance of relevant facts. The Award is therefore set aside.
The opposite party no. 1 is reported to have died and had been substituted by his widow and two sons on 29.4.2019. All such benefits as were admissible to the opposite party no. 1 on his regularisation on the group-D post on 6.3.2009 shall be made admissible and paid to the legal heirs and representatives of the opposite party no. 1, substituted as opposite party nos. 1/1. 1/2 and 1/3.
The petition stands allowed.