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All India Loco Running Staff Association Northern Railway and ors. Vs. the Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. CWP Nos. 2277, 2343 and 2353 of 1983
Judge
Reported in1985(1)WLN137
AppellantAll India Loco Running Staff Association Northern Railway and ors.
RespondentThe Union of India (Uoi) and anr.
DispositionPetition allowed
Cases ReferredUnion of India v. Karan Singh
Excerpt:
.....objection to joint writ through association cannot be accepted.;it has been stated in the writ petitions that the affected employees are poor receiving meagre salary which is their sole main-stay, therefore, they cannot move this court individually and hence seek justice through their union, the petitioner of which they are members. in these circumstances the preliminary objection that the petitioners association representing the employees affected cannot maintain the writ petition cannot be accepted.;(b) constitution of india - article 226--delay in writ--affected employees awaited decision of earlier writ filed by some employees--held, delay cannot act as a bar and it is not sufficient for dismissal of writ.;the workmen, therefore, waited for the decision of the writ petitions..........therein have been deprived by the aforesaid orders.5. the facts are identical in the three writ petitions.6. i will notice facts leading to s.b. writ petition no. 2277 of 1993. the petitioner is a union representing employees working at the various loco running sheds of jodhpur division of the northern railway. it has inter alia, been stated in para 1 of the writ petition as under:by this writ petition, the petitioner seeks to enforce the fundamental, statutory and other rights of its member citizens employed with respondents no. 1 and 2 in loco running sheds of jodhpur division of northern railway. these employees are working as drivers, shunters, diesel assistants and fireman etc.in pursuance of the order anx. 1 dated march, 1981 the non-petitioners are said to have forfeited.....
Judgment:

S.K. Mal Lodha, J.

1. These three writ petitions involve identical questions and they were heard together. It will be convenient to dispose them of by a common order.

2. S.B. Civil Writ Petition No. 2277/83 has been filed by All India Loco Running Staff Association, Northern Railway, Jodhpur, through its General Secretary, Shyam Lal Sharma, against (1) the Union of India and (2) the Divisional Personnel Officer, Northern Railway, Jodhpur Division, Jodhpur sacking to quash the order Anx. 1 dated March 1982 and for a direction against the non-petitioners to restore all the benefits of which the workmen referred therein have been deprived by the said order.

3. S.B. Civil Writ Petition No. 2343 of 1983 has been filed by Air India Loco Running Staff Association, Western Railway, Bikaner through its Divisional Secretary, Radha Krishna Sharma, praying that Anx. 1 dated March 2, 1981, may be quashed and the non-petitioners may be directed to restore all the benefits of which the workmen have been deprived by the said order.

4. S.B. Civil Writ Petition No. 2353 of 1983 has been filed by Alt India Loco Running Staff Association, N. Rly., Ajmer through its President Yaguyadutta Sharma against (1) the Union of India and (2) the Divisional Personnel Officer, W. Rly., Ajmer Division praying that the orders Anx. 1 dt. February 23, 1981 and Anx. 2 dated March 1, 1981 may be quashed and the non-petitioners may be directed to restore all the benefits of which the workmen mentioned therein have been deprived by the aforesaid orders.

5. The facts are identical in the three writ petitions.

6. I will notice facts leading to S.B. Writ Petition No. 2277 of 1993. The petitioner is a Union representing employees working at the various Loco Running Sheds of Jodhpur Division of the Northern Railway. It has inter alia, been stated in para 1 of the writ petition as under:

By this writ petition, the petitioner seeks to enforce the fundamental, statutory and other rights of its member citizens employed with respondents No. 1 and 2 in Loco Running Sheds of Jodhpur Division of Northern Railway. These employees are working as Drivers, Shunters, Diesel Assistants and Fireman etc.

In pursuance of the order Anx. 1 dated March, 1981 the non-petitioners are said to have forfeited the earned leave of the employees, postponed the increments and denied benefits of their earlier services for the purpose of leave, passes, qualifying service and pensionary benefits. It is said that penalty was inflicted on them as they did not return on duty before 16 Hrs. on February 25, 1981, on account of the agitation launched by the Railway Employees in support of the demand. Out of the persons mentioned in Anx. 1, the persons whose names are mentioned in para 2 of the writ petition have expired and some of them have been medically decategorised Against the order Anx. 1 some employees filed their writ petitions in this Court. The writ petitions were allowed by this Court on Nov. 8, 1982 and the judgment and the order passed in the writ petitions were affirmed in Special Appeal by the Division Bench by its order dt. 22-3-1983. The impugned orders were quashed in so far as the petitioner filing the writ petitions were concerned Toe petitioner has filed the writ petition on behalf of 734 affected employees as they were not given equal treatment by the non-petitioners praying that the non-petitioners may be directed to give the same relief to them which was granted by this Court in the writ petition filed by some of the employees. In para 6 of the writ petition, the petitioner has stated that there were about 948 employees working at the Loco Running Shed of Northern Railway. Jodhpur and they were Drivers, Shunters, Diesel Assistants and Fireman. In January-February 1981 an agitation was commenced by the Workman employed at the various Loco Running Sheds of Indian Railway in connection with their demands regarding conditions of their service. During the agitation about 805 employees at the Loco Running Sheds of Northern Railway did not report on duty on February 25, 1981. The agitation was called off on February 25, 1981. The employees on whose behalf the petitioner has filed the writ petition remained absent during the period February 2, 1981 to February 25. 1981 and returned to work on February 26, 1981. In March, 1981 non-petitioner No. 2 made order whereby it was directed that the Drivers Shunters and Fireman whose names are mentioned in the list appended to the said order remained absent from duty from February 2, to February 25, 1981 and, therefore, the earned leave be forfeited, the date of increment be postponed and the benefit of their earlier services be denied to them for the purpose of leave, passes, qualifying service and pensionary benefits. It was stated that the employees who reported for duty upto 16 Hrs. on February 25, 1981 were not included in the list appended to these aid order and they were taken back without being deprived of any of the benefits of their prior service. It has been stated that non-petitioners are under a mandate by Article 39A of the Constitution to secure that the operation of the legal system, promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not defined to any citizen by reason of economic or other disabilities. It has been stated that there has been violation of Article 14 & 16 of the Constitution in as much as the non-petitioners have not been granted the relief which the employees filing the writ petitions were granted in the writ petitions. In appeal the order passed allowing the writ petitions was not interfered with. It has been submitted that the writ petition should be entertained as the impugned order Anx. 1 though it is a single order in respect of number of workmen.

7. The writ petitions were filed on February 6, 1983 for the aforesaid relief.

8. A show cause notice was issued in each of the three writ petitions in pursuance of which preliminary replies have been filed. It was stated by the non-petitioners that they reserve a right to file a detailed reply if the writ petitions are admitted.

9. It has been stated in the preliminary reply that the writ petitions are not maintainable because each individual employee affected by the order should have filed separate writ petitions instead of filing the joint writ petition through the President or the Secretary as the case may be of the Association. In support of this objection it was stated that it was an individual cause of action and, therefore, the President or the Secretary as the case may be could not maintain it. In this connection reference was made to Rule 375 of the High Court Rules, 1952 (for short 'the Rules' herein). An objection was also taken that the Association has not been recognised by the Railway Administration. It was also contended that before filing the writ petitions no demand of justice was before the competent authority.

10. When the writ petitions were taken up on January 19, 1984, the preliminary objection with regard to the maintainability of the writ petitions by the petitioners was raised by the learned Counsel for the non-petitioners. He also stated on that day that he wants to file reply to the writ petition before it is considered for the purpose of admission. On February 19, 1984, reply to the writ petition was filed, justifying the passing of the impugned order and controverting the grounds which were taken in challenging the impugned orders. It was submitted that writ petitions are highly belated, for there is no satisfactory explanation as to why the petitioners waited until the decision given by this Court in the three writ petitions filed by some employees. It may be stated that on February 9, 1983 learned Counsel for the parties stated that the pleadings of the parties are complete in all respects and therefore, the writ petitions may be finally disposed of at the admission stage.

11. I have heard Mr. M. Mridul learned Counsel for the petitioners and Mr. A.K. Mathur for the Union of India (non-petitioner).

12. As stated hereinabove on 19th of January, 1984, A.K. Mathur learned Counsel for non-petitioners, raised a preliminary objection that the writ petitions by the respective petitioners are not maintainable. It was contended by him that each employee had an individual cause of action because of break in service and, therefore, separate writ petitions should have been filed by each of the aggrieved and affected employees instead of a joint writ petition by the President or the General Secretary of the Associations. It was also submitted by him that even according to Rule 375 of the Rules, these joint writ petitions are not maintainable because for individual cause of action separate writ petitions should have been filed. Mr. Mridul, learned Counsel for the petitioners on the other hand submitted that the writ petitions as filed by the Associations on behalf of the affected members are maintainable and they cannot be thrown out on the technical point raised on behalf of the non-petitioners regarding the maintainability of the writ petitions.

13. I have given my most anxious and thoughtful consideration to the rival contentions in this regard. The material part of Rule 375 of the Rules occurs in Chapter XXII of Part IV which reads as under:

(3) An application by more than one person shall not be entertained except when the relief claimed is founded on the same cause of section.

In Chand Mal v. State the expression 'same cause of action' was considered. In that case there was a challenge to the validity of the provisions of the Rajasthan Agricultural Produce Markets Act (Act No. XXXVIII of 1961) the Rules made thereunder and the bye-laws made by the Krishi Upaj Mandi Samiti Kishangarh. The objection regarding the maintainability of the writ petition was raised on the ground that the relief claimed by the petitioners in that case could not be said to be founded on the same cause of action. It was submitted that what was affected by law if at all were personal or individual rights of several petitioners to carry on their trade or business and consequently it being infringement of individual right, cause of action that petitioners claim could not be said to be joint or same so as to entitle them to maintain joint petition. It was held that though petitioners were all challenging same law in same way and they might even be affected in same way, that was not sufficient to hold that they had same rights which were allegedly infringed by law and consequently same cause of action. Mr. Mridul, learned Counsel for the petitioners strongly refuted that Rule 375(4) of the Rules is applicable to the cases on hand on the ground that it is not a petition on behalf of petitioner by more than one person, for it is a petition by the Association seeking to enforce the rights of its members employed with non-petitioners. He pressed that Rule 375 is not attracted. It is not necessary to make a probe in this matter in view of the recent trend of the decisions of the Supreme Court as well as of the other High Courts. In A.B S.K Sangh (Rly) v. Union of India : (1981)ILLJ209SC , Akhil Bhartiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association etc. (petitioner) filed writ petition under Article 226 of the Constitution. A contention was raised that it is a non-recognised Association and so whether it can maintain the writ petition. It was observed in para 63 as under:

A technical point is taken in the counter-affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petition to that extent is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a grievance exists and they have approached this Court under Article 32. In our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', public interest litigation, 'representative proceedings'. Indeed little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'persons aggrieved' and individual litigation is becoming absolvement in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognised association maintaining the writ petitions'. (Under lining is mine).

In People's Union for Democratic Rights v. Union of India : AIR1982SC1473b the Peoples Union for Democratic Rights and Ors. filed their writ petition against the Union of India and Ors. under Article 32 of the Constitution. In that case directions were given by the Supreme Court to the Government and the concerned authorities for enforcing observance of the provision of the relevant Act by the contractors engaged in the construction works concerned with the ensuing Asian Games in Delhi. It was observed as under:

The Union of India, the Delhi Administration and the Delhi Development Authority are also directed to the workers without the intervention of the Jamadars and if any, commission has to be paid to the Jamadars, the contractors may pay it to the Jamadars without deducting any part of it from the minimum wage payable to the workers and the contractors shall not apply any children below the age of 14 years in the construction work and shall provide all the facilities and convenience which are required to be provided under the provisions of the Contractor Labour (Regulation and Abolition) Act, 1979 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 which has already come into force with effect from October 2, 1980 and under which the powers to enforce its provisions have been delegated to the Delhi Administration on July 18, 1981.

14. The question of locus standi was also examined in B.S. Nakara v. Union of India : (1983)ILLJ104SC . In that case there was a Cooperative Society registered under the Cooperative Societies Act consisted of public spirited citizens seeking to espouse their cases of retirement individually who were unable to seek redress through legal judicial process. Desai, J. speaking for the Court made the following weighty observations as under:

Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non profit and voluntary organisation. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protected, and, therefore, approached petitioner No. 3 which espoused their cause. Objects for which the third petitioner Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India : [1982]2SCR365 rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public law and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus standi is unquestionable.

In State Bank of Bikaner Employees Association v. Bank of India 1982-I LLJ 413 the first petitioner represented a large body of employees of the second respondents whose rights were likely to be affected. The question arose whether writ petition filed jointly by an Association of persons and an individual is maintainable. The learned Judge of the Madras High Court considered the case P.C.B.U. (Regd) Sindri v. Union of India 1981-I LLJ 193 wherein it was held that a representative action in appropriate cases cannot be bluntly ruled out. It will be useful to except the following observations from F.C.R. & (Regd) Sindri's case 1981-I LLJ 193:

But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32.

These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal' right and that right is violated. But in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If Public property is dissipated, it would require a strong argument to convince the Court that representative segment of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligation.

A.B.S.K. Sangh (Rly.)'s case AIR 1981 SC 298 was noticed. The learned Judge observed in State Bank of Bikaner Employees Asso's case 1982-I LLJ 413 as follows:

Keeping the trend with the pronouncements of the Supreme Court, it is not possible to throw out the writ petition at the threshold itself on the sole ground that it has been filed by an association of employees, without going into the merits' of the other contentions. Even otherwise, the second petitioner is an individual employee and he must be deemed to be directly interested in and affected by the proposed action of the respondents. Besides the first petitioner is a registered trade union, and it is stated that it has got membership of about 5,000 who are all employees of the second respondent all over India. It cannot be stated that the rights of its members would not be affected by the proposed action of the respondents. The writ laid by the first petitioner, as representing a large body of employees of the second respondent whose rights and interest are likely to be affected, must be held to be competent. Representative actions even in writ jurisdiction cannot be thrown out on the simple ground that the body which represents the cause of its members on roll is not by itself affected. It would suffice the purposes of the rights of its members are affected; and then, as observed by the Supreme Court, collective proceedings are permissible instead of driving each individual employee affected to file an independent writ, which would result only in plurality of litigation on the common question. The Supreme Court was prepared to countenance a non-recognised association maintaining a writ petition. As observed earlier, the first petitioner is a registered trade union and it can legitimately, as representing its members, employees of the second respondent, give vent to their grievance and seek redress and relief, as representing their cause.

The aforesaid decisions of the Supreme Court and Madras High Court throw considerable light on the question relating to the maintainability of the writ petitions. In the case on hand the respective petitioners have filed the writ petitions for the enforcement of a right of their employees members which has been affected by a common and single order. The non-petitioners forfeited the earned leave of the employees, postponed the increment and denied benefits of their earlier services for the purpose of leave, passes, qualifying service and pensionary benefits. The petitioners in each of the writ petition represented large body of employees whose rights and interests have been affected. As observed in A.B.S.K's case AIR 1981 SC 298 if the rights of the members are affected collective proceedings are permissible instead of bringing each individual employee affected to file a writ petition which would result in purality of litigation on the common question. In that case the Supreme Court was prepared to countenance a non-recognised Association maintaining the writ petition. It has been stated in the writ petitions that the affected employees are poor receiving meagre salary which is their sole main stay, therefore they cannot move this Court individually and hence seek justice through their Union the petitioner of which they are members. In these circumstances the preliminary objection that the petitioners Associations representing the employees affected cannot maintain the writ petition cannot be accepted and it is overruled and is held that the petitioners are entitled to entitled to maintain these petitions.

15. It was faintly argued by the learned Counsel for the ton-petitioners that writ petitions are belated in as much as the impugned orders were passed in February/March 1981 and the writ petitions were filed on September 14, 1983. It may be recalled that against the impugned order writ petitions were filed by some of the employees and they were allowed by this Court on November 8, 1982. The Division Bench affirmed the order by its judgment dated March 22, 1983. As regards the delay, the petitioners have stated that it was thought that since the matter in issue in the writ petitions stood raised in the writ petitions filed by some of the employees and were pending before this Court would be decided shortly and there would be decision laying down a particular principle and that the non-petitioners in all fairness would take the attitude taken by the employers against the proposed petitioners and would accept the verdict of the Court and implement the same in regard to it. The workmen, therefore, waited for the decision of the writ petitions of some of the affected employees and then in appeal and as the non-petitioners did not implement the directions laid down on the writ petitions filed by some of the employees so far as the other affected employees were concerned, the writ petitions were filed. It is true that an aggrieved party who wants the High Court to exercise the extra-ordinary power under Article 226 must be very vigilant and seek relief at the earliest date and if he fails to do so and if there is no satisfactory explanation for the delay then his petition is liable to be thrown out in limini. But no hard and fast rule can be laid down in this regard. It was held in R.S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC that there is no invoidable rule that whenever there is delay the Court must necessarily refuse to entertain petition. Question is one of discretion to be followed on the facts of case. Even is proper cases in the interest of justice the Court can issue writs. In the cases on hand having regard to the nature of the order passed and the reliefs which were allowed to the affected employees who filed the writ petitions earlier, I am of opinion that delay should not come as a bar and this would not be sufficient for the dismissal of the writ petitions.

16. Having over ruled the preliminary objections, I will now examine the merits of the writ petitions.

17. On merit the contentions raised are the very same which were raised in the earlier writ petitions filed by same of the affected employees.

18. In Karan Singh v. Union of India 1982 WLN (UC) 286 after considering Rules 1301 and 1303 of the Railway Establishment . v. Gujarat Steel Tubes Mazdoor Sabha : (1980)ILLJ137SC , the learned Judge held that it was necessary for the Union of India and Anr. (non-petitioners) to have afforded an opportunity of hearing to the affected employees (petitioners). In that case before passing the impugned order with regard to the break in service and since such an opportunity was not afforded to the petitioners, the impugned order cannot be upheld. The learned Judge allowed the writ petitions and quashed the order Ex. 1 in so far as it related to the petitioners who filed the writ petitions. The appeals were filed by the Union of India and Anr. The appeals were dismissed summarily. In addition to the authorities relied on and noticed by the learned Single Judge, the case of Deokinandan Prasad v. The State of Bihar and Ors. AIR 1971 1409 was also noticed. It will be useful to excerpt the following from Union of India v. Karan Singh 1983 WLN(UC) 119.

The forfeiture of earned leave, postponement of increment and deprivation of the benefit of the earlier services for the purposes of pensionary benefits amounts to penalty and punishment for the alleged misconduct of the respondents on the ground of their participation in the strike. As observed above mere remaining absent from duty in the strike period could not be considered to be participation in illegal strike and the right of 'audi alterem partem' cannot be denied to the persons affected.

19. Admittedly before passing impugned order, no opportunity of hearing was attended to the affected employees. It is thus clear that the order Anx. 1 in the writ petitions on hand cannot be sustained.

20. I have already held that the writ petitions filed by the Associations on behalf of the affected employees are maintainable.

21. In the result, the writ petitions are allowed and the order Anx. 1 in each of the writ petitions in so far as they relate to the affected employees on whose behalf the Associations have filed these writ petitions is quashed.

22. In the facts and circumstances of the case, there will be no order as to costs of these writ petitions.


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