Writ Petition No.44584/06 filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records relating to the impugned award of the 2nd respondent herein dated 27.02.2006 in ID.No.408 of 2004, quash the same as illegal.
Writ Petition No.13965/07 filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, to call for the records pertaining to the award dated 27.02.2006 in I.D.No.408/2004 passed by the 2nd respondent, quash the same in so far as depriving his absorption from the date on which the petitioner immediate juniors were absorbed with back wages and other consequential benefits and consequently direct the 1st respondent to absorb the petitioner into their services from the date on which his immediate juniors were absorbed, with back wages and all other attendant and consequential benefits.
C O M M O N O R D E R
1. Both writ petitions were directed against the Award passed by the Central Government Industrial Tribunal cum Labour Court (for short CGIT) in I.D.No.408 of 2004 dated 27.02.2006. While the Management of the Southern Railways represented by the Divisional Railway Manager, Madurai, the petitioner in W.P.No.44584 of 2006 was aggrieved about the direction relating to absorption of the workman in service, the workman in W.P.No.13965 of 2007 was aggrieved about that portion of the Award which did not direct absorption from the date on which his immediate juniors were absorbed with back wages and other consequential benefits.
2. The first writ petition filed by the Management of the Railways was admitted on 20.11.2006. Pending the writ petition, in the application for interim stay in M.P.No.1 of 2006, this Court recorded the undertaking of the learned Standing Counsel for the Railways that they will not take any steps to implement the Award until further orders.
3. Subsequently, the workman filed W.P.No.13965 of 2007, challenging that portion of the Award denying him the relief of backwages and that writ petition was admitted on 18.04.2006 and was directed to be posted along with previous writ petition.
4. On notice from this Court, the contesting respondent has filed a counter affidavit dated Nil (May 2009). For the sake of convenience, parties are referred to as Management and the workman as the case may be.
5. The stand of the workman was that from February 1979 till July 1981, he had worked for more than 703 = days under the control of different Permanent Way Inspectors. With effect from 01.08.1981, he was not given any employment. Some of the workers who were denied employment approached the Supreme Court. The Supreme Court by its judgment reported in 1985(2) LLJ 406 (Inder Pal Yadav v. Union of India] approved the scheme for absorption of the temporarily employed Casual labourers and modified the cut off date for absorption from 01.01.1984 to 01.01.1981 and allowed the Railways to implement the scheme. It also permitted the Railways to provide for adjustment, if any, was necessary. Pursuant to the order passed by the Supreme Court, the Railway prepared live registers of retrenched casual labourers for each division, including Madurai Division. While preparing the Live Register, the names of 45 workers were left out including the workman. Therefore, their Union filed O.A.No.603 of 1980 before the Central Administrative Tribunal directing the names of those left out workmen to be included in the Live Register. Subsequently, the OA was allowed by the Tribunal on 30.08.1991. Despite the direction by the Tribunal, the name of the workman was not included which resulted in a contempt petition being filed. Only thereafter, the Railways included the name of the workman in the Live Register. In the register prepared, the workman's name was shown at Sl.No.17 and it was indicated that the workman had worked only for 362 days whereas, he had actually worked for more than 703 = days. When he came to know the mistake made in the list published on 09.11.1992, he made series of representations and requested the Railways to correct the number of days shown. But in the case of one Nambi, they considered his representation and passed orders and took the number of days worked by him as 519 days instead of the original entry of 355 = days and directed his name to be shown at Sl.No.434 instead of Sl.No.491.
6. Thereafter, the workman raised an industrial dispute before the Conciliation Officer. The conciliation Officer, as he could not bring about mediation, submitted his failure report to the Central Government. The Central Government through their Ministry of Labour by an order dated 17.08.2004 directed the following issue to be adjudicated by the Central Government Industrial Tribunal cum Labour Court (for short CGIT):-
"Whether the demand of Shri C.shanmugavel for regularisation in the rolls of the Southern Railway, Madurai Division, is legal and justified? If so, to what relief the workman is entitled?'
7. The said dispute was taken on file by the CGIT as I.D.No.408 of 2004. On receipt of notice from the CGIT, the workman filed a claim statement and the contesting Management filed their counter statement.
8. Before the CGIT, the workman examined himself as W.W.1. One Perumal was examined as W.W.2. and on his side, 7 documents were filed and marked as Exs.W1 to W7. On the side of Management, one J.J.Dennis was examined as M.W.1 and on their side, 10 documents were filed and marked as Exs.M1 to M10.
9. It is on the basis of these materials, the CGIT came to the conclusion that it was a mistake on the part of the Management not to include the correct number of days worked by the workman and hence, it directed the Management to absorb him after rectifying the register by entering the actual number of days worked by the workman as casual labour. The CGIT also rejected the plea that the workman's case was belated. The CGIT took note of the fact that one co-worker Nambi whose representation was considered favourably and it is only in the case of the workman different yard stick was adopted by the Management. In paragraph 14, the Labour Court found as follows:-
"14. ...It is the mistake committed by the railway administration and therefore, this memorandum namely Ex.M7 will not be applicable to the case of the petitioner. I find the Respondent/ Management cannot take advantage of the mistake committed by the officials of the Respondent/Management and contended that the petitioner has not worked for 703 = days. From the records maintained by the Respondent, it is clear that it is a mistake on the part of railway administration, which was omitted to mention the correct number of days worked by the petitioner. Under such circumstances, I find, as pointed out by the Supreme Court, this Tribunal can consider the relief claimed by the petitioner and the same cannot be rejected on the ground of delay and it can be properly moulded by this Tribunal in the facts and circumstances shown before this forum. Therefore, I find this point in favour of the petitioner."
10. The contention raised by the Management was that the workman had actually worked 362 days thereby sticking to the stand originally taken by them. It was also contended that that the workman had not disputed earlier the number of days worked by him after the publication of the Live Register. With reference to the labour cards produced by the workman, the Management stated that since it was very old documents and at this date, they were not maintainable. Lastly, they also taken a stand as on 01.01.2003, he was more than 43 years old and being an OBC candidate, he is ineligible for empanelment.
11. Mr.Ajay Khose, learned counsel for the workman relied on the judgment of the Division Bench of the Kerala High Court in W.P.(C)No.17375 of 2006 [Union of India v. J.Malgam], wherein the Division Bench considered more or less an identical case. In the penultimate paragraph, the Division Bench observed as follows:-
"... Even if those circulars are not quashed, still, the applicants are entitled to get relief, as they were being absorbed on the strength of the judgment in Inder Pal Yadav's Case (cited supra). The said judgment and the subsequent orders issued by the Railways do not prescribe any age limit in the matter of absorption. Only for the first time age limit was insisted after the issuance of the above said circulars. So, we declare that both the circulars will not apply to the absorption of casual labourers, who have completed 306 days' service and are being absorbed as per the decision in Inder Pal Yadav's case (cited supra). The Umadevi's case has no application to the facts of this case, as in this case, the absorption is being made by the Railways as per the order of the Apex Court in Inder Pal Yadav's case (cited supra). The only dispute is regarding the age limit."
12. The learned counsel also referred to another judgment of the Division Bench of the Kerala High Court in W.P.(C)No.288813 of 2007 [Union of India v. Balakrishnan Nair K], wherein, the division Bench set out the conditions for absorption and in paragrapgh 10, it stipulated that there must be minimum period of 5 years service. According to the learned counsel, these orders were given effect to by the Railways by consequential proceedings issued by them. Therefore in the case of the workman, there cannot be different yard stick.
13. The learned counsel also referred to the judgment of the Supreme Court reported in (1999) 9 SCC 178 [Mahavir Singh v. U.P.State Electricity Board and others] with reference to delay in raising a dispute. The Supreme Court in paragraph 3 held as follows:-
"3. Once the termination is held to be illegal, we fail to appreciate how the entire reference could have been rejected. The dispute lingered on for a number of years. That would not mean that the dispute had ceased to exist. It is, of course, true that belatedly the dispute was raised but that has been taken care of by the Labour Court by not awarding full back wages but only 50% of the back wages all throughout from the date of termination till reinstatement. Such order as passed by the Labour Court could not be said to be in any way uncalled for and illegal."
14. In the light of the above, no fault can be found with the findings of CGIT that the petitioner worked for more than 700 days and therefore, he is eligible for absorption as per the seniority. Hence, W.P.No.44584 will stand dismissed.
15. At the same time, the CGIT cannot leave the worker at the mercy of the Railways without even deciding whether he is entitled for back wages on such reinstatement. If the petitioner's actual number of days is included as 703 = days, he should be given appropriate seniority under Live Register and should have been absorbed. If any of the juniors of the petitioner have been absorbed having lesser number of days, then the petitioner should also be absorbed from the date on which his juniors were absorbed with all consequential benefits including back wages and service continuity. Accordingly, W.P.No.13965 of 2007 stands allowed. Parties are allowed to bear their own costs.