The Divisional Railway Manager vs Shri Uma Shanker and Another

Rajiv Sahai Endlaw, J.—The petitioner Railways by this writ petition impugns the ex parte award dated 21st August, 2000 of the Industrial Tribunal holding the termination by the petitioner Railways of the services as a khalasi of the respondent No. 1 workman to be improper, unjust and directing the petitioner Railways to reinstate the respondent No. 1 workman in service with all back wages and other benefits. No interim order was granted in favour of the petitioner Railways. On the last date of hearing i.e. 19th March, 2010, the counsel for the respondent No. 1 workman had stated that the award has since been implemented as far back as in the year 2002 and all back wages and consequential benefits have also been paid to the respondent No. 1 workman and the respondent No. 1 workman has on reinstatement been working with the petitioner Railways. This Court in the said circumstances prima facie felt that the present was not a fit case for exercise of jurisdiction under Article 226 of the Constitution of India. The counsel for the petitioner Railways was asked as to what was the main challenge to the award. It was the contention of the counsel for the petitioner Railways that the award of the Industrial Tribunal was without jurisdiction in as much as the jurisdiction with respect to the dispute vested with the Central Administrative Tribunal. The counsel for the petitioner sought time to take instructions to inform the date when the Railways were included within the ambit of the Central Administrative Tribunal. The counsel for the petitioner was also asked to take instructions as to contesting the petition on merits.

The counsel for the petitioner has today informed that he has instructions to press the petition. A perusal of the order sheet shows that when the writ petition came up first before this Court, the counsel for the petitioner was asked to place a proper copy of the impugned award on record. The matter was adjourned from time to time for the said purpose and the order aforesaid remained uncomplied. The writ petition was dismissed for non prosecution on 15th January, 2002. The application for restoration of the writ petition was filed after one and a half year in May, 2003 and the writ petition was restored to its original position vide order dated 28th August, 2003 and notice thereof issued to the respondent No. 1 workman. The petitioner Railways however failed to serve the respondent No. 1 workman till 20th March, 2007 when costs were imposed on it. The counsel for the respondent No. 1 workman finally appeared before this Court on 10th October, 2007 only. A perusal of the order sheet also shows that the petitioner Railways nowhere informed this Court that the award had been complied with without prejudice to the rights of the petitioner to continue with the present petition. It has also been enquired from the petitioner whether the reinstatement of the respondent No. 1 workman and payment of back wages in terms of the award was made subject to the decision of the present petition. The answer is in the negative. It is again urged that the same was during the pendency of the present petition, so it should be deemed to be without prejudice. The earlier counsel for the petitioner Railways has also been sought to be blamed. The counsel for the petitioner Railways has today also informed that the respondent No. 1 workman has since retired on attaining the age of superannuation on 30th September, 2009. This Court in all the aforesaid facts and circumstances is not inclined to exercise the jurisdiction in favour of the petitioner Railways. The effect of setting aside of the award, even if allowed, would be inter alia to direct the respondent No. 1 workman to restore the benefits received by him under the award. Considering that the respondent No. 1 workman was working as a khalasi, this Court is of the opinion that such direction would be impractical.

Even otherwise the only challenge by the petitioner to the award is on the basis of Industrial Tribunal not having jurisdiction. The counsel for the petitioner Railways states that the petitioner Railways are included within the ambit of the Central Administrative Tribunal since the setting up thereof and since much prior to the reference in the present case of the dispute to the Industrial Tribunal on 7th October, 1997. Reliance is placed on L. Chandra Kumar Vs. Union of India and others, . Per contra, the counsel for the respondent No. 1 workman has contended that the reference itself was made by the Central Government and he cannot be now non-suited. It is also urged that no such objection was taken by the petitioner Railways before the Industrial Tribunal. It is also contended that in any case u/s 28 of the Administrative Tribunals Act, 1985, the jurisdiction of the Industrial Tribunal is concurrent with that of the Central Administrative Tribunal. Reliance in this regard is placed on Telecom District Manager v. Keshab Deb (2008) 2 SCC (L&S) 709.

This Court finds the reliance by the petitioner Railways on L. Chandra Kumar (supra) to be misconceived. The language of Section 28 (supra) is quite unambiguous. The same bars the jurisdiction of courts except the Supreme Court, Industrial Tribunal, Labour Court, with respect to recruitment and matters concerning recruitment to any Service or post or service matter. It is clear from the same that the jurisdiction of the Industrial Tribunal was not barred.

Thus no merit is found in the petition. The same is dismissed. No order as to costs.