Judgment:
Rakesh Tiwari, J.
1. Heard Sri Tarun Verma, learned Counsel for the petitioner and Sri N.K. Pandey, learned Counsel for the respondents.
2. By order dated 6.11.2007 three weeks and no further time was granted for filing rejoinder affidavit as a last opportunity and case was peremptorily listed today. It appears from the order-sheet that earlier also time was allowed on 17.9. 2007 for filing rejoinder affidavit but no rejoinder affidavit has been filed till date.
Sri Tarun Verma further requested that the matter may be decided on merits without rejoinder affidavit.
The prayer is allowed. The Court in view of the prayer of the counsel is proceeding to hear the case.
3. This petition has been filed against award dated 11.8.2004 passed by the Presiding Officer, Central Government Industrial Tribunal-Cum-Labour Court Sarvodaya Nagar, Kanpur Nagar U.P. in Industrial Dispute No. 95 of 1997.
The facts of the case are that the Central Government, Ministry of Labour, vide notification No. 41011/1/96/1.R.B dated 30.6.1997 has referred the following dispute for adjudication to the Tribunal-
whether the action of the management of North Eastern Railway in terminating the services of the workman Sri Rajedra Shahi and 18 others (list annexed) and also the action of the management in not taking the payment to the workmen are legal and just? If not, to what relief the workmen are entitled?
The claim of the workmen before the labour court was that they were employed by the management against vacant posts for performing permanent nature of work. The workman alleged to have been working continuously for more than 120 days in each year and according to the rules applicable to them a workman who has worked for more than 120 days of continuously in service, is entitled to be given temporary status. The railway is obliged to provide him work to such temporary employee regularly. However, instead of giving them temporary status, the petitioners were issued casual labour service card though they were paid full wages as regular temporary workman.
4. It was further claim of the workers before the labour court that on intervention of the labour authority temporary status granted to them by the employers. However, their services were dispensed with w.e.f. 16.10.1993 by an illegal action without any opportunity of hearing to the workers.
5. The workers also raised plea that their services were terminated illegally malafide and out of vengeance by the employer by adopting unfair labour practice to curb their voice for demanding their legal rights of being regularised in service, having regard to their long service; that per contra their services being dispensed with though all of them had been entered by the department/management for regularization and all other formalities for treating them as regular employees has been completed by the employer.
6. It appears from the award that several persons junior to the workers under the order of reference had been reinstated by the management and that the case of the worker before the labour court was also that several fresh hands were appointed after the service of the concerned worked had been dispensed with by the management breached of Section 25F, 25G and 25H of the Industrial Dispute Act, 1947.
7. The management denied the claim of the workers inter-alia that no cause of action had ever accrued to the workers as such that they were not entitled to any relief. It was also the case of the management that the claim of the workmen was time barred, vague and incorrect that the concerned workers were engaged for exigency of work in flood during the period of rainy season in emergency on need basis and also denied that they actually work for 120 days of continuous service.
8. It was also the case of the employer before the labour court that due to seizure of work of machine/operators in Steam Loco by way of diesel Loco Motives the regular employee became surplus who had to be given preference in the matter of employment over the workmen concerned, who were initially appointed as casual worker and later on granted temporary status. It is denied by the management that after grant of temporary status an employee become entitled to regular work unless he undergoes selection process for regular/permanent employee. This process according to the counsel for the employer is that on availability of vacancies they are notified and applications from eligible candidates are invited, who are then called for medical and screening test. Subsequently these candidates, who are found fit in the aforesaid examination are appointed as regular employee by the employers. It is further stated that since the engagement of the workman concerned initially was for a fixed period to meet the emergency need, their services stood expired after the work was over. It is also denied by the management that any person junior to these workers have been appointed on permanent post or regularised in service by them, who were engaged.
9. In support of their claim the parties to the dispute filed documentary evidence as well as appeared in the witness box for documentary as well as oral evidence before the labour court.
10. After appreciation of documentary and oral evidence the Tribunal came to the conclusion that the workman in question had worked with the management and had been granted temporary status and were also paid arrears of wages. After noticing the fact that the management could not explain why they had paid the arrears of wages to the concerned workman whom they claimed to be casual labours, the labour court further held that a established fact that 19 workers in the order of reference were temporary and six of them had not been paid for the work done by them, as such they were also entitled to payment of difference of arrears as claimed by them.
The Labour Court then recorded a finding of fact that the workman had not been able to prove that they have been discharging same work as was got done by the regular employee or that done by any person junior to them having been allegedly regularised in service by the employer hence provisions of Section 25G of the Industrial Dispute Act, 1947 were not violated by the management but the management had admittedly not served the concerned workmen with the notice of determination of service to any of the worker after conferring them the temporary status, therefore the action of termination in terminating the service of the employees concerned was in violation of Section 25F was unjust and unfair.
11. The labour court granted relief of reinstatement to the workers without any back wages as it was not established that the persons junior to them have been regularised in service by the employer.
The operative portion of the award is as under:
The workmen is therefore entitled for their reinstatement and it is further held the six persons named by the management witness in his evidence are entitled for arrears of pay which has admittedly been not paid to them by the management. The management may enquire from their own record about work done by each of such workmen.
The result is that the action of the management of North Eastern Railway in terminating the services of the workmen is held to be unjustified and unfair. The further action of the management is not making payment to the workers is also held to be unjust and unfair. Accordingly all the workmen named in the annexure to this award are reinstated in service without back wages.
Aggrieved by the aforesaid award, the employers have come in the writ petition.
12. The counsel for the petitioner has relied upon the annexures No. 5, 6 and 7 to the writ petition. A perusal of these shows that these reference dealt with casual labour and granted to temporary status to them. Admittedly in this case, all of the workers have to be granted temporary status and still six workers have not been paid their arrears of salary while other have been paid. Therefore, the annexures 5, 6 and 7 relied upon by the counsel for the petitioner are of no help and irrelevant for the purpose of this case.
13. It is clear from the award that vacancies existed at the relevant time against which all formalities for regularisation of the petitioner had taken place, they were also medically examined because of surplus staff becoming available due to phasing out of the steam locomotives these workers were not regularised in service and had been retrenched.
14. The further contention of the counsel for the petitioner is that lower court has held that the railway has framed its own scheme for regularization of workers being regularised according to the seniority hence the workers under the award shall be considered.
15. Specific question has been put by the Court to the learned Counsel for the petitioner that if a person, who has got an award in his favour is not regularised by them in pursuance of the award and he attained the age of superannuation in the meantime without being regularised in own scheme framed by the management whether the such workers will be entitled to wages as regular employee or any other benefit, which has been awarded to him by the Tribunal. The answer by the counsel is no that the workman will not grant anything even if the reference has been made in his award.
16. The scheme stated above is not reasonable scheme as it does not taken into consideration for giving the benefits under the order of the Court and and nothing case for scheme according to the counsel for the petitioner for giving regular status to casual workers and temporary employees in the instant case.
17. This contention of the learned Counsel for the petitioner has no force as neither rejoinder affidavit has been field denying the averments made in the counter affidavit nor specific reply has been given as to how many employees were surplus and whether the surplus workers were of this category, in which these workers were being considered for regularization.
18. It appears from annexure No. 8 and order date 7.7.1994 the workers have been given in time pay scale Rs. 750- 940 as they had continuously worked for more than 120 days. They have also been declared successful in the interview and in medical category A-3 examination but they will be given work according to the need by the Railway.
19. Thus on record it is admitted that the workers have been given pay scale of Rs. 750-940 with D.A. in time pay scale but they have not been given regular status formally. The Tribunal by the impugned award has given a find that provisions of Section 25F were not complied with by the employer as notice pay and retrenchment compensation etc had not been given, hence the workers are entitled to be reinstated.
20. Since the six workers have not been paid arrears of difference of pay, they shall be paid all payments in accordance with law by the employer within a month as awarded by the Tribunal and as they have been granted pay scale which connotes regular employment hence they shall be treated as regular employee from the date of having been given pay scale i.e. 7.7.1994 for all practical purposes.
Accordingly, the writ petition is disposed of.