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D.R.M.,& ANOTHER versus CENTRAL GOVT. I.T. CUM LABOUR COURT & OTHERS

High Court of Judicature at Allahabad

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D.R.M.,& Another v. Central Govt. I.T. Cum Labour Court & Others - WRIT - C No. 41652 of 1997 [2006] RD-AH 8944 (4 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No.41652 of 1997

Divisional Railway Manager and another

Versus

Central Government Industrial Tribunal and another

_________

Hon'ble Anjani Kumar, J.

By means of this writ petition the petitioners have challenged the award dated 17th July 1997 published on 20th September 1997 which has been annexed as Annexure-4 to the writ petition whereby the Central Government Industrial Tribunal-cum-Labour Court, to whom a reference was made by the Government under the provisions of Industrial Disputes Act, 1947 (in short the Central Act), has held that reversion of the concerned workman, namely the petitioner in the writ petition, to the post of Coaching Clerk from the post of Fireman-B is not justified and the concerned workman will be entitled for the post of Fireman-B and its pay and allowances from the date of reference. The employer challenged the aforesaid award by means of present writ petition before this Court. This Court heard the writ petition and by the judgment and order dated 9th July 2003 dismissed the writ petition. Against the judgment dated 9th July 2003 the employer filed a Civil Appeal No.7006 of 2005- The Divisional Railway Manager and another Vs. Shubh Jeewan Lal. The Apex Court by judgment and order dated 21st November 2005 allowed the appeal and remanded the matter. The relevant observations of the Apex Court are as under:-

"The appellant's writ petition to the High Court at Allahabad was dismissed on the ground that the finding of the Labour Court did not warrant interference under Article 226 of the Constitution of India. Being aggrieved the appellant has approached this Court. The appellant has raised two preliminary objections. The first objection is that the High Court had not considered the question whether the Labour Court was at all competent to entertain the dispute in view of the enactment of the Administrative Tribunals Act, 1985. The second objection relates to the fact that the claim was raised by the respondent eight years after he was reverted to the lower post.

Although the appellant had not raised the issue in their written statement before the Labour Court, but it was squarely taken. Since it was a question of jurisdiction, the High Court should have considered the submission. We, therefore, set aside the decision of the High Court only on this ground and remand the matter back to the High Court for the purpose of considering this preliminary objection. It is made clear that if this objection is held against the appellant the award of the Labour Court will stand."

This is how the matter has come again before this Court.

I have heard learned counsel for the petitioner as well as learned counsel appearing for respondent no.2 (concerned workman). Learned counsel for the petitioner has relied upon the provisions of Section 19 of the Administrative Tribunals Act, 1985 which shall hereinafter referred to as the Act which is reproduced below:-

"19. Applications to Tribunals. - (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matte within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.

Explanation. - For the purposes of this sub-section, "order" means an order made -

(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or controlled by the Government; or

(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation [or society] referred to in clause (a).

(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) [in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government]

(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application  is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons]

(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.

Learned counsel for the petitioners submitted that in view of the aforesaid provisions the Industrial Tribunal had no jurisdiction to entertain the reference and the award is liable to be quashed on this ground alone. Learned counsel for the petitioners has relied upon the provisions of Section 14 of the Act which is quoted below:-

"14. Jurisdiction, powers and authority of the Central Administrative  Tribunal. - (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on an from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation -

(a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;

(b) all service matters concerning -

      (i) a member of any All-India Service; or

      (ii) a person [not being a member of an All-India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or

     (iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence,

and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;

(c)  all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.

[Explanation.- For the removal of doubts, it is hereby declared that reference to "Union" in this sub-section shall be construed as including references also to a Union territory,]"

Learned counsel for the petitioners further submitted that since vires of the Act has already been upheld by the Apex Court in the case of  S.P. Sampat Vs. Union of India, AIR 1997 SC 386, with the observations that with effect from the date on which the Tribunals were constituted (Tribunals under the provisions of the Act), the jurisdiction of the High Courts in entertaining the writ petition in service matters came to an end.  Learned counsel for the petitioners further submitted that in view of aforesaid direction by the Apex Court in the present case and in view of provisions the Tribunal had no jurisdiction to entertain the reference, therefore, the order passed by the Tribunal deserves to be quashed and the writ petition ought to have been allowed. It is precisely on this question that the matter has been remanded back by the Apex Court.

Learned counsel for the petitioners further submitted that after coming into force of the Administrative Tribunals Act 1985 and in view of the provisions of Section 29 and 29-A of the Act the Tribunal ought to have transferred the proceedings of the present reference to the concerned Administrative Tribunal. The Apex Court in the case of Krishna Prasad Gupta Vs. Controller, Printing  & Stationery1996 Lab. I.C. 90, has interpreted the provisions of Section 29 and 29A with regard to proceedings under the provisions of Payment of Wages Act, 1936 qua the proceedings under the Act and has held in paragraph 37 as under:-

"37. Our conclusion, therefore, is irresistible that the "Authority", constituted under Section 15 and the Appellate Authority under Section 17 of the Payment of Wages Act, fall within the exception indicated in Section 28 of the Administrative Tribunal Act and this Act, namely, Payment of Wages Act, is positively covered by the connotation "Corresponding Law" used in that Section. Consequently, the jurisdiction of the Authority to entertain and decide claim cases under Section 15 of the Payment of Wages Act is not affected by the establishment of the Administrative Tribunals."

Learned counsel for the respondent has relied upon the decision of Three Judge Bench of the Apex Court reported in AIR 1999 SC 538 in the case of Ajay D. Panalkar v. Management of Pune Telecom Dept. Para 5 is relevant for the purpose of controversy wherein the Tribunal declined to entertain an application filed by the management that the Tribunal had no jurisdiction to entertain application filed by the respondent workman, has been set aside by the Apex Court in Para 6 of the said decision.

Learned counsel for the respondent has further relied upon the decision reported in AIR 1999 SC 553, Director Govt. Of India v. General Secretary, Central Govt. Small Scale Industries Organisation Employees Union and another wherein the Apex Court in para 5 held as under:-

"5. We will first take up the appeal which is directed against the order of the Central Administrative Tribunal dated March 3, 1992 dismissing the Review Petition. A perusal of the said order of the Central Administrative Tribunal shows that while observing that there was delay in the filing of the Review Petition, the Tribunal has proceeded on the basis that the Tribunal would have been inclined to condone the long delay but since the Review Petition is devoid of substance it did not feel inclined to do so. The Tribunal has considered the matter on merits to the jurisdiction of the Tribunal to deal with the application under Section 19 of the Administrative Tribunals Act and has held that the Tribunal had jurisdiction to entertain the application against the award made by the Industrial Tribunal. The said view of the Central Administrative Tribunal is not in consonance with law laid down by this Court in Ajay D. Panalkar v. Management of Pune Telecom Department (1997) 11 SCC 469, wherein it has been laid down that the Administrative Tribunal constituted under the Administrative Tribunals Act, 1985 has no jurisdiction to adjudicate upon the finding of the Industrial Tribunal. In view of the said decision, the order dated March 3, 1992 passed by the Central Administrative Tribunal rejecting the review  application cannot be upheld and the said review application must be allowed. The order dated March 3, 1992 passed by the Central Administrative Tribunal is, therefore, set aside, the delay in the filing of the review application is condoned and the said review application is allowed and the judgment of the Central Administrative Tribunal dated August 31, 1990 passed in O.As. Nos. 403 of 1989 and 94 of 1990 is set aside."

In view of the above discussions and the law laid down by the Apex Court, the arguments advanced on behalf of the petitioner-employer that after coming into force of the Central Administrative Tribunal Act 1985 the Industrial Tribunal cease to have any jurisdiction to entertain a reference made by the appropriate Government under the provisions of Industrial Disputes Act, 1947 deserves to be repelled and is hereby repelled.

In my opinion the award given by the Industrial Tribunal does not suffer from any infirmity on the ground of jurisdiction to entertain the reference made by the appropriate Government in view of the provisions of Administrative Tribunal Act, 1947 and deserves to be rejected.

In view of the above discussion the petitioner-employer has failed to demonstrate that the Industrial Tribunal has committed any error in entertaining the reference in question. This writ petition, therefore, deserves to be dismissed and is hereby dismissed.

Dt:

mhu.


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