Dismissed

Union of India v. Raju M.V.

Kerala HC2 Jun 2016OP (CAT)/154/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an application challenging the Central Administrative Tribunal's direction to regularise a respondent employee as Group 'D' staff. The Court held that despite a prior retrenchment, the employee remained entitled to the scheme's benefit due to the declaration of illegal retrenchment and reinstatement, but the Railways were not liable for back wages.

What did the court decide?

The applicants were given two more months to comply with the Tribunal's directions to regularise the respondent as Group 'D' staff.

Union of India Vs Raju M.V. — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938

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OP (CAT).No. 154 of 2016 (Z)

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AGAINST THE ORDER IN OA 367/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 19-11-2015

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PETITIONER(S)/RESPONDENTS,1,2 & 4:

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1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN.P.O,CHENNAI-600 003.

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2. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY,THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM-695014.

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3. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-600 003.

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BY ADV. SRI.C.S.DIAS,SC, RAILWAYS

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RESPONDENT(S)/APPLICANT AND 3RD RESPONDENT:

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1. RAJU M.V., S/O.SRI.M.A.VARGHESE,SALESMAN-CUM-ATTENDER, SOUTHERN RAILWAY EMPLOYEES CONSUMER CO-OPERATIVE SOCIETY LTD.NO.E-4,ERNAKULAM JUNCTION RAILWAY STATION,COCHIN682016,RESIDING AT C/O.K.S.SHYJAN, NEAR KRIPA BHAVAN,ERUMATHALA.P.O,PIN:683112,ALUVA, ERNAKULAM DISTRICT.

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2. THE SECRETARY, SOUTHERN RAILWAY EMPLOYEES CONSUMER CO-OPERATIVE SOCIETY LTD.NO.E-4,ERNAKULAM JUNCTION RAILWAY STATION,COCHIN-682016

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 02-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 154 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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--------------------------------------EXT. P1 TRUE COPY OF O.A.367 OF 2014 DATED 29.5.2014

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EXT. P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A.367 OF 2014 DATED 29.5.2014 ALONG WITH THE ANNEXURES

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EXT. P3 TRUE COPY OF FINAL ORDER DATED 19.11.2015 PASSED BY THE TRIBUNAL IN O.A.367 OF 2014.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.A. TO JUDGE

P.R.RAMACHANDRA MENON & ANIL K NARENDRAN, JJ

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O.P (CAT) No. 154 of 2016

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Dated this the 2^nd day of June, 2016

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JUDGMENT

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P.R.RAMACHANDRA MENON,J

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The direction given by the Tribunal to extend the benefit of Annexure A-14 scheme to the 1^st respondent employee, for regularisation as a Group 'D' staff, pursuant to the on-going litigation between him and the immediate employer (2^nd respondent Society) is under challenge, at the instance of the Railways. The crux of the contention is that the 1^st respondent does not satisfy the requirements under Annexure A-14 scheme; having not been serving on the relevant date, as he was retrenched from service by the 2^nd respondent Society but came to be reinstated only pursuant to subsequent developments, by which time, the scheme had already run out and hence it cannot be compelled to be implemented by the Railways any further.

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The 1^st respondent herein was serving as an employee in the 2^nd respondent society for quite long. It appears that there were several similar establishments

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O.P (CAT) No. 154 of 2016 2

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functioning in connection with the Railways and taking note of the factual scenario, a 'policy decision' was taken by the Railway Board who propound Annexure-A14 scheme dated 28.10.2005, whereby it was decided to regularise all eligible workers who satisfied the terms stipulated therein, by serving the Quasi-Administrative offices of the Railways; which according to the Railways includes the 2^nd respondent as well.

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Pursuant to Annexure-A14, the Railways sent necessary communication to all the establishments like 2^nd respondent, to sponsor the names of eligible hands; based on which feed back was obtained from the 2^nd respondent society. The name of the 1^st respondent was never included and hence there was no need, necessity or occasion for the Railways to have enquired anything further with regard to the service particulars of the 1^st respondent. All the eligible hands sponsored by the 2^nd respondent society were regularised as Group 'D' staff and they were appointed accordingly. In the course of further proceedings, it was revealed that the 1^st respondent was

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O.P (CAT) No. 154 of 2016 3

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retrenched from the service by the 2^nd respondent and the retrenchment was the subject matter of challenge before the Industrial Tribunal, Alappuzha; where it was numbered as ID No.58 of 2000. On completion of the pleadings and evidence, an award was passed by the Industrial Tribunal holding that the retrenchment was in violation of the relevant provisions of law; particularly Section 25F of the Industrial Disputes Act and hence reinstatement with full back wages was ordered.

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The 2^nd respondent Management sought to challenge the Award by filing WP(C) No.18026 of 2003 before this Court. After hearing both the sides, a learned Judge of this Court, as per Annexure-A1 judgment dated 05.01.2007, declined to interfere with the verdict of reinstatement but for observing that, though the normal rule was reinstatement with back wages, if the retrenchment was found to be illegal, in view of the financial conditions of the 2^nd respondent Society/ Management, the payment of back wages was limited to 50 percent. Still being dissatisfied with the verdict, the

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O.P (CAT) No. 154 of 2016 4

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Management approached the Division Bench of this Court by filing Writ Appeal Nos.W.A No.526 of 2008 & 795 of 2008. The matter was considered by Division Bench of this Court and as per Annexure-A2 verdict dated 20.06.2011, interference was declined and appeals were dismissed (to which one of us P.R.Ramachandra Menon,J was also a member).

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Thus, the matter has become final and the retrenchment of the employee ordered in the year 1994 was set right and he was reinstated in service by the 2^nd respondent society. The cause of action forming the subject matter of the present OP comes thereafter, in so far as the 1^st respondent employee, after obtaining reinstatement as above, sought for the benefit of Annexure-A14 scheme dated 28.10.2005, whereby regularisation of all eligible workers in the Quasi Administrative offices of the Railways including the 2^nd respondent as a Group 'D' staff was ordered. When the claim was not positively considered or dealt with by the Railways, the same was sought to be challenged by filing

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O.P (CAT) No. 154 of 2016 5

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O.A. No.724/2004 before the Central Administrative Tribunal. The Railways contended that the 1^st respondent/applicant did not come within the purview of Annexure-A14 scheme, in so far as he was not an existing employee as on the relevant date; he having already been retrenched from the service. It was also pointed out that, the Railways were not a party to Annexures-A1/A2 proceedings and hence that no liability could have been mulcted on the Railways in any manner. After hearing both the sides, the Tribunal held that there was a positive finding to the effect that the retrenchment of the applicant by the Society was quiet illegal and hence he was ordered to be reinstated with continuity in service. This being the position, it was necessarily to be treated that the employee was continuing in service of the 2^nd respondent society as if he had not suffered retrenchment in the year 1994 and was continuing so, even on the date of Annexure-A14 scheme and as such, he was quite eligible to have the benefit flowing therefrom. This in turn is under challenge now, before this Court.

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O.P (CAT) No. 154 of 2016

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The learned Standing Counsel for the Railways vehemently argued that the course pursued by

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the Tribunal is not correct or proper, as the Railways were in no way liable or responsible for the retrenchment of the 1^st respondent and admittedly, he was not in service of the 2^nd respondent society on the date of issuance of Annexure-A14 scheme; whose name was never included when the list was forwarded by the 2^nd respondent society to the Railways for regularisation of Group 'D' staff. Technically, the petitioner Railways may be justified in saying so; but legally it cannot but be held that the employee ought to have been considered as a person who was continuing in service, by virtue of the declaration given by the Industrial Tribunal, which stands upheld by the learned Single Judge and affirmed by the Division Bench. In other words, the illegal retrenchment effected by the immediate employer i.e 2^nd respondent society stands set aside and rectified; by virtue of which no bar or hurdle can be placed against the rights and liberties of the worker concerned and he is eligible to be treated like

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O.P (CAT) No. 154 of 2016 7

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any other eligible employee who was serving the 2^nd respondent society as on the date of Annexure-A14 scheme for conferment of Group 'D' status in accordance with the said scheme.

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Yet another aspect to be noted is that, there is no case for the petitioner Railways that the benefit of Annexure-A14 scheme was confined or restricted to a specific number of vacancies. On the other hand, what is stated is that the Railways, as a mater of policy had decided to give regularisation as Group 'D' staff to all eligible hands who satisfied the requirements mentioned therein. The only stipulation contained in Annexure-A14 is that the workers should be on roll for a period of at least 3 years as on 10.06.1997 and were still on roll. On going through the same, it is quiet evident that the Railways wanted to weed out only those persons who did not satisfy the minimum required service as on the given date. The scheme only meant to eliminate the persons who had already retired from the service and who did not have the requisite extent of service. This being the

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O.P (CAT) No. 154 of 2016 8

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position, 'number of vacancy' was not a subject matter of Annexure-A14 scheme and it cannot be said that any prejudice had been caused to Railways who is to act as 'Model Employer' because of the direction given by the Tribunal, to have the 1^st respondent regularised in service.

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It of course may be a matter for consideration, if the verdict passed by the Tribunal has resulted in any loss to the Railways or if at all any payment of back wages pursuant to regularisation is ordered. On going through the contents of the order which is under challenge, no such liability has been transferred to the Railways and the Railways have not been directed to satisfy the arrears of back wages pursuant to regularisation to the 1^st respondent. In the said circumstance, it will be adequate enough, if the Railways confer the Group 'D' status to the 1^st respondent by fixing the seniority on a notional basis with reference to the service of others concerned whose names were forwarded by the 2^nd respondent to the Railways, giving placement, at appropriate level considering the fact that

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O.P (CAT) No. 154 of 2016

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the time given for compliance has already run out, the petitioners are given two more months to comply with the directions given by the Central Administrative Tribunal.

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This Court finds that the Original Petition is devoid of merit. Interference is declined and the same is dismissed accordingly. It is open for the 1^st respondent to proceed against the 2^nd respondent society for realisation of the arrears of back wages awarded by the Industrial Tribunal, upheld by the Single Judge and affirmed by the Division Bench, by way of appropriate steps in accordance

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with law.

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Sd/-

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P.R.RAMACHANDRA MENON,

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JUDGE

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Sd/-

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ANIL K NARENDRAN, JUDGE

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Union of India v. Raju M.V.

Case brief

What is this about?

What did the court decide?

Union of India v. Raju M.V.

Case brief

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