Allowed

K.J.Babu v. Union of India

Kerala HC15 Mar 2019OP (CAT)/3425/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a petition challenging a Central Administrative Tribunal order. The court held that the petitioner was initially employed as a Painter based on prior conclusive findings, meaning he had only two promotions, distinguishing the issue from the Tribunal's view of three promotions. Consequently, the court set aside the Tribunal's order and directed the respondents to gr

What did the court decide?

The impugned order of the Central Administrative Tribunal is set aside. The respondents are directed to extend the benefit of the MACP Scheme to the petitioner within three months.

K.J.Babu Vs Union of India — Pension and Retirement Benefits | Kerala HC (2019)

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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 V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE A.M.BABU

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FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940

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OP (CAT).No. 3425 of 2012

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AGAINST THE ORDER DATED 30-01-2012 IN O.A.NO.1086/2010 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/APPLICANT IN THE O.A.:

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K.J.BABU, S/O.K.A.JOSEPH, RETIRED PAINTER GRADE-I, OFFICE OF THE DIVISIONAL ELECTRICAL ENGINEER, SOUTHERN RAILWAY, PALAKKAD, NOW RESIDING AT GRACE VILLA, THOMAS NAGAR, KAKKANI P.O., PALAKKAD.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.B.UNNIKRISHNA KAIMAL SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND

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RESPONDENTS/RESPONDENTS IN THE O.A.:

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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 SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD-678 001.

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3 THE DIVISIONAL ELECTRICAL ENGINEER/GENERAL, SOUTHERN RAILWAY,PALAKKAD DIVISION, PALAKKAD-678 001.

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BY ADVS. SRI.VARGHESE P.THOMAS, SENIOR SC,RAILWAYS SMT.P.K.RADHIKA, SC, RAILWAYS

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 14.03.2019, THE COURT ON 15.03.2019 DELIVERED THE FOLLOWING:

OP(CAT)No.3425/2012

Judgment

Chitambaresh, J.

1.The petitioner entered service in Southern Railway on 10.5.1972 as Painter on daily wages and the temporary status as Painter was due on 10.11.1972. Nevertheless the petitioner was given the temporary status as Khalasi with effect from 6.2.1976. The petitioner was however appointed as regular Painter with effect from 18.6.1981 though his full wages from 10.11.1972 had not been disbursed.

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2.This led to the petitioner filing C.P.3/1984 on the file of the Labour Court, Calicut claiming the wages in arrears from 10.11.1972 to 6.2.1976. The claim under Section 33C(2) of the Industrial Disputes Act, 1947 was allowed by Annexure-A2 order wherein it was held as follows:

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“The main dispute between the parties is regarding the post to which petitioner was employed. According to respondents, petitioner

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OP(CAT)No.3425/2012

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was taken as Khalasi whereas petitioner would say that he was employed as a Painter and had been working as a Painter from 10.5.1972 onwards. ....................... It is therefore futile for respondents to contend that petitioner was taken as a Khalasi and that he was promoted as a Painter only much later. ........................ There is thus sufficient material on record to show that petitioner was employed as a Painter and that he has got temporary status on and from 10.11.1972.”

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3.The challenge to the order of the Labour Court by the Southern Railway in O.P.No.5572/1986 was repelled in Annexure-A3 judgment observing as follows:

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“It can thus be seen that even on the showing of the Railways the petitioner has been working as a painter on 'daily rate basis' from 10.5.1972 to 5.2.1976. It therefore follows that the contention raised by the petitioner that the first respondent was working only as a khalasi till 1981 is without any substance. That it is so, is well established by Ext.P7, the memorandum issued by the Divisional Office of the Personnel Branch of the Southern Railway at Palghat dated 30.5.1985. In Ext.P7 the petitioner has been described as painter and the date granting temporary status in the scale of

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OP(CAT)No.3425/2012

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Rs.196-232 is shown as 10.11.1972. .................... The labour court according to me has rightly held that the first respondent has been treated by the Railway authorities as a painter right from the inception and therefore is entitled to the benefits that post would bring in to the holder of that post.”

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4.It is not in dispute that the petitioner was promoted as Painter Grade II with effect from 1.4.1983 and as Painter Grade I with effect from 1.4.1985. The petitioner was however 'repatriated' as Technician Grade II on 26.5.2008 on a lesser pay scale. The same was however set aside in O.A.No.392/2008 by the Central Administrative Tribunal about which we are not concerned now. The petitioner contends that he is entitled to the benefit of Modified Assured Career Progression (MACP) Scheme. The Scheme introduced with effect from 10.6.2009 gives benefit to those who did not secure at least three promotions in their career. It is the case of the petitioner that he was promoted from the cadre of Painter to Painter Grade II and then to Painter Grade I totalling to two in number. The respondents contend that the petitioner was first promoted from the post of Khalasi to the

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OP(CAT)No.3425/2012

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post of Painter. The respondents maintain that the petitioner has already enjoyed three promotions and not entitled to the benefit of MACP Scheme.

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5.The representations put in by the petitioner were rejected by the Southern Railway and this led to the petitioner filing O.A.No.1086/2010 in the Central Administrative Tribunal. The Tribunal by Ext.P5 order proceeded to hold that the petitioner has had three promotions from Khalasi to Painter and then to Painter Grade II and Painter Grade I. The petitioner was therefore held not entitled to the benefit of the MACP Scheme. The same is challenged by the petitioner in this original petition contending that the finding in the earlier litigations have been overlooked. We find force in this submission since the finding of the Labour Court affirmed by this Court clinches the issue.

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6.The Labour Court in C.P.3/1984 has categorically found that the entry cadre of the petitioner is Painter only and not Khalasi as contended by the Southern Railway. This finding

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OP(CAT)No.3425/2012

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has been explicitly affirmed in O.P.No.5572/1986 by this Court which has become final. The order of the Labour Court and the judgment of this Court aforestated operate as estoppel for the Southern Railway. True it is that the jurisdiction under Section 33C(2) of the Industrial Disputes Act, 1947 is confined to computation of wages. But the wages was computed categorically finding that the petitioner served as Painter and not as Khalasi. The Labour Court would not have ventured to allow the claim petition if there was any doubt about the post itself. The respondents cannot wriggle out of the concluded finding that the entry cadre of the petitioner is Painter only.

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7.The subsequent promotion as Painter Grade II and Painter Grade I totals to only two in number and the petitioner has not enjoyed three promotions in his career. The irresistible conclusion therefore is that the petitioner is entitled to the benefit of the MACP Scheme. The Tribunal has erred in holding that the petitioner is not entitled to the benefit of the MACP Scheme in the circumstances.

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OP(CAT)No.3425/2012

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The impugned order in O.A.No.1086/2010 on the file of the Central Administrative Tribunal is set aside and this original petition is allowed. The respondents are therefore directed to extend the benefit of the MACP Scheme to the petitioner within a period of three months. No costs.

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Sd/-

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V. CHITAMBARESH, JUDGE

Sd/-

A.M. BABU, JUDGE

Sha/140319

OP(CAT)No.3425/2012

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1

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TRUE COPY OF THE O.A.NO.1086/10 DATED 10-12-2010 FILED BY THE PETITIONER BEFORE THE HON'BLE C.A.T., ERNAKULAM.

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ANNEXURE A-10 – TRUE COPY OF THE ORDER NO.J/P535/III/MES/EX-CADRE DATED 4.1.2010 ISSUED ON BEHALF OF THE 2ND RESPONDENT.

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ANNEXURE A-12 – TRUE COPY OF THE OFFICE ORDER NO.J/P535/III/MES/EX-CADRE DATED 4.2.2010 ISSUED ON BEHALF OF THE 2ND RESPONDENT.

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ANNEXURE A-1 – TRUE COPY OF THE OFFICE ORDER NO.38/81 (ELECTRICAL) DATED 18.6.1981 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.

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ANNEXURE A-2 – TRUE COPY OF THE ORDER IN CPC NO.3/1984 ON THE FILES OF THE LABOUR COURT, KOZHIKODE.

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ANNEXURE A-3 – TRUE COPY OF THE JUDGMENT DATED 31.7.1986 IN O.P.NO.5572/1986 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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ANNEXURE A-4 – TRUE COPY OF THE ORDER DATED 5.5.1986.

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ANNEXURE A-5 – TRUE COPY OF THE OFFICE ORDER DATED 6.4.1987.

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ANNEXURE A-6 – TRUE COPY OF THE ORDER DATED 26.5.2008 ISSUED BY THE DIVISIONAL PERSONNEL OFFICER, PALAKKAD.

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ANNEXURE A-7 – TRUE COPY OF THE ORDER DATED 20.10.2008 I O.A.NO.392/08 PASSED BY C.A.T, ERNAKULAM.

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ANNEXURE A-8 – TRUE COPY OF THE RBE NO.101/2009 DATED 10.6.2009.

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ANNEXURE A-9 – TRUE COPY OF THE REPRESENTATION DATED 23.11.2009 OF THE APPLICANT TO THE 2ND RESPONDENT.

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OP(CAT)No.3425/2012

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ANNEXURE A-11 – TRUE COPY OF THE REPRESENTATION DATED 20.1.2010 OF THE APPLICANT TO THE 3RD RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 10.3.2011 FILED BY THE RESPONDENTS IN O.A.NO.1086/10, BEFORE THE C.A.T.,ERNAKULAM BENCH.

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EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 18.10.2011 FILED BY THE PETITIONER BEFORE THE HON'BLE C.A.T., ERNAKULAM BENCH IN O.A.NO.1086/10 TOGETHER WITH ANNEXURE A-13.

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EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED NIL- DECEMBER 2011 FILED BY THE RESPONDENTS BEFORE THE C.A.T., ERNAKULAM BENCH IN O.A. NO.1086/10.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 30.1.2012 OF THE HON'BLE C.A.T., ERNAKULAM BENCH IN O.A. NO.1086/10.

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RESPONDENTS'EXHIBITS: NIL.

K.J.Babu v. Union of India

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K.J.Babu v. Union of India

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