SABHAJEET YADAV, J. - (1.) BY means of this petition, the petitioners have challenged the award of the Central Industrial Tribunal/Labour Court, Kanpur dated 26.7.2002 published in Part II, Section 3, Sub -section (ii) of the Gazette of India, New Delhi dated 20.8.2002, contained in Annexure -4 of the writ petition, passed by Presiding Officer, Industrial Tribunal -Cum -Labour Court, Kanpur in adjudication case No. 182/1991 which was between Sri Mohd. Fahim and Union of India and Anr.
(2.) THE relevant facts for the purpose of question in controversy involved in the case in brief are that the Central Government, Ministry of Labour, New Delhi vide its notification dated 31.10.1991 has referred the dispute for adjudication to the Central Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947 (in short Act 1947). The opposite party No. 2 filed his claim through the union on the ground that he had worked from 15.2.1980 to 25.4.1981 and 9.5.1983 to 263 1984 and subsequently had worked till 18.11.1986 and his services were abruptly terminated without giving any notice, notice pay or retrenchment compensation. It is further alleged that the persons junior to the respondent No. 2 have been allowed to work whereas the services of respondent No. 2 have been dispensed with without complying with the provisions of Section 25F and Section 25G of the Act, 1947. The claim set up by opposite party No. 2 was contested by the petitioners by filing written statement wherein allegations made in the claim of opposite party No. 2 were denied and it was stated on behalf of petitioners that the opposite party No. 2 was initially appointed as casual labour in the. electrical department on 9.5.1983. He worked between 9.5.1983 to 15.11.1986 in the Electrical department in different period mentioned in para 5 of the writ petition, wherein it is stated that opposite party No. 2 did not complete 240 days working at a stretch in any year. As regards the allegations that junior persons have been retained in service and services of opposite party No. 2 have been dispensed with, it was stated on behalf of petitioners that the persons mentioned namely, Sri Ravinder Singh, Sri Subhash Singh and Sri Suman Singh were appointed as S.C./S.T. candidates and other persons namely Sri Mahipal, Sri Amrika, Sri Santosh Kumar, Sri Ram Kumar and Sri Ram Pher Gupta were appointed on compassionate grounds and they were senior to the opposite party No. 2. A replication was filed on behalf of opposite party No. 2 wherein he claimed the benefit of the provisions of Indian Railway Establishment Manual. Further he has claimed that he has got the status of temporary employee under the aforesaid Manual and is entitled to be regularised. It is stated that vide order dated 26.7.2002 opposite party No. 1 has allowed the claim of respondent No. 2, and aforesaid award has been published by Government of India on 20.8.2002. A copy of award is filed as Annexure -4 of the writ petition. It is stated that although while allowing the claim of opposite party No. 2, the opposite party No. 1 has held that the workman did not complete 240 days continuous service in 12 calendar months before termination of his services, therefore, he is not entitled for benefit of Section 25F of the Industrial Disputes Act, 1947 yet in view of provisions contained in the Indian Railway Establishment Manual since the opposite party No. 2 has completed 120 days continuous service and is entitled to get temporary status, therefore, his services could not be terminated without giving him notice as required under Rules. It was categorically stated in the written statement that the persons who belonged to the S.C./S.T. have been appointed and other appointments have been made on the basis of compassionate appointment and no junior persons have been retained as alleged by opposite party No. 2. In view of these facts also the findings of opposite party No. 1 that there is violation of Section 25G of Industrial Disputes Act is without jurisdiction. It is further stated that in view of Section 14 off he Administrative Tribunals Act, 1985 (in short Act 1985), all the service matters including recruitment and termination of services of respondent No. 2 was cognizable by Administrative Tribunal and not by the Central Industrial Tribunal. In reply thereto the opposite party No. 2 has filed a counter affidavit whereby he has refuted the allegations contained in the body of the writ petition with regard to the working period of opposite party No. 2 and stated that it is erroneously mentioned that respondent No. 2 has not completed 240 days in a calendar year rather he has stated that from 9.5.1983 to 22.4.1984, which constitutes a calendar year, the answering respondent No. 2 has worked for almost about 254 days. Earlier to it, he was initially engaged on 15.2.1980 and continuously worked upto 25.4.1981. Subsequently he worked till 28.6.1986 and persons junior to him have been retained whereas his services were arbitrarily terminated. Thus the action of petitioners are violative of Articles 14 and 16 of the Constitution of India inasmuch as Section 25G of Industrial Disputes Act. In para 7 -A of the counter affidavit it is stated that large number of persons junior to the answering respondent have been retained in service in violation of Section 25G of Industrial Disputes Act. Some of the persons are Sri Ashok Kumar Srivastava, Sri Ram Achal Singh, Sri Markendey Rai, Sri Nasir Ali, Sri Mukhatrul Hasan etc., they are still working under Electrical Foreman (A.C.), Lucknow Jn. Apart from it there are several other persons who are junior to the answering respondent but their details could not be obtained as entire record is in possession of the petitioners.
(3.) IN para 14 of the counter affidavit it is stated that it is incorrect to allege that opposite party No. 1 has committed illegality in interpreting the provisions of Indian Railway Establishment Manual. The respondent No. 1 rightly referred that respondent No. 2 has attained the temporary status in terms of Indian Railway Establishment Manual, after working for 120 days in a year. Apart from it, respondent No. 1 rightly took cognizance of illegality committed by the petitioners inasmuch as several junior workmen were retained by the petitioners in preference to answering respondent who has worked for much more number of days and in the seniority list also, the answering respondent has been shown as much senior. Further statement of fact in this regard has been made in para 15 of the counter affidavit which is reproduced as under: '15. That the contents of para 12 of the writ petition are incorrect and are denied. It is specifically stated that apart from Scheduled Caste, Scheduled Tribe and Compassionate appointees, large number of workmen whose details has been mentioned in Annexure -3 viz. Sri Ashok Kumar Srivastava, Sri Ram Achal Singh, Sri Markandey Rai, Sri Nasir Ali, Sri Muktharul Hassan, Sri Maharam Prasad. It is stated that answering respondent has mentioned the name of these workmen along with his claim petition but in the written statement, petitioners have not mentioned nothing about the status of these workmen. Apart from it, several workmen who were engaged subsequently, such as Sri Ram Kishore, Hausala Prasad, Sri Uma Shankar Tewari, Ram Shankar, Sri Hoob Lal, Sri Babu Ram were for the first time engaged on 30.10.1987 and such that there was no paucity of work with the petitioner but even then, the services of the answering respondent has been terminated without any rhyme or reason. 15.1 Petitioner had also tried to mislead the respondent No. 1 inasmuch as erroneously mentioned that some of the workmen junior to answering respondent were compassionate appointees. It may be clarified that Railway Board has clarified time and again that all the compassionate appointments is to be made on regular basis and, therefore, it cannot be held that those workmen, working on casual basis, were appointed on compassionate grounds. The action of petitioner terminating the services of the answering respondent, while retaining the juniors is wholly arbitrary and violative of Section 25G of Industrial Tribunal Act, 1947.' ;