Patna High Court
Chaudhary Sao And Ors. vs Union Of India (Uoi) And Ors. on 4 March, 1983
Equivalent citations: 1983(31)BLJR411
JUDGMENT Prabha Shanker Mishra, J.
1. Both the writ applications are heard together and are being disposed of by this common order.
2. The petitioners in the two writ applications have questioned the validity of the order of the Divisional Superintendent (Commercial), N.E. Railway, Samastipur, dated 28th November, 1974, as contained in Annexure-2 of C.W.J.C. No. 2374 of 1981, under which order, sanction was accorded to the payment of the revised scales of pay to Casual Labours, Mates and Supervisors, who had attained temporary status of a Railway employee at the scales and designation mentioned therein. According to them, they were Mates who had attained temporary status of a Railway employee and by designating them as Tindal and giving to them the scale of pay of Rs. 200-250 the Divisional Superintendent, the respondent No. 4, reduced them in rank and denied to them the scale or pay of a Mate, which was/is higher than that a Tindal, They have moved this Court under Articles 226 and 227 of the Constitution of India praying for quashing the said order and to direct the respondents to give to them the benefits as Mates who have acquired temporary status of Railway employees.
3. Facts in this case are generally not in controversy which precisely are that the petitioners were employed by M/s North Bihar Handling Company a Contractor of the N.E. Railway to work as Mates at Garbara They remained m the employment of M/s North Bihar Handling Company until it was decided to absorb as Railway servant the employees to the said Company engaged for the services of the Railway. The total number of such workmen was but Railway administration was not prepared to appoint all of them As a result of negotiateons a committee of local executives, workmen's representatives and the Railways worked out a scheme which was drawn in writing in the form of a memorandum by the Deputy Commercial Superintendent, N.E Railway at Garhara. Under this memorandum the Railway agreed to engage a minimum of 1200 labours including all the categories i.e., Supervisors Office staffs and Mates etc. at casual labour rates. It contemplated preparation of a panel out of the applications for utilisation as casual labour for selection The representatives of the labour agreed to submit a list of 1200 men duly approved by the Scrutinising Committee by 17-12-1973. The petitioners were accordingly selected and brought to the Railway service as casual labour.
4. To start with, they were paid daily wages from 22-3-1973 to 14-4-1974 and after completion of 120 days continuous work they were given the time scale of pay of Rs. 196-232/-. They continued in the minimum scale of pay until sanction was accorded on 28-11-1974 for the payment of revised scale of pay of Rs. 200-250/-. The petitioners made a grievance that on their attaining temporary status of Railway employees as Mates they were entitled to the revised scale of pay of Mates which was Rs. 225-308 and by artificially designating them as Tindal they were fixed in the scale of Rs. 200-250. They also claimed that the Supervisors, similarly becoming Railway servants, were admitted in the scale of pay of Rs. 225-308, which was the revised scale of pay of supervisors but in their case a discrimination was made. A meeting was held between the employees represented through the Railway Employees Union and the Railway Administration represented through its local Officers on 20-375. It was recorded at the said meeting that the representatives of the Union were informed that Headquarters had already been approached for the grade of Mates and the fixation of pay in the category of Mates, Supervisors etc. was only provisional. The petitioners, however, continued to suffer, as alleged by them and were not given the designation of Mates and revised scale of pay admissible to Mates. They and/or their representatives made representations after representations. The Assistant Traffic Superintendent, N.E Railway Garhara, informed their representatives by his letter dated 20-7-81 that their joint application dated 19-11-80 had been sent to the Divisional Manager at Sonepur, on 20-11-80 and again on 16-4-81. Finding that they were not given their due, the petitioners moved this Court.
5. In the returns filed on behalf of the respondents it has not been disputed that the petitioners were absorbed initially as casual labours and described as Mates. It has been asserted, however, that the papers submitted by the petitioners and other labourers described them as Mates while the papers submitted by the Contractor described some of them as Mates and some of them as Sardars. The petitioners were not getting any monthly pay from their previous employer. On their absorption to the Railway services they were paid minimum wages of a Parcel Porter and later on a thorough examination of their claims they were fixed in the prescribed scale of Parcel Tindab as there was no category of Mates in the Commercial Department of Railways. The expression Mate used in some of the communications was only descriptive and a loose expression to identify them as they had so described themselves in their papers submitted for scrutiny. The petitioners have not been visited with any civil consequences whatsoever.
6. Mr. B.C. Ghose, learned Counsel appearing for the petitioners, has raised two contentions, namely, (i) the respondents are obliged to maintain the position and status of the petitioners as Mates on transfer of their services from the ex-employer on account of the take-over of the management of the undertaking of the Contractor Company, and (ii) the respondents having recognized the status of the petitioners as Mates when their services were taken-over until they acquired the status of temporary employees of the Railway and continued to recognise them as Mates until the impugned order was issued cannot reduce them in rank and make them Tindal at the time of sanctioning the revised scale of pay. He has also contended that the respondents have not taken any final decision and as the decision as contained in Annexure-2 is only provisional the respondents are obliged to take a final decision. While developing his arguments to which I shall advert later, Mr. Ghose has submitted that the description of the petitioners as Mates was not casual, but was a recognition of their status under the ex-employer otherwise any mention of Mates could not have been made in the agreement dated 15-12-1973 and the memorandum dated 28-11-1974.
7. Mr. A.B. Ojha, learned Counsel for the respondents, has raised two technical objections as to the maintainability of the writ application. He has relied upon a Bench decision of this Court in Pashupati Narain Sinha v. Union of India , and the Bench decision of the Calcutta High court in Additional Collector of Custom and Anr. v. Toolisidas Jewroj and Anr. 1975 Tax Law Reporter 1403, to contend that in absence of the competent authorities of the Sonepur Division, to which Division the services of the petitioners were transferred on its creation in the year 1976, no writ can issue. Even if" the principle laid down in these two cases relied upon by the learned Counsel for the respondents is accepted it cannot be applied to the facts of the present case. A technical objection of this nature should not have been allowed to wait until the stage of the final hearing of the case. If on account of the creation of a new Division the petitioners' services were transferred from the control of the Divisional Superintendent (Commercial), N.E. Railway Samastipur to that of the control of the Divisional Superintendent (Commercial) N.E. Railway Sonepur, and if an effective adjudication was/is not possible in the absence of the latter, an order to add him as a party could have been/can be made. In this case, however, the services of the petitioners have been taken over by the Railway and Act by the Divisional Superintendent. The Divisional Superintendent has only acted as a servant of the Railway, as the officer having the power to make the order. It is the order of the Divisional Superintendent, Samastipur, which has been impugned. No action of the Divisional Superintendent, Sonepur, is involved in this case. This application cannot be thrown out for the reason of the absence of the Divisional Superintendent (Commercial]. N.E. Rly., Sonepur, or any other officer of the Sonepur Division.
8. Mr. Ojha has also contended that no relief should be granted to the petitioners as they have come to this Court in the year 1981 to question the validity of an order passed on; 8-8-1974. It is difficult to accept this contention. True, the impugned order was passed in November, 1974, but in March, 1975 the representatives of the workers were informed by the respondents that the headquarters had been approached for the grade of Mates and fixation of pay in the category of Mates, Supervisors etc. was only provisional. The matter remained at that and as late as on 20-7-81 the petitioners were again informed that their representations had been forwarded to the Divisional Manager, Sonepur. The petitioners were never categorically informed that the order as contained in Annexture-2 had become final. The respondents, in fact, are responsible for the delay and not the petitioners.
9. Adverting to the merits of the case, in my opinion, neither of the two contentions raised by the learned Counsel of the petitioners is sustainable. The word 'undertaking' as used in Section 25FF has not been defined The Industrial Disputes Act has used the expressions 'Undertaking', 'Establishment' and 'Industries' interchangeably at various places. The expression 'Industrial Establishment' used in Sections 9B, 18(3), 23, 25C, 25D, 25E and 25G has been defined in the explanation to Section 25A. The term 'Industries' has been defined in Section 2(a) of the Act. The definition of 'Industries' is referable to activities. Whether any Unit, Undertaking, Establishment, Institution or Organisation is an Industry or not can be spelled out with reference to its activities. The expression 'Undertaking' however has not bean given any definition under the Act. If we go by the dictionary meaning of the word 'undertaking' Mr. Ghose may be right in suggesting that Section 25FF shall be attracted to such a case. He cannot, however, rely upon the section itself to claim any right from or under the respondents. In the case of Anakapalle Co-operative Agricultural and Industrial Society Ltd. v. Workmen and Ors. it has been held that reading Section 25FF as a whole employees of the transferor undertaking cannot claim re-employment under the transferee undertaking. They can claim compensation from the transferor undertaking and not from the transferee undertaking. Mr. Ghose has, however, claimed that the petitioners' case shall fall under proviso (b) of Section 25FF. A claim under proviso (b) to Section 25FF can arise only if any term and/or condition of the employment/service is varied to the prejudice of the employee/workman on his re employment by the transferee undertaking. The petitioners were not getting any fixed remuneration and worked as daily wage workmen under the contractor receiving only Rs. 3.50 paise per day. On their absorption as railway servants they were given initial daily wages not less than paid to them by the contractor and were given the time scale of pay of Rs. 196-232 per month after completion of 120 days continuous work. Under the impugned order the scale of pay given to them is Rs. 200-250. It is difficult to accept the contention of Mr. Ghose that even grant of higher emoluments by the transferee employer should be termed as alteration of service conditions to the prejudice of the workmen. This argument of Mr. Ghose is thus devoid of any merit.
10. The second contention of Mr. Ghose runs into a maze of disputed facts. The petitioners described themselves as Mates in the documents which they filed before the railway authorities or inclusion of their names in the panel for-employment under the railway. The documents filed by the contractors did not fully support their claim. The respondents have asserted in the counter affidavit that they did not have any pose of 'Mate' in the concerned department and that the word Mate was loosely used to identify the petitioners and like at the time of taking over the services and fixing of their wages/salary, Materials are insufficient to conclusively hold one way or the other whether there were/are posts of Mates in the concerned department or not. It is not possible to hold that a person described as Mate but appointed in a lower scale of pay by the contractor on his appointment by the railway and placed on higher wages, irrespective of the terms and conditions of the service, shall be entitled to the grade and scale of pay of Mate under the railway only because they were described as Mates under the contractor. The petitioners have filed to show that there was a category of Mates in the transshipment department of the railway. I refrain, however, from dilating any further in these matters as the respondents have not yet taken any final decision on the question. The petitioners cannot be granted any specific relief by this Court to recognise them as Mates and fix their emoluments as Mates on the pleadings and the materials before this Court.
11. One fact, however, cannot be lost sight of. After giving to the petitioners designation of Tindal and the scale of pay of Tindal the respondents told them that the decision was only provisional. This was done as far back as in November, 1974. The finalisation of such a small matter has already taken many years and has not yet been reached. By not atteding even to issues promptly the respondents have given opportunity to the workmen to agitate and complain. Instructions for such a similar claim get magnified and enlarged by and by. Recalcitrant and obstinate administrative derelictions and inactions belie hopes. Frustrations set in; exasperations follow, desperations give rise to unrest; industrial and administrative peace suffers. Are the respondents not obliged to tell the petitioners that a final decision has been taken? Are under no obligation to tell the respondents that their nature of work, classification, experience etc. shall take them to a particular position and no higher; the petitioners shall get a particular emoluments and no more ? If they have not done so until now and taken so many years to do so, should they not do so at the earliest.
12. Since I have not conclusively expressed myself on the question whether the petitioners should be granted the position and scale of pay of Mates or not, it is only desirable that while taking the final decision in the matter the respondents should consider the question on merits in accordance with law. In my opinion, a period of three months will be enough for {disposal of the matter at the appropriate level.
13. In the result, these applications are allowed in part. The respondents are directed to finalise the question of status and the scale of pay of the petitioners preferably within a period of three months from today. On the facts and in the circumstances of the case, there shall be no order as to costs.
Uday Sinha, J.
14. I agree.