Gujarat High Court
Works Manager - Western Railway vs Khem Karan D Sharma on 7 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/12082/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12082 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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WORKS MANAGER - WESTERN RAILWAY & 1 other(s)
Versus
KHEM KARAN D SHARMA & 1 other(s)
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Appearance:
MR PUNIT B JUNEJA(3972) for the Petitioner(s) No. 1,2
MR UT MISHRA(3605) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 07/02/2020
ORAL JUDGMENT
1. This is a petition preferred by the Western Railway, which is aggrieved by the judgment and award dated 04.10.2012 passed in Reference Page 1 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT Central Government Industrial Tribunal ('the CGIT' hereinafter) A No.119 of 2004 by the CGIT, whereby it directed the respondent No.1 to be considered as a chargeman, from June, 1994 for getting the scale of charge from that period and further held him entitled to get seniority for that year with all consequential benefits. The petitioner had been directed to calculate and workout the monitory benefits since the respondent has retired on 30.09.2006.
2. Brief facts leading to the present petition necessary to be referred to are as follow:
2.1 Respondent No.1 was the permanent employee of railway working as Mill Wright Fitter, GradeII, Sabarmati Engineering Workshop under Chief Works Manager, Engineering Workshop, Western Railway, Sabarmati.
2.2 As per the Notification dated 26.03.1984 issued by Deputy Chief Engineer, Engineering Workshop inviting application for selection of Page 2 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT Intermediates Apprentice Chargeman, the
respondent applied for that post. There were in all four employees at the relevant time. The respondent No.1 was selected for receiving training for the said post of Intermediate Apprentice. He, therefore, along with the other employees were directed for training at system Technical School, Ajmer on 19.08.1985. 2.3 It appears that after reaching to the said technical school, Ajmer for receiving the training, the respondent No.1 and other workmen wrote a letter to the Deputy Chief Engineer (W), Sabarmati and stated that training was not as it ought to be and he repatriated himself along with one more employee. He thereafter sent an application to the petitioner No.2 on 27.08.1985 narrating the difficulties at training in the syllabus at STS Ajmer. He also proposed the authority under the level of request to revive the syllabus as per the trade of civil engineering instead of trade of mechanical Page 3 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT workshop and agitated that training imparted at STSAjmer is not fit for him and was the sheer waste of time.
2.4 The Railway Administration chose not to reply to this letter and then chose not to send him to STS Ajmer nor to promote him as Chargeman whereas his juniors were sent for the training and were promoted as Chargeman. It is, therefore, the case of the respondent No.1 that he should have promoted as Chargeman and could have been given the consequential benefits to which he was entitled as the entire process once again also been under taken in the year 1994. If he has restarted the training in the year 1985, there was no reason as to why the second opportunity could not have been given to him. He raised the dispute and the matter was referred to the Industrial Tribunal.
2.5. In his statement of claim, he has reiterated his demand with further prayer of compensation for his suffering and also cost of the Page 4 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT litigation.
2.6 The Western Railwaypetitioner herein in its written statement has contended that it was not maintainable and the dispute referred for adjudication was not at all industrial dispute as defined under Section 2 (k) of the Industrial Disputes Act, 1947 ('the I.D.Act' hereinafter).
The factum of his being a permanent railway employee was not disputed nor was it in dispute that as Mill Wright Fitter, GradeI, under Chief Works Manager, Engineering Workshop, Sabarmati. He and three others were selected for the post of Intermediate Apprentice, Chargeman, Ajmer in the scale of Rs.425700. Their selection was subjected to passing their final examination, after completion of theoretical and practical training of 104 weeks. This training was mandatory for qualifying the person for the post of Chargeman. In the written statement it was denied that there were improper facilities for theoretical training at System PSTS Ajmer for Page 5 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT working of civil engineering.
3. The grievance on the part of the petitioner was that there was a vast difference in the training imparted at STS Ajmer and work being performed at worked throughout of Sabarmati. The petitioner was required to take the training at STS Ajmer for 50 weeks as per the scheduled of training letter dated 05.12.1998 and the decision of Railway Administration was also very clear which he fails to undertake and the respondent had left preselection first sessions training at STS Ajmer and did not complete 104 weeks nor did he pass the qualifying test for the post of Chargeman. However, his juniors have completed the same and passed the final test for qualifying the examination for the post of Chargeman and have been appointed as Chargemen. It is the selection post and training of 104 weeks is compulsory. Moreover, the dispute of non promotion to the Chargeman had been raised after 13 years and so, the dispute was barred by the Page 6 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT law of limitation. It was his own wish not to continue the training and also failed to join theoretical training so also in following the directions and instructions of the petitioner and therefore, was not entitled to claim any.
4. It appears that after availing the opportunities to the parties, the Tribunal was of the opinion that nongrant of opportunity in the year 1994 was amounting to denying the lawful right of the respondent as he was otherwise entitled to be considered for being appointed for the post of Chargeman without joining the training as scheduled as per the modifying the course and special training scheduled from June, 1994.
5. According to the Tribunal, when the concerned workman was agitating his grievance through series of representations and eventually in the year 1994 when it had been decided to impart condense course of two months and special training of three months each at Ajmer, it was Page 7 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT incumbent on the part of the petitioner to send the concerned workmen for training second time, which it had failed and therefore, the respondent had suffered in getting the intermediate apprentice Chargeman in the scale of Rs.14002300 in the year 1994. In detailed, after discussing the evidence oral as well as documentary, the CGIT allowed the reference and directed as stated above.
6. This Court has heard extensively the learned advocate, Mr.Punit Juneja appearing for the petitioners. He has urged along the line of the memo of the petition has pointed out the fallacy of reasoning. According to him, this is a manifest illegality, where the Court is wanting to equate the employees, who selected subsequently with those who were selected to undergo course in the year 1985. He further urged to this Court that it was the choice of the respondent that he did not continue nor did he complete when his own colleagues could complete Page 8 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT the entire course. Raising the dispute in the year 1998 after 13 years and then to make a grievance is unsustainable. The Court committed serious and gross illegality in interpreting the evidence which had been led before it. If such interpretation is permitted to continue according to him, this leave to the travesty of justice.
7. Learned advocate, Mr.Mishra has urged that the Court is not to sit in an appeal with the very set of evidence as the Court cannot appreciate the manner in which the evidence oral as well as documentary is evaluated because ultimately what requires is to be seen is as to whether the Tribunal has acted within its bound. If there are no jurisdictional error nor any manifest illegality, the Court is not to interfere. He has urged that in a jurisdiction under Article 227, the requirement is of the superintendence and this Court is not required to reappreciate the evidence.
8. This Court is conscious of the decision of Page 9 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT the powers to be exercised under Article 227 of the Constitution of India particularly the principles carved out in case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil; reported in 2010 8 SCC 329, where the Apex Court held thus:
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Page 10 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which Page 11 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(I) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's Page 12 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in Page 13 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
9. It is true that the Tribunal if have acted within its bound and there is complete absence of any manifest illegality, this Court is not to exercise the powers as they are to be exercised only sparingly. However, the Court cannot be oblivious of the fact that if there is a complete misreading of the evidence and the evaluation of the oral as well as documentary evidence has been done on the premises, which are not suitable to the well settled principles of law, the Court can certainly look into the same.
9.1 As can be noticed in the instant case, in the year 1985, for the post Page 14 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT of Intermediate Apprentice Chargeman, the respondent, who was otherwise selected as a Mill Wright Fitter, GradeII along with three other persons was to undergo the training at Ajmer. It was selection grade, which would have been applicable in case of the Chargeman, once a person undergoes the training of 104 weeks contemplated under the rules. This respondent was working under the Chief Works Manager, at Engineering Workshop, Western Railway, Sabarmati. Notification is always issued inviting application for course of intermediate apprentice chargeman, which in the instant case also had happened and the respondent applied for the same and got selected. He was then directed for training at STS Ajmer. He complained of absence of any proper facility at the school. He wrote a letter that due to improper training facility, it is better to give training at Sabarmati. He on his own returned back with one more employee to Sabarmati and thereafter, went on writing various applications to the chief engineer and others Page 15 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT narrating the details as to how training was not suitable and not useful for the engineering workshop as the training was related to purely mechanical workshop. Therefore, he made a request for exploring the possibility of imparting the training at Sabarmati workshop itself. He also went to an extent of guiding the authority of reviving the syllabus as per the trade civil engineering instead of trade of mechanical workshop and narrated that such training as STS Ajmer was not fit for him and was a sheer waste of time. His audacity and his self assigned role of a guide to the western railway authority is quite intriguing as well as unexplained.
10. It is to be noted that he was at STS Ajmer only for five days out of 104 weeks of training. The person, who was undergoing the training for the post which was the selection grade post had no business in a short period of five days to evaluate the training method, material and the nature of the training which was designed and Page 16 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT contemplated by the authority. He was in no capacity to either grumble or assume an authority to direct or guide under the pretext of request dictate the term. The employee if chooses not to undergo the training is free not to so do it, however, he cannot have advantage in both the ways of not undergoing the training and yet get the benefit of the chargeman. One of his colleagues also had returned with him, but he eventually had taken the training and the rest of the colleagues had completed the training and were appointed as chargmen. One can understand that at the end of the training and after returning to the workshop if on application of the training in a practical form, if he finds the serious lapses or the gaps, he surely can suggest for improvising the method, the syllabus and also the technique. He can also surely suggests requirement of such charges in his assessment at the end since every training contains such aspect. None of these had happened and he at a very prematured stage had chosen to be a judge in Page 17 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT his own cause and chose to repatriate himself. This attitude itself was unacceptable and yet, the authority has continued to hear and tolarate him and entertain his application, which he did till the year 1994, when once again, the notification was issued and the invitation was sent across for the employees to opt for the examination and such training. As can be noticed from the scheduled, the total period of training of 104 weeks, at STS Ajmer there was 12 weeks of preselection training and 12 weeks preselection training at engineering workshop, Sabarmati and then 38 weeks postselection training at STC Ajmer and thereafter, 38 weeks postselection practice and training at engineering workshop, Sabarmati. Thus, at STS Ajmer training was of 50 weeks and at engineering workshop, Sabarmati 50 weeks, making it total 100 weeks and then 04 weeks period was kept making the provision of the leave, etc. and thus, the total training between Ajmer and Sabarmati both was designed for 104 weeks. As per the evidence of the respondent, he Page 18 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT joined the theoretical training i.e. the pre selection training at STS Ajmer and he took a training only for five days and ensured he is unable to continue due to very difficult syllabus and requested the members to send him back to the engineering workshop, Sabarmati for that he can manage the entire training at Sabarmati. This is enabling to continue the schedule training as contemplated as evident by itself that he was reluctant and chose not to continue the pre selection training, which is a theoretical training at STS Ajmer. There are number of letters dated 27.12.1985, 17.03.1986, 13.05.1987, 29.06.1987, 15.05.1989 addressed to the Deputy Chief Engineer, Chief Bridge Engineer, Churchgate, Mumbai, Deputy Chief Engineer, Engineer Workshop, Sabarmati and Chief Engineer, Manager Engineer, Engineer Workshop, Sabarmati, reiterating his request and representation of changing the venue of his training from Ahjmer to Sabarmati. All his communications reflected his personal grievance. It is unheard of that any Page 19 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT trainee within such a short span in complete disregard to the wisdom which has gone into the design the training program would chose to return on his own and will insist on the training being imparted only is practical training and that too at the place of his choice. This attitude not concede on his part although had been tolerated, but, later when once again there was an invitation for others to opt for this cadre, the same had been notified in the year 1994 it was a separate course of training to Intermediate Apprentice Chargeman, which had been planed in the month of August to October, 1994, workshop had been planned in second sessions in the month of August to October, 1994 and after passing of first sessions, the second sessions would start. Thus for the chargeman, special in condense course for trainee for 33 months to be provided as per the scheduled syllabus of G.M.(E) CCG on dated 24.05.1983.
11. According to the CGIT, it was for the Page 20 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT petitioner to take action to send the selected Intermediate Apprentice Chargeman, which included the present petitioner through condense course of two months and then special training of three months each of second, third and fourth sessions of STC, on the ground that there was no evidence that the respondent had been afforded the second opportunity for training. The Court had allowed him the benefit of chargeman.
12. This Court notices that the training module had changed in the subsequent year. It also had prescribed the age limit of 45 years for the person to apply and once selected the training was to be imparted. It is the age of 45 years specified in the material. At the time of selection, the person's age cannot be more than 45 years. So also it prescribed that selected candidate would be undergone the training of 104 weeks in different places. After the training, they will be tested also periodically and those who were not made satisfactory progress nor do Page 21 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT the show the promise of improvement would be reverted to their formal post. The Indian Railway Establishment Manual, VolumeI para 141 prescribed as follows:
"141.(I) 75% of the posts in the category of Chargeman 'B' in scale Rs.14002300 in Mech. & Elec. Eng.Depts.& in the cadre of Draftsmen in these Departments will be filed by induction of Apprentice Mechanics as under:
(i) 50% plus shortfall, if any, against inter Apprentice quota as at (ii) below, from open market through the Railway Recruitment Board's; and
(ii) 25% from serving employees fulfilling the following qualification:
(a) Must have passed ITI/Act apprenticeship in the relevant trade or 10+2 in science stream.
Note: Existing eligible staff in service as on 12.08.2002 will be eligible to appear in the selection of Intermediate Apprentice with prerevised qualification for two consecutive selections held after 23.06.2003.
(b) Must have done three years satisfactory service as technician grad III (trade) and above.
(c) Must have satisfactory service record with respect to application of work, Page 22 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT attendance and general conduct.
(d) Must be below 45 years of age.
Note" Service for the post of (b) and (c) above will not include the training of three years imparted to matriculates recruited for appointment as technician grade III (trade) in terms of para 159.
2. Qualification etc. for direct recruitment are as under.
(i) Educational: Deploma in Mechanical / Electrical / Elec.Egineering."
13. As can be noticed from the evidence that the respondent had never applied in the year 1994 for the quota meant for in service candidates and secondly he had crossed the age of 45 years at the time when this was notified, he was not entitled to the very post and therefore, on a complete misreading of the material and also misreading of the rule when the CGIT has held in favour of the respondent, the Court needs to interfere and quash the judgment and award permitting the persons who while in service to Page 23 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020 C/SCA/12082/2013 JUDGMENT have acted highhandedly and has also not chosen to abide by the service discipline of undergoing the training of the post for which he had voluntarily offered himself and to insist on taking the training at his terms and at the place where he insisted, would amount to promoting such trend in amongst the employees which also would be destroying the very service discipline in the establishment which is otherwise meant for the larger interest of public. In any which way, the judgment and order is unsustainable and is quashed and set aside..
14. With the above, present petition succeeds in the above terms and stands disposed of.
15. Cost to be the cost in the cause.
Sd/-
(MS SONIA GOKANI, J) M.M.MIRZA Page 24 of 24 Downloaded on : Sun Jun 14 01:51:12 IST 2020