Gauhati High Court
Ahsok Dey vs The Union Of India And 4 Ors on 6 December, 2018
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/5
GAHC010020142014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6884/2014
1:AHSOK DEY
S/O LT. NIRMAL CH. DEY R/O VILL- WARD NO.1, RANGIA STATION ROAD,
RANGIA, P.O. RANGIA, DIST. RANGIA, ASSAM.
VERSUS
1:THE UNION OF INDIA and 4 ORS
THROUGH THE SECRETARY, GOVT. OF INDIA, RAILWAY BOARD, NEW
DELHI- 110001.
Advocate for the Petitioner : MR.K KALITA
Advocate for the Respondent : MS.M CHATTERJEE
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Date : 06-12-2018 Heard Mr. I H Saikia, learned counsel for the petitioner as well as Mrs. U Chakraborty, learned Special Senior Railway counsel appearing on behalf of the respondents.
Page No.# 2/5 The facts and issue in hand lies in a very small compass.
The petitioner was appointed as a salesman in the Rangia Railway Consumer Co-operative Society in the year 1982. In the year 1991-92, the administration of the NF Railway considered the cases of a number of employees working in the co-operative societies in different cadres of Group-D services of the establishment. In the said process, the petitioner along with two other similarly situated persons namely, Siba Prasad Bhattacharjee and Dharmeswar Pathak were left out leading to raising of a dispute in the Industrial Tribunal, Guwahati in reference No.2(c) of 2003.
The said reference culminated into an award dated 25.04.2005 which was decided against the workman and in favour of Railways. The said decision of the Tribunal was put to challenge in a writ petition before this Court being WP(C) No.2601/2006 by the two other persons namely, Sri Siba Prasad Bhattacharjee and Dharmeswar Pathak. This Court, vide judgment and order dated 18.02.2009 allowed the said writ petition by setting aside the impugned award dated 25.04.2005 and remanded the matter back to the learned tribunal for a fresh decision. On such remand, the tribunal examined the cases of the two petitioners. However, the petitioner was left out as he was not a party-petitioner in the writ petition before this Court in which the remand order was passed.
The learned tribunal after hearing the parties had passed an award dated 17.11.2009, interalia, interfering with the decision of the NF Railways of not absorbing the workmen, namely, Sri Siba Prasad Bhattacharjee and Sri Dharmeswar Pathak in Group-D post and held that they were entitled for such absorption. The learned tribunal also observed that since the present petitioner seem to have lost interest in the reference case, the said award was directed to be confined to the above two persons. The aforesaid award dated 17.11.2009 was challenged by the Railways by filing a writ petition being WP(C) No. 5167/2010 which resulted in its dismissal vide order dated 08.09.2011 by the Single Bench of this Court. The further appeal preferred by the Railways before the Hon'ble Division Bench namely, WA 56/2012 also resulted in dismissal vide order dated 11.02.2014. Consequent upon such dismissal of the writ petition as well as the writ appeal as aforesaid, the aforesaid two persons namely, Sri Siba Prasad Bhattacharjee and Sri Dharmeswar Pathak were given the benefit of absorption in the Group-D post of NF Railways. It is after such absorption that the Page No.# 3/5 present petition has been filed by the petitioner, who was the 3 rd workman in the original reference.
Mr. I H Saikia, learned counsel for the petitioner submits that he is entitled to similar benefit of the award which has attained finality after dismissal of the writ petition and writ appeal and which has been duly implemented by the NF Railway. However, because of the observation made by the learned tribunal that the award should be confined to the two persons namely, Sri Siba Prasad Bhattacharjee and Sri Dharmeswar Pathak, the petitioner was not given the benefit of the absorption. Mr. I H Saikia, learned counsel further submits that the issue of non-absorption have been decided against the Railways by the learned tribunal in the award dated 17.11.2009, there is no reason as to why the petitioner should be deprived from the benefit of the same, more so, when the petitioner is identically placed with that of the said two other persons. In fact, the present petitioner was the 3 rd workman in the original reference and his case is identical with that of the other two workmen. The aforesaid decision of the Tribunal having been upheld by this Court and also the Division Bench, the petitioner should get similar benefit of the same and consequently there should be absorption in the services of the railways in the Group-D. On the other hand, Mrs. U Chakraborty, learned Special Senior Railway counsel appearing on behalf of the respondents has submitted that since the petitioner has taken a conscious decision not to agitate his case any further after the first Award by the Tribunal, he should not be given the benefit of the subsequent decision of the Tribunal and of this Court. The learned counsel further submits that it is only the persons, who are conscious about their rights and agitate the same at the proper time should be given the benefit of orders from the Tribunal and persons, who do not approach the forum of law for justice at the right time demonstrate their lack of due diligence and therefore this Court should refrain from granting relief to such persons. Mr. Chakraborty further submits that the delay in approaching this Court otherwise also is inordinate and if at all, the petitioner should have approached the Industrial Tribunal for granting relief.
This rival contentions of the respective parties have been duly considered. There is no manner of doubt that the case of the present petitioner is similarly situated with the case of Sri Siba Prasad Bhattacharjee and Dharmeswar Pathak and it is an admitted fact Page No.# 4/5 that in the original reference for the Industrial Tribunal, the petitioner was the 3 rd workman. On the opposition by the railways to grant benefit to the petitioner, Mr. Saikia learned counsel for the petitioner relies upon the following decisions:
(1) Lt. Governor of Delhi vs Dharampal reported in 1990 (4) 294. (2) K C Sharma vs Union of India reported in 1997 (6) SCC 721. (3) Union of India & Ors Vs Ajant Boro & Ors reported in 2009 (1) GLT 550 (Division Bench).
The Hon'ble Apex Court in the decision of Dharampal (supra) was dealing with a case where a similar situation had arisen. The gist of the order is that the petitioner in the said case was entitle to same relief which was granted to similar situated persons, who had earlier approached this Court against order of termination which were quashed. The Hon'ble Apex court had further granted back wages which was made dependent upon filing an affidavit regarding gainful employment in the period while the petitioner was out of service from the respondent.
In the case of K C Sharma(Supra) the Hon'ble Apex Court has held that in appropriate cases, the Courts and Tribunals should even condone the delay for granting similar relief to persons, who had approached the Tribunal or Court subsequently.
A Division Bench of this Court in the case of Ajant Boro(Supra) in para 16 after taking into consideration to the aforesaid two decisions of the Hon'ble Apex Court has laid down that the benefit of a judgment rendered earlier must be given to other similarly situated persons even if there is delay in approaching the Court or tribunal.
Having regard to the submission of the rival parties and following the law laid down by the Hon'ble Apex Court and the Division Bench of this Court, I find force in the submission of the learned counsel for the petitioner. Accordingly, it is directed that the benefit of the award dated 17.11.2009 which has been upheld by this Court shall also be given to the petitioner and he will be absorved in Group-D post of the NF Railway like that of Sri Siba Prasad Bhattacharjee and Dharmeswar Pathak. However, considering the submission made on behalf of the Railways that there is gross negligence on the part of the petitioner in approaching the Court after delay, it is directed that the petitioner would only be entitled to notional benefit from the date on which the two other workmen namely, Sri Siba Prasad Bhattacharjee and Page No.# 5/5 Dharmeswar Pathak were absorbed. The aforesaid exercise of absorption of the petitioner should be completed within a period of 45 days from today.
The writ petition is accordingly disposed of.
No order as to cost.
JUDGE Comparing Assistant