Hon'ble Ved Prakash Vaish,J.
We have heard Counsel for the petitioner; Sri Prasant Mathur for the respondent nos.2 to 4 and have perused the record.
The petitioner was appointed as Casual Waterman on 29.1.1976, thereafter he acquired temporary status and was issued Casual Labour Card No.240247. His name was recorded in the Casual Labour Live Register wherein he was shown to have worked for 853 days. His services along with others were dispensed with against which I.D Case No.201 of 1991 was filed which was decided on 25.10.1996 thereby requiring the Railway Administration to prepare a scheme for absorption of these workmen so that they may be absorbed according to Rule as and when vacancy arises.
Challenging the award of the Labour Tribunal Writ Petition No.132 of 1997 was filed. The award of the Labour Tribunal was stayed but it was directed that the Railway Administration shall comply with the provisions of Section 17 B of the I.D. Act. Thereafter, it appears regularization scheme was framed, pursuant to which the petitioner applied for regularization which was rejected on the ground that the petitioner had crossed the age-limit provided in the scheme dated 20.9.2001. Assailing the order, the petitioner filed Original Application No.970 of 2005 which has been dismissed by the impugned order dated 17.9.2010.
In paragraphs 31 to 35 of the writ petition, the petitioner has averred that in a separate proceeding, namely, O.A. No.866 of 2006, a Bench of Central Administrative Tribunal, Ernakulam at Kerala has declared the age-limit cut-offs illegal and, therefore, the Railway Administration was not justified in relying upon the age-limit prescribed in the scheme to reject the claim of the petitioner. It has also been stated that the order of the Central Administrative Tribunal, Ernakulam at Kerala was affirmed by the Kerala High Court in Writ Petition No.21777 of 2007 vide order dated 29.11.2007. It has thus been urged that the Tribunal ought to have taken notice of the legal position and as such the order of the Tribunal deserves to be set aside.
Sri Prashant Mathur who has appeared on behalf of the Railway Administration has submitted that the order of the Kerala High Court affirming the order of the Tribunal, Ernakulam at Kerala has been subjected to challenge in Special Leave to Appeal No.7107/2009 before the Apex Court and leave to appeal has been granted, therefore, the benefits of that judgment would not be available to the petitioner. He, however, could not show that the order of Tribunal/High Court Kerala has been stayed by the Apex Court.
Under the circumstances, the aforesaid material being relevant needs careful examination and consideration after giving opportunity of hearing to the parties. As the Tribunal has not addressed the issue by taking into consideration the aforesaid decision of the Tribunal, Ernakulam Bench at Kerala as well as the decision of the Kerala High Court, we consider it appropriate to remit the matter back to the Tribunal to consider the case of the petitioner afresh, in the light of the aforesaid material as also any order or decision of the Apex Court, if any, thereon, after giving opportunity of hearing to the parties concerned.
Accordingly, without expressing any opinion on the binding value of the decision of the Tribunal, Ernakulam Bench at Kerala, we allow this petition as below.
The order dated 17.9.2010 passed by the Tribunal in Original Application No.970 of 2005 is set aside. The Tribunal shall restore the Original Application No.970 of 2005 to its original number and shall decide it afresh after giving opportunity of hearing to the parties by taking into consideration the decision of the Tribunal, Ernakulam Bench at Kerala, allegedly affirmed by the Kerala High Court, in accordance with law, preferably, within a period of four months from the date of production of certified copy of this order.
Order Date :- 7.9.2018 Savita (V.P. Vaish, J.) (Manoj Misra, J.)