1. Present writ petition is filed by the petitioner employer challenging the award of the Central Government Industrial Tribunal Cum Labour Court, Lucknow dated 13.06.2017 published on 31.07.2017. By the said award the Tribunal has decided the reference in favour of the respondent workman. The award is passed on the following reference:-
"WHETHER THE DEMAND OF THE NORTHERN RAILWAY EMPLOYEES UNION FROM THE MANAGEMENT OF GENERAL MANAGER, TELECOM, BSNL, LUCKNOW FOR REGULARIZATION OF SERVICES OF SRI VISHRAM S/O SRI DINANATH FROM THE YEARS 1992-93, IS LEGAL AND JUSTIFIED?' WHAT RELIEF THE WORKMAN IS ENTITLED TO?'
2. I have heard counsels for parties and perused the record with their assistance.
3. Learned counsel for the petitioner employer submits that the Tribunal could not have directed for regularization of services of the respondent workman as the respondent workman has no right to claim regularization in view of the judgment passed in case of 'Secretary, State of Karmataka and Others Vs. Uma Devi and Others'; reported in [(2004) 4 SCC 1]. He further submits that even otherwise it is beyond the jurisdiction of Industrial Tribunal to give an award with regard to regularization of services.
4. On the other hand, opposing the same, learned counsel for respondent workman submits that the Industrial Tribunal has not actually granted regularization to respondent workman but has only recognized the orders dated 13.02.2003 and 10.10.2003 passed by the management itself by which the respondent workman was already regularized. The Tribunal has only reflected upon the negligence of the officers of the petitioner employer for not implementing the orders already taken way back.
5. Facts of the case are that respondent workman was engaged as a daily wager in the year 1991. He was dis-engaged in the year 1992 against which he raised an industrial dispute and succeeded by an award dated 27.07.2005. Thereafter, he raised a claim for being regularized in services. His application for regularization was considered along with other entitled persons by the management. He relies upon number of letters of the management issued from time to time, including the letter dated 13.02.2003 and letter dated 10.10.2003 issued by the corporate office of B.S.N.L. addressed to CGM, BSNL, Lucknow regarding regularization of left out casual labourers. The Tribunal has given its award on the basis of letter dated 10.10.2003. The letter dated 10.10.2003 reads:-
"This office has further scrutinized the detailed information sent by your office for remaining cases and further 17 (Seventeen) TSMs/CLs (Sr. No. 6, 7, 11, 12, 118 and 127 to 138) have been found to be eligible for regularization at this stage. 3 cases (Sl. No. 50, 66 and 122) are under consideration for being CGA appointment. For the remaining 26 cases some additional information is required for processing the cases further.
2. Accordingly, approval of the Competent Authority is hereby conveyed for following:-
(i) (GM, U.P. (East) Telecom Circle is further authorized to create upto 17 (Seventeen) numbers of post of RM to regularize the eligible TSMs/CLs. If required after adjusting all the vacant post of RM in the Circle. The circle's ceiling limit will stand enhanced to this extent. These regularized employees will be BSNL, employees.
(ii) CGM is also authorized to grant age relaxation as required in individual cases for the purpose of regularization as per rules."
6. The Tribunal found that the name of the respondent workman appeared at Sl. No. 17, i.e., he was included in the 17 persons found eligible for regularization by the competent authority regarding to whom the approval of competent authority was also conveyed by letter dated 10.10.2003. This letter and fact that name of petitioner is in the list of regularized employees is not disputed in the writ petition or during course of arguments by the petitioner employer. In fact the entire writ petition is silent with regard to letter dated 10.10.2003. Thus, it is accepted by the management that way back in October, 2003 the respondent workman was found entitled to and was regularized in services. Only consequential steps were to be taken by officers sub-ordinate to the competent authority. Since, consequential steps were not taken, industrial dispute was raised and the present reference was made.
7. In the given facts and circumstances of the case, I do not find any force in the submission of the petitioner employer. The judgment of Uma Devi case (supra) is on the issue that the casual or daily wage employees do not have any right to claim regularization. In the present case, the management as per its' policy has already passed an order finding the respondent workman to be covered by the policy of regularization and the competent authority has already regularized respondent workman along with other entitled persons. The competent authority has even issued directions that the age relaxation be granted and circle ceiling limit for adjusting respondent workman and other similar employees be also enhanced to the said extent. Therefore, it is wrong to say that the respondent workman has claimed any regularization. In the given facts his claim is only to give effect to the order of regularization already passed by the competent authority by providing him benefits. The non-denial of letter dated 10.10.2003, either before the Tribunal or before this Court itself shows that there is no dispute with regard to the fact that the competent authority has already regularized the services of respondent workman. The sub-ordinate officers were only required to take ministerial steps to give effect to the said order of the competent authority. Thus, there is no force in this submission of statement of learned counsel for petitioner employer.
8. The next submission of counsel for petitioner employer is that even otherwise under the Industrial Disputes Act, 1947, the Tribunal does not have jurisdiction to grant relief of regularization. He submits that the word 'regularization' is nowhere defined under the Industrial Disputes Act, 1947. He further submits that Section 2(A) only covers the field in respect of dismissal, discharge, retrenchment and termination but it is silent about regularization. Similarly Section 7(A) read with II and III schedule also cannot grant any relief with regard to regularization. Reliance is placed upon the judgment passed in case of Management, Assistant Salt Commissioner Vs. Secretary, Central Salt Mazdoor Union, reported in [(2008) 11 SCC 278].
9. I do not find any force in this submission of learned counsel for petitioner employer also. As already held above, the Industrial Tribunal has not directed for regularization of services of the respondent workman. Respondent workman's services were already regularized but the ministerial actions, on the basis of the order of regularization passed by the competent authority, were not being taken and the effect of the award is that the same would be taken. Therefore, the relief granted in the award would be covered by the Section 2(k) of Industrial Disputes Act, 1947 wherein industrial dispute defined as:-
"industrial dispute" means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person."
10. The relief granted is with regard to employment and the treatment of the employer or the conditions of the labourer or the workman. The benefits of order passed by the competent authority which were to be granted to the respondent workman are would now be granted under the award of the Industrial Tribunal.
11. Even otherwise, presuming for the sake of argument that the Industrial Tribunal lacks jurisdiction to pass an award in the present matter, still, this Court exercising its power under writ jurisdiction would not set aside the award. The reason for the same is that setting aside of the award, even on ground of lack of jurisdiction, would revive an illegal situation, where though respondent workman is having an order of regularization in his favour, but, is denied the benefit of the same. The law in this regard is well settled by the following judgments:-
"(i) Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors., AIR 1966 SC 828;
(ii) Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR 1999 SC 3609
(iii) Mallikarjuna Mudhagal Nagappa & Ors. v. State of Karnataka & Ors., AIR 2000 SC 2976;
(iv) Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889;
(v) State of Uttaranchal & Anr. v. Ajit Singh Bhola & Anr., (2004) 6 SCC 800)."
Suffice would be to quote from the judgment passed in case of 'Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others'; reported in [(1999) 8 SCC 16]. In paragraph-13 to 15, the Court held that:-
"13. In Gadde Venkateswara Rao v. Government of Andhra Pradesh and Others, AIR (1966) SC 828:[1966] 2 SCR 172 this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.
14. In Mohammad Swalleh and Others v. IIIrd Addl. District Judge, Meerut and Another, AIR (1988) SC 94:[1988] 1 SCR 841, similar view was also expressed by this Court. In that case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the Orders of the District Judge. The order of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being bad, refusal of the High Court to exercise powers under Article 226 no exception can be taken.
15. Therefore, in view of the above ratio laid down by this Court, we hold that even if the Member of Board of Revenue had no power to issue direction for giving notice for refund of the excess amount paid, no exception can be taken to the said order if it is found that legally the appellant was paid excess compensation under the Act."
12. In the present case, the management has accepted respondent workman to be a regular employee and competent authority of the management has passed order regularizing services of the respondent workman and directed its sub-ordinates to act accordingly. For more than a decade the sub-ordinate officers did not act upon the same. There is no reason placed before this Court for failure to comply with the orders of the competent authority. Therefore, order passed by the Tribunal grants substantial justice and this Court is not inclined to interfere with the same.
13. Thus, there is no force in the writ petition and the same is dismissed.
Order Date :-29.10.2021 Arti/-
(Vivek Chaudhary,J.)