1. The petitioner- second party and the Union in Reference (ITC) No. 14/1997 before the Industrial Tribunal (Central) at Ahmedabad, have approached this Court under Article 226 & 227 of the Constitution of India challenging the award dated 9/2/2004 passed by the Tribunal rejecting the reference on the ground that as 17 project casual labourers under PWI ©, Nadiad and all those project casual labourers who have been recruited in the geographical jurisdiction of Rajkot Division, who were on the rolls of Chief Project Manager, Western Railway, Ahmedabad, had already been regularized by the first party and therefore they were not entitled to any relief.
2. The facts in brief leading to filing this petition deserve to be set out as under.
The workmen claimed that they were though recruited as Project Casual Labourers, were recruited against Group-'C' vacancies and worked as skilled and semi- skilled employees under the employer. On account of drive for regularization they also ought to have been regularized, but as there was no regularization they were constrained to raise industrial dispute which came to be referred to the Industrial Tribunal,Ahmedabad, wherein it was registered as Reference (ITC) No.9/1997, but the order of reference contained reference to Kanpur and it was sent to Ahmedabad Tribunal, there was a technical snag in exercising the jurisdiction, which had given rise to litigations up to Supreme Court. Ultimately present reference came in to being, being Reference (ITC) No.14/1997. It would be out of place to mention here that in the interregnum, earlier the interim order was not inuring workmen were sought to be reverted as the interim relief against reversion was not existing and thereafter they did not join. Litigations started and ultimately on account of order of this Court workmen resumed duty as Class-IV employees, without prejudice to their rights, but that will not affect the term of reference as the term of reference is set out in the award itself, which read as under.
“Whether the action of the Management of Divisional Railway Manager, Western Railway, Rajkot for not conducting the screening and the regularization of the services of 17 Project Casual Labourers under PWI(c), Nadiad and all those Project Casual Labourers who have been recruited in the geographical jurisdiction of Rajkot Division and at present are on the rolls of Chief Project Manager, Western Railway, Ahmedabad is proper and justified? If not, to what relief the concerned project casual labourers are entitled and from which date and what directions are necessary in the matter?”.
3. This term of reference has been subject matter of adjudication in which Tribunal after recording its finding came to the conclusion that, as regularization is already effected the workmen were not entitled to any relief as prayed for.
4. Being aggrieved and dissatisfied with the order of the Tribunal, present petition is preferred under Article 226 & 227 of the Constitution of India.
5. Learned advocate for the petitioner has contended that the Tribunal has unfortunately not appreciated the fact that the workmen were in fact engaged as skilled & semi-skilled labourers against Class-'C' position and vacancies and they were actually paid wages on that basis only. Therefore, there ought not to have any insistence on account of the policy that regularization is to be made only as if the workmen are casual labourers in Class-IV, i.e. Group-'D'. The screening procedure, though prescribed, but that screening procedure would not acknowledge or recognize screening straightway in Group-'C' position or vacancies. Therefore Railway cannot have compelled the workmen to accept their reinstatement or their degradation to Group-'D' and then regularize them which would not be in accordance with law and therefore same was required to be appreciated in its true perspective and spirit by the Industrial Tribunal. It remains to be noted that workmen's absorption in Group-'D' by way of regularization amount to reverting them to the pay scale of Group-'D' and which had affected the workmen's entitlement to be absorbed after holding screening or procedure for screening. The administration's insistence upon policy of not to regularize anyone in Class-'C' without screening is required to be looked into in view of the Supreme Court judgment referred to in the Tribunal's judgment. Present workmen were given temporary status as Group-'C' and therefore temporary status factor could not have been lost sight of either by the administration or by the Tribunal and, therefore, there was wrong insistence for first absorbing workmen only as Group-'D' on account of spacious plea of policy which has been referred to in the impugned judgment.
6. Learned advocate appearing for Railway administration - respondent herein, has contended that the policy pressed into service in form of Indian Railway Establishment Manual cannot be permitted to be deviated by any one and therein it is unequivocally provided for no absorption as Class-III directly. The employee seeking absorption has to undergo screening test, as even in the past also there was no case of direct absorption in Group-'C' category, the workmen could not have legitimately insisted upon being absorbed as Group-'C' employee. The only factor looked into therefore was to take them in Group-'D' and after screening only they were to be absorbed in Group-'C'. The workmen even if are correct in saying that they were working as skilled & semi-skilled in Group-'C', which is not admitted by the administration, then also, they were to be regularized only as per the Indian Railway Establishment Manual, particularly under provision Chapter-25, Rule 2511 (a) & (b) and Rule 2512(ii).
7. The Court is of the considered view that the Tribunal has unfortunately not adverted to the terms of the reference in stricto senso. Thers of reference clearly earmarked the area of consideration for the Tribunal where under the Tribunal was under an obligation to adjudicate and record its findings qua workmen's claim for being entitled to be absorbed in Group-'C' category after being screened properly. Therefore, the Tribunal could not have misdirected itself in recording to the effect that workmen have been absorbed in Group-'D'.The workmen continued their grievance in respect of their entitlement to be absorbed as Group-'C' employee, if required, after undergoing screening.If one looks at the terms of reference would absolutely becomes clear about the purview under which the question was to be considered. Unfortunately, the Tribunal appears to have over looked this factor and are swayed by the factor that provision of Indian Railway Establishment Manual provides only by way of regularizing in Class-D category and there is no direct regularization in the Class-C category. Assuming for the sake of examining them, without holding that, that is the only way, then also Tribunal was under an obligation to frame point of determination on this aspect and record its finding. In absence of finding one can say that terms of reference have not been completely borne- in-mind while adjudicating this matter and non-suiting the workmen.
8. Therefore, without elaborately going into other aspects of merits of the matter at this stage, this Court is of the considered view that Tribunal's order impugned in this petition is required to be quashed and is accordingly quashed. The matter is required to be remanded back to the Tribunal for deciding it afresh in light of the terms of reference. The Tribunal on remand shall decide the same as soon as possible, preferably within six months from the date of receipt of writ of this Court. Rule made absolute to the said extent. There shall be, however, no order as to costs.
9. In view of order passed in main petition, civil application No. 371 of 2012 will not survive and is disposed of with the main matter. Rule discharged. No costs.
[ S.R. BRAHMBHATT, J ] /vgn