High Court of KeralaSingle Judge2014-11-28With the above modification of the award, the w...

Executive Engineer (Construction), Southern Railway, Ernakulam v. The General Secretary, Ernakulam District Engineering & Industrial Workers' Union, Prakash Bhavan, Railway Station Road, Tripunithura, Kerala, and Government of India, represented by Secretary, Ministry of Labour, New Delhi

Case / Petition Number:WP(C).No. 32697 of 2005 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-11-28
Court Decision / Holding: With the above modification of the award, the writ petition is dismissed.
Final Disposition: With the above modification of the award, the writ petition is dismissed.

Parties to the Case

Appellants / Petitioners

Executive Engineer (Construction) Southern Railway, Ernakulam
Executive Engineer (Construction) Southern Railway, Trichur

Respondents

The General Secretary, Ernakulam District Engineering & Industrial Workers' Union, Prakash Bhavan, Railway Station Road Tripunithura, Kerala
Government of India, represented by Secretary, Ministry of Labour, New Delhi

Legal Representation & Advocates

Counsels for Petitioners

• M. C. Cherian
• James Kurian

Counsels for Respondents

• Anchal C. Vijayan
• T. S. Radhakrishnan Pillai
• C. S. Ajith Prakash
• P. Parameswaran Nair
• John Varghese

Case Synopsis & Summary

The petitioners, two Executive Engineers of Construction in the Southern Railway (Ernakulam and Trichur), challenge an award of the Labour Court in Ext.P9 that arose from a long-drawn dispute concerning five casual workers who had been included in the Railway Live Register. The matter traces to Supreme Court interventions on the Railways’ scheme for dealing with casual labour and to earlier decisions such as Inder Pal Yadav and Others v. Union of India and Others, and Dakshin Railway Employees Union v. General Manager, Southern Railway, which laid the framework for relief and re-employment possibilities under the Live Register. The Labour Court found that the five workers were in the Live Register, and, upon retrenchment, that some were entitled to reinstatement while others were entitled to compensation; one worker, Dasan, was found medically unfit yet eligible for compensation. The petition was ultimately treated with regard to age and feasibility of reinstatement, with the court noting superannuation concerns and refusing a broad roving wage inquiry. It upheld the rationale for compensation and modified the award for four workers by providing annual monetary relief of Rs.10,000 from the date of the award till age 60, while Dasan’s earlier Rs.25,000 compensation remained. The writ petition is dismissed with these modifications. The decision rests on constitutional principles under Articles 41, 42 and Article 226, and on the Live Register policy as refined by prior Supreme Court decisions.

Provisions of Law Cited

Article 41 of the Constitution of IndiaArticle 42 of the Constitution of IndiaArticle 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the five casual workers were included in the Live Register and, per the Supreme Court-approved scheme for mitigating casual labour issues, were entitled to re-employment when opportunities arose. They argue that the Labour Court rightly held the workers in the Live Register and that, despite the long lapse, the intent of the scheme warrants consideration of reinstatement or, at minimum, appropriate compensation. They challenge the Railways’ failure to re-employ and seek to uphold the Labour Court’s findings in favor of compensation for those within eligibility, noting that superannuation considerations and human-centric constitutional values (Articles 41 and 42) support a just remedy rather than unilaterally denying relief.

Contentions of Respondents

The respondents submit that re-employment cannot be ordered for all five workers given that many were beyond employable age or medically unfit, and that the Live Register is a mechanism for mitigation rather than a guarantee of reinstatement. They argue the scheme must be understood in light of superannuation and the lack of viable employment opportunities, and advocate that the award be modified to reflect the realities of long passage of time, without roving inquiry into past wages. They contend there was no credible evidence of unlawful denial of benefit and that the Court should avoid reinstatement in light of age and health. The respondents also rely on constitutional jurisdiction under Article 226 to assess the award’s reasonableness and feasibility.”},

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Inder Pal Yadav and Others v. Union of India and Others	(1985) 2 SCC 648	Positive	Cited for the Live Register-style relief and the pattern of mitigating casual labour through a structured scheme approved by the Supreme Court.
Dakshin Railway Employees Union, Trivandrum Division v. General Manager, Southern Railway and Others	[(1987) 1 SCC 677]	Positive	Used to emphasize the eligibility and timeframe for claims under the approved scheme and the Live Register approach.
Essen Deinki v. Rajiv Kumar	[(2002) 8 SCC 400]	Positive	Cited to frame the proper jurisdiction under Article 226; reinforces the Court’s scope in adjudicating welfare-relief claims.
Central Administrative Tribunal, Ernakulam, O.A. No. 13/92	O.A. No. 13/92	Mentioned Only	Mentioned as part of the record or background reference; not centrally relied upon for the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936** ## **WP(C).No. 32697 of 2005 (P)** **----------------------------** **PETITIONER(S):** **----------------------** **1. EXECUTIVE ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, ERNAKULAM.** **2. EXECUTIVE ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, TRICHUR.** **BY ADVS.SRI.M.C.CHERIAN,SR.SC.,RAILWAYS SRI.JAMES KURIAN, SC, RAILWAYS** **RESPONDENT(S): -------------------------** **1. THE GENERAL SECRETARY, ERNAKULAM DISTRICT ENGINEERING & INDUSTRIAL WORKERS' UNION, PRAKASH BHAVAN, RAILWAY STATION ROAD TRIPUNITHURA, KERALA.** **2. GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF LABOUR, NEW DELHI.** **R,R2 BY ADV. SRI.ANCHAL C.VIJAYAN, CGC R,R1 BY ADV. SRI.T.S.RADHAKRISHNA PILLAI R,R1 BY ADV. SRI.C.S.AJITH PRAKASH** **R,R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR R BY SRI.JOHN VARGHESE, ASSISTANT SG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 32697 of 2005 (P)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF THE STRIKE NOTICE DATED 23.11.91 OF THE UNION, PRODUCED AS ANNEXURE A1 ALONG WITH CLAIM STATEMENT AND MARKED AS EXT.W12 IN LABOUR COURT. EXT.P2 COPY OF CLAIM STATEMENT DATED 24.2.97 OF THE UNION, FILED IN LABOUR COURT. EXT.P3 COPY OF WRITTEN OBJECTION DATED 9.3.98 OF RAILWAY, WITHOUT ANNEXURE. EXT.P4 COPY OF REJOINDER OF UNION. EXT.P5 COPYOF THE AVAILABLE REMARKS PERTAINING TO CASUAL LABOURERES WHO HAVE WORKED UNDER XEN/CN/TCR, AND 23.11.91 AND MARKED AS EXT.A10 BEFORE LABOUR COURT. EXT.P6 COPY OF THE ORDER NO.R.B.E.NO. 167/86 DATED 11.9.86 OF RAILWAY BOARD. EXT.P7 COPY OF ARGUMENT NOTES FILED BY COUNSEL FOR UNION IN LABOUR COURT. EXT.P8 COPY OF ARGUMENT NOTES FILED BY COUNSEL FOR MANAGEMENT. EXT.P9 COPY OF AWARD DATED 17.1.05 OF CENTRAL GOVT. LABOUR COURT, ERNAKULAM IN I.D NO. 25/96.** - **EXT.P10 COPY OF DEPOSITION OF SRI.V.K.DASAN, BEFORE LABOUR COURT.** - **EXT.P11 COPY OF CASUAL LABOUR CARD, MARKED AS EXT.W1 IN THE LABOUR COURT.** - **EXT.P12 COY OF CERTIFICATE OF INSPECTOR OF WORKS, PRODUCED AND MARKED AS EXT.W2 IN LABOUR COURT.** - **EXT.P13 COPY OF CERTIFICATE OF ASSISTANT ENGINEER, MARKED AS EXT.W3 IN LABOUR COURT.** **EXT.P14 COPY OF LETTER NO.P-651/CN/ERS DATED 21.12.71 FROM EXECUTIVE ENGINEER TO V.K.DASAN.** - **EXT.P14(A) LEGIBLE TYPED COPY OF LETTER NO.P-651/CN/ERS DATED 21.12.71 FROM EXECUTIVE ENGINEER TO V.K.DASAN.** **CONTD..2..** **.. 2..** ## **WP(C).No. 32697 of 2005 (P)** **EXT.P15 COPY OF A/D CARD IN RESPECT OF LETTER SENT BY M.M.THOMAS, ADVOCATE TO DIVISIONAL PERSONNEL OFFICER, OLAVAKKODE. EXT.P16 COPY OF A/D CARD IN RESPECT OF LETTER SENT BY M.M.THOMAS, ADVOCATE TO PERMANENT WAY INSPECTOR, ALWAYE. EXT.P17 COPY OF AWARD DATED 31.5.94 OF LABOUR COURT, ERNAKULAM IN I.D.NO.12/91 EXT.P17(A) LEGIBLE TYPED COPY OF AWARD DATED 31.5.94 OF LABOUR COURT, ERNAKULAM IN I.D.NO.12/91 EXT.P18 COPY OF JUDGMENT DATED 27.7.93 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM IN O.A NO.13/92 EXT.P19 COPY OF P.B. CIRCULAR NO.3/73 DATED 4.1.73 OF RAILWAY BOARD. EXT.P20 COPY OF DEPOSITION OF DRAWKUMARI, IN LABOUR COURT. EXT.P21 COPY OF DEPOSITION OF K.R.PUSHPAVATHI, IN LABOUR COURT. EXT.P22 COPY OF DEPOSITIION OF K.C.KARTHIYANI, IN LABOUR COURT. EXT.P23 COPY OF CASUAL LABOUR CARD, PRODUCED AND MARKED AS EXT.W13 IN LABOUR COURT. EXT.P24 COPY OF DEPOSITION OF P.K.VASANTHA, IN LABOUR COURT. EXT.P25 COPY OF CASUSAL LABOUR CARD PRODUCED AND MARKED AS EXT.W14 IN LABOUR COURT. EXT.P26 COPY OF THE ORDER DATED 2.11.06 IN W.P.C NO.20016/06 OF HON'BLE HIGH COURT OF KERALA.** **ANNEXURE.A1 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.13336/95 DATED 19.8.95** **RESPONDENTS EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE.** **// TRUE COPY //** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.32697 of 2005 - P ====================== Dated this the 28[th] day of November, 2014** ## **J U D G M E N T** The petitioner Railways, is aggrieved with the award passed at Ext.P9. The contentions before this Court are confined to those relating to one V.K. Dasan, P.K. Droukumari, K.K. Pushpavathy, K.C. Karthyayani and P.R Vasantha. Before going into the individual grievance of the above petitioners, the background of the above proceedings has to be looked into. 2. The Railways had been engaging casual labourers in its projects and otherwise; who were so employed and terminated at will. A number of Special Leave Petitions were filed before the Hon'ble Supreme Court, bringing to the notice of that Court, the manner in which the Railways, one of the major employers of the nation, in the public sector, had been dealing with the marginalised section of society. The Hon'ble Supreme Court took note of the W.P.(C) No.32697 of 2005 - P **2** manner in which the rule of hire and fare continued in Government employment even after about four decades of independence in **Inder Pal Yadav and Others** v. **Union of India and Others [(1985) 2 SCC 648]** . A scheme was put forth by the Railways in mitigation of the grievances projected by the casual labourers. 3. The Hon'ble Supreme Court found that, though not entirely satisfactory, the scheme would be an improvement on the then situation, in realisation of the ideals enshrined in Article 41 and 42 of the Constitution of India. Considering the fact that the Railways had taken a step towards realisation of such ideals, the Hon'ble Supreme Court granted approval to the said scheme which culminated in a “Live Register” maintained by the Railways, in which the casual labourers employed at various points of time for a considerable period were included. 4. Naturally, there were disputes raised as to the inclusion of persons, which were agitated by individuals and that resulted in a further petition before the Hon'ble W.P.(C) No.32697 of 2005 - P **3** Supreme Court, which concluded the decision in **Dakshin Railway Employees Union, Trivandrum Division** v. **General Manager, Southern Railway and Others [(1987) 1 SCC 677]** , therein it was directed that all persons, who are entitled to claim the benefits of the scheme, which was approved in the earlier cited decision and persons who had been retrenched before January 1981 should submit their claims to the Administration before 31.03.1987. The workmen referred to in the earlier part of this judgment had by virtue of the aforesaid scheme been included in the “Live Register”. 5. The system followed by the Railways as is discernible from the arguments put forward by both the Counsel is that, with the maintenance of the “Live Register”; as and when employment opportunities arose in projects or otherwise, based on the seniority; if those retrenched with longest survive were first employed. The Railways had been giving re-employment to casual labourers in the regular service. W.P.(C) No.32697 of 2005 - P **4** 6. The workmen referred to above were all retrenched some time in the period between 1984 and 1987. The Union of Workmen raised a dispute in the year 1991 as is evidenced at Ext.P1. After a prolonged litigation, the appropriate Government was asked to refer the dispute, which culminated in Ext.P9 award. The dispute itself was referred in the year 2005 and the reference was of the justifiability of the demands made by the Union before the conciliation officer. 7. The Labour Court, Ernakulam permitted both the Unions as also the Management to adduce evidence and passed Ext.P9 award. The present adjudication is confined to the five workmen aforementioned. With respect to all the said workmen, the Labour Court found that they were in the “Live Register” referred to above. The dispute arose since the five workmen were not re-employed despite their status in the “Live Register”. The Union took a specific stand that the juniors to the five workmen, were employed and they W.P.(C) No.32697 of 2005 - P **5** were kept away from employment purposefully and deliberately. 8. The Labour Court found that the workmen having been engaged for more than 240 days were entitled to retrenchment compensation. That however, is not relevant for the present case. What assumes significance is the finding of the Labour Court that, all the workmen referred to above were included in the “Live Register”. With respect to V.K.Dasan, it was found that the denial of employment was by reason of he being medically unfit. The Labour Court relying on the precedents and found that, if at all he was medically unfit for re-employment in the projects, he should have been adjusted in some other employment wherein he could have continued work with the establishment as a low medical category. 9. In any event, that was not the ground on which the Labour Court passed an award in his favour. The Labour Court found that he was entitled to compensation, since, his retrenchment was not proper and in any event found that W.P.(C) No.32697 of 2005 - P **6** the workmen had by the time of the award become over aged. The Labour Court hence ordered compensation of Rs.25,000/-. This Court does not find any infirmity in such order. The compensation so granted shall be paid to the workman with future interest @ 6% from the date of the Labour Court award. 10. With respect to the other workmen noticed above, the Labour Court clearly found that all the said workmen were also included in the “Live Register”. The Management did not adduce any evidence nor was any witness examined from their part. The claim of the Union that juniors were engaged, remained uncontroverted, since the same was not even challenged in cross-examination. It is also admitted that even on the date of the award, all these workmen were within employable age. There being no contra evidence adduced by the Management and the workmen being within the age limit, the Labour Court ordered reinstatement. This was again, a natural consequence of their names figuring in the “Live Register”. W.P.(C) No.32697 of 2005 - P **7** 11. Admittedly, there was a stay in the above award and they were not granted such reinstatement. There is also no dispute that, as of now all the employees have attained the age of superannuation. The decision in **Essen** **Deinki** v. **Rajiv Kumar [(2002)8 SCC 400]** puts in the proper prospective jurisdiction of this Court under Article 226 of the Constitution of India. 12. Looking at the entire circumstances, this Court is not convinced that any interference can be made to the award passed by the Labour Court. In the context of the workmen having attained the age of superannuation, there could be no order of reinstatement at this stage. In a similar matter an interim order of this Court in W.P(C) No. 20016 of 2006 has been placed before this Court to indicate that the last drawn wages of the workmen similarly situated was Rs.5 per day. The learned Counsel for the respondent however contends that their labour cards as produced before the Labour Court would indicate that the workmen herein were paid Rs.11.58 per day. W.P.(C) No.32697 of 2005 - P **8** 13. In any event, this Court would not at this point of time make a roving enquiry as to what was the last wages drawn. Definitely, the last wages drawn as on 1978 cannot be taken, for ordering compensation, subsequent to 2006, the year in which the Labour Court passed the award. In such circumstance, the workmen above referred ie., P.K. Droukumari, K.K. Pushpavathy, K.C. Karthyayani and P.R Vasantha shall approach the authority with proof of age and from the date of the Labour Court award till attainment of superannuation ie., till attainment of 6o years, the workmen shall be paid Rs.10,000/- (Rupees Ten thousand only) each per year. With the above modification of the award, the writ petition is dismissed. Sd/- ## **K. VINOD CHANDRAN, JUDGE** SB // true copy // P.A To Judge.