Executive Engineer, CPWD Calicut Central Division v. Secretary, CPWD Mazdoor Union Calicut; Labour Court Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937 WA.No. 1654 of 2015 () IN WP(C).19445/2005 -------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 19445/2005 DATED 01-12-2014 APPELLANT(S)/APPELLANT/RESPONDENT: ------------------------------------------------ EXECUTIVE ENGINEER, CPWD CALICUT CENTRAL DIVISION, DUTT SAW MILL ROAD KALLAI, CALICUT. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT(S)/RESPONDNETS/PETITIONER AND 2ND RESPONDENT: ------------------------------------------------------ 1. SECRETARY, CPWD, MAZDOOR UNION CALICUT-673001. 2. LABOUR COURT KOZHIKODE-673001. R1 BY ADV. SRI.T.R.RAVI R1 BY ADV. SRI.P.S.MURALI R BY GOVERNMENT PLEADER SMT.ANEETHA RAVINDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJ K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------- W.A. NO.1654 OF 2015 ---------------------------------Dated this the 11[th] March, 2016. ## JUDGMENT Surendra Mohan, J. The first respondent in WPC 19445/2005 is in appeal before us challenging the judgment of the learned Single Judge dated 1.12.2014 allowing the writ petition. The short facts necessary for our purpose are the following. 2. The first respondent represents the workman who was an ex-service man and a nominee of the Zilla Sanik Board. The Central Public Works Department engaged the first respondent under the Workcharge Establishment at the Karipur Airport. Accordingly he joined duty on 13.10.1986 and continued to be in service till 2.4.1988. On the said date, he was terminated from service It is stated that his services were terminated for the reason that, the contract work was W.A.1654/2015 2 completed and the site was handed over to the requisitioning authority. 3. Later on, by Ext.P2 dated 6.12.1988 the workman was appointed as a Chowkidar, temporarily. Subsequently by Ext.P3 dated 8.12.1990 he was made permanent. He continued in service and retired on 31.10.2008. According to him, he was entitled to have his earlier service also counted for the purpose of his retirement benefits. An industrial dispute was raised at the instance of the first respondent and the dispute was referred to the Labour Court, Kozhikode. The same was numbered as I.D(C)6/2001. However, as per Ext.P5 award dated 26.3.2005 the Labour Court rejected his claim. The claim of the first respondent was rejected placing reliance on regulation No:21.02 of the CPWD Manual. It was challenging Ext.P5 that, the first respondent had filed WPC 19445/2005. The learned Single Judge has by the judgment appealed against set aside the award of the Labour Court and has found that the workman would be entitled to count his service from 13.10.1986 to 2.4.1988. W.A.1654/2015 3 4. According to the Asst.Solicitor General Shri. N.Nagaresh who appears for the appellant, the learned Single Judge has interpreted clause 21.02 of the CPWD Manual, erroneously. It is placing a wrong interpretation on the said clause that the learned Single Judge has arrived at the conclusion that the workman was entitled to count his past service. The interpretation placed as well as the conclusion drawn are, according to the learned Asst.Solicitor General unsustainable and liable to be set aside. 5. Adv.T.R.Ravi appears for the first respondent. According to the learned counsel, the workman in this case had been employed as the Chowkidar for the period from 13.10.1986 to 2.4.1988. Though Clause 21.02 of the CPWD Manual stipulates the procedure for terminating the services of such workman, in the present case the formality of issuing notices was not observed at all. It is not in dispute that the workman was later on appointed on 6.12.1988 and was also made permanent. He has since retired from service. According to the learned counsel the interpretation placed by W.A.1654/2015 4 the learned Single Judge, on Clause 21.02 is correct and does not require interference in appeal. 6. Heard. Since we had a doubt as to whether it was the Central Administrative Tribunal or the Labour Court that was the proper forum for agitating the claim of the workman, we had directed the respective counsel to address us on the said question. Accordingly, our attention has been drawn to Section 28 of the Administrative Tribunal's Act, 1985 which specifically excludes and saves the jurisdiction of the Industrial Tribunal, Labour Court and other authorities constituted under the Industrial Disputes Act, 1947. Our attention has also been drawn to the dictum of the Apex Court in Telecom District Manager v. Keshab Deb [(2008)8 SCC 402]. In the said case, the Apex Court was concerned with the question as to whether the CAT had jurisdiction to entertain the dispute in the said case which was described as one that could have been tried only by the Labour Court. Speaking for the Court S.B.Sinha, J has concluded the issue in paragraph 18 of the judgment, which reads as under:- W.A.1654/2015 5 “18. In a case of the present nature where, inter alia, an employee maintains a writ petition not only on the ground of violation of the equality clause enshrined under Article 14 of the Constitution of India but also on the ground of violation of the provisions of the Industrial Disputes Act, 1947, he has an option to choose his own forum. Section 28 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims himself to be a workman, therefore will have a right of election in the matter of choice of forum. It is, therefore, not correct to contend that the Central Administrative Tribunal had no jurisdiction to pass the impugned judgment. Furthermore the respondent claimed regularisation in services. Such an application was maintainable. As to whether he would be entitled to such a relief or not, however, is a different question.” In view of the authoritative pronouncement of the Apex Court extracted above, we are of the view that the Labour Court has the jurisdiction to entertain the claim of the workman in this case. 7. The other question that requires to be addressed is whether the interpretation placed by the learned Single Judge W.A.1654/2015 6 on Clause 21.02 of the CPWD Manual is justified or not. The relevant portion of the CPWD Manual has been produced, marked Ext.P4 in the writ petition. The said clause is captioned as “Absorption of surplus workcharged staff of one unit into another”. The relevant portion of the said clause reads as under: “As soon as it is realised that any temporary workcharged staff is likely to be rendered surplus on account of the completion of works, they should be immediately served with notices of retrenchment in such a manner from the date of the expiry of such notices synchronises with the date of completion of the work. The employees affected by these notices shall during the period of notice, be freely permitted to apply for vacant posts available in other units, who may absorb them within the period notice. Employees who fail to find alternative jobs within the notice period shall stand retrenched from the CPWD on the expiry of notice and will be paid retrenchment compensation in accordance with the provisions of the Industrial Disputes Act. They can thereafter be reemployed in the CPWD as fresh entrants only through Employment Exchange in the usual manner such of those workers are absorbed within the period of notice be treated as junior-most in the respective categories under the new units for the purpose of promotion and retrenchment. Such employees will, W.A.1654/2015 7 however, be allowed to count the past service for fixation of pay and retrenchment benefits in the new unit and to carry forward any leave to their credit. Their WCP accounts will also be transferred to the unit.” The first part of the above clause stipulates the manner in which a temporary workcharged staff who is likely to be rendered surplus on completion of works should be discharged. The procedure stipulated is that, the workman should be served with a notice of retrenchment in such a manner that the date of expiry of such notice synchronises with the date of completion of the work. The above condition has been stipulated with the object of providing an opportunity to such workers who are facing retrenchment to be put on notice regarding their impending termination and to provide them with an opportunity to apply for vacant posts available in other units where they could be absorbed. Employees who fail to find alternative jobs are required to be retrenched paying compensation in accordance with the provisions of the Industrial Disputes Act, with a provision for their re-employment. Admittedly in the case of the worker in W.A.1654/2015 8 this case the procedure stipulated by Clause 21.02 of issuing with a notice or paying retrenchment compensation was not followed. However, the fact remains that he was subsequently re-employed and made permanent. The interpretation that is put forward by the learned Asst.Solicitor General is to the effect that, only those employees who had been given notice of retrenchment as stipulated by the said clause and who were not in a position to find alternative jobs within the period of notice would be entitled to count their past service for fixation of pay and retrenchment benefits in the new unit. Since the authorities in this case had not followed the procedure of issuing a notice of retrenchment to the workman before retrenching him we are not satisfied that they should be permitted to take advantage of the fact that no notice of termination had been issued to the workman. In the facts and circumstances of the case the workman cannot be prejudiced for not having been issued with a notice under Clause 21.02. At the same time the fact remains that the authorities had appointed the workman permanently at a later point of time, 9 W.A.1654/2015 on 8.12.1990. The period that is sought to be counted is from 13.10.1986 to 2.4.1988. There is no justification for disallowing the claim only for the reason that no notice of retrenchment had been issued to the workmen as contemplated by Clause 21.02 of the CPWD Manual. For the above reasons, we do not find any infirmity in the reasoning of the learned Single Judge that the workman was entitled to the benefit of the later part of Clause 21.02 of CPWD Manual. For the foregoing reasons, the writ appeal is dismissed. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ W.A.1654/2015 10