High Court of KeralaSingle Judge2016-07-12Writ petition allowed; award set aside; no costs.

The Executive Engineer (Construction), Southern Railway, Podannur v General Secretary, Dakshin Railway Casual Labour Union; Government of India, Ministry of Labour & Employment; V.K. Vasudevan (Additional 3rd Respondent)

Case / Petition Number:W.P.(C) No.8338 of 2007 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-07-12
Court Decision / Holding: Writ petition allowed; the award of the Tribunal set aside; no costs.
Final Disposition: Writ petition allowed; award set aside; no costs.

Parties to the Case

Appellants / Petitioners

The Executive Engineer (Construction), Southern Railway, Podannur

Respondents

General Secretary, Dakshin Railway Casual Labour Union, Edappally North, Kochi
Government of India, Rep. by Secretary, Ministry of Labour & Employment, New Delhi
V.K.Vasudevan (Additional 3rd Respondent)

Legal Representation & Advocates

Counsels for Petitioners

• Sri.James Kurians

Counsels for Respondents

• Sri.N. Nagareesh (Assistant Solicitor General)
• Smt.Sreekala.K.L. (Central Government Counsel)
• Sri.P.Ramakrishnan
• Sri.C.Anil Kumar

Case Synopsis & Summary

The petitioner is The Executive Engineer (Construction), Southern Railway, challenging Exhibit P13, the award of the Central Government Industrial Tribunal-cum-Labour Court in I.D.No.64/2006 dated 30.08.2006. The reference concerned the termination of the additional 3rd respondent, a casual labourer engaged for the doubling of a line between Palakkad and Shoranur. The Tribunal held that the workman had only 202 days of service, that casual labourers may be engaged for less than six months under Rule 2501 of Chapter XXV of the Railway Establishment Manual (1968 edition), and that he possessed a temporary status entitling reinstatement without back wages. It found the termination illegal for want of notice under the Establishment Manual and instead ordered reinstatement without back wages, following precedents such as Inder Pal Yadav and related Live Register schemes. The Railways contended that the project termination justified termination without notice and that under the Railway Establishment Manual, the worker did not have a protected tenure. They also argued that relying on Live Register for back wages or reinstatement ignores statutory time limits and age-criteria established by later judgments, including division bench decisions. The High Court, however, found that the workman did not have more than 360 days of service, that inclusion in the Live Register did not validate reinstatement, and that the Tribunal erred in treating the employee as temporarily reinstatable. The writ petition is allowed; no costs.

Provisions of Law Cited

Industrial Disputes Act, 1947 – Section 33C(2)Railway Establishment Manual (1968) – Para 2501 (Chapter XXV)Railway Establishment Manual (1990 Edition) – Para 2001

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner Railways contends that the termination of the casual labourer was for a specific project and occurred after completion, thus not requiring a notice under the Railway Establishment Manual. It asserts the workman’s engagement as casual/temporary under Rule 2501 of Chapter XXV and argues the Tribunal erred by granting reinstatement without back wages based on 202 days of service. The Railways further maintains that the Live Register scheme, age-limit features, and the 360-day service principle cited in later precedents limit any reinstatement claim and that the termination complied with the ID Act’s framework.

Contentions of Respondents

The respondents (Union and Government) argued for the legality of the termination and for reinstatement without back wages based on the workman’s temporary status and inclusion in the Live Register. They relied on established Live Register schemes and prior precedents that casual workers engaged after 1981 could be absorbed or treated under such schemes, and that urgent project needs justified termination without notice under the Establishment Manual.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ajaib Singh v. Sirhind Co-op. M.P.S.S. Ltd.	[(1999) 6 SCC 82]	Positive	Court relied on this decision to reject the idea of delaying claims by the workman in industrial adjudication.
Indian Iron & Steel Co. Ltd. v. Prahlad Singh	[(2001) 1 SCC 424]	Positive	Court cited this to support dismissal of delay-based claims when not barred by statute.
Inder Pal Yadav and Others v. Union of India and Others	[(1985) 2 SCC 648]	Mentioned Only	Cited for context on casual workers and Live Register schemes, not as controlling authority for reinstatement in this case.
Dakshin Railway Employees Union, Trivandrum Division v. General Manager, Southern Railway and Others	[(1987) 1 SCC 677]	Mentioned Only	Cited to illustrate the Live Register scheme's development, not to determine the outcome here.

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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** **TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938** ## **W.P(C).No.8338 of 2007 (P)** **---------------------------------** **[AGAINST THE AWARD IN I.D.NO.64/2006 DATED 30.08.2006 OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM] ----------------------** ## **PETITIONER(S):-** **--------------** **THE EXECUTIVE ENGINEER (CONSTRUCTION), SOUTHERN RAILWAY,PODANNUR.** **BY STANDING COUNSEL SRI.JAMES KURIAN.** **RESPONDENT(S):-** - **--------------** **1. GENERAL SECRETARY, DAKSHIN RAILWAY CASUAL LABOUR UNION, EDAPPALLY NORTH,KOCHI.** **2. GOVERNMENT OF INIDA, REP.BY SECRETARY, MINISTRY OF LABOUR & EMPLOYMENT, NEW DELHI.** *** ADDITIONAL 3RD RESPONDENT IMPLEADED:** **--------------------------------------** **ADDL.R3. V.K.VASUDEVAN, VADAKKUMURI, KINAVALLOOR P.O., PARALI (VIA), PALAKKAD. * [ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 17.09.2007 IN I.A.NO.12127 OF 2007]. R2 BY ASSISTANT SOLICITOR GENERAL SRI.N.NAGARESH. R2 BY CENTRAL GOVERNMENT COUNSEL SMT.SREEKALA.K.L. R3 BY ADV. SRI.P.RAMAKRISHNAN R3 BY ADV. SRI.C.ANIL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## **W.P.(C) NO.8338 OF 2007-P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-----------------------** **EXT.P1 TRUE COPY OF ORDER DT.23.3.1990 IN CP(C) NO.46/1989. EXT.P2 TRUE COPY OF NOTICE DATED 2.12.1991 OF ALO/CENTRAL/EKM. TO RAILWAY ALONG WITH REPRESENTATION DT.30.10.1991 OF THE 1ST RESPONDENT UNION. EXT.P3 TRUE COPY OF REMARKS DATED 5.2.1992 OF THE PETITIONER BEFORE ALO/CENTRAL/EKM. EXT.P4 TRUE COPY OF CIRCULAR DATED 4.5.1965 OF GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS. EXT.P5 TRUE COPY OF RELEVANT PORTION OF PARAGRAPH 2501 OF CHAPTER XXV OF THE RAILWAY ESTABLISHMENT MANUAL (1968 EDITION) TOGETHER WITH THE “NOTES” IN IT. EXT.P6 TRUE COPY OF RELEVANT PORTION OF PARA 2001 OF THE RAILWAY ESTABLISHMENT MANUAL 1990 EDITION. EXT.P7 TRUE COPY OF ORDER DATED 12.6.1974 OF RAILWAY BOARD. EXT.P8 TRUE COPY OF ORDER DATED 11.9.1986 OF RAILWAY BOARD. EXT.P9 TRUE COPY OF ORDER DATED 5.5.1995 OF THE 2ND RESPONDENT. EXT.P10 TRUE COPY OF CLAIM STATEMENT IN I.D.NO.13/1995 FILED BY THE 1ST RESPONDENT UNION BEFORE LABOUR COURT, ERNAKULAM. EXT.P11 TRUE COPY OF WRITTEN STATEMENT IN I.D.NO.13/1995 FILED BY THE PETITIONER (RAILWAY) BEFORE LABOUR COURT, ERNAKULAM. EXT.P12 TRUE COPY OF CASUAL LABOUR CARD OF THE WORKMAN PRODUCED BEFORE THE LABOUR COURT. EXT.P13 TRUE COPY OF AWARD DATED 30.08.2006 OF LABOUR COURT IN I.D.NO.64/2006.** **RESPONDENT'S EXHIBITS:-** **-----------------------NIL.** **Vku/-** **[ true copy ]** K. Vinod Chandran, J ---------------------------------------- W.P.(C) No.8338 of 2007-P ---------------------------------------Dated this the 12th day of July, 2016 ## **JUDGMENT** The petitioner is the Railways, who challenge Exhibit P13 award of the Central Government Industrial Tribunal-cum-Labour Court [for brevity “the Tribunal”]. The issue referred was the justifiability of the action of the management in terminating the services of the workman, the additional 3rd respondent herein, without complying with the provisions of the Industrial Disputes Act, 1947 [for brevity “ID Act”] and the Indian Railway Establishment Manual. 2. The workman claimed to be a casual labourer of the Southern Railways between 05.12.1983 and 02.07.1984; who was not issued with a notice or pay in lieu of notice, before termination. The management-Railways contended that the workman was engaged for a specific project, viz., doubling of track (formation of an additional double line) between Palakkad and Shoranur and on cessation of the work, he was terminated on 02.07.2004, which did not require a notice as per the Establishment Manual. The 3rd respondent also, while he was engaged in the said work, had been **- 2 -** WP(C) No.8338 of 2007 absent, by reason of an accident, between 04.04.1984 to 16.05.1984, which incapacitation was also in the course of employment and the Railways had compensated him with wages for the said period. 3. The Tribunal framed four issues; as to the maintainability of the reference, whether limitation was applicable, whether the workman was entitled to get “temporary” status and whether the termination was legal. The reference was found to be maintainable; since the Union was espousing the cause of the workman and the cause espoused was also a termination of the workman. With reference to the contention of the claim raised being stale, relying on the decisions of the Hon'ble Supreme Court in _**Ajaib Singh v. Sirhind Co-op. M.P.S.S. Ltd.**_ **[(1999) 6 SCC 82 = 1999 (2) L.L.N. 674]** and _**Indian Iron & Steel Co. Ltd. v. Prahlad Singh**_ **[(2001) 1 SCC 424 = 2000 (4) L.L.N. 1182]** held that in industrial adjudication there can be no claim of delay raised against the workman especially when the statute does not bar such a claim. This Court is not inclined to interfere with those two findings. 4. What remains to be considered is, the aspect of the nature of employment of the workman and the relief granted of reinstatement without backwages. The Tribunal found that the **- 3 -** WP(C) No.8338 of 2007 workman had only worked for 202 days. Relying on Rule 2501 of Chapter XXV of the Railway Establishment Manual (2nd Edition) 1968, it was found that a casual labourer can be engaged only for less than six months. A person engaged for more than six months was found to be “temporary workman”. 5. The workman had a contention that though in C.P.(C) No.46 of 1989 his “temporary” status was recognised by the Labour Court, this was not taken note of by the Tribunal; rightly so, since claim petitions under Section 33C(2) of the ID Act cannot adjudicate upon the status of a workman and can only look at whether the amounts demanded was legally due to the workman or not. The amount claimed in the claim petition is also said to be leave wages, which was granted by the Labour Court. 6. The Tribunal looked at the total number of days worked by the workman and found that he is entitled to be reinstated without backwages as a casual worker having temporary status. The finding of the Tribunal is said to be in violation of the binding precedents on the particular issue. Earlier, the Supreme Court was concerned with the manner in which casual employees are engaged in the Railways in _**Inder Pal Yadav and Others v. Union of India and Others**_ WP(C) No.8338 of 2007 **- 4 -** **[(1985) 2 SCC 648].** During the pendency of the case before the Hon'ble Supreme Court, a scheme was formulated; by which the casual workers who were engaged on or after 01.01.1981 were directed to be included in a “Live Register” to be maintained by the Railways from which the further casual engagements were to be made. A subsequent decision, in _**Dakshin Railway Employees Union, Trivandrum Division v. General Manager, Southern Railway and Others**_ **[(1987) 1 SCC 677],** directed the Railways to consider the claim of those persons who were retrenched prior to January, 1981 also for the benefits under the scheme on their submitting their claims to the Administration before 31.03.1987. 7. Admittedly the workman herein was a person who was sent out of casual employment after 1981 and he was included in the “Live Register” maintained by the Railways. The workman did not take up his claim for engagement at any time on the strength of his inclusion in the Live Register. The workman, after a period of seven years thought it fit to raise a dispute on the question of termination. The Tribunal also found temporary status on the workman, on the basis of 202 days continued in employment. Apposite would be reference to the judgment in W.P.(C) No.3246 of 2006 and connected **- 5 -** WP(C) No.8338 of 2007 matters dated 29.11.2007. A Division Bench of this Court in the said case was concerned with the issue of whether a limitation on age would be applicable in case of engagement of persons who were in the Live Register. The stand taken by the Railways was that the instructions issued in 2001, specified an age limit for engagement of persons in the Live Register. An upper age limit of 40 for General, 43 for OBC and 45 for SC-ST would be prescribed for engagement from the Live Register also. The prescription was challenged before the Central Administrative Tribunal and the same was set aside. A subsequent challenge to this Court, which, though rejected initially, was reviewed and considered by a Division Bench in W.P.(C) No.3246 of 2006 and connected cases. By the aforesaid judgment, the prescription was upheld insofar as persons who have less than 360 days of service and was said to be not applicable to persons who have more than 360 days. 8. In the case of the workman in the instant case, he does not have more than 360 days of service. The workman was included in the Live Register of 2006. When reinstatement was ordered, the petitioner was about 52 years of age. In such circumstances, going by the binding precedents above referred, the additional 3rd WP(C) No.8338 of 2007 **==> picture [30 x 13] intentionally omitted <==** respondent could not have been reinstated. True, the Tribunal had gone on the premise that there is a violation of the terms of the Establishment Manual and finding a temporary status on the workman, reinstatement was ordered. But, the issue raised by the Railways here is quite different and relates to the entitlement of the workman to make such a claim itself, which having been found against the workman, there can be no reinstatement as ordered. In such circumstance, the award of the Tribunal would stand set aside. The writ petition would stand allowed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]