Civil No 71 of 1992
WITH Writ Petition Civil No 323 of 1993
Under Article 32 of the Constitution of India
JP Bhatacharjee NR Choudhry and Somnath Mukherjee for the Petitioners in WPNo 7193
SN Mukherjee for the Petitioners in WP No 32393
Ms B Sunita Rao for VK Verma for the Respondents
The Judgment of the Court was delivered by RMSAHAIJ
Casual labourers of South Eastern Railway alleged to have been appointed between 1964 69 and retrenched between 1975 78 have approached this Court for a direction to opposite parties to include their names in the 753 live casual labourer register after due screening and give them reemployment according to their seniority
Further prayer is to restrain the opposite parties from filling vacancies from open market
Basis of their claim is two fold one circulars issued by the Railway Board on 8th June and 18th June 1981 laying guideline regarding recruitment retrenchment and employment of the casual labourers second Judgments delivered by this Court in 1985 and 1987 directing the opposite parties to prepare a scheme and absorb the casual labourers in accordance with their seniority
Issuing of circulars by the Railway Board or decisions by this Court could not and has not been disputed
Nor it is disputed that in pursuance of the orders passed by this Court the opposite parties framed a scheme in 1987 for employing retrenched casual labourers
On 23
1987 a letter was issued from the Railway Establishment addressed to the General Managers for employing casual labourer retrenched before 1981 if they satisfied the requirements mentioned therein which is extracted below Pursuant to directions given by the Hon ble Supreme Court in their order dated 2321987 in WP No 332 of 1986 the Ministry desire that the cases of project casual labour who had worked as such before 1 181 and who were discharged due to completion of work or for want of further work may also be considered for the purpose of implementation of the scheme contained in the Ministry s letter of even No dated 1684 and 25684 as modified in the letter dated 1191986
Representation along with documentary proof reaching the office mentioned above after 3131987 of those which are incomplete and also those not made with reference to these instructions will not be considered
The petitioners who claim to have been retrenched due to completion of Halda project appear to have made a representation in 1990 to the authorities
The representation runs as under Respected sir 1 on behalf of the Fetrenched Labour Congress Union IO 754 Tamluk Rly
Station
Midnaporoe beg to humbly submit that the above quoted Circulars are not obeyed by DEN Con
TMZ DIZHA
SE Rly
KGP and they do not follow the orders of they Supreme Court High Court of Calcutta and Central Administrative Tribunal Calcutta Bench
As a result of their indifference the project casual labour who are retrenched from service on or before 111981 are in great difficulties and they are not getting scope of absorption
All the applications deposited in the office of the DEN CON KGI in terms of Memo No PDEA579A837 in reference to CE CGRC dated 2551987 are to be approved
In such circumstances I beg to request you to intervene in the matter as expeditiously as humble
Needless to say if your grievances are not sympathetically admitted and the retrenched labour be not absorbed
We shall have no alternative way except launching vigorous movement in the next stage
Your faithfully BHUDEV JALUA The representation does not give any detail
It is not mentioned if the scheme was given due publicity or not
No explanation is given as to why the petitioners did not approach till 1990
Nor it is stated if any of the casual labourer Not it is stated if any of the casual labourer of the project were reemployed or not
It is vague and was lacking in material particulars
Two questions arise one if the petitioners are entitled as a matter of law for reemployment and other if they have lost their right if any due to delay
Right of casual labourer employed in projects to be reemployed in railways has been recognized both by the Railways and this Court
But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways
It was urged by the learned counsel for petitioners that they may be permitted to produce their identify cards etc
 before opposite parties who may accept or reject the same after 755 verification
We are afraid it would be too dangerous to permit this exercise
A writ is issued by this Court in favour of a person who has some right
And not for sake of roving enquiry leaving scope for maneuvering
Delay itself deprives a person of his remedy available is law
In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well
From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed
We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these Petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1979
The writ petitions accordingly fail and are dismissed
But there shall be no orders as to costs
UR Petitions dismissed


Summary:
Despite several letters by the respondent to the Chief Engineer Public works Department the State did not appoint any Arbitrator as provided in Clause 25 of the agreement
Shri DK Roy Choudhry who was appointed as a sole Arbitrator by the learned Single Judge revoking the authority of the Chief Engineer to act as an Arbitrator under the agreement
On appeal by the State under Section 392 of the Act or under Letters Patent
The High Court dismissed the appeal as not maintainable
This appeal is against the judgment of the High Court
Appeal dismissed HELD 1Section 39 of the came upon for consideration in UOI vs Mohindra Supply Company 19623 SCC 497 and the Court held that no Second Appeal lay under section 392 against a decision given by a learned Single Judge under Section 391
is a consolidating and amending act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals
The Court held that in view of bar created by sub section 2 of Section 39 debarring a second appeal from an order passed in appeal under sub section 1 that the conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39 
Therefore the maintainability of the appeal under Letters Patent it stands concluded by this 641 decision
642 G H 2
Sub section 1 of Section 39 of the is extracted below 1 An appeal shall lie from the following orders passed under this Act and from no others to the Court authorised by law to hear appeals from original decisions of the Court passing the order
An order 1 superseding an arbitration ii on an award stated in the form of a special case iii modifying or correcting an award IV filing or refusing to file an arbitration agreement v staying or refusing to stay legal proceedings where there is an arbitration agreement vi setting aside or refusing to set aside an award Provided that the provisions of this Section shall not apply to any order passed by a Small Causes Court
_ 2 No second appeal shall lie from an order passed in appeal under this Section but nothing in this Section shall affect or take away any right to appeal to the Supreme Court
643 D E GH provides that an appeal could lie only from the orders mentioned in the sub Section itself
Since the order passed by learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an Arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the learned Single Judge
644 642