IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 25884 of 2005(F) -------------------------- PETITIONER: ------------ THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: ------------- 1. THE GENERAL SECRETARY, RAILWAY GANGMEN ASSOCIATION, EDAPPALLY NORTH, KOCHI-24. 2. THE PRESIDING OFFICER, CENTRAL GOVERNMENT LABOUR COURT, ERNAKULAM. 3. GOVERNMENT OF INDIA, REPRSENTED BY SECRETARY, MINISTRY OF LABOUR, NEW DELHI. BY ADV. SRI.MANOJ RAMASWAMY, ADDL.CGSC FOR R3 SRI.C.ANIL KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON 16/07/2008 DELIVERED THE FOLLOWING: W.P(C).No. 25884/05. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CLAIM STATEMENT IN I.D.NO.11/97 OF CENTRAL GOVT. LABOUR COURT, ERNAKULAM. P2. COPY OF THE WRITTEN OBJECTION DTD.12.6.98 IN I.D.NO.11/97. P3. COPY OF THE ORDER DTD.26.2.90 IN O.A.NO.711/89 OF CAT, ERKAULAM. P4. COPY OF THE ORDER DTD.12.11.90 IN O.A.NO.686/90 OF CAT ERNAKULAM. P5. COPY OF THE ORDER DTD.26.7.83 OF SR.DPOPALTHAT. P6. COPY OF THE MEMORANDUM DTD.28.7.00 OF SR.D.PO/PALGHAT. P7. COPY OF THE AWARD DTD.18.11.04 IN I.D.NO.11/97. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 25884 of 2005 ================== Dated this the 16th day of July, 2008 J U D G M E N T The Senior Divisional Personnel Officer, Southern Railway, Palghat, is the petitioner herein. He is challenging Ext.P7 award of the Central Government Labour Court, Ernakulam, in I.D.No.11/1997 in which he is the management. 2. The issue referred for adjudication was: “Whether the action of the management of the DPO/S.Rly./Palghat is justified in not granting backwages and other consequential benefits to the 44+16 workers involved in O.A.686/90 of Central Administrative Tribunal, Ernakulam Bench and 711/89 of CAT, Ernakulam Bench. If not, to what relief the concerned workman is entitled to.” 3. For understanding the issue in the correct perspective, some facts are necessary which are summarised hereunder: 44 workers whose services were terminated by the petitioner approached the Central Administrative Tribunal (CAT), Ernakulam Bench, by filing O.A.No.711/1989 seeking reinstatement in service with backwages. The CAT, by Ext.P3 order, upheld the claim for re-engagement and absorption of those workers in regular service, but directed that for the period w.p.c.25884/05 2 during which they were kept out of service, the applicants be notionally continued as casual workers for the purpose of seniority only despite their termination of service on 5.7.1982. Although the petitioner challenged that order upto the Supreme Court, the award was confirmed. Pursuant thereto, those 44 employees were reabsorbed in service. Subsequently, 16 similarly placed workers filed O.A.No.686/1990 before the CAT for similar reliefs. By Ext.P4 judgment, the Central Administrative Tribunal directed the petitioner herein to consider the representation to be filed by those 16 workers also in the light of Ext.P3 order. Pursuant thereto, they were also absorbed in service as in the case of the other 44 workers. But these 44+16 workers later raised the dispute for backwages also from the date of termination till the date of re-absorption. In that industrial dispute, by Ext.P7 award, the Labour Court directed the petitioner herein to pay arrears of wages that is the difference in wages from the date of judgment in O.A.No.711/1989 of the CAT. This award is under challenge on the ground that the said workers are only entitled to benefits as per Ext.P3 order, which specifically restrict notional continuation for the purpose of w.p.c.25884/05 3 seniority only which would go to show that payment of backwages was specifically denied. Therefore, the counsel for the petitioner would contend that the award to the extent it directs payment of arrears of wages from the date of the order of the Tribunal in O.A.No.711/1989 is patently erroneous and unsustainable. 4. The learned counsel for the workman would contend that since several juniors of those workmen continued in service without break while the 44 + 16 workmen were out of service, as a result of which, those junior workmen were drawing more salary than the workmen in question as on the date of absorption, which is highly unjust and discriminatory. On that ground she would support the findings in Ext.P7 award. 5. I have considered the rival contentions in detail. 6. Since everything revolves round the ultimate relief granted by the CAT in Ext.P3 order, I shall extract the operative portion in the same, which reads thus: “6. In the result, the application is disposed of with a direction to the respondents to treat that the applicants notionally continued as Casual Labourers for the purpose of seniority only despite the termination of the service on 5.7.1982, to add the number of days which Casual Labourers with similar length of service as the applicants w.p.c.25884/05 4 on 5.7.1982 were engaged after that date to the credit of the applicants and to consider the applicants for re-engagement/ absorption in regular service on the basis of the aggregate number of days thus worked out.” From the same it can be seen that the period between the date of termination till the date of re-absorption was directed to be reckoned notionally for the purpose of seniority alone. That would mean that the workmen would not be entitled to any backwages for the said period. That being so, the direction in Ext.P7 award to pay arrears of wages from the date of the order in O.A.No.711/1989 is patently against Ext.P3 order and therefore, is unsustainable. To that extent Ext.P7 is liable to be quashed. I do so. 7. However, the learned counsel for the workmen points out that when arrears are fixed on par with that of their juniors from the date of absorption, from that date onwards they are entitled to arrears of wages being the difference between the wages they were actually being paid from the date of re- absorption and the wages which their juniors were actually drawing. I find merit in that contention. Although they are not entitled to any backwages upto the date of re-absorption, they w.p.c.25884/05 5 are certainly entitled have their salary fixed on par with that of their juniors and to have difference in pay paid as arrears due to them on that account. Accordingly, this writ petition is disposed of as follows: The petitioner shall refix the wages of the said 44+16 workers as on the date of absorption on par with that of their juniors. On such fixation, if they are entitled to any arrears from the date of their re-absorption, the same shall be paid to them. Orders in this regard shall be passed and arrears disbursed to the workmen within three months from the date of receipt of a certified copy of this judgment . All other findings in Ext.P7 would stand. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.25884/05 6