IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20108 of 2010 1. Ram Lakhan Thakur, son of Late Ram Swarup Thakur, resident of village- Madan Chapara, P.O. Rampur Gangauli via Riga P.S. Pur Naliya, district Sheohar 2. Arjun Thakur, son of Shri Prithvi Thakur, resident of village Khaira, P.O. Jaitpur, district Muzaffarpur …Petitioners Versus 1. The Union Of India through the Chairman, Railway Board, Rail Bhawan, New Delhi 2. Bharat Wagon & Engineering Company ltd.(A Government of India Undertaking) having its registered office at Maurya Lok „C‟ Block, Vth Floor Dak Bungalow Road, Patna 3. The Chairman Bharat Wagon & Engineering Company ltd.(A Government of India Undertaking) Rail Bhawan, New Delhi 4. The Managing Director Bharat Wagon & Engineering Company ltd., Maurya lok „C‟ Block Vth Floor, Dak Bungalow Road, Patna. 5. The Deputy General Manager, Bharat Wagon & Engineering Company ltd, Muzaffarpur. 6. The In charge (P & A) Bharat Wagon & Engineering Company ltd. Muzaffarpur. …Respondents For the petitioners :Mr. Binay Kumar Shukla & :Mr.Amaresh Kumar Sinha For Union of India :Mr. Anil Singh For respondents 2 to 6 :Mr. Udayan Choudhary ----------- 06. 01.08.2011 Heard Mr. B. K. Shukla, learned counsel for the petitioners, learned counsel appearing on behalf on behalf of respondent no.2 and learned counsel for the Respondent-Railway. The two petitioners herein pray for setting aside the order passed by the Respondent-Bharat Wagon & Engineering Company Ltd. (for short „the Company‟) as contained in Annexure-2, whereby petitioner no.1 was informed of his superannuation in advance. By the said communication he was to retire with effect from 31.01.2011 on attaining 58 years of age. It appears that petitioner no.2 in terms of the aforesaid order was also scheduled to superannuate with effect from 30.06.2011 on attaining age of 58 2 years. Petitioners were appointed in the Company as Workmen. Having served the Company on different positions, petitioner no.2 was considered and promoted to the post of Supervisor in the non- unionized Supervisor Category Grade-V. The said order is enclosed as Annexure-5. Petitioner no.1 was earlier promoted to the post of Supervisor in non-unionized Supervisor Category Grade V. On being considered for promotion to the said Supervisor post, they were offered the appointment with certain conditions. The promotees like the petitioners were required to accept the conditions/stipulations for grant of promotion incorporated in the said letter offering promotion. On accepting those conditions, petitioners were promoted to the post/cadre of Supervisor in the year 2007. By the impugned order, they have been informed about their dates of superannuation in advance which is under challenge. Learned counsel appearing in support of the application, submits that the respondents had come out with a Standing Order as contained in Annexure-3 whereby the employees were to superannuate on attaining the age of 60 years. It is also contended that the Company has been taken over by the Railway and, as such the age of superannuation applicable to the employees of the Railway would also be applicable to the case of the petitioners. The respondents have acted arbitrarily in issuing the order as contained in Annexure-2. A counter affidavit has been filed on behalf of the respondents Company. In reply, an interlocutory application being I. A. No.1451 of 2011 has been filed on behalf of the petitioners 3 seeking amendment in the prayer(s) to quash the office order dated 10.04.2001, issued by the Managing Director of the Company. Learned counsel for the Respondents Company submits that the Company is an undertaking of Govt. of India. It was earlier placed under the administrative control of the Ministry of Heaving Industry, Govt. of India and was declared by the Board as „SICK‟ industry under the Industrial Companies (Special Provision) Act,1985. The Industrial Development Bank of India (IDBI) was appointed as Operating Agency under the said Act and steps were being taken to revive the Company. It is the stand of the Company that the administrative control of the Company has now been placed under the Ministry of Railways with effect from 13.08.2008. The Company is presently headed by the Managing Director who is in dual charge of the post of Managing Director of the Company as well as shouldering his responsibility in the railways. It is stated that the Company has its own identity and has not merged with the Indian Railways and/or became integral part of the Railways. The Company came out with an order dated 10.04.2001 (Annexure-C to the counter affidavit) whereby the officers of the Company who are not workmen was/were to superannuate on attaining the age of 58 years. It is the stand of the Respondent-Company that several officers of the category/rank to which the petitioners belong have already been made to superannuate on attaining 58 years of age. It is contended that reliance of the petitioners on Annexure-3 is completely misplaced in view of the fact that the said Standing Orders relate to service conditions of workmen and not the officers 4 of the Company. It is the case of both the parties that the petitioners are not workmen as they have been offered the post of Supervisor which they accepted with certain terms and conditions. In this regard, attention of the Court is drawn to the conditions of promotion as reflected from the document at Anenxure-5. It appears therefrom that it was offered with terms and condition attached thereto. For resolving the present dispute, this Court would extract Clause 10 of the condition(s) of promotion to the post of Supervisor which reads as under: “You will retire from the services of the company on attaining the age of 58 (Fifty eighty) years.” The offer of appointment further recites that if the conditions are acceptable to the employees, then he is required to sign and return copy thereof enabling the company to appoint him on the post of Supervisor. It is stand of the Respondent-Company that both the petitioners had subscribed to the aforesaid terms and conditions whereafter they were granted promotion to the post of Supervisors. The petitioners are, therefore, not workmen within the meaning of industrial Disputes Act,1947. It is also the stand of the company that the petitioners were cognizant of the order dated 10.04.2001 (Annexure-C to the counter affidavit) yet they accepted the promotion and did not raise any objection thereto for all these years. The present application would, therefore, be barred by principles of waiver/estoppel and acquiescence. 5 Petitioners have filed an interlocutory application to challenge the sustainability of the aforesaid order. It is not the petitioners‟ case that during the pendency of this application the aforesaid order was brought into existence. Petitioner filed the present writ application questioning the sustainability of the order contained in Annexure-2. No issue was made so far as order dated 10.04.2001 (Annexure-C) is concerned. The interlocutory application being I. A. No. 1451 has now been filed to challenge the order dated 10.04.2001 (Annexure-C to the counter affidavit). The effect of Annexure-C is apparent from the terms and conditions of offer of promotion. Both the petitioners having accepted those terms and conditions were granted promotion to the post of Supervisors. It is not the petitioners case that during the pendency of the writ application, aforesaid order dated 10.04.2001 was brought into existence. This Court would therefore, find no merit in the application seeking modification in the prayer to challenge the aforesaid order which was in existence since 2001 and was given effect to in respect of several employees of the Respondent- Company who were not workmen. The said application is therefore rejected. It is the stand of the petitioners that the Company has been taken over by the Railway and, as such, the employees of the Company shall be governed by the service conditions/rules applicable to the employees of the Railways. The respondents, on the other hand, has come out with a case that the Company has its own existence. It has never merged 6 with the Indian Railway. In this regard, reliance has been placed on Annexure-B as well as Annexure-B/1 of the counter affidavit. Annexure-B indicates that the transfer of the administrative control of the company was made over to the Ministry of Railway. Referring to Annexure-B/1, it has been submitted that as the Ministry of Railways was only to assist the company to raise working capital, the petitioners could have been granted the relief had it been shown that the company merged with the Railways. The pleading on record and Annexures A, B & B/1 conclusively demonstrate that the Respondent-Company continues to maintain its legal entity. This Court, therefore, has no difficulty in holding that the Respondent-Company did not merge with the Indian Railways and thus rules of the Railways shall be applicable to the employees of the Respondent-Corporation. In other words, the submissions of the parties that conditions of service applicable to the employees of Railway would now be applicable to the employees in Unionized Supervisor Category Grade V cannot be accepted. It appears from perusal of Annexure-3 that the standing order pertains to the employees who were workmen. Petitioners have placed reliance on Rule 21 of the standing order which declares that every workman of the company shall superannuate on attaining the age of 60 years. The respondents have been able to demonstrate that once an employee is shifted from the category of workman to the category of supervisor/officer, then the service conditions were governed by the terms and conditions of offer of 7 promotion/appointment to the grade of Supervisor/Officer. Petitioners did not raise any grievance when they were promoted/appointed to the said category of Supervisor/Officer. It further appears that the said order Annexure-C has been given effect to in respect of the employees of the Respondent-Company in the category to which the petitioners belong. Petitioners having not challenged the same would not be allowed to raise the said issue at this stage. The said claim/grievance of the petitioners would be barred by principles of estoppel & acquiescence. For the reasons aforesaid, this Court does not find any merit in the writ application which is accordingly dismissed. hr ( Kishore K. Mandal )