1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.8489 OF 2007 National Federation of Telecom Employees BSNL Union. ...Petitioner. Vs. The Chief General Manager, Telecom Factory, BSNL & Anr. ...Respondents. .... Mr.Jaiprakash Sawant for the Petitioner. Mr. A.S. Rao for Respondent No.1. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 1, 2008. P.C.: Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the First Respondent waives service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. The Petitioner is aggrieved by an Award of the Industrial Tribunal dated 25th April 2007, on a reference to adjudication made by the appropriate Government of the following disputes: 2 “Whether the action of the management of Telecom Factory, Department of Telecom, Mumbai in not considering the candidature of Sh. T.C. Kamble, Examiner for the post of Inspector in response to the notice dated 24/05/1994 and not giving him all consequential benefits is legal and justified? If not, to what relief the workman is entitled?” 3. Initially, the award of the Industrial Tribunal was challenged by the workman by filing a petition under Article 226 of the Constitution of India (Writ Petition 7075 of 2007). The petition was permitted to be withdrawn by an order dated 22nd October 2007. Both the Learned Counsel are agreed in stating before the Court that the earlier petition was allowed to be withdrawn inasmuch as, the cause was not espoused before this Court by the Union at whose behest the reference had been sought. Accordingly, a fresh petition has now been filed by the Union. 4. The workman in question, T.C. Kamble, who is a member of the Petitioner Union, was employed by the First Respondent from 5th September 1977 as a Mazdoor. He was promoted to the post of Fitter (Instrument) Grade II with effect from 29th January 1981; and to 3 the post of Fitter (Instrument) Grade I with effect from 28th May 1985. On 31st January 1989, the Petitioner was transferred as an Examiner to Inspection Shop No.13 with effect from 1st February 1989. The contention of the Petitioner is that the workman performed his duties with effect from 1st February 1989 as an Examiner for which he was paid wages, allowances and incentive payments attached to the post of Examiner. On 24th May 1994, the First Respondent issued a notice inviting applications for two posts of Inspector to be posted in Shop No.13. One of the posts was reserved for Scheduled Caste candidates, while the other post was reserved for Scheduled Tribes candidates. The case of the Union is that the workman in question, being a Scheduled Caste candidate, and with five years experience as Examiner was eligible for the post. The grievance was that the application of the workman was not considered, upon which a representation dated 27th September 1994 was submitted by him, followed by another representation dated 4th August 1994. The First Respondent by a letter dated 24th August 1994 informed the Petitioner that the workman did not fulfill the eligibility condition and that consequently, he was not permitted to appear in the trade test of 4 Inspector. 5. As the workman was not allowed to appear for the trade test for the post of Inspector, the Union raised an industrial dispute before the Assistant Labour Commissioner (Central), Mumbai by a letter dated 31st August 1994. The Conciliation Proceedings having ended in failure, a failure report was submitted on 2nd May 1996 to the Central Government. By an order dated 11th September 1997, the Central Government declined to refer the dispute to adjudication on the ground that the Department of Telecommunications was not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. Once again, the Central Government by an order dated 11th September 1998 declined to refer the dispute to adjudication. In a petition filed by the workman (Writ Petition 2384 of 2002) under Article 226 of the Constitution, a Division Bench of this Court by an order dated 15th January 2002 directed the Central Government to refer the dispute to adjudication. Accordingly, an order of reference was made on 13th March 2002. The Industrial Tribunal passed its award on 25th April 2007. 5 6. The Industrial Tribunal has rejected the reference on the ground that the workman had admitted having failed in two initial tests in the post of Examiner and not having appeared for the third and fourth tests. The Tribunal was of the view that the workman was not an Examiner in the skilled trade and did not possess five years' experience as Examiner on 16th June 1991. The Tribunal held that the workman was not qualified since he had not appeared for the trade test which he was required to pass within six months from the date of the transfer. 7. In assailing the correctness of the award of the Industrial Tribunal, reliance has been placed on the memorandum dated 31st January 1989 by which the workman, who was holding the post of Fitter (Instrument) Grade-I was transferred in the interests of the service to Inspection Shop No.13 as an Examiner with effect from 1st February 1989. The contention of the workman is that both the posts carry the same pay scale and hence no trade test was required to be taken for the absorption of the workman in the post of Examiner by 6 virtue of the provisions of Rule III governing Inter-Section Transfers. When a notice was issued on 24th May 1994, inviting applications from employees for selection to the post of Inspector, the condition of eligibility was that a person should be an Examiner from Shop No.13 having five years' experience as on 16th June 1994. According to the Union, the workman fulfilled this condition of eligibility. Despite this, the application of the workman was not entertained. 8. On the other hand, Learned Counsel appearing on behalf of the Respondent supported the award of the Industrial Tribunal. 9. At the outset, it would be necessary to refer to the rules promulgated by the Indian Posts and Telegraphs Department in the matter of rationalization of trades in the Telecom Factories Organization, a copy whereof is annexed as Exh.B to the petition. Rule III of the Rules provides as follows: “III. Trade Test for absorption in the new trade: All changes of trade in the same scale of pay will be through a trade test except in case of change of trade in the interest of service when there will be no trade test. This test will be in addition to the trade tests for the purpose of promotion.” 7 Rule III, therefore, postulates that changes of trade in the same scale will be through a trade test. However, an exception is carved out where the change of trade is made in the interests of service in which case, there will be no requirement of a trade test. Rule IV(a) provides for fixation of seniority and stipulates that when a workman is transferred in the interests of service, to a different trade, but in the same or equivalent grade, or in the same trade and grade to a different shop, the length of service in the original grade will be counted for determining the seniority of the worker in the same trade/grade. In the present case, by an order dated 31st January 1989, the workman, T.C. Kamble, was transferred to Inspection Shop No.13 amongst five employees. The memorandum issued by the Department of Telecommunication provides that there was no response to the notification dated 11th January 1989 consequent upon which five persons holding the post of Fitter (Instrument) Grade-I were transferred in the interests of service to Inspection Shop No.13. The memorandum states that these five persons would be under training for a period not exceeding four months and would be trade tested thereafter and that they would have to appear and pass the trade test 8 within six months. The conditions of transfer were to be governed by the P&T Board's memo dated 29th January 1972. The case of the Petitioner is that since the transfer was expressly made in view of the interests of service, he was not required to pass the trade test in the post of Examiner since such a stipulation is contained specifically in Rule III. Moreover, it has been urged that the notice dated 24th May 1994 inviting applications for selection of candidates to the post of Inspector prescribed the following conditions of eligibility: “Eligibility : Under Rule-I Examiner from shop No.13 having 5 years experience as on 16-6-94.” In the present case, it is in not dispute that as on 16th June 1994, the Petitioner fulfilled the requirement of five years experience as an Examiner from Shop No.13. The Tribunal has in the course of its award observed that the Petitioner did not fulfill the requirement of five years' experience. This, prima facie, seems to be an error. However, a perusal of the award of the Tribunal would show that the Tribunal was not duly apprised of the Rules which governed inter alia changes in trade. The rule to which a reference has already been made hereinabove, have not been taken note of by the Tribunal. The award 9 of the Tribunal would, therefore, appear to have been rendered without taking cognizance of all applicable rules and without considering, in particular, the condition of eligibility which is prescribed in the notice. 10. The appropriate course of action, therefore, would be to remand the matter to the Tribunal for reconsideration. In order to facilitate this, the award dated 25th April 2007 is quashed and set aside. The proceedings shall stand remitted back to the Industrial Tribunal. The Tribunal is requested to dispose of Reference (CGIT) 2/30 of 2002 as expeditiously as possible preferably within a period of four months of the date of the receipt of a copy of this judgment. However, it would be necessary to observe that all rights and contentions of the parties on merits are kept open. The Respondents are directed to place before the Tribunal all the relevant rules as applicable and it would be open to the parties to apply before the Tribunal for leading evidence if they would be so advised in the matter. The petition shall accordingly stand disposed of. Ordered accordingly. No costs. .... 10