IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16561 of 2009 1. I.N.T.U.C. BHAGALPUR DISTRICT COUNCIL THROUGH IT'S ORGANISING SECRETARY NITYA NAND CHOUDHARY S/O SRI BASUDEO CHOUDHARY R/O NAYA BAZAR, P.S.- KOTWALI, DISTT.- BHAGALPUR PANITANKI, GHANTAGHAR, BHAGALPUR 2. TAPAN KUMAR GUPTA S/O SRI NIRMAL KUMAR GUPTA R/O RAILWAY QUARTER NO. 175 D EAST RAILWAY COCO COLONY, P.S.- MOJAHIDPUR, DISTT.- BHAGALPUR Versus 1. THE UNION OF INDIA THROUGH IT'S SECRETARY MINISTRY OF LABOUR & EMPLOYMENT, GOVT. OF INDIA, NEW DELHI 2. THE DESK OFFICER MINISTRY OF LABOUR AND EMPLOYMENT, GOVT. OF INDIA, NEW DELHI 3. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL) MAURYA LOK COMPLEX, A-BLOCK, SECOND FLOOR, NEW DAKBUNGLOW ROAD, PATNA 4. THE GENERAL MANAGER EASTERN RAILWAY, KOLKATA, FAIRLIE PLACE, 17, NETAJI SUBHASH ROAD, KOLKATA-700001 5. THE CHIEF PERSONNEL OFFICER EASTERN RAILWAY, KOLKATA FAIRLIE PLACE, 17, NETAJI SUBHASH ROAD, KOLKATA-700001 6. THE CHIEF ADMINISTRATIVE OFFICER/CON/EASTERN RAILWAY/KOLKATA NEW KOILAGHAT BUILDING, 14, STAND ROAD, KOLKATA-700001 7. THE DIVISIONAL RAILWAY MANAGER EASTERN RAILWAY, MALDA TOWN, P.O.- JHALJHALIA, DISTT.- MALDA (W.B.) ----------- 3/ 13/12/2010 Heard learned counsel for the petitioner and the Railways. The petitioner is aggrieved by order dated 6.10.2008 declining to make a reference that an industrial dispute exists in exercise of powers under Section-10(1) read with Section-12(5) of the Industrial Disputes Act, affirmed in revision by the Union of India on 4.11.2009. It is submitted that the petitioner was selected for appointment as Apprentice B.R.I. Grade-III in the pay scale of Rs.1400-2300, but was found medically unfit. Under the Railway Establishment Rules the petitioner - 2 - was offered an alternative post of Assistant Draftsman in the scale of Rs.1200-2050. He accepted the same and joined on 31.8.1988. Thereafter on 27.7.2000 he raised objection to be considered for appointment on an equivalent post with similar scale and benefits as that of B.R.I. Grade-III. The impugned orders dated 6.10.2008 and 4.11.2009 were unsustainable as they adopt a quasi judicial adjudicatory approach while considering the request for a reference on 12.6.2007. The duties of the respondents were administrative in nature to decide whether an industrial dispute exists or not. By referring to matters of the acceptance of his joining on a lower post, the authorities have taken into consideration irrelevant materials which vitiates the decision. Reliance is placed on AIR 1985 S.C. 860 (The M.P. Irrigation Karamchari Sangh v. State of M.P. and another) and AIR 1985 S.C. 915 (Ram Avtar Sharma and others v. State of Haryana and another). Learned counsel for the Railways submits that the petitioner submitted his joining on 31.8.1988, on the alternative post offered to him in accordance with the Railways Establishment Regulations. Once he joined the post, he cannot be permitted to raise such issues nearly 12 years later. The order declining reference has been considered in Revision also. The order declining the - 3 - reference was administrative in nature and the reasons mentioned cannot be stated to be not germane or irrelevant. The petitioner was selected for the post of B.R.I. Grade-III in the pay scale of Rs.1400-2300. Mere selection did not vest a right to appointment in him. The denial of appointment for medical reasons was never questioned by the petitioner. It stands beyond controversy that though he was found physically unfit to discharge duties of a particular nature, carrying specified duties, considered as arduous given his physical condition. The respondents were under no obligation in law to offer him an alternative employment. A person selected but denied appointment on medical grounds cannot claim that notwithstanding his medical disability he still has a vested right to an alternative appointment based on such selection. At best, he can only seek to be considered for another post given his medical condition. The respondents offered the petitioner an alternative appointment on 8.8.1998 clarifying in paragraph 9 of the offer that if it was acceptable to him he should report by 22.8.1988 failing which the offer would lapse. The petitioner had an option to deny appointment on a lower post or submit joining under protest. Quite obviously, conscious of his physical - 4 - infirmity the petitioner voluntarily opted to accept the alternative appointment rather than to be faced with a situation of no appointment at all. A bare reading of the Railway Establishment Rules dealing with alternative appointments to medically unfit staff in Clause-2 provides that any appointment is subject to the person being medically fit for that category. It then goes on to state that it may “consider requests” subject to fulfillment of prescribed medical standards, educational requirements and other eligibility criteria in the alternative category. It is apparent that there is no vested right for seeking appointment in the alternative category and that too in the same pay scale. The candidate may request. The respondents may or may not accept the request. If the request is not accepted questions of judicial review on the facts and circumstances of a case may or may not arise. If the request is accepted and is acted upon without protest or demur, 12 years is too long a delay to seek to reopen issues. The Court has no hesitation in holding that there existed sufficient administrative reason for which reference has been declined. In other words, the impugned orders hold that if the petitioner was offered an alternative employment and he accepted it, the passage of long years when he continued on that post without - 5 - protest was sufficient to decline a reference as being stale in nature apart from issues of waiver. The case of Karamchari Sangh and Ram Avtar (supra) relied upon by the petitioner holds that whether to make a reference or not under the Industrial Disputes Act was basically an administrative act. Therefore, if while taking such an administrative decision, issues not germane have been taken into consideration and relevant materials do not find consideration, the administrative decision gets vitiated for having been based on extraneous materials leaving out relevant considerations. Each case therefore declining reference will have to be decided on its own merits as to whether relevant considerations have been taken into account or extraneous materials have been relied upon. While exercising this administrative power the appropriate Government retains the authority to decide whether a dispute exists or not, or whether the claims sought to be raised in the nature of a dispute was frivolous or bogus guided by the ultimate aim to maintain industrial peace and harmony. Therefore, while considering a challenge to an order declining reference it is not only the question of the exercise of administrative discretion that has to be kept in mind, but also the question of industrial peace. It has also been noticed that if the appropriate Government - 6 - comes to the conclusion that the claim for a reference was perverse or frivolous and did not merit a reference, the appropriate Government could validly deny such reference. The world today is stated to be a global village. India is a market for the foreign economy as also a contender for a seat in the foreign economy with its own products. The standards that may have been relevant for industrial adjudication years ago may not be very relevant today and may require rethinking and reconsideration so as to strike a balance between the right of the workman and the opportunity to the industry to flourish to meet global standards of competition. In the present case, it has already been held that the petitioner has no vested right even under the Railway Establishment Manual to claim an appointment of equivalent pay-scale to B.R.I. Grade-III after he was found medically unfit. Once he accepted the alternate post offered on 8.8.1988 and joined on 31.8.1988, without protest and continued to work as such till he raised his protest, as contended on his behalf on 27.7.2000, this Court holds that 12 years was too long a period of time to be considered adequate for reopening of issues. At this stage, the Court is not concerned with the correctness of the claims, but whether the claim could - 7 - have been raised at all. The petitioner accepted the offer of appointment, joined the post, availed the benefits of the post. Therefore, if he had any claims for an equivalent post, he consciously waived it. Once he has waived it, he cannot now urge it to question the very appointment itself on 8.8.1988. He cannot have the benefit of the offer of appointment, enjoy its privileges and yet challenge the order. He is precluded from doing so. In State of Maharashtra v. Super Max International (P) Ltd., reported in (2009) 9 SCC 772, at page 794 : it has been held at paragraph-72 as follows:- “72. With the perspective thus adjusted, all the submissions made by Mr Lalit on behalf of the appellant have a simple answer. The interim order of the High Court asking the appellant to deposit Rs 5,40,000 from the date of the decree as condition for stay of the execution of the decree of ejectment has to be seen as one single package. The appellant may or may not accept the order as a whole. But it is not open to it to accept the order insofar as it stays the execution of the decree and to question the condition attached to it.” On the question of waiver the Supreme Court has held in Babulal Badriprasad Varma v. Surat Municipal Corpn.,(2008) 12 SCC 401, at page 413 : at paragraph-29 as follows:- 29. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. For like reasons, this Court does not uphold the - 8 - submission of the petitioner that he had a right to be considered for other equivalent posts in the scale of 1400-2300. The next submission of the petitioner that he has been denied consideration for due seniority in the category of Assistants vis-à-vis those who had joined after him on 31.1.1988 does not impress the Court as the Court is not satisfied that the petitioner had clearly and explicitly raised this objection in his claim for reference. The reliance to that effect in paragraph-7 and 8 leaves this Court dissatisfied that he had raised any specific claim as an alternative for consideration of the reference vis-à-vis his claim for appointment on equivalent post and pay-scale as that of B.R.I. Grade-3 Assistant. In (2000) 2 SCC 455( NEDUNGADI BANK LTD. Versus K.P. MADHAVANKUTTY AND OTHERS) the High setting aside an order directing a reference under Section-10 of the Industrial Disputes Act seven years from the date of the cause of action based on a dismissal held that though the law does not prescribe any time limit for exercising power under Section-10 of the Act, nonetheless, it could not have exercised it in attempt to revive matters which have been settled. A stale dispute could not have been revived by giving it a fresh life. What would be stale would depend on the facts and - 9 - circumstances of each case as held at paragraph-7:- “In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.” In the present case the petitioner has joined on 31.8.1988. The request for a reference has been made on 9.5.2007 after a delay of nearly 19 years. The Court therefore finds no merit in this application which is accordingly dismissed. KC ( Navin Sinha, J.)