IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 37692 of 2003(K) -------------------------- PETITIONER(S): ---------------------- 1. THE UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS. 2. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. BY ADV. MR.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): --------------- M.MURUGAN, STAFF NO.MAQ/434, TRAFFIC PORTER, OFFIICE OF THE STATION MANAGER, SOUTHERN RAILWAY, PODANNUR, NOW WORKING AS CABIN MASTER, C/O.STATION MASTER, UTTUKULI R.S.(P.O.) PERUNDURAI (TK) ERODE DISTRICT - 638 752. BY ADV. MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R1 MR.T.A.RAJAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37692 of 2003(K) APPENDIX PETITIONER'S EXHIBITS: Ext.P1 - TRUE COPY OF THE PETITION (C.P(c) 1/96) FILED BY THE RESPONDENT BEFORE THE LABOUR COURT, KOZHIKODE DT. 16.1.1996. Ext.P2 - TRUE COPY OF THE WRITTEN OBJECTION FILED BY THE PETITIONERS HEREIN TO THE PETITION (C.P.(c) 1/96) FILED BY THE RESPONDENT BEFORE THE LABOUR COURT, KOZHIKODE DT. NIL. Ext.P3 - TRUE COPY OF THE CASUAL LABOUR CARD SHOWING THAT THE RESPONDENT WAS ENGAGED AS CASUAL LABOUR KHALASI DT. 15.6.1949. Ext.P4 - TRUE COPY OF DUTY ROSTER ISSUED BY THE 2ND PETITIONER IN RESPECT OF THE STAFF IN 'B' CABIN AT SHORANUR DT. NIL. Ext.P5 - TRUE COPY OF DUTY ROSTER IN A AND B CABIN AT AHORANUR PREPARED BY THE STATION MANAGER, SHORANUR DT. NIL. Ext.P6 - TRUE COPY OF THE ORDER DATED 31.1.2003 IN C.P(C) NO. 1/1996 PASSED BY THE LABOUR COURT, KOZHIKODE. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 37692 of 2003 ................................................. Dated this the 1st day of October, 2009 J U D G M E N T The Union of India and Divisional Personnel Officer, Southern Railway are the petitioners in this writ petition. They are challenging Ext.P6 order of the Labour Court, Kozhikode in C.P.(C) No.1/1996 filed by the respondents herein, claiming arrears of wages as well as over time wages. The facts necessary for disposal of this writ petition are as follows: 2. The respondent joined the services of the railways as a casual labourer on 16.4.1972. He was granted temporary status on 1.1.1981. Before the Labour Court, respondent claimed that when temporary status was granted to him on 1.1.1981, he was working as a store mate and therefore he was entitled to the scale of pay as applicable to a store mate, which was not given to him. He was given only a lesser scale of pay as applicable to Khalasis. Therefore, he was entitled to the difference in salary was his first claim. The second claim was that he was working in the Shoranur cabin as a traffic porter, which according to the W.P(C) No. 37692 of 2003 -2- respondent was in the 'continuous' category. For a workman in the 'continuous' category, the hours of work are 48 hours in a week. The respondent worked for 60 hours in a week. Therefore he claimed overtime wages for the work done in excess of 48 hours a week for the period from 6.3.1995 to 10.11.1995, during which period he worked for 60 hours in a 'continuous' category. 3. The petitioners contested the claim first of all on the ground that the Labour Court did not have jurisdiction to decide the issue in so far as there was no adjudication regarding the right of the petitioner to claim the amounts which the respondent has claimed in the claim petition. On merits, the petitioners' contended that in view of Ext.P2 circular, the respondent was entitled to only the scale of pay as applicable to Khalasis, in so far as to decide that issue what was relevant was his service for five years prior to granting of temporary status. According to the petitioners, since during the majority of the period of the said five years, respondent was working as a Khalasi, he is entitled to only the scale of pay applicable to Khalasis. Regarding the second contention of the respondent, the petitioners took the stand that traffic porters posted in the W.P(C) No. 37692 of 2003 -3- Shornur cabin are not in the 'continuous' category, but only in 'Essentially Intermittent' category in which case hours of work is 60 hours per week and not 48 hours per week. Therefore, the respondent is not entitled to any overtime wages in respect of hours he worked in excess of 48 hours as claimed by him is the contention of the petitioner. 4. After considering the rival contentions, the Labour Court by Ext.P6 order, came to the conclusion that the respondent is entitled to Rs.769/- in respect of the first claim and Rs.11,490/- in respect of the second claim. Ext.P6 order is under challenge before me. 5. The first contention raised by the petitioners is that in so far as, in respect of both claims, there is no pre-existing right adjudicated by a competent authority, the Labour Court could not have decided the issue for want of jurisdiction. The petitioners relied on several decisions in support of the contention that the Labour Court does not have jurisdiction to decide claims in respect of which there is no prior adjudication of the right of the respondent to claim those amounts. They are: “1. (1974) 4 SCC 696 - Central Inland Water Transport Corpn Ltd v. Workmen. W.P(C) No. 37692 of 2003 -4- 2. (1995) 1 SCC 235 - Muncipal Corporation of Delhi v. Ganesh Razak Para 13 3. (2001) 1 SCC 73 - State Bank of India v. Ram Chandra Dubey 4. (2005) 8 SCC 58 - State of UP v. Brijpal Singh 5. (2006) 2 SCC 282 - APSRTC v. BS David Paul 6. (2006) 9 SCC 292 - Union of India v. Kankuben” 6. Perhaps the petitioners may be right in their contention in respect of the first claim of this respondent. But in respect of the first claim the amounts allowed is only Rs.769/- For such paltry amount, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner under Article 226 of the Constitution of India, especially since in respect of the second claim of the respondent. I am not inclined to agree with the petitioners. 7. In respect of the second issue certain facts are not disputed. The first is that the respondent was originally a traffic porter in the platform of Shoranur Railway Station. The second is that traffic porters in platforms are in the 'continuous' category. The third is that while the respondent was working as a traffic porter in the platform, he was posted in the cabin. The contention of the petitioners before the Labour Court was that W.P(C) No. 37692 of 2003 -5- traffic porters in the Cabin at Shoranur is classified under the category 'Essentially Intermittent'. The facts as continuous category are liable to work only for 48 hours and intermittent category is liable to work 60 hours are not disputed before me. It is also admitted that the traffic porters are classified as 'continuous' category. Traffic porters posted at Shoranur cabin, according to the petitioners, petitioners is an excepted category from the general category. If that be so, it was for the petitioners to prima facie show that traffic porters in the cabin are classified as 'Essentially Intermittent' category. In fact, in Ext.P2 written statement filed by the petitioners before the Labour Court, they themselves have stated that the categorisation is under the Hours of Employment Regulations of the Railways. If that be so, the simplest of simple things the petitioners could have done to prima facie prove their case was just to produce the regulations before the Labour Court. The petitioners have not done anything in that regard either before the Labour Court or before this court. The counsel for the petitioners requests for remanding the case to the Labour Court to prove the same. The Railways is a mighty organisation who W.P(C) No. 37692 of 2003 -6- can go on fighting a case up to the Supreme Court even for such paltry amounts. But the respondent hereunder was a lowly paid worker who has already passed the superannuation age also. I am of opinion that it would be totally unjust to put the poor workman through the travails of a protracted litigation again. When the petitioners did not do before the Labour Court, what they ought to have done by producing the Regulations which according to them contain the classification, I am not inclined to come to the assistance of the petitioners in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. Accordingly the writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs