WP(C) 5167/2010 BEFORE THE HON’BLE MR JUSTICE T VAIPHEI Heard UK Goswami, the learned standing counsel for the Railway appearing on beha lf of the petitioners. Also heard Mr A Dasgupta, the learned counsel for the res pondent. 2. The petitioners representing the NF Railway are challenging the legality of the Award dated 17.11.2009 passed by the Industrial Tribunal, Guwaha ti, Assam in Reference Case No.2(C) /03 of 2003 directing the petitioners to abs orb Sri Sibo Prasad Bhattacharjee and Sri Dharmeswar Pathak to the Grade-D posts in the NF Railway. The said Sri Sibo Prasad Bhattacharjee and Sri Dharmeswar Pa thak are the employees of Rangia Railway Cooperative Society and were appointed on 30.11.1982 by the Management of the Cooperative Society. While they were work ing in the Cooperative Society, the Management demolished the building of the So ciety in the year 1995, as a result thereof, the employees were given leave with out pay with the condition that the moment the building was reconstructed, their services would be called back by the Management. The Management did not fulfill their assurance of reconstructing the building for running the society nor diss olved the society as per the Cooperative Societies Laws and Rules made therein. The case of the respondent-Union is that in the year 1991-1992, the NF Railway a dministration considered the question of absorbing a number of employees working in the Cooperative Societies managed by the Railway and accordingly absorbed a number of employees to Grade-D service of Railway establishment. However, as the said Sri Sibo Prasad Bhattacharjee and Sri Dharmeswar Pathak were not senior en ough for absorption, they were not absorbed during that period. In the year 2000 , the Ministry of Railways (Railway Board), Govt. of India issued the Circular d ated 30.05.2000, wherein it was decided that as one time relaxation, it might co nsider absorption of only those staff of quasi-administration offices/organizati ons who were on roll continuously for a period of at least three years as on 10. 06.1997 and are still on roll, subject to fulfillment of prescribed educational qualification required for recruitment to Group ’D’ post, but such staff should have been engaged with the prescribed age limit. When the petitioners refused t o absorb the said workmen in accordance with the Circular dated 30.05.2000, they approached the Industrial Tribunal by filing Reference Case No.3(C) /03 of 2003 . The reference was made by the Govt. of India, Ministry of Labour, New Delhi vi de Notification dated 29.11.2002 to the Industrial Tribunal on the following iss ues: whether the action of the Management of N.F. Railway, Maligaon, Guwahati by not absorbing Shri Siba Prasad Bhattacharjee, D Pathak and Shri Ashok Dey in Group ’D’ post in the year 1991-92 is justified ? If not, what relief Shri Siba Prasad Bhattacharjee, D Pathak and Shri Ashok Dey are entitled? 3. The Tribunal after hearing the parties passed an Award on 25.04. 2005 holding that though the cases of the workmen were considered for absorbing as on 1991-1992, but due to their respective seniority position they did not com e under the purview of such consideration. No relief was accordingly granted to these workmen. Aggrieved by this, the workmen through the Union filed WP(C) No.2 601/2006 challenging the Award. This Court by the judgment dated 18.02.2009 disp osed of the writ petition by remanding the same before the Tribunal to decide th e matter in the issue of entitlement of the workmen under the said policy dated 30.05.2000. The following observations of this Court are quite pertinent which a re reproduced below:- 15. The Court has noticed that in terms of the policy decision of the Railway B oard contained in the communication dated 30.05.2000, all staff of quasi-adminis trative offices/organizations were required to be considered for absorption in G rade-D posts subject to fulfillment of the conditions of eligibility spelt out i n the said communication dated 30.05.2000. The first question, therefore, that w ould arise is whether the employees of the Railway Cooperative Society would com e within the ambit of the expression - quasi-administrative offices/organizatio ns . In this regard, the Court has noticed a document dated 10.09.2001 issued by the Divisional Railway Manager (P)/ APDJ (marked as Ext.Z/1) by which employees of different Cooperative Societies under the aforesaid Division were considered for absorption in Grade-D posts. The above document on record would strongly su ggest that, according to the Railways, the staff employed in Railway Cooperative Societies would be covered by the policy decision dated 30.05.2000. However, th e aforesaid policy also contemplates absorption subject to fulfillment of the pr escribed educational qualifications and certain other requirements with regard t o age etc. The materials on record do not permit this Court to reach any firm co nclusion as to whether the workmen concerned does or does not fulfill the afores aid requirements spelt out by the policy decision dated 30.05.2000. The said que stion can, therefore, be determined only after necessary materials in this regar d are laid by the concerned parties. 16. Consequently, while allowing this writ petition by setting aside the award d ated 24.05.2005, the Court has no option but to remit the matter to the learned Tribunal for a decision on the entitlement of the petitioner for absorption in t he light of the stipulated conditions of eligibility spelt out by the policy doc ument dated 30.05.2000. The aforesaid exercise will be completed by the learned Tribunal at an early date after the records are received from the Registry of th is Court. 4. At this stage, it may be noted that the Tribunal had in the prev ious Award dated 25.04.2005 recorded the findings that the Cooperative Society i n question was in existence during the last week of February 2002. In this conne ction, this Court in the judgment dated 18.02.2009 made the following observatio ns which reproduced herein below:- 9. At the very outset it must be noticed that the findings recorded by the lear ned Tribunal to the effect that the Cooperative Society was in existence at leas t up to February 2002 and that the workmen must be deemed to be employees of the said Society, though on forced leave, have not been assailed by the Respondent Railways either before this Court or in any other forum. In such circumstances, the aforesaid findings have to be understood by the Court to have attained final ity in law. 5. Even though the learned counsel for the petitioners, contends th at the Cooperative Society had become dis-functional w.e.f. 01.01.1995, the find ing to the contrary as noted above not having been challenged by the petitioner s, it is now to late in the day to question the said findings. Therefore, I take it that the Cooperative Society representing the said Sri Sibo Prasad Bhattacha rjee and Sri Dharmeswar Pathak was in existence and was not dis-functional at le ast up to February 2002. 6. The reason for remitting back the case to the Industrial Tribuna l was for enabling the Tribunal to take a decision on the entitlement of the pet itioners for absorption in the light of the stipulated conditions of the eligibi lity spelt out by the policy document dated 30.05.2000. At this stage, it may be appropriate to reproduce the Circular dated 30.05.2000 which is as follows:- GOVT. OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) RBE.103/2000 SC No.29 to MC No.32 NO. E(NG)II/99/RR-1/15 New Delhi, dt.30.05.2000. The General Manager (P)/OSD, All Zonal Railways/Pus, RE/Allahabad, MTP/Calcutta, Mumbai, Chennai, CAO(R), DCW/Patiala, COFMOW/New Delhi, DG, RDSO/Lucknow, Director, IRISET/Secunderabad, IRICEN/Pune, IRIEEN/Nasik, IRIM&EE/Jemalpur, Principal, RSC/Vadodara, Chairmen/RRBs. Sub: Recruitment in Group ’D’ category on the Railway of the staff working in quasi-administrative offices/organizations connected with Railways. Attention is invited to Board’s letter No. E(NG)II/95/RR-1/40 dated 11.6 .97, wherein it was laid down that the staff working in the quasi-administrative offices or organizations connected with the Railways, will henceforth have to c ompete alongwith other eligible candidates for recruitment to the Railway servic e, as and when notifications for recruitment to Group ’D’ posts etc. are issued by the Railways/RRBs. 2. A demand had been raised by both the recognized Staff Federations that those staff of quasi-administrative offices/organizations who were working in these of fices as on 10.6.97 should be considered for absorption in Railway service, as w as being done earlier in terms of Board’s letter No.E(NG)III/77/RR-1/5 dated 26. 8.77. 3. The matter has been considered by the Board. It has now been decided that, as a one time relaxation, the Railways may consider absorption of only those staff of quasi-administrative offices/organizations who were on roll continuously for a period of at least three years as on 10.6.97, and are still on roll, subject to fulfillment of prescribed educational qualification required for recruitment to Group ’D’ posts. Such staff should have been engaged within the prescribed ag e limit. Such absorption should be restored to only after exhausting the list of ex-Casual Labour Registers. The Unit/Bodies whose staff are proposed to be abso rbed in this manner and their total number should however be first intimated to the Board and the process should be undertaken only after Board’s clearance. Pro posals sent to the Board for such clearance should have the personal approval of the General Manager. 4. Please acknowledge receipt. Sd/- (Devika Chhikara) Director Establishment (N) Railway Board. As per the aforesaid Notification, the conditions precedent for absorbing staff of quasi-administrative offices/organizations which admittedly i ncludes the respondent society are that such staff should be on the roll continu ously for a period of at least three years as on 10.06.1997 and were still on ro ll, subject to the fulfillment of prescribed educational qualification required for Grade-’D’ posts and that such staff should have been engaged within the pres cribed age limit. The question which falls for consideration is whether the two workmen fulfill these twin conditions. The findings of the Tribunal is that the date of birth of Sri Dharmeswar Pathak is 30.10.1962 and his age as on 01.01.198 2 was 20 years one month one day. The Tribunal also found that he passed the HSL C examination in the year 1978. These findings are undoubtedly reached by him on the basis of the certificate of the HSLC examination of the workmen concerned w ho passed out from Rangia Boys Higher Secondary School in the year 1978. Similar ly, the workmen Sri Sibo Prasad Bhattacharjee was also found to be born on 06.03 .1956 and was 26 years 8 months 7 days when he was engaged as Salesman in the Ra ngia Consumer Cooperative Society. This conclusion is supported by the certifica te of HSLC examination in the year 1974 conducted by the West Bengal Board of Se condary Education. Thus, on the findings of the Tribunal are that these two work men are educational qualified and were still within the age limit when they were recruited as Salesman by the Rangia Consumer Cooperative Society. I have repeat edly asked the learned counsel for the petitioners to point out any defect in th ese findings recorded by the Tribunal, but he is still unable to do so. In my op inion, the findings of the Tribunal on these aspects of the matter do not suffer from any perversity. On the contrary, they are based on evidence i.e. certifica tes of HSLC examination. Once these findings have been arrived at and are not as sailable, there is no difficulty in holding that the cases of these two workmen are squarely covered by the Circular dated 30.05.2000. Under the circumstances, the impugned Award of the Tribunal directing the petitioners to absorb Sri Sibo Prasad Bhattacharjee and Sri Dharmeswar Pathak in Group-’D’ posts in the NF Rail way does not call for the interference of this Court. 7. For the reason stated in the foregoing, there is no merit in thi s writ petition which is hereby dismissed. However, on the facts and circumstanc es of the case, the parties are directed to bear their respective costs.