Case ID: 3775

Judgment:
n No. 90 of 1976. (Under Article 32 of the Constitution of India). M.K. Ramamurthi and J. Ramamurthi	 for the appellant. T.S. Krishnamoorthy lyer and N. Sudhakaran	 for respond ent No 2. The Judgment of the Court was delivered by Beg	 C.J. The petitioner alleges in fringement of his rights under Articles 16(1) and 31(1) of the Constitution. He joined the service of the erstwhile Transport Department of the State of Kerala as a Cleaner in the Mechanical Wing in 1949. He was promoted to the post of Helper and then Assistant Mechanic	 and	 finally	 to that of a Mechanic. On 15th March	 1965	 the Kerala State Transport Corporation was set up under section 3 of the (hereinafter referred to as "the Act") so. that he became a servant of the Corporation. He alleges that	 as the Kerala State is administering the Corporation and appoints its Chairman and Members under section 5 of the Act	 he is entitled to the protection given 390 by the State to its servants. According to him	 the Corpo ration is really an arm or an agent of the State. We need not	 however	 consider the correctness of this proposition as the petitioner has not	 in our opinion	 succeeded in showing how any of his rights under Article 16(1) of the Constitution	 and	 even less	 how any right of his under Article 31 of the Constitution could have been infringed	 assuming that he is a servant of the State. It appears that on 10th July	 1968 there was a settle ment in a dispute between the Corporation and its employees. Under this settlement	 a trade test was to be conducted after inviting applications from lower grades of what are known as the "mechanical line"	 that is to say	 Assistant Electricians	 Assistant Tyre Inspectors	 Stitchers	 Solu tioners etc. for filling up posts in the higher grades. It was mentioned there that "grade promotions" will take place up to the post of Assistant Chargeman	 presumably without a "trade test" but	 even under this settlement	 appointment to the post of chargeman could only take place on the basis of results in "Trade Test" subject to seniority. Indeed	 it was stated there that Assistant Chargeman of more than three years service will be entitled to take part in the trade test. The "Trade Test" was apparently a test of compe tence in technical knowledge for the work to be done in the mechanical line. According to the petitioner	 the settlement was opera tive until an industrial dispute arose. That dispute was referred to arbitration under section 10A of the Industrial Disputes Act (14 of 1947) on 6th April 1971. The subject matter of the dispute was widely stated so as to embrace "all questions relating to" wage structure	 the ratio be tween the higher and lower grades	 the nature of duties and responsibilities attached to each category	 and methods to be adopted for increasing productivity so as to contribute to the maximum efficiency and economic advantages from the working of the Corporation. Among the matters decided in the Award given was that categorywise seniority	 together with Trade Test	 should determine the promotions to higher grades. The Award dated 31st December 1972 was duly noti fied. It is true that conditions of service were not sepcifically mentioned among subjects referred to arbitra tion. But	 promotions based on passing appropriate tests would certainly affect productivity. Moreover nobody took steps to assail the Award on any ground whatsoever The petitioner alleges that the Corporation and the Workmen subsequently agreed to promotions in the mechanical wing on the basis of seniority alone as had been done in the past under the settlement. To prove such an agreement	 the following passage was relied u on from "the minutes of discussion" held in the presence of the Minister (Trans port and Electricity) on 20th November	 1973	 with the representatives of the Unions of the Mechanical Wing: "It has	 therefore	 been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past. The Minister	 however	 pointed out that comprehensive schemes of test	 with due importance on the practical Side	 will be 391 introduced for all categories of employees soon. The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently." This document	 signed by the General Manager of the Corporation	 contains only minutes of a discussion between the Minister for Trans port and Electricity and the representatives of the Unions. It is difficult to see how it could modify the terms of the Award duly made which had become binding and enforceable under section 17A of the Industrial Disputes Act. The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under section 19(1) of the Industrial Disputes Act. The petitioner relies upon his promotion to the post of "Leading Hand" by the Corporation on 30th November	 1973	 under the abovementioned alleged agreement. But	 on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certif icate Holders of the Corporation and one Krishna Kutty	 a mechanic of the Corporation. It appears that	 among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary. Sec tion 18 (3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute. It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promo tions. Nevertheless	 the petitioner would be deemed to be duly represented by his Union on such a question. He did not take any steps to assail or to get the judgment and order of the High Court set aside. The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him	 so that he was reverted	 are: firstly	 that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement	 but contained some observations which had been misinter preted by the High Court; secondly	 that the High Court had misunderstood the Award inasmuch as it did not contain any direction that a "Trade Test" should be imposed upon those who belonged to the petitioner 's category before their promotion; and	 thirdly	 that he was not a party to the proceedings in the High Court which resulted in the quash ing of the document by which he was promoted so that the High Court 's order is not binding upon him. We are not able to. agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Court 's order shows that not even a counter affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case	 the rights of the petitioner under an agreement or an Award	 if he had any such right	 could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the 392 same fate. All of them had to pass the Trade Test to become entitled to promotion. In this respect they were treated alike. It could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the peti tioner had. It was immaterial that somebody else	 in another category altogether	 was not required to pass the trade test which was essential	 on the view taken by the High Court	 before those in the petitioner 's category could claim promotion. All those in the petitioner 's category and with his qualifications had been placed on an equal footing. Hence	 whatever else might have been con travened	 it was certainly not a fundamental right under Article 16 (1 ) of the Constitution which could be held to have been violated. And	 no attempt was even made to show how a right of the petitioner under Article 31 (1) of the Constitution was affected. The petitioner 's remedy when he claims a benefit under an agreement or an Award does not lie by means of a petition under Article 32 of the Constitution. This article is reserved exclusively for the enforcement of a fundamental right. As the petitioner has been unable to disclose how a fundamental right has been violated	 this petition must be and is hereby dismissed. We make no order as to costs. Petition dismissed.

Summary:
The appellant was a mechanic in the service of the erstwhile Transport Department of the Kerala State. He thereafter became. an employee of the Kerala State Transport Corporation when the same was set up in March	 1965. In 1968	 there was a settlement between the Corporation and its employees providing that a `trade test ' would have to be passed for promotion to. posts in the higher grade while "grade promotions" would take place upto the post of Assist ant Chargeman. Subsequently	 in a dispute referred to arbitration	 the Award provided that category wise seniori ty	 together with trade test should determine the promo tions. The petitioner alleged that thereafter	 the Corpora tion and the workmen agreed to promotions in his wing by seniority alone and consequently	 the petitioner and some others were promoted. Their promotions were assailed as violative of the award	 and were set aside by the High Court. The petitioner filed a writ petition under article 32 of the Constitution claiming that his fundamental right under article 16(1) had been violated. Dismissing the writ petition the Court	 HELD: The rights of the petitioner under an agreement or an award	 if he had any such right	 could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating to a whole category of employees in the position of the petition er was that all similarly situated shared the same fate and all. those in the petitioner 's category and with his quali fications had been placed on an equal looting. The peti tioner 's remedy when he claims a benefit under an agreement or an award does not lie by means of a petition under article 32 of the Constitution. [391 G H	 392 A C]