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PETITIONER: M.V. KURIAKOSE

       Vs.

RESPONDENT: THE STATE OF KERALA AND OTHERS

DATE OF JUDGMENT25/03/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) GUPTA, A.C. KAILASAM, P.S.

CITATION:  1977 AIR 1509            1977 SCR  (3) 389  1977 SCC  (2) 728

ACT:             Constitution of India, Article 16(1), whether  attracted         by    violation  of  rights  claimed  under   agreement   or         award--Article  32, whether remedy extends to the  violation         of such rights.

HEADNOTE:             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 Art. 32 of         the  Constitution claiming that his fundamental right  under         Art. 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  Art.         32 of the Constitution. [391 G-H, 392 A-C]

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JUDGMENT:         ORIGINAL JURISDICTION: Writ Petition 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 s. 3 of the Road  Transport  Corporations         Act, 1950 (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

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           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 s. 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 s. 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

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       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.         M.R  .                                         1         ?393