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CASE NO.: Appeal (civil)  3324 of 2008

PETITIONER: Telecom District Manager and others

RESPONDENT: Keshab Deb

DATE OF JUDGMENT: 06/05/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. __3324________ OF 2008 (Arising out of SLP ) No. 9494 of 2004)

S.B. SINHA, J.

       Leave granted.

1.      Respondent is a driver.  He sought for his recruitment in the  Directorate of Telecommunications, Dimapur.  He filed an application  therefor on 30th January, 1984.  Appellant herein in response thereto by its  letter dated 30th January, 1984 stated :-  

"       With reference to your application dated 30.1.984,  it is to intimate you that recruitment of Driver etc. is  banned at present.  Your case will be considered after the  ban on recruitment is lifted.

Moreover you are directed to submit the  employment exchange particulars, age, certificate etc. for  consideration in due course of time."

2.      Respondent, however, was appointed as a casual labour on daily  wages.  It was said to be on a need based one.  He purported to have worked  in that capacity from 11th March, 1989. 3.      Respondent, however, was arrested by the police authorities in a case  arising out of sub-section (6) of Section 34 of the Police Act.  In connection  therewith he had to undergo simple imprisonment for 8 days.  He was also  sentenced to pay fine of Rs.30/-.   

He was not allowed to join back his duties.   

He filed a writ petition before the Guwahati High Court, paragraph 7  whereof reads as under :-

"7.     That the Petitioner respectfully states that in view  of this he was a workman as defined under Section 2(s)  of the Industrial Disputes Act, 1947.  He was not holding  any civil post nor belonging to any civil service and  therefore his case does not fall within the jurisdiction of  the Central Administrative Tribunal although he served  under the Government of India."

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4.      He inter alia raised a contention that his services were terminated  without meeting the statutory requirements as contained in Section 25-F of  the Industrial Disputes Act, 1947.  Furthermore he prayed for regularization  of his services purported to be in terms of a scheme known as "Casual  Labours (Grant of Temporary Status in Regularization) Scheme".   

The prayer in his writ petition was as under :-

"In the premises aforesaid, the Petitioner  respectfully prays that your Lordships may graciously be  pleased to call for the records and issue Rule calling upon  the Respondents to show cause as to why an appropriate  Writ and or Direction shall not be issued declaring and  adjudging the impugned action of termination of services  of the Petitioner by the Respondents No. 2 and 3 as  illegal, unconstitutional, null and void and/or why a Writ  in the nature of Certiorari and/or Mandamus and/or any  other appropriate Writ shall not be issued setting aside  the impugned actions of Respondents and directing and  commanding the Respondents to allow the Petitioner to  continue in service as Muster Roll Labour (Driver) on  daily rated wages and also consider case for  regularization to be appointed against a regular post of  Driver under the "Casual Labours (Grant of Temporary  Status in Regularization) Scheme" with effect from  1.10.1989 and cause or causes being shown and upon  hearing the parties be pleased to make the Rule absolute  and/or pass any other or further orders as Your Lordships  may deem fit and proper."

5.      It, however, appears that a contention was raised on behalf of the  appellants in the said proceedings that having regard to the provisions  contained in Section 14 of the Administrative Tribunals Act, 1985 the writ  petition was not maintainable.  A learned Single Judge of the High Court  while transferring the petition to the Central Administrative Tribunal,  Guwahati Bench, noticed the said submission in the following terms :- "4.     At the outset, Mr. S.N. Chetia raised a preliminary  objection regarding maintainability of this writ petition in  view of the provision of Section 14 of the Administrative  Tribunals Act, 1985.  Mr. Bedi fairly concede to the  submission of Mr. S.N. Chetia in view of the decision of  the Apex Court rendered in Union of India &  Ors\005Appellant vs. Deep Chand Pandey and Anr. \005.  Respondents   (1992) 4 SCC 432, it has been held by the  Apex Court; "Casual Railway employees engaged on  daily wages basis, on termination of his service, the  remedies lies before the Tribunal and not before the High  Court."  In view of the decision of the Apex Court, and in  view of the provision contained under Section 14 of the  Act, this writ petition is not maintainable before the High  Court."          

6.      Before the Central Administrative Tribunal the appellants in their  written statement inter alia raised a contention that the respondent being a  casual employee was not entitled to the benefit of the said scheme.  It was  furthermore stated:-

"5.     That with regard to the contents made in paragraph  5 that the applicant’s attitude behaviour and conduct as a  casual labour in the Department was not at all  satisfactory. He was arrested by the Mokokchung Police  on 12.3.1989 for such offence.  The application was  prosecuted and found guilty by the Court of Law and he  was fined on 13.3.1989 by the ADC (J)/Mokokchung

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(FM-21/89 dated 13.3.1989), copy of which is annexed  herewith and marked as Annexure R-1."

7.      By reason of the judgment and order dated 11th April, 2002 the  Guwahati Bench of the Administrative Tribunal, however, opined that the  order of termination passed by the appellant was illegal, relying on and on  the basis of the decision of this Court in Shankar Dass  Vs.  Union of India  and another : (1985) 2 SC 358 opining as under:-

"In our view the respondents while resorting to the  impugned action acted in a most casual fashion. The  order not allowing the applicant to continue in his duty is  also cannot be sustained on the ground pleaded by the  respondents in the written statement, wherein it is clearly  indicated that they also took some of the alleged  misconduct without giving him any opportunity to rebut.   In the circumstances, the order also appears to be  punitive in nature."

                  It was directed: "4.     For all the reasons stated above we are of the  opinion that the impugned order of termination is not  sustainable in law and the action of the respondents are  therefore held to be illegal and ultra vires.  The  respondents are accordingly directed to reinstate the  applicant to the post forthwith.  Since the order of  termination is found to illegal (sic) illegal the applicant  shall be entitled for all the back wages till 27.3.1997 i.e.  the date on which the transfer application was dismissed  for default along with all the services benefits including  the benefit of regularization of service."

   8.      As the said order was not complied with, a contempt proceeding was  initiated against the appellants.  A writ petition was thereafter filed before  the Guwahati High Court, aggrieved by and dissatisifed with the said  judgment and order of the Tribunal.  A Division Bench of the said High  Court by reason of the impugned judgment and order dated 21st August,  2003, however, dismissed the same opining :-

"A bare reading of the written statement clearly  indicates that the order of termination of service of the  respondent is not on account of the fact that his service  could not have been continued and that he does not have  any right over that post.  The termination of that (sic) he  had misbehaved with his senior officers and he misused  the vehicle and caused damage to the vehicle.   

       When the termination of the employee is on  account of misconduct then he is entitled to be heard and  given proper opportunity to explain his conduct.  In  absence of any enquiry being conducted by the appellants  the order of termination could not have been issued as a  measure of punishment of fine of Rs.30/- cannot be taken  to be a misconduct for dismissal of the respondent from  his employment.  Under the aforesaid circumstances we  do not find any good or sufficient reason to interfere with  the order passed by the Central Administrative Tribunal,  Guwahati."   

9.      Mr. N.M. Sharma, learned counsel appearing on behalf of the  appellants would submit :

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i)      Claim of the respondent being based on the provisions of the  Industrial Disputes Act, the Central Administrative Tribunal had no  jurisdiction to entertain the matter. ii)     Respondent having not claimed any back wages in the writ  petition, he was not entitled thereto. iii)    He having been appointed only as casual labour on a daily rated  basis, the scheme for regularization was not applicable. iv)     He having no right to continue in the service, the impugned  judgment is wholly erroneous. v)      The High Court committed a serious error in upholding the  order of the Central Administrative Tribunal.  vi)     Having regard to Section 28 of the Administrative Tribunals  Act, 1985 the only remedy of the respondent was to file an  appropriate application before an Industrial Court. 10.     Mrs. K. Sarada Devi, learned counsel appearing on behalf of the  respondent, on the other hand, submitted :-

i)      Appellants themselves having contended that the Central  Administrative Tribunal had the requisite jurisdiction, cannot now  turn around and contend that it did not have any jurisdiction. ii)     Respondent being a government servant, the Central  Administrative Tribunal in terms of Section 14 of the Act had the  requisite jurisdiction to entertain the application. iii)    The order of termination having been issued arbitrarily, the  impugned judgment is unassailable.

11.     Respondent claimed himself to be a government servant.  He prayed  for his recruitment as an employee of the Central Government.  He filed a  writ petition questioning the order of termination.  He alleged arbitrariness  on the part of the appellants in passing the said order of termination.  In the  said writ petition a contention was raised on behalf of the appellants that the  respondent having an alternative remedy to move the Central Administrative  Tribunal, the writ petition was not maintainable.  The said contention was  allowed.  The application was transmitted to the Central Administrative  Tribunal. If the writ petition was maintainable there cannot be any doubt  whatsoever that the Central Administrative Tribunal had the jurisdiction to  entertain the matter.   

12.     Section 14 of the Act reads as under :- "Section 14 - Jurisdiction, powers and authority of the  Central Administrative Tribunal. -(1) Save as otherwise  expressly provided in this Act, the Central  Administrative Tribunal shall exercise, on and from the  appointed day, all the jurisdiction, powers and authority  exercisable immediately before that day by all courts  (except the Supreme Court) in relation to - (a) recruitment, and matters concerning  recruitment, to any All-India Service or to any  civil service of the Union or a civil post under the  Union or to a post connected with defence or in the  defence services, being, in either case, a post filled  by a civilian; (b) all service matters concerning- (i) a member of any All-India Service; or (ii) a person not being a member of an All- India Service or a person referred to in  clause (c) appointed to any civil service of  the Union or any civil post under the Union;  or (iii) a civilian not being a member of an All- India Service or a person referred to in  clause (c) appointed to any defence services  or a post connected with defence, and pertaining to the service of such member,

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person or civilian, in connection with the affairs of  the Union or of any State or of any local or other  authority within the territory of India or under the  control of the Government of India or of any  corporation or society owned or controlled by the  Government; (c) all service matters pertaining to service in  connection with the affairs of the Union  concerning a person appointed to any service or  post referred to in sub-clause (ii) or sub-clause (iii)  of clause (b), being a person whose services have  been placed by a State Government or any local or  other authority or any corporation or society or  other body, at the disposal of the Central  Government for such appointment. Explanation.-For the removal of doubts, it is hereby  declared that references to "Union" in this sub-section  shall be construed as including references also to a Union  territory. (2) The Central Government may, by notification, apply  with effect from such date as may be specified in the  notification the provisions of sub-section (3) to local or  other authorities within the territory of India or under the  control of the Government of India and to corporations or  societies owned or controlled by Government, not being  a local or other authority or corporation or society  controlled or owned by a State Government: Provided that if the Central Government considers  it expedient so to do for the purpose of facilitating  transition to the scheme as envisaged by this Act,  different dated may be so specified under this sub-section  in respect of different classes of or different categories  under any class of, local or other authorities or  corporations or societies. (3) Save as otherwise expressly provided in this Act, the  Central Administrative Tribunal shall also exercise, on  and from the date with effect from which the provisions  of this sub-section apply to any local or other authority or  corporation or society], all the jurisdiction, powers and  authority exercisable immediately before that dale by all  courts (except the Supreme Court) in relation to- (a) recruitment, and matters concerning recruitment,  to any service or post in connection with the affairs of  such local or other authority or corporation  (b) all service matters concerning a person [other than  a person referred to in clause (a) or clause (b) of sub- section (1)] appointed to any service or post in  connection with the affairs of such local or other  authority or corporation or society and pertaining to  the service of such person in connection with such  affairs."

13.     Reliance placed by Mr. Sharma on Section 28 of the said Act, in our  opinion, is of no consequence.  It reads :- Section 28 - Exclusion of jurisdiction of courts except the  Supreme Court  On and from the date from which any jurisdiction,  powers and authority becomes exercisable under this Act  by a Tribunal in relation to recruitment and matters  concerning recruitment to any Service or post or service  matters concerning members of any Service or persons  appointed to any Service or post,1 [no court except- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other  authority constituted under the Industrial Disputes

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Act, 1947 (14 of 1947) or any other corresponding  law for the time being in force, shall have], or be entitled to exercise any jurisdiction,  powers or authority in relation to such recruitment or  matters concerning such recruitment or such service  matters. 14.     In a case of the present nature where inter alia an employee maintains  a writ petition not only on the ground of violation of equality clause  enshrines under Article 14 of the Constitution of India but also on the  ground of violation of the provisions of the Industrial Disputes Act, 1947, he  has an option to choose his own forum.  Section 28 does not bar the  jurisdiction of the Central Administrative Tribunal.  It saves the jurisdiction  of the Industrial Tribunal.  An employee who claims himself to be a  workman, therefore, will have a right of election in the matter of choice of  forum.  It is, therefore, not correct to contend that the Central Administrative  Tribunal had no jurisdiction to pass the impugned judgment.  Furthermore  the respondent claimed regularization in services.  Such an application was  maintainable.  As to whether he would be entitled to such a relief or not,  however, is a different question.   

15.     A Tribunal indisputably was entitled to exercise its jurisdiction for  enforcement of a fundamental right.  

16.     In any event the appellants themselves raised the contention as regards  the jurisdiction of the Tribunal. It may be true that no jurisdiction can be  conferred by consent but this Court while exercising a discretionary  jurisdiction under Article 136 of the Constitution of India is entitled to take  note thereof.  It may not allow a party to raise such a contention before it,  having regard to its conduct..

17.     The Tribunal and consequently the High Court were correct that the  termination of the services of the respondent was illegal.   

18.     He, according to the appellants, has committed a misconduct.  His  services had been terminated on that ground.  But therefore he was entitled  to an opportunity of being heard.  A regular departmental proceedings  should have been initiated against him; the order of termination being  stigmatic in nature.  While, however, granting a relief, the superior courts  should take into consideration the factors relevant therefor, which, in our  opinion, in the instant case are :-

a)      Recruitment of the respondent was ex-facie illegal as prior thereto  neither any advertisement was issued nor the employment exchange  was notified in regard to the vacancy. b)      It does not appear that the respondent had even got himself registered  with the Local Employment Exchange. c)      He being a daily rated casual employee did not have any right to  continue in service.

19.     Even in a case where an order of termination is illegal, an automatic  direction for reinstatement with full back wages is not contemplated.  He  was at best entitled to one month’s pay in lieu of one month’s notice and  wages of 15 days of each completed years of service as envisaged under  Section 25-F of the Industrial Disputes Act.  He could not have been  directed to be regularized in service or granted any given a temporary status.   Such a scheme has been held to be unconstitutional by this Court in A.  Umarani  vs. Registrar, Cooperative Societies and others : (2004) 7 SCC 112  and Secretary, State of Karnataka and Ors. vs. Umadevi and Ors. (2006) 4  SCC 1.

20.     We are, therefore, of the opinion that grant of compensation in stead  of a direction of reinstatement with back wages would meet the ends of  justice.

21.     In Atyant Pichhara Barg Chhatra Sangh and another  vs.  Jharkhand

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State Vaishya Federation and others : 2006 (6) SCC718  this Court while  opining that affirmative action is subject to judicial review and while stating  that unequals cannot be treated as equals upon noticing the decision of this  Court in Indra Sawhney  vs.   Union of India : 1992 Supp (3) SCC 217,  stated the law in the following terms :--

"23. Mandal Commission case has specifically noted that  there is no constitutional bar to a State categorising the  Backward Classes as backward and more Backward  Class. The State of Jharkhand by its actions seeks to  disempower communities that have been extended the  benefits of reservation after a conscious adoption of the  Bihar Act. What GO No. 5800 seeks to do by combining  the Extremely Backward Class and Backward Class into  one group is to treat unequals as equals thus violating the  notion of substantive equality and Article 14 of the  Constitution of India bringing it within the purview of  judicial review by the Court."

22.     This Court in  Ajoy Kumar Banerjee   vs. Union of India :  (1984) 3  SCC 127   has held as under :-

"50. Differentiation is not always discriminatory. If there  is a rational nexus on the basis of which differentiation  has been made with the object sought to be achieved by  particular provision, then such differentiation is not  discriminatory and does not violate the principles of  Article 14 of the Constitution. This principle is too well- settled now to be reiterated by reference to cases. There  is intelligible basis for differentiation. Whether the same  result or better result could have been achieved and better  basis of differentiation evolved is within the domain of  legislature and must be left to the wisdom of the  legislature. Had it been held that the scheme of 1980 was  within the authority given by the Act, we would have  rejected the challenge to the Act and the scheme under  Article 14 of the Constitution."

       It was further held :-

"       52. It was further submitted on behalf of the  respondents that the rationale, justification and the  genesis of the law of nationalisation being the creation  of economic instrumentalities to subserve the  constitutional and administrative goals of governance in  a social welfare society, the running of public sector  undertakings is neither for profit earnings of the  management nor for sharing such profits with the  workmen alone but to utilise the investible funds  available as a result of such ventures and undertakings  for socially-oriented goals laid down by the  governmental policies operating on the said sectors. In  this connection reference was made before us to the  decision in the case of State of Karnataka v.  Ranganatha Reddy."

23.     Even if the provisions of Section 25-F of the Industrial Disputes Act  had not been complied with, respondent was only entitled to be paid a just  compensation.  While, however, determining the amount of compensation  we must also take into consideration the stand taken by the appellants.  They   took not only an unreasonable stand but raised a contention in regard to  absence of jurisdiction in the Tribunal.  They admittedly did not comply  with the order passed by the Tribunal for a long time.  It had raised

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contention which are not otherwise tenable.   

24.     We, therefore, are of the opinion that in the peculiar facts and facts  and circumstances of the case interest of justice shall be subserved if  respondent is directed to be paid a compensation of Rs.1,50,000/- (Rupees  one lakh fifty thousand only).  The said sum should be paid to him within  four weeks failing which it will carry interest @ 9% per annum.

25.     The appeal is disposed of in the aforesaid terms with no order as to  costs.