The Divisional Railway Manager vs Shri Uma Shanker & Another
2010 Latest Caselaw 2082 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   WP(C) 3682/2001

%                                                  Date of decision: 20th April, 2010

THE DIVISIONAL RAILWAY MANAGER                         ..... Petitioner
                   Through: Mr. Jitendra Kumar Singh, Advocate

                                          Versus
SHRI UMA SHANKER & ANOTHER                        ..... Respondents
                  Through: Mr. Arun Arora, Advocate.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                 No

2.        To be referred to the reporter or not?          No

3.        Whether the judgment should be reported         No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner Railways by this writ petition impugns the ex parte award

dated 21st August, 2000 of the Industrial Tribunal holding the termination by the

petitioner Railways of the services as a khalasi of the respondent no.1 workman to

be improper, unjust and directing the petitioner Railways to reinstate the

respondent no.1 workman in service with all back wages and other benefits. No

interim order was granted in favour of the petitioner Railways. On the last date of

hearing i.e. 19th March, 2010, the counsel for the respondent no.1 workman had

stated that the award has since been implemented as far back as in the year 2002

and all back wages and consequential benefits have also been paid to the

respondent no.1 workman and the respondent no.1 workman has on reinstatement

been working with the petitioner Railways. This court in the said circumstances

prima facie felt that the present was not a fit case for exercise of jurisdiction under

Article 226 of the Constitution of India. The counsel for the petitioner Railways

was asked as to what was the main challenge to the award. It was the contention

of the counsel for the petitioner Railways that the award of the Industrial Tribunal

was without jurisdiction in as much as the jurisdiction with respect to the dispute

vested with the Central Administrative Tribunal. The counsel for the petitioner

sought time to take instructions to inform the date when the Railways were

included within the ambit of the Central Administrative Tribunal. The counsel for

the petitioner was also asked to take instructions as to contesting the petition on

merits.

2. The counsel for the petitioner has today informed that he has instructions to

press the petition. A perusal of the order sheet shows that when the writ petition

came up first before this court, the counsel for the petitioner was asked to place a

proper copy of the impugned award on record. The matter was adjourned from

time to time for the said purpose and the order aforesaid remained uncomplied.

The writ petition was dismissed for non prosecution on 15th January, 2002. The

application for restoration of the writ petition was filed after one and a half year in

May, 2003 and the writ petition was restored to its original position vide order

dated 28th August, 2003 and notice thereof issued to the respondent no.1 workman.

The petitioner Railways however failed to serve the respondent no.1 workman till

20th March, 2007 when costs were imposed on it. The counsel for the respondent

no.1 workman finally appeared before this court on 10th October, 2007 only. A

perusal of the order sheet also shows that the petitioner Railways nowhere

informed this court that the award had been complied with without prejudice to the

rights of the petitioner to continue with the present petition. It has also been

enquired from the petitioner whether the reinstatement of the respondent no.1

workman and payment of back wages in terms of the award was made subject to

the decision of the present petition. The answer is in the negative. It is again urged

that the same was during the pendency of the present petition, so it should be

deemed to be without prejudice. The earlier counsel for the petitioner Railways

has also been sought to be blamed. The counsel for the petitioner Railways has

today also informed that the respondent no.1 workman has since retired on

attaining the age of superannuation on 30th September, 2009. This court in all the

aforesaid facts and circumstances is not inclined to exercise the jurisdiction in

favour of the petitioner Railways. The effect of setting aside of the award, even if

allowed, would be inter alia to direct the respondent no.1 workman to restore the

benefits received by him under the award. Considering that the respondent no.1

workman was working as a khalasi, this court is of the opinion that such direction

would be impractical.

3. Even otherwise the only challenge by the petitioner to the award is on the

basis of Industrial Tribunal not having jurisdiction. The counsel for the petitioner

Railways states that the petitioner Railways are included within the ambit of the

Central Administrative Tribunal since the setting up thereof and since much prior

to the reference in the present case of the dispute to the Industrial Tribunal on 7th

October, 1997. Reliance is placed on L. Chandra Kumar Vs. Union of India

(1997) 3 SCC 261. Per contra, the counsel for the respondent no.1 workman has

contended that the reference itself was made by the Central Government and he

cannot be now non-suited. It is also urged that no such objection was taken by the

petitioner Railways before the Industrial Tribunal. It is also contended that in any

case under Section 28 of the Administrative Tribunals Act, 1985, the jurisdiction

of the Industrial Tribunal is concurrent with that of the Central Administrative

Tribunal. Reliance in this regard is placed on Telecom District Manager Vs.

Keshab Deb (2008) 2 SCC (L&S) 709.

4. This court finds the reliance by the petitioner Railways on L. Chandra

Kumar (supra) to be misconceived. The language of Section 28 (supra) is quite

unambiguous. The same bars the jurisdiction of courts except the Supreme Court,

Industrial Tribunal, Labour Court, with respect to recruitment and matters

concerning recruitment to any Service or post or service matter. It is clear from

the same that the jurisdiction of the Industrial Tribunal was not barred.

5. Thus no merit is found in the petition. The same is dismissed. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th April, 2010 M