VASUDEO H CHURI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was originally employed as a Clerk in the Western Railway and thereafter promoted as a Guard Grade 'C' in or about December, 1957, in Bombay Division, in the Grade of Rs. 130-225 (Authorised). For the purpose of performing his duties as a Guard, he was periodically medically examined. Thus, in the year 1964, he was declared medically unfit for the post of Guard Grade 'C'. He, therefore, by his letter dated 31st December, 1964, requested the Railway Authorities to give him an alternative employment either as Senior T.N.C. or Senior T.C. or T.T.E., in accordance with his basic pay. His request was considered by a Committee to assess the suitability for alternative employment and he was medically re-examined on 17th December, 1964 and was declared suitable to be absorbed in a clerical post. He was accordingly, by office order dated 5th February, 1965, medically de-categorised from his scale of pay of Rs. 130-225 (A) and was absorbed as a Clerk in the Grade of Rs. 110-180(A) and posted as a Clerk in the Accounts Branch of the Bombay Division Office, Bombay Central, in a newly created temporary post. He worked in that post for nearly eleven years and even earned promotion. However, in the year 1976, he came across a judgment of this Court in Miscellaneous Petition No. 256 of 1973 according to which the petitioner therein who was also absorbed as a Junior Clerk was given the benefits of a Senior Clerk. Taking advantage of that judgment, the petitioner by his letter dated 6th August 1976, re-quested the Railway Authorities to give him the benefit of higher Grade of Rs. 130-300(A) as was done in the case of the petitioner in Miscellaneous Petition No. 256 of 1973. Since his request was not granted, he filed an application under Section 33C(2) of the Industrial Disputes Act, 1947, on 10th November 1980 in the Labour Court presided over by the fourth respondent, for computation of his salary in the Grade of Rs. 130-300(A). It was registered as Application No. LCB/506 of 1980. The fourth respondent who heard the said application by his reasoned order came to the conclusion that the petitioner was not entitled to get amount in that Grade as demanded by him and accordingly, rejected the same by his judgment dated 15th March, 1984 which has been impugned by the petitioner in this petition under Article 226 of the Constitution.

(2.) At the outset, I would like to make it clear that I have my grave doubts whether an application under Section 33C(2) of the I.D. Act could be maintained in the Labour Court for the causes pleaded and canvassed by the petitioner. The petitioner after having been found medically unfit was absorbed as per the decision of a Committee in a clerical post of Junior Grade. His demand was for clerical post in the Senior Grade as also running staff allowance at the rate of 40% of his pay because he was earlier working as a Guard at the time of his medical unfitness. This was done as per Rule 152 of the Indian Railway Establishment Code. If the petitioner had raised dispute with his employer that he was not absorbed in the appropriate Grade, the said dispute would have been resolved. For all that we know, the petitioner had a case for being absorbed in the grade higher than the one which was given to him but that was a matter of dispute and unless the same was finally resolved, it could not be said that there was an existing right in favour of the petitioner which could be executed in a proceeding under Section 33C(2) of the I.D. Act which is in the nature of execution proceeding. I expressed such doubts, before beginning to hear the matter on merits. Mr. Wallia, learned Advocate appearing on behalf of the petitioners, tried his best to convince me relying upon the Supreme Court judgments in Central Bank of India v. P.S. Rajagopalan : 1963-11 LLJ 89, Goverdhan Prasad and Ors. v. Management of M/s. Indian Oxygen Ltd (1984) 1 Supreme Court Cases 144 and a Punjab and Haryana High Court Judgment in Union of India v. S.R. Sethi (1979 (3) S.I.R. 601 that an application under Section 33C(2) of the I.D. Act. can lie in a case like the present. In the facts and circumstances of this case, the judgment cited by Mr. Wallia are not relevant. In my opinion therefore, an application under Section 33C(2) of the I.D. Act was not maintainable in the Labour Court for resolving the dispute between the petitioner and his employer.

(3.) However, assuming for the sake of argument that Mr. Wallia is right in his contention that an application under Section 33C(2) of the I.D. Act was maintainable in the Labour Court in the facts and circumstances of this case even then the petitioner was not entitled to the relief that he asked for in the said application. Thus, after medically found unfit in the post of Guard, Grade 'C', the petitioner was absorbed in a suitable position of a Clerk. That was done as per Rules 2699, 2610 and 2615 of the Railway Establishment Manual which provide that in case of an employee who is decategorised as medically unfit he is entitled to proceed on unenjoyed leave available to him and earned during the period of his service. While thus being on leave the authorities should find out suitable alternative employment for him. After such an alternative employment is found out an offer has to be made in writing to the employee and the employee is at liberty to accept the same or reject it. If he accepts the offer, he is appointed in that post and if he does not accept, on the expiry of the leave period, he automatically retires from the service and is given retirement benefits. In this case, after the petitioner was absorbed in the grade of a Junior Clerk he worked in that post for a long time and even earned promotion as a Senior Clerk in the year 1971 and get scale of Rs. 130-300 and was even confirmed on that pro-motional post. If he had any grievance about his absorption in the lower grade, he could have made representation to the Railway Authorities. But for eleven years he did nothing. It is only when he came across a judgment of this Court in which relief was granted to the petitioner therein in the facts and circumstances of that case, that nearly after 15 years and just prior to his retirement, the petitioner made an application under Section 33C(2) of the I.D. Act. In fact, the decision of this Court on which he relies is not at all relevant and applicable to the facts of the present case. In that case, the concerned employee was temporarily absorbed in the junior scale of a Clerk pending his final absorption and was subsequently absorbed in the Senior grade of the clerical post. After 3 years the absorption order was revoked and he was reverted back in the lower grade. The employee, therefore, filed petition in this Court in which the order of revocation was cancelled. It would thus be seen that the said judgment was not at all applicable to the case of the petitioner here. The present petitioner had worked in the post in which he was absorbed for a long time and after earning promotion therein he has retired. He wants the salary of higher post without working in that post even for a single day by this short-cut method of an application under Section 33C(2) of the I.D. Act. The contentions raised before me now were the same as were raised before the Labour Court and the Labour Court had very well dealt with the same rejecting the frivolous and vexatious claim of the petitioner, 1 find no error apparent on the face of the record in the impugned order passed by the fourth respondent and see no reason to interfere with the same in exercise of the discretionary powers of this Court under Article 226 of the Constitution.