M.V. Kuriakose Vs. The State of Kerala
& Ors  INSC 97 (25 March 1977)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) GUPTA, A.C.
CITATION: 1977 AIR 1509 1977 SCR (3) 389 1977
SCC (2) 728
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.
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 up to the post of Assistant Charge man. Subsequently, in a dispute
referred to arbitration, the Award provided that category-wise seniority,
together with trade-test should determine the promotions. The petitioner
alleged that thereafter, the Corporation 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 petitioner was that all similarly situated shared the same fate and all.
those in the petitioner's category and with his qualifications had been placed
on an equal looting. The petitioner'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]
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 respondent No2.
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 Corporation 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 settlement 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, Stitches, Solutioners 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 Charge man, presumably without a
"trade test" but, even under this settlement, appointment to the post
of charge man could only take place on the basis of results in "Trade
Test" subject to seniority. Indeed, it was stated there that Assistant Charge
man of more than three years service will be entitled to take part in the trade
test. The "Trade Test" was apparently a test of competence in
technical knowledge for the work to be done in the mechanical line.
According to the petitioner, the settlement
was operative 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 between
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 category wise seniority, together with Trade Test, should determine the
promotions to higher grades. The Award dated 31st December 1972 was duly notified.
It is true that conditions of service were not specifically mentioned among
subjects referred to arbitration. 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 (Transport 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 up to Assistant Charge men 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 Transport 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 Certificate
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. Section
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 promotions. 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 misinterpreted 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 quashing 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 fates. 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 petitioner 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 contravened, 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.