PETITIONER:
M.V. KURIAKOSE
Vs.
RESPONDENT:
THE STATE OF KERALA AND OTHERS
DATE OF JUDGMENT25/03/1977
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]
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
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
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
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