TMI Blog1982 (2) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... pted service for a period of one year or more within the meaning of s. 25F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid. Accordingly, we allow this appeal, set aside the order of the High Court and declare that the termination of service of the appellant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at ₹ 2,000. - Civil Appeal No. 1613 of 1979 - - - Dated:- 16-2-1982 - DESAI, D.A. AND MISRA, R.B., JJ. For the Appellant :K.R.R. Pillai For the Respondent: P.A. Francis and Miss A. Subhashini JUDGEMENT DESAI, J. Appellant L. Robert D'Souza joined service as a gangman at Mangalapuram in Southern Railway on July 1, 1948. In course of his service he was transferred to vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71, and your wages paid accordingly". The local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant. In the meantime the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time. As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice of the Railway administration they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala. According to the appellant, for the various reasons stated in the petition, appellant and those similarly situated could not be treated as daily rated casual labour and under the relevant rules appellant and his co-workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellant's service was terminated and that they would be entitled to all the retiral benefits. The petition came up before a learned single judge who dismissed the same. The matter was taken in appeal before the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of s. 25F of the Act and as the pre-condition to valid retrenchment having not been satisfied, the termination is illegal and invalid. The Full Bench answered the point referred to it against the appellant holding that there is no retrenchment as contended for, on behalf of the appellant and finally dismissed the petition. Hence this appeal by special leave. At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression 'retrenchment' in s. 2(oo) of the Act that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L. Robert D'Souza v. Executive Engineer, Southern Railway and Anr.,(1) has been specifically overruled by this Court in Santosh Gupta v. State Bank of Patiala (2) This Court has consistently held in State Bank of India v. N. Sundera Money,(3) Hindustan Steel Ltd. v. Presiding Officer, Labour Court,(4) and Delhi Cloth General Mills Ltd. v. Shambhu Nath Mukherji,(5) that the expression 'termination of service for any reason whatsoever' now covers every kind of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osh Gupta's case, Delhi Cloth General Mills Ltd. case as being per in curium. We are not disposed to undertake this recurring futile exercise for obvious reason that on four different occasions, in Hindustan Steel Limited case, a Division Bench of this Court consisting of Chandrachud, Goswami and Gupta, JJ. in Sundera Money's case, a Bench consisting of Chandrachud, Krishna Iyer and Gupta, JJ; in Santosh Gupta's case, a Bench consisting of Krishna Iyer and O. Chinnappa Reddy, JJ. and a Bench of two judges consisting of Gupta, J. and one of us in Mohanlal's case, have repeatedly undertaken this very detailed exercise and held that there is no inconsistency of any nature and kind nor any conflict, contradiction or repugnancy between the decision of the Constitution Bench in Hariprasad Shukla's case and aforementioned later four decisions and they stand in harmony with each other and the later decisions take note of an amendment in the relevant provisions of Industrial Disputes Act and, therefore, the construction put on the expression 'retrenchment' in the aforementioned decisions pronounced the settled view of this Court. We, therefore, consider it futile and waste of precious tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the workman concerned contains a stipulation in that behalf; (iv) or termination of the service on the ground of continued ill-health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in s. 2(oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment, as held by this Court in Delhi Cloth General Mills Ltd. case. We specifically refer to this case because the facts in the case before us are on all fours with the facts in the aforementioned cases and on parity of reasoning and judicial comity the same conclusion must follow unless something to the contrary is indicated. In that case respondent S. N. Mukherji who was recruited as a labourer came to be promoted in course of time to the post of Motion Setter. On October 1, 1964, pursuant to some re-organisation in the establishment the post of Motion Setter was abolished. The management offered employment to the respondent S. N. Mukherji on any other suitable post, which was indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or wages in lieu of notice; (b) compensation to be paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government. If the termination in this case otherwise constitutes retrenchment admittedly clauses (b) and (c) of s. 25F have not been complied with. That apart, the submission that in view of the provision contained in proviso (b) of s. 9A, the notice contemplated by clause (a) of s. 25F would be dispensed with, is without merits. Section 9A imposes an obligation on the employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be affected by such change, notice in the prescribed manner of the nature of the change proposed to be effected, and the change cannot be effected within 21 days of the giving of such notice. In order to attract s. 9A the change proposed must be in the conditions of service applicable to the workman i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9A is not attracted the question of seeking exemption from it in the case falling under the proviso would hardly arise. Therefore, neither s 9A nor the proviso is attracted in this case. The basic fallacy in the submission is that notice of change contemplated by s. 9A and notice for a valid retrenchment under s. 25F are two different aspects of notice, one having no co-relation with the other. It is, therefore, futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by s. 25F would be dispensed with in view of the provision contained in s. 9a, proviso (b). That apart, it is an indisputable position that none of the other pre-conditions to a valid retrenchment have been complied with in this case because the very letter of termination of service shows that services were deemed to have been terminated form a back date which clearly indicates no notice being given, no compensation being paid and no notice being given to the prescribed authority. Therefore, termination of service, being retrenchment, for failure of comply with s. 25F, would be viod ab initio. Mr. Francis next conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporary status. (3) x x x (4) Casual labour should not be deliberately discharged with a view to causing an artificial break in their service and thus prevent their attaining the temporary status. 266 (5) x x x Rule 2505 may as well be extracted. It reads as under: "2505. Notice of termination of service-Except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour. Their services will be deemed to have terminated when they absent themselves or on the close of the day. Note: In the case of a casual labourer who is to be treated as temporary after completion of six months' continuous service, the period of notice will be determined by the rules applicable to temporary Railway servants". In order to satisfactorily establish that the applicant belonging to the category of casual labour whose service by deeming fiction enacted in Rule 2505 will stand terminated by the mere absence, it must be shown that the appellant was employed in any of the categories set out in clause (b) of rule 2502. What has been urged on behalf of the respondent is that the appellant was employed in construction work and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in Rule 2301. The benefits which a temporary railway servant enjoys are set out in the same chapter. The question, therefore, is whether the appellant who was recruited as casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service. In the affidavit filed in the High Court the respondents contended that the appellant was employed in construction work on work-charged project. The High Court did not examine this contention on merits and, therefore, it has become obligatory upon us to probe it. The appellant has stated that he joined as a Gangman on July 1, 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State. He confessed that he does not have any record to show this employment but urged that if the pay roll of the relevant period would be produced by the Railway administration, the fact alleged would be completely borne out. We would bypass this controversial period, without recording any finding on it one way or the other. The appellant further contends that on November 15, 1954, on transfer he joined in the office of Inspector of Works at Mangalore and since then he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of casual labour extracted by us above clearly indicates that person belonging to casual labour is not liable to transfer. The appellant has stated that he was transferred to Madras in 1957, to Tuni in Andhra Pradesh in 1958, to Rajahmundry in 1960, to Samalkhotan in 1961, to Virudhnagar in 1962 and to Manamadurai in 1965 and then to Ernakulam in August 1965. It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re-transferred to Ernakulam on March 19, 1971. This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam, which advice has been carried out and the intervening period for which he did not report for duty, i.e. from March 6, 1970 to February 19, 1971, he would be paid the wages as if he was on duty. In the face of these incontrovertible facts could it at all be said that the appellant though transferred ad nauseum still continued to belong to the category of casual labour? An additional fact which buttresses th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied this benefit as his service was already terminated. If his service was not terminated, his case was not distinguishable from the case of his co- appellants and he would have been entitled both in law and facts to the same treatment. The approach of the Railway administration to say the least is amazing. For years they did not act according to law and confer status of temporary railway servant on the appellant and his colleagues in the High Court. When appellant espoused this cause he was thrown out but his colleagues were given the benefit richly deserved in law. This discriminatory treatment cannot help the respondent because appellant's case cannot be distinguished. If the status of temporary railway employee was already acquired before the termination of service in the manner brought about, the same would be ipso facto invalid. At this stage we would again revert to the annexure to the letter of Executive Engineer dated September 5, 1966, in which the name of the appellant appears at Serial No. 10. One of the co-petitioners of the appellant in the High Court, who got the benefit of regular employment pursuant to the writ petition was one Shri K.N. Balakrishna. His name appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elonging to construction unit. It will be doing violence to language to treat the construction unit as project. Expression 'project' is very well known in a planned development. Therefore, the assertion that the appellant was working on the project is belied by two facts: (i) that contrary to the provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ext. P-1 dated January 24, 1962, and Ext. P-2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in the letter, but the department is described as construction unit. If he became surplus on completion of project there was no necessity to absorb him. But the letter dated September 5, 1966, enquires from other executive engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them. This shows that the staff concerned had acquired a status higher than casual labour, say temporary railway servant. And again construction unit is regular unit all over the Indian Railways. It is a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration brings this part of the provision of the Manual, antiquarian and antediluvian, in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution. It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing monthly minimum wage by 26 so as to provide a paid holiday. Maybe, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed. It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus. That was at a time when planning and projects were foreign to the Indian economy. Today, Railways perspective plans spreading over decades. If one project is complete another has to be taken over. Railway administration has miles to go and promises to keep and this becomes clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which would imply that there was work for daily rated workman everyday for twenty years at a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson- (i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934, or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." There is no dispute that the appellant would be a workman within the meaning of the expression in s. 2(s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over twenty years. Therefore, the first condition of s. 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for the reason hereinbefore given would constitute retrenchment. It is immaterial that he is a daily rated worker. He is either doing manual or technical work and his salary was less than Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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