Patna High Court
Somu Kumar Chatterjee And Anr. vs District Signal Tele-Communication ... on 23 May, 1969
Equivalent citations: (1970)IILLJ179PAT
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT B.N. Jha, J.
1. C.W.J.C. No. 360 and C.W.J.C. No. 361 of 1968 have been directed to be heard along with C.W.J.C. No. 289 of 1968, as the common questions of facts and law are involved in all these three writ applications. Hence they have been heard together and this judgment will govern them all.
2. There are in all 73 petitioners in the three writ applications: two being in C.W.J.C. 289, sixty-five in C.W.J.C. 360 and six in C.W.J.C. 361. All of them were originally employed as casual labourers in the Signal Tele-communication Department of North East Frontier Railway, Katihar, and were working under the District Signal Tele-communication Engineer (Construction), N.F. Railway, Katihar. Some of them were working as Khalasi and some as blacksmith hammer-men, bellow-men and line-men, various dates of employment of the petitioners in C.W.J.C. 360 and 361, and the work for which they were appointed are mentioned in Annexure 8 attached to the two applications. Somu Kumar Chatterjee, petitioner No. 1 and Sudhir Chandra Das, petitioner No. 2, in C.W.J.C. 289 of 1968 were appointed as casual Khalasi on February 23 and June 16, 1965, respectively.
3. The petitioners after continuous service of six months acquired the status of temporary railway servants and the facilities and benefits of temporary railway servants were given to them in pursuance of D.O. letter No. E/ClR/Rect/6/5411 dated May 14, 1963 from the District Electrical Engineer, Katihar (Annexure 2) and thereafter they were given the scale of pay as recommended by the Central Pay Commission and they were also paid annual increments, when they fell due. They were also allowed the benefits of paid casual leave, sick leave and earned leave. The Railway Board by its circular No. E (NG) 64-CL/25 dated January 29, 1966 (Annexure 3) clarified that the continuity of the labourers after acquiring temporary status would count for the purposes of post-retirement passes and they were also allowed to carry forward the leave at their credit to any new post. Fifty-eight years was fixed as their age of retirement. The Railway Board by its circular No. E/NG-15 CL/13 dated August 22, 1962, directed that casual labourers would be employed in regular vacancies and provided that casual labourers who acquired the status of a temporary servant would have a prior claim over others to permanent recruitment and without going through employment exchanges, their cases would be considered for regular employment. The petitioners have alleged that the Railway Board by its circular No. E/NG/63-REI/32 dated December 21, 1966 ordered that the staff rendered surplus in project, constructions etc., need not submit their applications in the usual form, applicable for outsiders, for applying for the advertised posts, but the full service particulars of such staff together with their qualifications may be forwarded to the Screening Committee by the Railway Project Construction concerned. It was further directed by the Board by its circular No. E/(NG) 65-CL/10 dated February 26, 1965 that no preference should be given to open market candidates (outsiders) over casual labourers on grounds of literacy. The Railway Board has further directed by its circular No. E/(NG) 60-CL/13 dated August 18, 1962 that such casual labourers who had attained temporary status would be entitled to the benefits of Discipline and Appeal Rules The Chief Personnel Officer, as per his letter No. E/212/11 (c) Pt. (iv) dated October 23, 1962 (Annexure 4) forwarded extract of Sections 25F and 25FFF from the Industrial Disputes Act, 1947 to all the District Officers etc., for their guidance.
4. In spite of the aforesaid safeguards and protections given by the Railway authorities, the services of the petitioners were terminated by the District Signal Telecommunication Engineer (Construction), N.F. Railway, Katihar, on the ground that their services were no longer required by the organisation. Immediately after the receipt of the notice of termination, the petitioners and others acting collectively, raised an industrial dispute regarding their illegal termination of service and demanded their illegal retrenchment to be stopped and to allow them to continue in employment. The petitioners in a joint petition dated February 2, 1968, addressed to the District Signal Tele-communication Engineer (Construction) N.F. Railway, Katihar, raised disputes regarding non-payment of dues and their illegal removal from the services and sent a copy of the aforesaid petition to the Labour Inspector. Katihar, for necessary action. The petitioners also sent joint petitions to the Labour Inspector, Katihar, praying for his intervention in the matter but to no effect, The petitioners as members of the N.F. Railway Mazdoor Union, Katihar branch, raised a dispute regarding their illegal termination of service and demanded their reinstatement. The N.F. Railway Mazdoor Union, Katihar branch, also sought intervention of the Labour Inspector and the officers of the Labour Department but they did not respond to their letters perhaps under the impression that the provisions of the Industrial Disputes Act, 1947 (hereinafter called 'the Act') did not apply to Railways. The officers of the Labour Department were personally approached by some of the petitioners but they were told that they would not interfere in the matter. Hence the petitioners have filed these three applications for quashing the order of termination of their services and for directing the respondents to reinstate them with continuity of service with full wages and allowances for the period they had been out of employment.
5. The petitioners have challenged the validity of the termination of their employment on several grounds, namely, (i) that the railway did not comply with mandatory provisions of Chapter V-A of the Industrial Disputes Act, 1947 before retrenching the petitioners from their services, (ii) no notice in the prescribed form was given to the authorities concerned before effecting retrenchment. (iii) juniors to the petitioners in service were retained while the petitioners were retrenched, and (iv) retrenchment compensation was not paid to the petitioners before effecting retrenchment.
6. The respondents have appeared in the cases and have filed counter-affidavits controverting the allegations of the petitioners made in their writ petitions and justifying the action of the railway in terminating the services of the petitioners. The main ground urged in the counter-affidavits is that the petitioners were engaged as casual labourers on a daily rate of wages by the Assistant Signal and Tele-communication Engineer (Construction), Katihar specifically for the particular work which included the temporary work at New Jalpaiguri and Katihar which was a purely temporary construction organisation under the Assistant Signal and Tele-communication Engineer (Construction) Katihar. Though after completion of six months work as casual labourers, the petitioners acquired the status of temporary servants and got all benefits of temporary servants but they got no right of absorption in regular cadre or to be brought into regular cadre which could be done only after passing selection test conducted by the Selection Committee prevalent in the railway. Their appointment was a purely temporary one which could be terminated when their services would be no longer required. The work of New Jalpaiguri yard and Katihar yard was separated in April, 1967 on administrative ground. The casual labourers engaged for the said work were divided into two groups, one group was put to work under Signal Inspector (Construction), New Jalpaiguri under the administrative control of the District Signal and Tele communication Engineer (Construction), Katihar and the other group was kept at Katihar under the Signal Inspector (Construction), Katihar, under the administrative control of the Assistant Signal and Tele-communication Engineer (Construction), Katihar. Both officers held independent charges of the two establishment units. The petitioners had been put to work at New Jalpaiguri yard.
On completion of the construction work at New Jalpaiguri, the temporary construction organisation at Jalpaiguri was closed and hence all those casual labourers who were working there were discharged by notices under Rule 149 of the Indian Railway Establishment Code, Volume I. It is also asserted in the counter-affidavits that the Industrial Disputes Act, 1947, does not apply to the case of the petitioners as their services were terminated under Rule 149 of the Indian Railways Establishment Code, Volume I. In the alternative, it has been asserted that assuming that the Act applies, all the necessary provisions of the Act were complied by the District Signal and Tele-communication Engineer, Katihar. No notice was required to be given to any other authorities in the circumstances of the case before effecting retrenchment. The work at Katihar yard and New Jalpaiguri yard were separate units and establishments under independent control of two officers. On the completion of the work at new Jalpaiguri the petitioners were discharged except a few artisan staff whose services were considered necessary and essential on ground of their specialised experience and as such, they were transferred to Katihar for the work at Katihar yard construction. The petitioners except petitioner No. 25 of Writ Application No. 360 of 1968 had been paid retrenchment compensation. The assertion of the petitioners that after the termination of their services many persons have been employed has been denied by the railway in the counter-affidavits. It is stated that nobody since after the termination had been employed in the Katihar Signal and Tele-communication Department. In the circumstances of the case, the respondents have prayed for dismissal of the writ applications.
7. Learned Counsel for the respondents raised preliminary objections to the maintainability of the writ applications. He contended that the writ applications are misconceived, firstly, because the railway is not an industry within the meaning of the Act and, secondly, that the petitioners have no locus standi to come before this Court directly without raising an industrial dispute. The other point raised by learned Counsel for the respondents was that assuming that railway is an industry within the meaning of the Act and the workmen could come before this Court directly, one writ application by a number of workmen to quash various orders of retrenchment was bad in law and the writ applications should be dismissed on this ground alone. Learned Counsel for the petitioners on the other hand asserted that the applications were maintainable and could not be thrown out on the preliminary objections.
8. In order to decide whether the railway is an industry, within the meaning of the Act, some provisions of the Act have got to be considered. Section 2(j) lays down that 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. This definition is quite comprehensive to include various kinds of undertakings carried on by a management in the definition of industry. 'Industrial dispute' means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. Employer has been defined in the Act as follows:
Section 2(g).'Employer' means-
(i) in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department:
(ii) in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of that authority:
In this connection the definition of 'workman' given in Section 2(s) is also very significant. It reads as follows:
Section 2(s).'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(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.
Therefore, reading the aforesaid two definitions together it is apparent that if the. State carries on any undertaking or business it is an employer within the meaning of the Act and persons working under such undertaking are workmen. If there is a dispute between the State employer and its employees connected with the employment or non-employment or condition of labour, it is an industrial dispute within the meaning of the Act and such a dispute can be resolved in accordance with the provisions of the Act. At places in the Act reference is made to the appropriate Government which is defined as follows under Section 2 (a)(i):
'Appropriate Government' means-
(i) in relation to any industrial dispute concerning any industry earned on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning the Employees' State Insurance Corporation established under Section 3 of the Employees' State Insurance Act, 1948 or the Agricultural Refinance Corporation established under Section 3 of the Agricultural Refinance Corporation Act, 1963 or the Deposit Insurance Corporation established under Section 3 of the Deposit Insurance Corporation Act, 1961 or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963 of a banking or an insurance company, a mine, an oil-field, a Cantonment Board or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the State Government:
This definition also shows that if there is an industrial dispute concerning an industry carried on by the Central Government or State Government, the appropriate Government in the former case is the Central Government and in the latter it is the State Government. No exception can be taken on the ground that because the industry is carried on by the Government, Central or State, it cannot be regarded as an industry within the meaning of the Act and the Act has got no application to such industry.
9. Now the question arises whether the railway is an industry within the meaning of the Act to which the Act may be applied. It is a great undertaking carried on by the Central Government. Rule 2(g) of the Industrial Disputes (Central) Rules, 1957, framed under the Act (hereinafter referred to as 'the Rules, provides as follows:
(g) with reference to Clause (g), of Section 2, it is hereby prescribed that;
(ii) in relation to an industry concerning railways, carried on by or under the authority of a Department of the Central Government;
(a) in the case of establishments of a Zonal Railway, the General Manager of that railway shall be the 'employer' in respect of regular railway servants other than casual labour;
(b) in the case of an establishment independent of a Zonal Railway, the officer in charge of the establishment shall be the 'employer' in respect of regular railway servants other than casual labour; and
(c) the District Officer in charge or the Divisional Personnel Officer or the Personnel Officer shall be the 'employer' in respect of casual labour, employed of a Zonal Railway or any other railway establishment independent of a Zonal Railway.
Reading the various definitions and Rule 2(g)(ii) referred to above, it is apparent that the railway is an industry within the meaning of the Act. This conclusion is further supported from the fact that under Section 2(n) any railway service is a public utility service and there is no doubt that unless the service in railway falls under the definition of industry as given in Section 2(i) and is treated as an industry it cannot be declared to be a public utility service. Rule 9 of the Rules makes provision for conciliation proceedings in public utility service, whereas Rule 10 for non-public utility service. More-over, annexure (iv) to the writ application shows that the Chief Personnel Officer forwarded extracts of Section 25F and Section 25FFF from the Act to all the District Officers for their guidance. It is apparent, therefore, that the railway is an industry within the meaning of the Act and the disputes with its workmen can be resolved in accordance with the provisions of this Act.
10. This view of mine finds support from the decision of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha, , and in Corporation of the City of Nagpur v. Its Employees 1960 2 S.C.R. 942. In the Hospital Mazdoor Sabha case , the question arose as to whether a number of hospitals run by the State for giving medical reliefs to citizens and imparting medical education is an industry within the meaning of Section 2(j). Distinction between activities of the Government which could be properly described as regal or sovereign activities and other activities were pointed out in that case. It was held that the activities of the State which are characterised as regal or sovereign which a constitutional Government can and must undertake for governance and which no private citizen can undertake are only beyond the scope of Section 2(j) and activities undertaken by the Government in the interest of socio-economic progress of the country as beneficial measures are not exempted from the operation of the Act which in substance is a very important beneficial measure itself. After construing the various definitions given in the Act it was held in that case that a hospital run by the State for giving medical reliefs to citizens and imparting medical education is an industry within the meaning of the Act as given in Section 2(j). It was also pointed out in that case that since the hospital was included in the definition of public utility service under Section 2(n)(vi) there could be no doubt that unless the service in hospital falls under Section 2(j) and is treated as an industry, it cannot be declared to be a public utility service. In the instant case, the railway is included in the definition of public utility service under Section 2 (n)(i) of the Act and is an undertaking carried on by the Central Government not as a part of its regal or sovereign functions of a State. It is an industry within the meaning of the Act, The history of Indian Railways shows that formerly railways were run by limited railway companies and subsequently they were nationalised and became one of the most important activities of the State. Therefore, the Supreme Court decision fully applies to the instant case and supports the conclusion that the railway is an industry within the meaning of the Act and the provisions of the Act are applicable in appropriate cases relating to the railway.
11. In Corporation of the City of Nagpur v. Its Employees (referred to above), a question arose whether the activities of the Nagpur Corporation fell under the definition of industry. It was pointed out in that case that if a service rendered by an individual or private person would be an industry. it would equally be an industry in the hands of a corporation. On a consideration of the various provisions of this Act it was held that the activities of the Corporation fell within the definition of an industry as given in Section 2(j) of the Act. Therefore, there is no substance in this preliminary objection raised by learned Counsel for the respondents that the railway is not an industry within the meaning of the Act.
12. The next objection was that the petitioners could not come before this Court before raising an industrial dispute and getting the matter referred to an Industrial Tribunal for its decision. The contention of the petitioners' counsel in this case is that the railway retrenched them in breach of the provisions of Sections 25F and 25G of the Act and, therefore, without raising an industrial dispute the individual workman had a right to come to this Court for quashing the order of their retrenchment under Articles 226 and 227 of the Constitution. He relied on the decision of the Supreme Court in the Hospital Mazdoor Sabha case (referred to above). In that case two of the workmen were retrenched by the authority of the hospital and without raising any industrial dispute, the two workmen filed an application in the Bombay High Court for a Witt of mandamus directing the authorities to reinstate them in their posts after quashing the order of retrenchment as it did not comply with the mandatory provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947. The workmen got relief and the order of retrenchment was quashed by a Division Bench of the Bombay High Court which decision was upheld by the Supreme Court. Though in that case the objection was not pointedly raised but it can be safely held that the decision impliedly supports the contention of the petitioners that even without raising an industrial dispute the workmen could come before this Court for the issue of appropriate writ for quashing the order of retrenchment and for their reinstatement. In my opinion, therefore, the petitioners have a right to come before this Court for the reliefs prayed for without raising an industrial dispute. The preliminary objection raised by learned Counsel for the respondents on this score must be overruled.
13. The learned Counsel for the respondents lastly contended that the workmen were retrenched by giving individual notices to them. Therefore one application by more than one person to quash the different orders of retrenchment was not maintainable in law. In this connection, he relied on a decision of this Court in Bishwaranjan Bose v. Honorary Secretary, Ram Krishna Mission A.I.R. 1968 Pat. 653. In that case four teachers of Vivekanand High School at Sakchi were removed from their services by four different orders. The four teachers jointly filed one writ application for quashing the four orders of termination of their services. It was held in that case that separate applications must be made for issue of separate writs to quash separate orders, otherwise, if one application of it succeeded, several separate writs would have to be issued and that would lead to an absurd position. This decision was again followed by a Bench of this Court in Bankim Chandra Chakravarty v. Regional Provident Fund Commissioner . In that case an application was filed to quash 15 prosecutions lodged against the petitioners under the provisions of the Employees' Provident Funds Act, 1962. Following the aforesaid decision, it was held that one joint application for quashing several prosecutions was not maintainable. Learned Counsel for the respondents submitted that the petitioners in C.W.J.C. 289 of 1968 and C.W.J.C. 360 of 1968 were retrenched by individual notices dated December 28, 1967, a copy of each of which was annexed to the counter-affidavit filed by the respondents and marked as annexures. As the petitioners refused to accept the said notices and started agitation and demonstration against the action taken by the Railway Administration, the said notices along with the general notice for all such casual labourers which were contained in Annexure 1 to the petition were hung up on January 31, 1968 on the notice board at the place where the petitioners were working. No doubt, it is true that initially the individual notices to the workmen on December 28, 1967 terminating their services with effect from January 28, 1968 were issued but the notice Annexure 1 to the two writ applications clearly shows that the order of termination as incorporated in the notices dated December 28, 1967 were given a go-by and subsequently one notice, Annexure 1, was issued on January 1, 1968 terminating the services of the workmen mentioned in the notice with effect from January 31, 1968. The petitioners have, therefore, come here in these two applications for quashing one order of termination incorporated in the notice, Annexure 1 to the writ applications. In my opinion, the principles laid down in the aforesaid two decisions of this Court are not applicable to the facts and circumstances of the present case.
14. With regard to the petitioners who are six in number in C.W.J.C. No. 361 of 1968, it was contended by learned Counsel for the respondents that individual notices were issued on January 17, 1968 terminating their services with effect from February 17, 1968 and the copy of the notices have been filed and made annexures to the writ applications. Learned Counsel for the petitioners drew our attention to the fact that those notices were issued on January 17, 1968 terminating the services of the petitioners with effect from February 17, 1968. On the top, the number of the order by which the services of the petitioners were terminated is mentioned as No. E 3293 dated January 17, 1968. In all the cases, therefore, the services of the petitioners were terminated by one and the same order. In my opinion, the submission of learned Counsel for the petitioners is well founded and must be accepted. The services of the six petitioners were terminated by the same order No E 3293 dated January 17, 1968 and one joint application by the six petitioners is maintainable to quash the order of termination of their services.
15. In this connection it may be mentioned that learned Counsel for the petitioner referred to a decision of the Supreme Court in National Iron and Steel Co. Ltd. v. State of West Bengal 1967 II L.L.J. 23. In that case one reference was made by the Government in regard to the disputes between four employers and their workmen. It was contended in that case that one reference was invalid and was not maintainable in law but the Supreme Court negatived that contention and it was pointed out that as there was commonality of interest so far as the dispute was concerned, one order of reference was valid. Though all the employers were not interested in all reliefs claimed it was not a matter of any moment under circumstances of the case as it did not cause prejudice to anybody. On the analogy of this case, it was also submitted that one application by a number of petitioners in which common questions of law and fact arose was not bad in law as no prejudice has been caused to other side. I have already held that in the present case the petitioners in the three writ applications have come here for quashing the same order of retrenchment passed against the workmen concerned and as such the applications are not bad in law; it does not fall for consideration in the instant case, whether one application is maintainable to quash several similar orders on the authority of this case.
16. Learned Counsel for the petitioners submitted that the order of retrenchment is illegal and invalid in law inasmuch as the railway did not comply with the mandatory provisions of Sections 25F and 25G of the Act. He submitted that before the petitioners should have been asked to go, they should have been paid retrenchment compensation. The payment of compensation was a condition precedent and if no such compensation was paid, the relationship between the parties, that of employer and employees, continued and as such they are entitled to be reinstated and to receive all arrears of their back wages and other allowances. He further submitted that the Railway did not follow the well-settled rule of industrial retrenchment Mast come, first go as is incorporated in Section 25G of the Act and on that ground also the retrenchment order must be quashed, On the other band, learned Counsel for the respondents contended that the provisions of Section 25F are not mandatory. The petitioners except one had received retrenchment compensation and other allowances in satisfaction of their full claim just after retrenchment and, therefore, they are estopped from challenging the retrenchment order. As regards observance of the rule laid down in Section 25G of the Act, he urged that the provisions of Section 25F will not apply to the facts of this case. He submitted that the petitioners were employed as casual labourers for the construction of the particular work and after completion of that work at Siliguri in which they were employed there was no necessity for their retention and, therefore, they were asked to go. According to him, the work at Siliguri was one establishment and after cessation of the work of that unit, the petitioners had no right to be retained in the Railway service. The work of Katihar was not complete; therefore, the persons working at Katihar, though some of them were junior to the petitioners in service, had to be retained.
17. In order to appreciate the contentions of the parties it is necessary to quote the provisions of Section 25F of the Act which read as follows:
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service,
(b) the workman has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months, and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
It is now well settled that it is for the employer to determine the number of workmen he would be employing in a particular establishment and if he feels that he does not require the services of some of the workmen on account of the fact that the volume of work to be done had to be reduced and, therefore, some workmen had to be retrenched, he is entitled to do so and nobody has a right to question it. But that power of retrenchment in relation to the workmen who had been in continuous service of the employer for not less than one year is subject to observance of the conditions laid down in Section 25F of the Act. Sub-clause (a) of Section 25F required that before retrenchment, one month's notice for retrenchment indicating reasons for such retrenchment has to be given to the workmen concerned or if no such notice was given the workmen had to be paid, in lieu of such notice, wages for the period of the notice, i.e., for one month before they are asked to go. In the instant case, there is no dispute that the petitioners have been in continuous service of the Railway for more than one year and have acquired the status of a temporary Railway servant. They have also received one month's notice in writing wherein the reasons of retrenchment are given. Therefore, the condition laid down under Section 25F(a) of the Act has been fully complied with and the petitioners can have no grievance for the same on this score.
18. The main grievance of the petitioners in these cases is that at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months has not been paid before the petitioners were retrenched. Admitted position in the cases is that no such compensation before the retrenchment, i.e., before the petitioners were asked to go, had been paid. No doubt, except one, all have been paid subsequently after filing of the writ applications in the High Court. Along with the counter-affidavits filed by the Railway, a complete statement showing in detail the names of the workmen and the amount of compensation paid with the dates of such payment are attached and made Annexure H thereof, the accuracy of which is not questioned by the petitioners, but learned Counsel for the petitioners submitted that the payment of retrenchment compensation is a condition precedent to retrenchment and if the payment is not made before the petitioners were asked to go, the entire order of retrenchment is invalid in law and the petitioners should be regarded as if they are still in service. He relied on a decision of the Supreme Court in Bombay Union of Journalists v. State of Bombay 1964 I L.L.J. 351. The following observation of the Supreme Court at p. 357 may be usefully quoted:
In this connection, there is one more consideration which is relevant. We have already seen the requirement of Section 25F(a). There is a proviso to Section 25F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specified a date for the termination of services. Clause (a) of Section 25F, therefore, affords a safeguard in the interests of the retrenched employee, it requires the employer either to give him one month's notice or to pay him wages in lieu thereof before he is retrenched. Similarly, Clause (b) provides that the workman has to be paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment and this requirement again provides a safeguard' in the interests of the workman, he must be given one month's notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by Clause (b). The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses and so there is every justification for making them conditions precedent.
The aforesaid observation of the Supreme Court clearly indicates that the conditions laid down under Clauses (a) and (b) of Section 25F are obligatory and are conditions precedent for such retrenchment and if no retrenchment compensation is paid before the workmen are asked to go, the retrenchment order is bad in law and invalid. Learned Counsel also drew our attention to a decision of the Supreme Court in A.I.R. 1967 S.C. 1206 which was dealing with a case under Section 25F(a) of the Act. It was pointed out in that case that if a workman is retrenched without giving one month's notice his wages for period of notice must be paid before he is asked to go.
19. In the present case no notice to the appropriate Government has been given as is provided under Section 25F(c) of the Act. Learned Counsel for the petitioners submitted that as no such notice to the appropriate Government in the prescribed manner has been served, the retrenchment order is bad on this ground alone. It is difficult for me to accept this contention. The provisions of Section 25F(c) are not conditions precedent to retrenchment and they should not be regarded as obligatory as is the case with regard to the observance of conditions laid down under Clauses (a) and (b) Bombay Union of Journalists' case (referred to above) had also held that Section 25F (c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected, It is also pointed out in Bombay Union of Journalists' case that the provision of Section 25F(c) is not condition precedent before retrenchment could be effected. Be that as it may, the mere fact that the Railway has not observed the conditions of Section 25F(b) of the Act before making retrenchment and no retrenchment compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months has been paid before such retrenchment, the order of retrenchment is illegal and bad in law.
20. Learned Counsel for the respondents submitted that the petitioners excepting one have received retrenchment compensation though subsequent to the retrenchment and, therefore, they could not be permitted to reagitate that the order of retrenchment is invalid in law. No authority was cited before us in support of this contention. On the other hand, learned Counsel for the petitioners submitted that the technical rule of estoppel is not applicable in industrial cases. In support of his contention, he relied on the decisions in Workmen of Subong Tea Estate v. Subong Tea Estate 1964 I L.L.J. 383, B.N. Elias and Co. v. Fifth Industrial Tribunal 1965 II L.L.J. 324 and Hind Strip Mining Corporation Ltd., Bermo v. Raj Kishore Prasad (Central Government Industrial Tribunal), Dhanbad 1967 I L.L.J. 108. where the argument as put forward by learned Counsel for the respondents on this score was rejected. In the case of Workmen, Subong Tea Estate a similar argument was advanced. The Supreme Court at p. 341 stated as follows:
It is true that the notices for effecting the retrenchment were issued by Mr. Hammond and it was Mr. Hammond who paid the retrenchment compensation to the eight employees. Sri Sastri sought to make a point against the appellants by suggesting that the employees had accepted retrenchment compensation and should not now be permitted to question the validity of the retrenchment. Apart from the fact that such technical pleas are not generally entertained in industrial adjudication, we cannot overlook the fact that after retrenchment compensation was paid to the employees on August 31, 1959, the next day they complained that they had been forced to accept the said compensation because they were virtually told that if they did not accept the compensation, they would not receive their wages for the month of August.
In the case of B.N. Elias and Co. (supra) the Calcutta High Court pointed out:
It was finally urged on behalf of the petitioner that since the workmen had received the sums paid by the petitioner on acknowledgment of receipt in final settlement, they were not entitled to any further payment or to urge that Section 25F(b) had not been duly complied with. The simple answer to this is that there cannot be any estoppel against a statute, particularly when the non-compliance with the statute goes to the root of the thing, as the Supreme Court has held. The Tribunal is also right in its view that the rule of estoppel or waiver cannot be applied against retrenched workmen who had no freedom to refuse the payment in view of their financial position caused by the retrenchment. This contention must, therefore, be rejected.
In the case of Hind Strip Mining Corporation Ltd., Bermo (supra) Narasiruham, C.J., also rejected the argument that the principle of technical plea of estoppel is out of place in an industrial dispute of this type and observed as follows:
Apart from these considerations, as pointed out by their Lordships of the Supreme Court in Workmen of Subong Tea Estate case technical plea of estoppel is out of place in an industrial dispute of this type.
21. Learned Counsel for the respondents sought to explain the Supreme Court and the Patna High Court cases on the ground that compensations in those cases were received by the workmen under protest but here they had themselves gladly received the compensation and, therefore, the principles laid down in those cases could not be applied to the facts of the present case No doubt, it is true that in those cases, compensations were received under protest but in Subong Tea Estate case the Supreme Court has clearly stated that the technical plea of estoppel is out of place in an industrial dispute. The Calcutta High Court has also taken the same view. Therefore, I overrule the contention of learned Counsel for the respondents that the petitioners are estopped from challenging the retrenchment order which is invalid and bad in law on the ground that they had subsequently received the compensation and made no grievance of the same. It may be pointed out here that the retrenchment compensation had been paid to the petitioners after they had filed the applications in the High Court for quashing the order of retrenchment, If the retrenchment order is invalid in law, subsequent payment of compensation cannot validate it. It may be a ground for not exercising our writ jurisdiction in favour of the petitioners, but since there is another serious infirmity, to which I shall presently refer, in the order of retrenchment, subsequent receipt of compensation cannot stand in the way of the petitioners.
22. The next grievance of the petitioners in this case is that the industrial rule of retrenchment last come, first go' as incorporated under Section 25G of the Act has not been observed by the Railway. The petitioners have alleged that the Railway has not maintained a list of seniority as is provided under Rule 77 of the Rules. The rule enjoins on the employer to prepare a list of all workmen in the particular category from which retrenchment is contemplated, arranged according to the seniority of their service in that category and cause a copy thereof pasted on a notice board in a conspiciuous place in the establishment of the industrial establishment at least seven days before the actual date of retrenchment, The respondents have asserted in para 19 of the counter-affidavit that such list of seniority of workmen was maintained in the office of the District Signal Tele-communication Engineer, Katihar, but there is nothing on the record to show that such a list of seniority of workmen was pasted on the notice board in a conspicuous place in the establishment of the industrial establishment at least seven days before the actual date of retrenchment. This rule is intended to give notice to the workmen to see whether in the retrenchment of a particular workman, the industrial rule of retrenchment 'last come, first go' has been religiously followed or not. The grievance of the petitioners in these cases is that a large number of workmen junior to the petitioners whose names are mentioned in Annexure 5 to the writ applications were retained by the Railway whereas the petitioners were retrenched. The stand of the respondents is that the persons working in Katihar establishment were retained and all persons who were working in the Siliguri establishment were retrenched.
23. Only some of the workmen who were skilled labourers working at Siliguri were retained and they were transferred to Katihar establishment. According to the case of the respondents, Katihar establishment was quite a distinct and separate establishment from the Siliguri establishment. Therefore, the question of the observance of the rule laid down under' Section 25G, 'last come, first go' does not arise in the present case. Section 25G provides that where any workman in an industrial establishment who is a citizen of India is to be retrenched and he belongs to a particular category of workmen in that establishment in the absence of any agreement between the employer and the workman in this behalf, the employer would ordinarily retrench the workman who was the last person to be employed in the category unless, for the reasons to be recorded, the employer retrenches any other workman. Therefore, the question arises in the present case, whether Katihar establishment and Siliguri establishment were one industrial establishment or two establishments. If the two establishments working at the two places constitute one unit, the petitioners will have a genuine grievance for being retrenched on account of non-observance of the rule 'last come, first go'. But if they are separate units, the Railway would be justified in retrenching them, as in that case, the rule 'last come, first go' does not seem to have been violated.
24. It is now admitted case of the parties that the petitioners as well as those working at Katihar yard were originally employed as casual workmen on daily rate of wages by the Assistant Signal and Tele-communication Engineer (Construction), Katihar, with effect from different dates for the temporary work at New Jalpaiguri and Katihar for the purely temporary construction organisation under the Assistant Signal and Tele-communication Engineer (Construction), Katihar. After completion of continuous work for six months they acquired the status of temporary railway servants and they got prescribed scale of pay and other allowances permissible under Railway rules. It is also admitted that they have remained in the employment of the Railway continuously for more than one year before they were retrenched. The case of the respondents is that the work of New Jalpaiguri yard and Katihar yard was separated in April, 1967 on administrative grounds. Accordingly, the said casual labourers engaged in the said work which was purely temporary in nature were divided into two groups, one group was put to work under Signal Inspector (Construction), New Jalpaiguri, under the administrative control of the District Signal and Tele communication Engineer (Construction) and the other group was kept at Katihar under the Signal Inspector (Construction) and administrative control of the District Signal and Tele-communication Engineer (Construction) both officers having independent charges and separate establishment units. The petitioners were casual labourers who were put to work at New Jalpaiguri yard and on completion of the said purely construction work at New Jalpaiguri and impending closure of the said temporary construction organisation, those casual labourers including the petitioners were discharged. Hence, learned Counsel for the respondents contended that as the two establishments were separate, the department was justified in retrenching the petitioners who were working at Siliguri yard after the completion of the work. As the Katihar and Jalpaiguri yards were not one establishment, the department did not observe the rule laid down under Section 25G of the Act.
25. It is now well settled that if an industrial business concern runs different departments, whether the same or all of them can be regarded as one establishment or separate establishments depends on the facts and circumstances of each case. In Swadesamitran Ltd., Madras v. Their Workmen, , it was pointed out that the rule laid down under Section 25G is to be applied unit wise and if the rule has not been followed in the matter of retrenchment, the workmen are entitled to reinstatement: In the case of Indian Cable Company Limited v. Its Workmen, 1962I L.L.J. 409, the question for determination by the Supreme Court was as to whether the several branches working at different places could be regarded as one establishment or different establishments. The tests laid down were whether the different branches were working at different places, there were different scales of wages, the workmen were recruited for the particular branch where they were employed, whether they were transferred from one branch to another and whether different categories of workmen on different scales of wages were paid at various branches for the same kind of work.
26. In the present cases, the petitioners as well as other workmen who have been retained for the construction of Katihar yard were recruited by the Assistant Signal and Tele-communication Engineer (Construction) at Katihar. After completion of six months service they all got same prescribed scales of pay as temporary railway servants. It is also admitted in this case that after the completion of the work at Siliguri yard the services of some workmen have been retained and transferred to Katihar as they were skilled workmen, The District Signal and Tele-communication Engineer is the head of the construction work. The respondents have claimed that in April, 1961, the workmen were divided into two groups, one was retained at Katihar and the other was sent to Jalpaiguri. Seniority list of workmen was maintained in the office of the District Telecommunication Engineer (Construction) at Katihar. In such circumstances, the working at Katihar yard and Siliguri yard could be regarded as one establishment and the principle of 'last come, first go' should have been applied before retrenching the services of the petitioners, As Annexure 5 shows that many persons under different category of workmen junior to the petitioners have been retained, the retrenchment of the petitioners is illegal on account of the non-observance of the mandatory provisions of Section 25G of the Act and, therefore, on this ground also, the order of retrenchment passed against the petitioners is illegal and must be struck down.
27. On a careful consideration of the facts and circumstances of the case and legal position, I am of the view that the impugned orders of retrenchment passed against the petitioners are illegal and invalid. The said orders, copies of which are Annexure 'I' in all the three writ applications are quashed.
28. For the reasons stated above, the, applications are allowed. Let a writ in the nature of mandamus issue against the respondents commanding them to reinstate the petitioners in their services and pay the arrears of their back wages and other allowances after making adjustments of the amounts they have already received. In the circumstances of the case, there will be no order as to costs.
Untwalia, J.
I agree.