Patna High Court
Gaffar And Ors. vs Union Of India (Uoi) And Ors. on 7 February, 1983
Equivalent citations: 1983(31)BLJR282
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. The petitioners were employed as casual workers in the North Eastern Railway and by the impugned order (Annexure 1) their services have been terminated. They have challenged the order by the present writ application.
2. Mr. Keshaw Nath Tiwary, learned Counsel for the petitioners, has pressed the following three points in support of the application:
(i) The respondent No. 6 Bridge Inspector/Construction who has passed the order in Annexure '1' has no authority to do so;
(ii) The impugned order having been passed without complying with the requirements of Rule 77 of the Industrial Disputes (Central) Rules, 1957 is illegal; and
(iii) The petitioners have served the Railways for more than 120 days and have, therefore, acquired temporary status entitling them to the benefits under Chapter 23 of the Railway Establishment Manual and Rule 149 of the Railway Establishment Code. They were, therefore, entitled to 14 days notice which has not been given.
3. On the first point the petitioners have stated that the respondent No. 6 is not the District Officer Incharge or Divisional Personnel Officer or Personnel Officer and, as such, he cannot be treated to be the employer so as to entitle him to retrench the petitioners. According to the case of the respondents as disclosed in the counter affidavit, the petitioners were employed through Bridge Inspector. Further, the order dispensing with the services of the petitioners has not been passed by the Bridge Inspector. He is merely carrying out the orders of the Executive Engineer (Respondent No. 4) who being the District Officer Incharge is admittedly authorised to do so. This step had to be taken in compliance with the direction of this Court in C.W.J.C. 341 of 1977 and C, W. J. C. 1499 of 1977. The statement has been denied by the petitioners by a further affidavit, but I do not see any reasons to disbelieve the assertion made on behalf of the respondents. A copy of the order dated 8.5.80 passed by the Executive Engineer as contained in Annexure 'A' to the counter affidavit supports the respondents' version that the decision to retrench the petitioners was taken by him and the respondent No. 6 was merely carrying out the direction by his order in Annexure T. The first ground urged of the petitioners, therefore, is rejected.
4. The Rule 77 of the Industrial Disputes (Central) Rules, 1957 which is mentioned below requires preparation and publication of a list of all workmen in the concerned category at least 7 days in advance:
Maintenance of seniority list of workmen--The employer shall 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 to be pasted on a Notice Board in a conspicuous place in the premises of the Industrial Establishment at least seven days before the actual date of retrenchment.
This provision has been included in the Rules so that the object of Section 25G of the Industrial Disputes Act may be effectively achieved. The Industrial rule relating to retrenchment of 'last come, first go' where other things are equal has been recognised for long and affords a healthy safeguard against discrimination. The principle was given statutory recognition by amendment of the Act in 1953. The Rule 77 was framed with a view to facilitate a retrenched workman to verify that he is not being discriminated against otherwise it may be impracticable for him to collect relevant information and' enforce his right. The minimum time of seven days allowed for this purpose is not unnecessarily long, for the workman should get an adequate opportunity to scrutinise the correctness of the seniority list before he is thrown out Viewed from this angle, it should be held that the requirement mentioned in Rule 77 is mandatory and its violation renders an order of retrenchment illegal.
5. In the writ application it was stated that, no such list was put up on the Notice Board at all. In paragraph 11 of the counter affidavit, it is asserted that a seniority list of all the workmen including the petitioners was published on 9.5.80. There is a serious controversy in regard to this fact as will appear from the further affidavits filed on behalf of the parties, but I will assume in favour of the respondent that the seniority list was published as claimed. A further question arises as to whether this satisfies the requirement of Rule 77. By the order in Annexure T dated 13.5.1980 the services of the petitioners were dispensed with effect from the afternoon of the 15thMay, 1980. If the 15th May is excluded, the publication took place only sixdays before the date of retrenchment. Mr. A.B. Ojha, the learned Counsel for the respondents, contended that since the petitioners continued in the employment till the afternoon of the 15th, the actual retrenchment must be treated to be effective with effect from the 16th and, if that is done, this requirement of seven days notice is fulfilled. The manner of computation as suggested does not appear to be correct. When the order states that the retrenchment took place on the 15th itself--may be in the afternoon or in the evening--there is no scope for artificially treating the petitioners to be in the service till the next day, that is, the 16th May. The object of the rule is to give seven clear days' notice before the actual date of retrenchment. The period, therefore, cannot be cut down by including in it both the date of the publication and the date of retrenchment. The observations of this Court in Khemrai Tiberewal v. Haji Dilawar Mian 1967 B.L.J.R. 971 while interpreting the expression 'within 15 days' in Section 11-A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947 are helpful and the spirit of the provisions of Section 9of the General Clauses Act, 1897, although not directly applicable, favours the interpretation as indicated by me. I, therefore, hold that the condition mentioned in Rule 77 was not satisfied in the present case and the order in Annexure' 1' is consequently illegal. In view of this finding, it is not necessary to consider the other point urged on behalf of the petitioners.
6. In the result, the order in Annexure '1' is quashed and the respondents are directed to reinstate the petitioners in service as before. The writ application is accordingly allowed, but, in the circumstances, without costs.
Madan Mohan Prasad, J.
7. I agree.