Rajasthan High Court - Jaipur
Mohan Singh And Ors. vs R.S.R.T.C. And Anr. on 16 January, 1992
Equivalent citations: (1993)IILLJ104RAJ, 1992(1)WLC291
JUDGMENT I.S. Israni, J.
1. In all the writ petitions, mentioned above, a common question of law has been raised, therefore, they are decided by single order.
2. In these petitions, it has been prayed that the order, by which services of the petitioners were terminated, may be quashed and each of the petitioners may be taken back in service.
3. Briefly stated, all the petitioners were working as Conductors in the Rajasthan State Road Transport Corporation (RSTRC)-respondent No. 1. Some of them were initially appointed on daily wage basis and subsequently given permanent appointments and were confirmed in their jobs. By various orders, issued around April 1989, each of the petitioners were retrenched from service. No notice prior to issuing of the above mentioned order was given to any of the petitioners.
4. It is submitted by Mr. Prem Kishan Sharma & Mr. Prem Kumar Sharma, learned counsel, that question of any retrenchment did not arise, as in the Financial Year, 1986-87, amount of Rs, 68.10 lacs were paid to the conductors as overtime payment. In the year, 1987-88, this amount was raised to Rs. 89.33 lacs. This shows that roughly over-time payment made to the conductors came to the equivalent salary of 750 conductors. Thus, the question of retrenchment did not arise. It is further submitted that, in the past, the practice of the Corporation has been to consider surplus employees for absorption on other posts. In para No. 12 of Petition No. 3115/89, details of posts of various categories totalling to 520, which are lying vacant with the Corporation, have been given. It is also submitted that, earlier, conductors have been absorbed or promoted on such posts whenever necessity arose. It is pointed out that the petitioner-conductors were appointed according to the requirement of the Corporation and even if it thinks that certain number of particular set of employees like conductors have become surplus, then it clearly means that the Corporation has fixed the said number of conductors, after setting certain norms to be followed. This clearly is nothing but rationalisation and there is no reduction in work as such. Apart from this, the petitioners were appointed against permanent vacancies, therefore, they cannot be said to have become surplus. It is further pointed out that the termination orders state that the services of the petitioners are terminated, because the number of conductors is more than required. The Corporation is reducing the number of employees and such reduction cannot be termed to be a retrenchment, which may be necessary by efflux of time for discharing the workman for his inefficiency or because of having finished some temporary assignment/job. In such circumstances, it was necessary for the Corporation to have followed the provisions of Section 9A of the Industrial Disputes Act, 1947, which lays down that before the employer effects any change in the conditions of service, applicable to any workman in respect of any matter specified in IVth Schedule, he shall give a notice of 21 days in the prescribed manner. It is also pointed out that giving of one month pay in lieu of notice has no meaning, since the provisions of Sections 25A of the ID Act are not applicable, but the provisions of Section 9A shall be applicable. It is given out that Item No. II of IV Schedule provides that any increase or reduction in the number of persons employed or to be employed in any occupation shall also amount to change of conditions, to which the provisions of Section 9A shall apply. The procedure laid down under Section 9A is mandatory. It is further given out that several persons junior to many petitioners have been retained in service. It is also given out that the petitioners have been discriminated as is evident from the order dated April 15, 1989 (Anx. 1) in Petition No. 1716/89 in which it is clearly stated that this order shall not be applicable to such employees/conductors against whose names SC and ST is mentioned. Therefore, the petitioners, who do not belong to the category of SC/ST, have been thrown out, which is discriminatory and violative of Article 14 of the Constitution.
5. No return has been filed on behalf of the Corporation in any of the petitions. It is submitted by Mr. R.R.L. Gupta, Mr. Prem Asopa and Mr. Manish Bhandari, learned counsel, that since there was over-employment of conductors, which was causing great financial stress on the Corporation, the services of the petitioners have been rightly terminated by giving them salary in lieu of one month's notice etc. It is further submitted that no junior persons have been retained in employment in comparison to the petitioners. It may be mentioned that the learned counsel gave out that the relevant record regarding seniority shall be produced for perusal of the Court on the next day. However, even though more than one month has passed the relevant record has not been produced for perusal of this Court to verify the petitioners being senior to several such conductors, who have been retained in employment, It is also submitted that the provisions of Section 9A of the ID Act are not applicable, as no question of rationalisation is involved in the matter. 6. I have heard both the parties and gone through the relevant record. I deem it appropriate to consider first the question of applicability of the provisions of Section 9A of the ID Act, as it goes to the root of the whole matter. The relevant portion of Section 9A reads as under:
"Notice of change - No 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, shall effect such change,-
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change-
(a) where the change is effected in pursuance of any settlement or award."
The IVth Schedule describes, in detail, the conditions of service, for change of which notice is to be given. The relevant Items at S. Nos. 10 and 11 are as under:
"10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen;
11. Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department of shift not occasioned by circumstances over which the employer has no control."
In the matter under consideration, the petitioners were employed as conductors with the Corporation on permanent basis. They have been given one-month salary in lieu of one-month notice and retrenchment compensation, while terminating their services, on account of the petitioners being surplus. Apart from the contention raised on behalf of the petitioners that this order/act of Corporation amounts to rationalisation, on account of which retrenchment of the petitioners has been made, it clearly reduces the number of persons employed by the Corporation. As per Item II of IVth Schedule, if any increase or reduction in number of persons employed or to be employed in any occupation or department of shift is effected, it will be necessary to follow the procedure laid down under the provisions of Section 9A . Admittedly, this has not be done and the respondents thought it more convenient not to file any return. Workmen, F.C. of India v. Food Corporation of India 1985-II-LLJ-4 was a case, the facts of which show that the Food Corporation of India adopted different methods at different places for employing workmen for handling food grains. Initially, a contractor was engaged by the Corporation for handling storage and transit of food grains at one Depot. Subsequently, by negotiation and settlement, the contract system was abolished and the workmen were directly paid wages by the Corporation. The Corporation subsequently, without any notice cancelled the direct payment system and revived the contract system. It was held by the Apex Court that on disappearance of the intermediary contractor, a direct relationship of master and servant came into existence between the Corporation and the workmen. Therefore, any termination of service contrary to the provisions of Standing Orders or the provisions of ID Act would be void, when the workmen working under the Corporation were told that they have ceased to be workmen of the employer and had become workmen of contractor. It was further held that in legal parlance, such act of first employer constituted discharge, termination of service or retrenchment by whatever name called a fresh employment by another employer, namely, the contractor. It was also held that in view of the provisions of Section 9A of the ID Act, without following the procedure laid down and without giving a notice regarding proposed change, was illegal and was set aside. The matter under consideration, is all the more serious as in this case, the number of employees (conductors) has been reduced, which constitutes a change in conditions of service as enumerated in Item 11 of the IVth Schedule of the ID Act. It can, therefore, be said that in the matter under consideration, it was necessary for the respondent to have first given notice under Section 9A of the ID Act and wait for 21 days before issuing the orders, declaring the petitioners to be surplus and terminating their services. Since this has not been done, the various orders in the writ petitions, by which the services of each of the petitioners were declared to be surplus and hence terminated, is clearly illegal and against the mandatory provisions of Section 9A and IVth Schedule mentioned therein.
7. From the facts stated above, it is clear from the order of termination (Anx. 'A') in Petition No. 1716/89, that the Corporation came to the conclusion that there were more conductors in the Corporation than were required, which caused unnecessary financial burden on it. It can, therefore, be said that the Corporation took steps to rationalise the employment of conductors with a view to effect economy in its running. On this account, the said rationalisation resulted in retrenchment, petitioners were declared surplus and their services were terminated. Since the rationalisation resulted in retrenchment of services of the petitioners, it was obligatory on the Corporation to have given notice of 21 days to each of the petitioners as per provisions of Section 9A of the ID Act and Item 10 as provided in the IVth Schedule. If this rationalisation had not resulted in retrenchment petitioners being declared surplus, it would not have been necessary for the Corporation to give any such notice as provided under Section 9A of the ID Act. I am fortified in my view by the decision of the Apex Court in Hindustan Lever Ltd. v. R.M. Ray 1973-I-LLJ-427 at 430. In this judgment, it was held by the Apex Court in para 8 that "in other words, rationalisation or standardisation by itself would not fall under Item 10 unless it is likely to lead to retrenchment of workmen." As already shown above, the rationalisation-standardisation effected by the Corporation in the writ petitions under consideration has resulted in retrenchment and, therefore, the provisions of Section 9A of the ID Act shall be applicable before any such order is passed.
8. The learned counsel for the respondents have placed reliance on L. Robert D'Souza v. The Executive Engineer, Southern Railway and Anr. 1982-I-LLJ-330. This was a matter, in which services of a workman were terminated. He was held to be retrenched as his services did not fall within four exceptions enumerated in the said judgment. It was held that once the case did not fall in any of the accepted categories the termination of services, even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2(oo) of the, ID Act. As a result the appeal of the workman was allowed and the order of termination of services of the appellant was held to be illegal and invalid. I am afraid, this authority is of no help whatsoever to the respondents.
9. I have already held that the provisions of Section 9A of the ID Act were applicable and it was obligatory on the part of the respondent-Corporation to have given notice to the workmen of 21 days before any order, regarding termination of their services could be passed. This constitutes a change in the Conditions of Service of the petitioners-workmen as specified in Items No. 10 and 11 of the IVth Schedule under Section 9A . Therefore, each of the orders issued by the respondent-Corporation, terminating the services of the each of the petitioners is illegal and invalid, and is, therefore set aside. In view of this conclusion, I do not deem it necessary to burden this judgment any more and to decide other contentions raised by the learned counsel for the petitioners.
10. In the result, the above-mentioned writ petitions are allowed and each of the orders, by which the services of each of the petitioners were terminated, is quashed and set aside. Each of the petitioners will be deemed to be in service and will be taken back on their job within four weeks, provided each of them files an application in writing alongwith a certified copy of this order before the concerned Authority in the Corporation. All the petitioners shall also be entitled to all the consequential reliefs.
11. The writ petitions allowed, as above, with no order as to costs.