Indian Kanoon - Search engine for Indian Law

has rendered six months' continuous service would be placed in the category of temporary railway servant unless he is employed on work-charged project. Rule 2501(b) (i) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary railway servants after expiry of six months of continuous employment. [271 E- H] In the instant case: (i) the appellant acquired the status of temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505; (ii) he never worked on projects but on a construction Unit. Construction Unit is a regular Unit and cannot be equated to Project. Every construction work does not imply Project. Project is correlated to planned projects in which the workman is treated as work-charged. Persons belonging to casual labour category cannot be transferred but the appellant was transferred on innumerable occasions; (iii) as a result of the appellant and others filing a writ petition, three co- appellants were informed that they were treated as on regular employments and ceased to belong to the category of casual labour. But for impugned termination orders the appellant also would have been treated as temporary and therefore, the appellant received discriminatory treatment offending Article 14 & 16 of the Constitution; and (iv) section 25F of the Industrial Disputes Act provides that 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 the conditions set out in Act are satisfied. The appellant would be a workman within the meaning of that expression in section 2(s) of the Act. He has rendered continuous service for a period over twenty years. Therefore, the first condition of section 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, is satisfied. His service is terminated which for the reasons herein before 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. 500 and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of section 25B 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. [271 D, 272 A, G, 275 D-G] 3:3. Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice. Further Rule, 2302 clearly prescribes the mode, manner and methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out, the termination is void and invalid. Accordingly, the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative. [273 A-C] OBSERVATION: Rule 2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notions of socio-economic justice and it is high time that Railway 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 is high time that these utterly unfair provisions wholly denying socio-economic justice are properly modified and brought in conformity with the modern concept of justice and faieplay to the lowest and the lowliest in Railway administration. [273 C-D, 274 A-B] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1613 of 1979.

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 termination of service except those not expressly included in s. 25F or not expressly provided for by other provisions of the Act such as ss. 25FF and 25FFF. It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union,(6) the ratio of which was re-affirmed by a Constitution Bench of this Court in Hariprasad Shivshanker Shukla v. A.D. Divikar,(7) all the later decisions run counter to the Constitution Bench and must be treated per in curium. This contention need not detain us because first in Hindustan Steel Ltd. case, then in Santosh Gupta's case (Supra) and lastly in Mohan Lal v. Bharat Electronics Ltd.,(1) it was in terms held that the decision in Sundera Money's case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla's case and not only required no reconsideration but the decision in Sundera Money's case was approved in the aforementioned three cases. This position is further buttressed by the decision in Delhi Cloth and General Mills Ltd. case wherein striking off the name of a workman from the roll was held to be retrenchment. It is, therefore, the settled law that the expression 'termination of service for any reason whatsoever' in the definition of the expression 'retrenchment' in s. 2(oo) of the Act covers every kind of termination of service except those not expressly included in s. 25F or not expressly provided for by other provisions of the Act such as ss. 25FF and 25FFF. Two things thus emerge, firstly, that the decision of the Full Bench of Kerala High Court under appeal has been specifically overruled by this Court in Santosh Gupta's case (Supra) and secondly, in view of the decision in Delhi Cloth General Mills Ltd. case (Supra) striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression 'retrenchment' in s. 2(oo). This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court.

man; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and 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 indicated to be the post of Assistant Line Fixer (Assistant Grade I) without loss of wages. He was to be on probation. The management found him unsuitable for this post even after extending the period of probation by 9 months and therefore offered him post of Fitter on the same pay which he, as a Motion Setter, used to get. The response of S. N. Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve, he would tender his resignation voluntarily. The management did not reply to the letter with the result that the workman did not report for work at the newly offered post. On January 19, 1966, the management wrote to the workman that his name has been struck off from the rolls with effect from August 24, 1965, for continued absence without intimation. Such termination of service was held to be covered by the expression 'retrenchment' and it was struck down on the ground that the pre-condition to valid retrenchment was not complied with. It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the Act. And here recall the order of termination of service of the appellant wherein it is stated that "You have absented yourself unauthorisedly from 19.8.1974 and hence your services are deemed to have been terminated from the day you have absented yourself." Is any other conclusion possible save and except the one recorded by this Court in Delhi Cloth & General Mills Ltd case that this constitutes retrenchment and for non-compliance with pre- condition, it is invalid.

It was obligatory upon the employer, who wants to retrench the workmen to give notice as contemplated by clause (a) of s. 25. When a workman is retrenched it cannot be said that change in his conditions of service is effected. The conditions of service are set out in Fourth Schedule. No item in Fourth Schedule covers the case of retrenchment. In fact, retrenchment is specifically covered by Item 10 of the Third Schedule. Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule, S. 9A would not be attracted. In order to attract s. 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule. If the change proposed does not cover any matter in Fourth Schedule s. 9A is not attracted and no notice is necessary. See Workmen of Sur Iron & Steel Co. (P) Ltd. v. Sur Iron & Steel Company (P) Ltd., Tata Iron & Steel Company Ltd. v. Workmen and Assam Match Co. Ltd. v. Bijoy Lal Sen. Thus if s. 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.