TaxTMI 
TaxTMI 
1982 (2) TMI 302
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....e absented yourself. Please note. Since you are no longer on the rolls of this office you should vacate the quarters allotted to you immediately failing which action will be taken to evict you". According to the appellant, up to the date of unauthorised and illegal termination of his service he had rendered continuous service for a period of 26 years yet the Railway administration wrongfully denied him the status of a temporary and or regular workman and treated him a daily rated casual labourer. This treatment according to the appellant was so unfair that it prompted persons who were victims of this unfair treatment by the Railway administration to form a Union named Southern Railway Construction Workers Union, Ernakulam, of which the appellant was the General Secretary. The Union submitted a charter of demands which presumably irritated the authorities and chagrinned by it, the appellant was transferred to Podannur in Tamil Nadu by way of punishment. As the late Shri A.K. Gopalan, who was a renowned trade union leader, espoused the cause of the appellant, his transfer was cancelled and he was repasted and allowed to continue at Ernakulam after paying the arrears of wages an....
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....es. A demand was made that all the benefits granted by the Central Pay Commission be extended to the category of employees to which the appellant belonged and when these demands fell on deaf ears, it was resolved to give a strike notice. The matter was taken in conciliation which ultimately resulted in failure. The appellant approached the Central Government to make a reference under s. 10 of the Act in respect of the demands for adjudication by National Tribunal. As the Central Government was wobbling in its approach, the appellant declared his intention to go on fast unto death for redressal of the grievances suffered for decades by the lowest category of railway employees. At that stage the Assistant Labour Commissioner intervened and persuaded the appellant not to precipitate the matter. The appellant accordingly broke his fast on September 28, 1974, in the hospital where he was confined during his fast. Taking advantage of his absence during the fast immediately the order of termination of his service was served and this led to the present proceedings which have culminated in this appeal. The appellant, inter alia, contended before the Full Bench of Kerala High Court that t....
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....ium. 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 secondl....
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....oned that the majority in that case has affirmed the earlier decision. Therefore, after meticulously examining on five distinct and different occasions, it is clearly and unequivocally stated that there is neither apparent nor real conflict between the decision of the Constitution Bench in Hariprasad Shukla's case and the later five decisions commencing from Sundera Money and ending with Mohanlal's case, it would be sheer waste of time and merely adding to the length of the judgment to re-examine this contention over again, so as to cover the familiar ground. As we are not prepared to examine the contention over again, the submission of Mr. Francis that 'retrenchment' contemplates some overt act on the part of the employer, that it inheres the principle of last come first go which again requires an overt act on the part of the employer; that when retrenched workmen and required to be re-employed, first option for re-employment has to be given to the retrenched workmen, which necessitates some overt act on the part of the employer, would be beside the point and of no relevance and significance. The reference to Rules 76, 77 and 78 of the Industrial Disputes (Central Rules). 1957, do....
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....y. 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. ....
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.... "9A. 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) x x x x (b) x x x x Provided that no notice shall be required for effecting any such change: (a) x x x x (b) where the workmen likely to be effected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules, or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply". 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 retre....
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....ay. Rule 2501 reads as under: "2501. Definition- (a) Casual labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods. Labour of this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour, (b) The casual labour on railway should be employed only in the following types of cases, namely: (i) Staff paid from contingencies except those retained for more than six months continuously. Such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment. (ii) Labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment. (iii) Seasonal labour who are sanctioned for specific works of less than six months duration. If such labour is shifted from one work to another of the same type, e.g., relaying and the total continuous period of such ....
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....ork of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment. Similarly, seasonal labour sanctioned for specific works for less than six months' duration would belong to the category of casual labour. However, sub clause (iii) of clause (b) of rule 2501 provides that if such seasonal labour is shifted from one work to another of the same type, as for example, 'relaying' and the total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers. It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work-charged projects renders six months' continuous service without a break, by the operation of statut....
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....e relevant time, i.e. September 5, 1966, was working, addressed a letter to various Executive Engineers inquiring from them whether the surplus staff on his establishment could be absorbed by any of them. The material portion of the letter reads as under: Ext. P-3 Executive Engineer's Office, Ernakulam Dated 5.9.1966 Subject :- Surplus staff (Casual labour staff) absorption of ----- "Since the major portion of the work in this construction unit is over the list of the C.L. staff who are likely to be rendered surplus by 30.9.66 and 31.12.66 due to expiry of sanction to the post held by them, is enclosed. Please advise whether you can absorb any of these personnel in your construction division so that they may be relieved in time if they are willing". Enclosures: (1) List. List of C.L. Staff Working in Xen's Office/Ers. Sr. No. Name Presently working as Date of appointment X X X 10. Robert D'Souza. Peon/Lascar. 15.11.54 X X X This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15, 1954. Recall here, the fact that his s....
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....g all of them had acquired status of temporary employees. The respondent filed counter-affidavit and contended that the appellant and his co-petitioners in the High Court never acquired the status of temporary railway servant and each of them belonged to the category of casual labour. During the pendency of the petition in the High Court service of the appellant was terminated but his co-petitioners continued in service. After the dismissal of the writ petition by the learned single judge appellant and three others preferred Writ Appeal No. 218 of 1973 in the same High Court. By the time the appeal came up for hearing three co-appellants of the present appellant who were appellants before the Division Bench were informed that they were treated as on regular employment and ceased to belong to the category of casual labour. Unfortunately as the service of the appellant was already terminated he was not given this benefit. This fact clearly emerges from the manner in which the Division Bench disposed of the appeal before it. The relevant observation is as under: "In view of the letters received from the Executive Engineer, Southern Railway, addressed to Shri K.P. Pathrosa, advocate, a....
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....pellant could not be treated otherwise, but for a singular unfortunate event of his termination of service. He could not be singled out for such treatment, Had his service not been terminated, the Railway administration could not have denied him the status and this status he would have acquired long back. If by operation of law, to wit, Rule 2501 the appellant had acquired the status of temporary railway servant by rendering continuous uninterrupted service for more than six months, his service could not have been terminated under rule 2505. It, however, needed moral force of fast and costly court proceedings by a low daily paid workman against the Railway administration in the High Court to obtain such meagre benefit. It would thus clearly appear that even the appellant would have acquired the status of at least a temporary railway servant. But we would rather like to refer to the legal position in this behalf more accurately. To start with, let us recall the rule 2501(b) (i) and (iii) and note below rule 2505. The underlying internment of the provision is that a casual labourer who has rendered six months' continuous service would be place in the category of temporary railway ....
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....erred and paid wages for the period he did not report for duty at the place where he was transferred. Cumulative effect of these facts completely belie the suggestion that the appellant worked on project. Having rendered continuous uninterrupted service for over six months, he acquire the status of a temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505. Once it is held that by operation of statutory rule in the Manual, the appellant had acquired a status of temporary railway servant and assuming, as contended by Mr. Francis, that the termination of service in the circumstances alleged does not constitute retrenchment stricto sensu, would the termination be still valid? The answer is an emphatic no. On the admission of the Railway administration, service was terminated on account of absence during the period appellant was on fast. 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, manne....
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....cept of justice and fairplay to the lowest and lowliest in Railway administration. Now, if appellant had become at least a temporary railway servant he is entitled to many benefits set out in Rule 2303 onwards. We have no doubt in our minds that the appellant whose case was on par with Shri K.N. Balakrishna who had already been offered regular employee status, would be entitled to be placed in the same category and that too from the date much earlier to the date of termination of his service. In this situation termination of his service not being covered by any of the excepted categories and not after notice would be retrenchment within the meaning of the expression as used in the Act and for the failure to comply with the pre condition the termination of service would be void. Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour, would the termination of the service in the circumstances mentioned by the Railway administration constitute retrenchment under the Act ? Section 25F of the Act provides that no workman employed in any industry who has been i....