L ROBERT DSOUZA Vs. EXECUTIVE ENGINEER SOUTHERN RAILWAY

JUDGEMENT

(1.) APPELLANT L. Robert D'Souza joined service as a Gangman at Mangalapuram in Southern Railway on July 1, 1948. In course of his service he was transferred to various places. When he was last working as Lascar at Ernakulam, on October 8, 1974 the Executive Engineer (Construction), Ernakulam intimated to him that his services were deemed to have been terminated from September 18, 1974, from which date the appellant was said to have absented himself from duty. This letter has an important bearing on the issues raised in this appeal, and, therefore, relevant portion may be extracted here: You have absented yourself unauthorisedly from September 18, 1974 and hence your services are deemed to have been terminated from the day you have 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 chagrined by it, the appellant was transferred to Padannur 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 reported and allowed to continue at Ernakulam after paying the arrears of wages and granting continuity of service for the period he did not join duty at the place of his transfer. This is quite evident from the letter of the Under-Secretary, Ministry of Labour, dated April 23, 1974, which reads as under: With reference to your letter dated May 28, 1973, on the above subject, I am directed to say that it has been reported by the Ministry of Railways that the Southern Railway Administration has been advised that as you were transferred back to Ernakulam on March 19, 1971, you should be deemed to have been on duty for the intervening period from March 8, 1970, to February 19, 1971, and your wages paid accordingly.

(2.) THE local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant. In the meantime the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time. As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice of the Railway Administration they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala. According to the appellant, for the various reasons stated in the petition, appellant and those similarly situated could not be treated as daily-rated casual labour and under the relevant rules appellant and his co-workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellants service was terminated and that they would be entitled to all the retiral benefits. THE petition came up before a learned Single Judge who dismissed the same. THE matter was taken in appeal before the Division Bench. In the appeal it was contended that the termination of service of the appellant in the circumstances as set put earlier would constitute retrenchment within the meaning of Section 25-F of the Industrial Disputes Act, 1947 ('Act' for short), and therefore, the order of termination, inter alia, is invalid. THE Division Bench found the question raised before it of such importance and magnitude that it referred the same to the Full Bench.

(3.) 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 Section 2(00) 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, has been specifically overruled by this Court in Santosh Gupta v. State Bank of Patiala. This Court has consistently held in State Bank of India v. N. Sundara Money, Hindustan Steel Ltd. v. Presiding Officer, Labour Court, and Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji, that the expression 'termination of service for any reason whatsoever' now covers every kind of termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections 25-FF and 25-FFF. 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, the ratio of which was reaffirmed by a Constitution Bench of this Court in Hariprasad Shivshankar Shukla v. A.D. Divikar, all the later decisions run counter to the ratio of the Constitution Bench and must be treated per incuriam. This contention need not detain us because first in Hindustan Steel Ltd. case, then in Santosh Gupta case and lastly in Mohon Lal v. Bharat Electronics Ltd., it was in terms held that the decision in Sundara Money case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla case and not only required no reconsideration but the decision in Sundara Money 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 rolls 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 Section 2(00) of the Act covers every kind of termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections 25-FF and 25-FFF. 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 case and secondly, in view of the decision in Delhi Cloth and General Mills Ltd. case striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression 'retrenchment' in Section 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.