L KRISHNAN Vs. DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY

JUDGEMENT

(1.) The petitioners were employed as Khalasies in the Olavakot Division of the Southern Railway. After continuous service of six months, all the petitioners were declared to have acquired the status of temporary workmen' falling within the scope of Chap.23 of the Indian Railway Establishment Manual. They were in continuous service for more than one year within the meaning of that term as employed in S.25F of the Industrial Disputes Act, 1947 read with S.25B thereof. While so, their services were terminated by the second respondent, the Loco Foreman. Southern Railway, Shoranur. This was during the period between 16-1-1970 and 23-1-1970. There was no case that any written order of termination was issued to the petitioners. Though this termination is challenged in the Original Petition on several grounds one of them alone was urged by the petitioners counsel at the hearing and therefore we need only advert to it. It is said that the termination of the petitioners' services was invalid as contravening S.25F of the Industrial Disputes Act (hereinafter referred to as the Act). Neither notice of one month nor wages for that period is said to have been tendered or paid at the time of retrenchment nor was retrenchment compensation tendered or paid. The prayers in the Original Petition are that this court must declare that the termination of the service of the petitioners was illegal and also issue a mandamus compelling the respondents to reinstate the petitioners in service.

(2.) That the petitioners have been in continuous service for not less than one year at the time their services were terminated is not disputed by the respondents. Nor is it disputed that after a period of continuous service of six months they acquired temporary status. In the counter affidavit of the first respondent the reason for terminating the services of the petitioners is indicated, It is mentioned that as a result of the "increase in the number of engines in the said depot and reallotment of strength in different categories, permanent staff were posted against the posts occupied by the petitioners." Apparently the case of the first respondent is that the services of the petitioners had to be terminated "for giving room to the permanent employees" and there is, therefore, nothing illegal in the said termination. It is the 1st respondent's case that though the petitioners were not entitled to any retrenchment compensation, as a matter of concession an amount equal to retrenchment compensation have since been arranged to be paid but none of the petitioners received payment.

(3.) At the hearing, counsel for respondents took the stand that the termination in the instant case could not be characterised as retrenchment as it would not fall within the scope of the definition of retrenchment in S.2(oo) of the Act. According to counsel the termination of the services of the ' petitioners was in accordance with R.149(1) of the Railway Establishment Code and since that rule enabled the employer to terminate the services of employees like the petitioners, it cannot be said that there was violation of S.25F so long as the termination was in accordance with that rule. It is not contended by counsel for respondents that in the event the court finds that S.25F of the Industrial Disputes Act would apply to the termination in the instant case and the petitioners have been sent out of service without resort to the provisions of that section the termination could be sustained. His case is that S.25F will have no application as this is not a case of retrenchment falling within that section.