L ROBERT DSOUZA Vs. EXECUTIVE ENGINEER SOUTHERN RAILWAY

JUDGEMENT

(1.) The Judgment of the court was delivered by Balakrishna Eradi, J.-- The principal question arising for determination in this case is whether the termination of service of a casual labourer employed under the railway administration brought about by the operation of R.2505 of the Railway Establishment Manual (hereinafter called the Manual) by reason of his having absented himself constitutes 'retrenchment' so as to attract the provisions of S.25F of the Industrial Disputes Act, 1947 (hereinafter called the Act). A Division Bench of this Court, of which one of us (Eradi, J.) was a member by its order of reference dated 29th September 1978 referred the case to a Full Bench in view of the importance of the matter.

(2.) The writ petitioner was working as a casual employee under the southern railway administration. According to the petitioner he had been continuously functioning as such from 1948 onwards but this is not admitted by the respondents. It is unnecessary to go into the details of the particulars furnished by the petitioner as to the various places where he worked during different periods. The petitioner has claimed in the original petition that he had acquired temporary status by reason of his having been in continuous employment as 'casual labour' for more than six months in the same work or type of work. This contention is refuted by the respondents according to whom the employment of the petitioner was throughout only as casual labour on projects and hence the petitioner was not eligible for the benefit of the temporary status. During the year 1974 when the petitioner was working as a Lascar attached to the Assistant Engineer's Office at Ernakulam he absented himself from duty continuously for about two weeks from 16th September 1974 onwards. It would appear that the petitioner was at that time the General Secretary of the Southern Railway Construction Workers' Union and that in protest against the alleged inordinate delay on the part of the Central Government in dealing with the Union's request for reference of a dispute for industrial adjudication the petitioner had gone on fast in front of the Office of the Executive Engineer (Construction), Southern Railway, Ernakulam from 16th September 1974 onwards. According to the averments in the original petition the petitioner broke his fast on 28th September 1974 as a result of the intervention of the Assistant Labour Commissioner and thereafter he reported for duty before the Assistant Engineer on 30th September 1974 and filed a joining report, a copy of which is produced with the writ petition and marked as Ext. P10. It is alleged in the writ petition that from 30th September 1974 the petitioner was actually working in the Office of the Assistant Engineer till 8th October 1974 on which date he was served with the order Ext. P11 issued by the Executive Engineer (Construction), Southern Railway, Ernakulam (1st respondent) which is in the following terms:

(3.) On behalf of the railway administration it has been submitted in the counter affidavit that the petitioner was throughout working only as a casual labourer employed on projects and that his claim that he had acquired a temporary status is therefore incorrect and untenable. Being a casual labourer the petitioner was not entitled to any leave facilities also. It is further averred in the counter affidavit that on 16th and 17th September 1974 the petitioner had requested the Assistant Engineer, under whom he was working, for permitting him to avail compensatory rest which was allowed, but from 18th September 1974 onwards the petitioner was absent from duty unauthorisedly. It is submitted by the respondent that such unauthorised absence amounted to voluntary abandonment of work and that, in any event, the petitioner being only a casual labourer working on projects, who is governed by the relevant provisions of Chap.25 of the Manual, his service will be deemed to have terminated under R.2505 when he absented himself from duty. According to the respondent, since the petitioner's services as casual labourer stood automatically terminated by reason of the operation of the provision contained in R.2505 aforementioned the question of giving him an opportunity to be heard did not arise. The petitioner had himself stayed away from work and absented himself from duty and the respondent has only refused to take him back since the petitioner's services stood automatically terminated under the relevant rule referred to above. On this basis the respondent has submitted in the counter affidavit that the plea raised by the petitioner that there has been a contravention of the principles of natural justice is devoid of merit and that the further contention raised by the petitioner that Art.311(2) of the Constitution of India has been contravened is also untenable since the petitioner, being only a casual labourer employed on projects, was not holding any civil post under the Union of India and was not therefore entitled to the protection of Art.311(2) of the Constitution. The allegation in the original petition that the impugned action has been taken against the petitioner by way of victimisation has been refuted as baseless in the counter affidavit. According to the respondents the impugned letter Ext. P11 is not an order terminating the service of the petitioner but only a communication intimating to him the fact of termination of service that had already been brought about by the operation of the deeming provision in R.2505 consequent on the petitioner's unauthorised absence from duty and calling upon the petitioner to vacate the official quarters which he was occupying. In answer to the contention raised by the petitioner that the termination of his service is illegal since the provisions of S.25F of the Act were not complied with by the respondents it is submitted by the respondents that the petitioner has not been "retrenched" from the service of the railway and hence S.25F is not at all attracted to this case. The respondents contend that in order to constitute retrenchment the termination of service of the employee concerned must have been effected on the ground that he had become surplus to the requirements of the employer. It is submitted that in the present case the termination of the petitioner's service was automatically brought about by the operation of the principle laid down in R.2505 of the Manual and it was not at all a case of the discharge of an employee on the ground of surplusage. The respondents therefore state that there was no obligation at all for them to comply with the provisions of S.25F of the Act and that the contention to the contrary advanced by the petitioner is incorrect and unsustainable.