NAND LAL Vs. UNION OF INDIA AND

JUDGEMENT

(1.) PETITIONER Nand Lall has approached this Court under Article 226 of the Constitution, for relief against an order dated 20-8-1976 passed by the Assistant Mechanical Engineer, Eastern Railway, Moghalsarai, terminating his services in exercise of powers under rule 149, of the Indian Railways Establishment Code, Vol. I, by giving him 14 days notice. The petitioner was employed as a substitute Cleaner on 22-3-1974 and his services were terminated by the impugned order by giving him 14 days notice. Main submission made by the petitioner is that he was a workman within the meaning of the Industrial Disputes Act, 1947 and termination of his services is illegal because the provisions contained in that Act have not been followed. On behalf of the respondents, it is not disputed that in his capacity as a substitute Cleaner in the Railways, the petitioner is a workman as defined under the Industrial Disputes Act. Learned counsel for the respondents, however, urged that it is clause (6) of paragraph 149 of the Indian Railways Establishment Code, Vol. I, which lays down that notwithstanding anything contained in clauses (1), (2) and (4) thereof, if the railway servant or apprentice is one to whom the provisions of the Industrial Disputes Act, 1947 apply, he shall, before his services are terminated, be entitled to one month's notice or pay in lieu thereof in accordance with the provisions of that Act. This is how the provisions of the Industrial Disputes Act have been made applicable to termination of service of Railway servant who also happens to be a workman employed by the Railways. According to him, clause (6) applies only to railway servants as defined in paragraph 102(13) of the Railways Establishment Code or to an apprentice and that the petitioner, in his capacity as a substitute, was neither a railway servant nor was he an apprentice. Accordingly, the petitioner cannot claim that termination of his service by giving him 14 days notice in the manner provided in paragraph 149(1) of the Code was illegal. In the view which we are taking, it is not necessary for us to go into the question as to whether the petitioner is or is not a railway servant as defined in paragraph 102(13) of the Code. Section 25-J of the Industrial Disputes Act lays down that provisions contained in Chapter V-A of the Act (which includes section 25-F) shall have effect notwithstanding anything inconsistent contained in any other law. It follows that in a code to which section 25-F of the Industrial Disputes Act, which lays down a procedure for terminating the service of the class of workmen specified therein, applies, the provisions of that section would prevail over anything contained in the Railway Establishment Code, including paragraph 149(1) thereof. Accordingly, independently of paragraph 149(6) of the Railways Establishment Code, and notwithstanding the provisions contained in paragraph 149(1) thereof, the service of workman covered by section 25-F of the Industrial Disputes Act can be terminated only in accordance with the provisions contained in that section. Section 25-F of the Industrial Disputes Act lays down 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 the employer until the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice, provided that no such notice shall be necessary if retrenchment is under an agreement which specifies a date for the termination of service. The expression 'retrenchment' has been defined in section 2(oo) of the Industrial Disputes Act as meaning termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) 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 or (c) termination of the service of a workman on the ground of continued ill-health. It is respondent's own case that the service of the petitioner who admittedly is a workman, has not been terminated for any of the reasons mentioned in clauses (x) (a), (b) or (c) abovenoted. From the affidavits filed in the case it is clear that the petitioner has been in service for a period over one year and he has neither been given one month notice nor wages in lieu thereof. The reasons for termination of service have also not been specified. It follows that the action of the respondents in terminating the service of the petitioner amounts to his retrenchment in contravention of section 25-F of the Industrial Disputes Act and is as such liable to be quashed. In the result, the petition succeeds and is allowed. The order dated 20-8-1976 terminating the services of the petitioner is quashed. It is made clear that this order shall not stand in the way of the respondents in taking fresh steps for terminating the service of the petitioner strictly in accordance with the provisions of law in case they, having regard to the present situation, think, it necessary, or desirable to do so. The petitioner shall be entitled to his costs.