BISWANATH MUKHERJEE Vs. UNION OF INDIALTD

JUDGEMENT

(1.) IN this appeal arising out of an application under Article 226 of the Constitution, the petitioners who are appellants here in, have asked for an order and| or writ in the nature of Mandamus directing the respondents to treat each of the petitioners to be in temporary service from the respective dates of expiry of 6 months' continuous service from their respective appointment as casual labourers and to grant them other benefits accordingly, for an order and/or writ in the nature of Mandamus commanding the respondents to forbear from retrenching any of the petitioners and to transfer them in certain way on the basis that the petitioners are temporary employees under the respondents, and also for an order and/or writ in the nature of Certiorari asking the respondents to send to this Court all records and proceedings relating to the proposed retrenchment of the casual labourers including the petitioners and quashing the same and for certain other incidental reliefs. This case involves the persons who are employed as casual labourers in carrying but the electrification works of the railways. It is stated that there are about 1600 such casual labourers who are likely to be retrenched by the Railways. In this Civil Rule we are concerned with 129 petitioners who are appellants before us. It has to be observed however that some of the petitioners withdrew from the application during the pendency of the proceeding before the learned trial Judge and some have withdrawn in the appellate stage. We had directed on an earlier occasion for the deletion of their names. There are 5 respondents to this application, namely respondent No. 1; being the Union of India; respondent No. 2 is the Secretary railway Board, the respondent no. 3 is the General Manager and the chief Engineer, Railway Electrification; respondent No. 4 is the Engineer-in-Chief III, Railway Electrification and the respondent No. 5, is the Executive Engineer; Group 10 (O. H. E.), sealdah Division, Railway Electrification.

(2.) THE petitioners claim to be citizens of India employed in the -Railway Electrification as semi-skilled, unskilled, as well as skilled labourers as the case may be. It has been stated in the petition that the Railway Electrification is a separate and distinct organisation under the Railway Board and the same is under the administrative control of the General Manager and Chife Engineer, Railway Electrification who is the respondent No. 3 herein. The petitioners have stated] that in 1953 it was decided that the; hcwrah-Burdwan Section of the main the of the Eastern Railway would be electrified and for the purpose of implementing the same an organisation called the "calcutta Electrification Project" was set up under the Eastern. Railway to carry out the various kinds' of works for the electrification of railway traction. Thereafter, it was decided; the petitioners stated that the railway traction in different parts of india would be electrified and for the said purpose a different organisation called the '"railway Electrification" was set up as an independent and distinot organisation under the Railway board for carrying out various kinds of works necessary for such electrification. It was alleged that the "calcutta Electrification Project" then merged with the new , organisation called the "railway Electrification. " This organisation of the "railway Electrification" has been carrying out the works of railway electrification of the railway traction in various places within the union of India, i. e. in West Bengal, bihar ,orissa. Uttar Pradesh and madhya Pradesh, Madras, Maharashtra and Gujrat and the works of electrification of the railway traction carried out by this organisation, i. e; the Railway electrification took a long time and was of indefinite duration, it has been asserted by the petitioners In some parts the works started as early as in 1959 and the same was still continuing and in other parts it has been continuing from time to time. Thus the work of this organisation, the petitioners claimed, is of indefinite and uncertain duration and this organisation has been carrying out the work of recruiting a large number of workers called as 'casual labourers'. The petitioners further stated that as. such casual labourers working under the Railways and the said organisation of the railway Electrification by the petitioners have been working continuously in the Railways under the said Organisation for a period of a number of years but still then they have not been given the amenities and the benefits that are given to the other employees of the railways who worked as 'casual labourers'. The petitioners assert in the petition that by virtue of their working continuously in the Railway Electrification for over a number of years they have become entitled to be treated as temporary workers in the Railways, and as such they have become entitled to all the benefits admissible to the temporary workers of the Railways. They first relied on the letter of the railway Board dated 22nd August, 1962. This is Annexure 'a' to the petition. According to the petitioners, by the said letter it has been provided that in cancellation and in modification of the previous orders of the Railways Board the 'casual labourers' with six months' continuous service are to be treated as 'temporary workers'. The said letter has been quoted and set out from the paragraph 2501 of Chapter xxv of the Railway Establishment manual regarding the terms and conditions of service of 'casual labourers'. It would be necessary later on to advert in detail to the provisions of Chapter xxv of the Railway Establishment manual in this case. The petitioners contend that they are 'casual labourers' as mentioned in the Chapter XXV and they are not casual labourers employed in any project for the purpose of Chapter XXV of the Railway Establishment Manual one of the contentions that would be necessary to be decided in this case is whether the railway Electrification is a Project as contemplated in Chapter XXV of the railway Establishment Manual. If railway Electrification is not a Project, then in view of provisions regarding casual labourers mentioned in chapter XXV, after 6 months' continuous service as casual labourers, the petitioners are entitled to obtain temporary status. A contention of far more fundamental importance that has to be resolved in this case, is the argument that such differentiation between different categories of casual labourers, that is to say, between labourers engaged in the Project and the labourers engaged in non-project works is discriminatory and as such violative of article 14 of the Constitution. In order to resolve this, it will also be necessary to decide what is the effect of chapter XXV of the Railway Establishment Manual. Has it any statutory force, or does it merely contain administrative or executive direction ? It has been stated in the petition that the petitioners have not been given the retrenchment benefits applicable to temporary workers and it was urged that there has been failure to transfer these casual labourers to other parts of india. The petitioners further stated that they had claimed temporary status demanding justice and as their claims have not been recognised, they moved this court. A rule nisi was issued and after affidavits were filed the matter came up for hearing before S. C. Ghosh, J. , who, by a judgment delivered on the 12th and 15th December, 1969 discharged the said rule nisi without any order as to costs. S. C. Ghosh, j. , came to the conclusion that Chapter xxv contains certain administrative directions and they have no statutory force whatsoever. The learned Judge held, therefore, that no right can be denied to the petitioners in respect of the said executive or administrative orders or directions. His Lordship further came to the conclusion that Railway Electrification is a Project and as such the petitioners who were employed in a project work can not get the benefit which other casual labourers employed in non-project works are entitled under Chapter xxv of the Railway Establishment Manual. The learned Judge was of the view that though there was differentiation between casual labourers in Project and casual labourers in non-project works, there was a rational basis for such differentiation. The learned Judge further came to the conclusion that the petitioners have no legal rights nor are they employees of the Railways. The learned Judge held that no provision of the Industrial Disputes Act has been infringed.

(3.) BEING aggrieved by the said judgment and order of S. C. Ghose, J. the petitioners have preferred this appeal. Mr. Sadhan Gupta, learned counsel for the appellants, submitted that the appellants are entitled to be treated as temporary workers under chapter XXV of the Railway Establishment Manual. He urged that railway Electrification is not a Project under said Chapter XXV. He then submitted that if the Railway Electrification was a project, paragraph 2501-b (ii) must be struck down, as it amounts to discrimination between casual labourers in project and casual labourers in non-project works. Therefore it was violative of Article 14 of the Constitution. Mr. Gupta argued "that Chapter xxv does not contain executive instructionsbut its provisions have statutory force. Learned counsel submitted that even by executive instructions discrimination cannot be permitted. He submitted that the appellants have the rights to be transferred on the basis that they are temporary workers. He relied on Article 16 of the Constitution. It was then argued that the retrenchment of the appellants was unlawful because the provisions of Section 25f of the Industrial disputes Act have been violated in this case. It was further argued that the appellants being Government servants enjoy their tenure of service during the pleasure of the President, and as the termination of the services of appellants has been done by an authority other than the President, it was bad. It was urged that the pleasure of the President cannot be delegated. Mr. Gupta finally argued that Rule 149 of the Railway establishment Code was ultra vires and further that the said rule does not apply to the appellants.