MAHESHWAR THAKUR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in the instant Rule was engaged as a casual porter on a daily rate of Rs. 2 vice Khudu Ram Misir expired. On completion of six months as casual labourer, the petitioner was given a scale of Rs. 70 -85. The selection test was held by the Recruitment Selection Board for regular absorption of the porter but the petitioner was not selected by the said Board. The Assistant Personal Officer, Headquarter thereafter issued a memo terminating the service of the petitioner with 30 days notice and it was stated in the said notice that the said order of termination would take effect from May 14, 1968. Before the expiry of the said period of notice the petitioner challenged the legality and validity of the order of termination in a writ proceeding before this Court whereupon a Rule being Civil Rule No. 4878 (W) of 1968 was issued. The aforesaid Rule was ultimately discharged by this Court on January 18, 1973 and the petitioner preferred appeal to this Court against the said judgment discharging the Rule being F.M.A. No. 191 of 1973. An interim order was passed in the said Rule, as a result of which the Railway authorities could not give effect to the said order of termination. In terms of the interim order passed in the Rule and also in the appeal, the petitioner was allowed to continue in service and was also allowed to receive his wages for the period the petitioner would serve the Railway Department. It may be stated in this connection that during the continuance of the service of the petitioner in terms of the aforesaid interim orders passed in the rule and the appeal, the petitioner was allowed to draw his salaries in the revised pay scale and was also given annual increment. Ultimately on July 2, 1974 the said F.M.A. 191 of 1973 was dismissed on a finding that there was no defect in the said notice of termination dated April 15, 1968. It appears that even after the disposal of the said appeal, the Railway authorities did not immediately issue any notice on the petitioner but only on June 11, 1975, the impugned notice was issued to the effect that earlier on April 15, 1968 a notice terminating the service was issued to the petitioner but because of the order of injunction granted by this Court in the writ petition, the petitioner was allowed to work but as the Civil Rule and the appeal arising from the said Rule had been dismissed by this Court the petitioner's service stood terminated by virtue of the said notice of termination dated April 15, 1968 and the petitioner was directed to cease work with effect from the said date, i.e. June 11, 1975 (A/N).

(2.) IN the instant Rule the legality and validity of this subsequent notice has been challenged. Mr. Ganguly, the learned advocate appearing for the petitioner contended that the petitioner was a casual labour and after completion of service for more than six months continuously the petitioner attained the status of a temporary worker in the Railway Administration. Mr. Ganguly contended that the Railway authorities were entitled in appropriate cases to terminate the service of a temporary worker but they were bound to follow the mandatory provisions of Section 25F of the Industrial Disputes Act for giving effect to any order of termination. Mr, Ganguly contended that in the instant case, no retrenchment compensation in terms of Clause (b) of Section 25F of the Industrial Disputes Act having been offered by the Railway Administration there was no valid termination of the service of the petitioner and the petitioner must be deemed to be in the service of the Railway Administration as before. For the purpose of appreciating the contention of Mr. Ganguly the provisions of 25F of the Industrial Disputes Act are set out hereunder : 25F Conditions precedent to retrenchment of workmen -No workmen employed in an industry who has been in continuous service for not less than one year under an employer shall be retrenched by the employer until - (a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of the notice has expired or the workman has been paid, in lieu of such notice, wages for the period of the notice : rovided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service ;(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen day's average pay for every completed year of continuous service or any part thereof in excess of six months ; and . (c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette).

(3.) MR . S.K. Roy Choudhury appearing for the Railway Administration submitted that there are tow types of casual labourers one attached to a project and the tenure of service of a casual labourer attached to a project is linked up with the project itself and such workers do not attain the status of temporary staff at any point of time whatever may be their length of service in the project. But there are other types of the casual labourers who are taken in the regular establishment and under the existing rules at the relevant time when the petitioner was engaged as a casual porter the petitioner attained the status of a temporary labourer after completion of six months continuous service as a casual labour, Mr. Roy Chowdhury placed relevant rules from the Railway Establishment Manual to show as to how and under what condition such temporary labourers are to be absorbed in the regular stream and it appears that such labourer is to appear before a regular Recruitment Selection Board. It is the case of the Railway authorities that the petitioner was given a chance to appear before the Selection Board but the petitioner having failed to qualify in the said selection test, he was not given regular appointment. Mr. Roy Chowdhury contended that as the petitioner did not qualify in the selection test, the petitioner could not be taken in the regular stream and as such the service of the petitioner had to be terminated under the relevant rules, Mr. Roy chowdhury contended that in such circumstances it cannot be held that there was any retrenchment so far as the petitioner was concerned. Mr. Roy Chowdhury also relied on two unreported decisions of this Court. One of such unreported decision was made in Civil Rule No. 6378(W) of 1978 (Nakul Karmakar v. Union of India) A.K. Sen, J. by his judgment passed on February 23, 1973, observed that when a casual labourer was placed before a Selection Board for permanent absorption and was adjudged unsuitable as a result whereof his service was terminated under Rule 149, it could not be held that it was not a case of voluntary act of surplus employee and such termination was the result of proved in telligibility for being kept in service and as such provision of Section 25F of the Industrial Disputes Act was not attracted in such type of termination. The said view was also expressed by A.K. Sen, J. in another unreported case of this Court made in Civil Rule No. 2361 (W) of 1967 Santi Ram Mondal and Ors. v. Electrical Foreman, Eastern Railway, Sealdah, Calcutta. It will appear from the said decision that A.K. Sen, J. relying on the decision of the Supreme Court made in the case of Hariprasad v. A.D. Divakar A.I.R. 1957 S.C. 121, held that retrenchment as defined in Section 2(oo) and as used in Section 25F had no wider meaning than the ordinary accepted concentration of the term, namely, discharge of surplus labour or staff by an employer. Viewed from this angle, his Lordship proceeded on the footing that every termination did not amount to retrenchment and decisions of different Courts to this effect were also referred to by his Lordship in his judgments, But after decision of the Sundara Money's case, the position has completely changed. In Sundara Money's case which is the later decision of the Supreme Court it has been categorically held as aforesaid that any type of termination of service for whatever reason is retrenchment within the meaning of Section 25F Of the Industrial Disputes Act and if the mandatory provisions of the said Section 25F are not complied with, the order of termination becomes invalid. Accordingly, it is of no consequence as to why or under what circumstances, the petitioner's service had to be terminated by the Railway Administration. The fact remains that the petitioner was in continuous service in the Railway for more than a year and his service had been sought to be terminated for not being eligible in the selection test. In my view. Mr. Ganguly is quite justified in contending that when the initial notice of termination was dated April 15, 1968 was issued the said notice per se was not invalid inasmuch as the time for offering the retrenchment compensation had not then expired. Mr, Ganguly is also justified in his submission that because of the pendency of the said earlier Rule and the appeal and passing of interim orders therein, there was no occasion on the part of the Railway Administration to offer Retrenchment Compensation at that point of time or during the pendency of the said proceedings but after the discharge of the Rule and dismissal of the said connected Appeal by this Court, when the Railway Administration again wanted to give effect to the said notice of termination issued in April 1968 the Railway administration was bound to offer the retrenchment compensation in accordance with the provisions of Section 25F of the Industrial Disputes Act and such retrenchment compensation not having been offered by the Railway administration the said notice though initially valid became inoperative and void and no effect can be given to the said notice.