Skip to content


G. Jagadishwar Reddy and ors. Vs. Railways, Guntakkal Division - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1975)ILLJ351AP
AppellantG. Jagadishwar Reddy and ors.
RespondentRailways, Guntakkal Division
Excerpt:
- - he called upon the workers who had struck work to resume duty by 9th afternoon and stated that if they fail to do so they will be placed under suspension followed by severe action. 568. in that case the employees who like the petitioners were employed as khalasies and acquired the status of temporary workmen challenged the termination of their services on the ground that section 25f was not complied with as notice of one month was not given. 21, in which the commissioner of income tax had said that the officer concerned should be reverted because of the large number of complaints which the department had received against his integrity and the bad reports received by him from his superiors, it was held that the order had not been made by way of punishment. it is, therefore, clear.....alladi kuppuswamy, j.1. the petitioners in all these writ petitions are casual labourers employed in the southern railway. as they have been in service continuously for the required period, they have acquired the status of temporary servants. in these writ petitions they question the validity of the notices of termination of their services. except for some differences in minor particulars, the facts are practically identical and questions of law that arise for consideration are the same in all the writ petitions and hence they have been heard together and are being disposed of by this common judgments.2. by an order dated 25-11-1973 issued in exercise of the powers conferred under rule 118 of the defence of india rules, 1971, the government of india prohibited any strike in connection.....
Judgment:

Alladi Kuppuswamy, J.

1. The petitioners in all these writ petitions are casual labourers employed in the Southern Railway. As they have been in service continuously for the required period, they have acquired the status of temporary servants. In these writ petitions they question the validity of the notices of termination of their services. Except for some differences in minor particulars, the facts are practically identical and questions of law that arise for consideration are the same in all the writ petitions and hence they have been heard together and are being disposed of by this common judgments.

2. By an order dated 25-11-1973 issued in exercise of the powers conferred under Rule 118 of the Defence of India Rules, 1971, the Government of India prohibited any strike in connection with any industrial dispute in the railway services in India for a period of six months with effect from 26th November, 1973. This order of the Government of India was communicated to all the members of the staff including casual labour. The notice was also put on the notice board of all offices.Not withstaning this prohibition of strike there was a strike in all the railways in May, 1974. In the Southern Railway with which we are concerned, the strike commenced on 3-5-1974 and terminated on 28-5-1974. It is admitted that the petitioners participated in the strike and absented themselves from duty between those two dates.

3. On the May 8, 1974, the Central Minister for Railways issued a warning which was published in the papers. He called upon the workers who had struck work to resume duty by 9th afternoon and stated that if they fail to do so they will be placed under suspension followed by severe action. In confirmity with the Minister's call, it was decided in respect of casual labourers and other staff who were not railway employees as defined in the Code that they should be permitted to join duty by 8 a.m. on 10-5-74 and no action was proposed to be taken against such persons. If, however, workers were not prepared to join duty before that time, action should be taken against them to terminate their services by invoking the provisions of Rule 149 of the Indian Railway Establishment Code (referred to in this judgment as the Code). Accordingly, notice was issued to the casual labourers that their service shall stand terminated with effect from the date of expiry of the period mentioned in the notice which has to be reckoned from the date on which the notice was served or tendered upon the person concerned. In some cases in the notice the period was mentioned as 14 days and in other cases as one month:

4. The petitioners contended that these notices are illegal contrary to the rules and to the provisions of the Constitution.

5. The notices of termination are challenged on the following grounds:

1. Rule 149 of the Code under which the notices are issued is inapplicable to casual labourers.

2. Even if Rule 149 is held to be applicable to casual labourers, under Rule 149(6) of the Code it is stated that such a notice should be in conformity with the provisions of the Industrial Disputes Act, the notices violate Sections 25F and 25G of the Industrial Disputes Act and hence they are invalid.

3. The termination of services is by way of punishment and as admittedly the provisions of Article 311 of the Constitution and the Disciplinary Rules have not been complied with, the termination is illegal ;

4. Even if the termination is not held to be by way of punishment, inasmuch as juniors were continued in service while services of seniors were terminated, such a termination is arbitrary and discriminatory and violates Articles 14 and 16 of the Constitution.

6. It may also be stated that subsequent to the filing of the writ petitions, certain orders were passed on the 27th and 28th June, 1974. It was decided that in the case of casual labourers where the period prescribed in the notices had not lapsed by 25-6-1974 they need not be stopped from service; whereas the staff stopped prior to 25-6-1974 should not be taken back to duty. In the case of persons who were allowed to join duty, the intervening period between the date they stopped from duty to the date they joined duty was treated L.W.P. It is contended that there is no basis for treating the persons whose notice period had expired and whose notice period had not expired, differently and such a classification is arbitrary and invalid.

7. As has already been observed the notices are issued under Rule 149 of the Code which is in the following terms:

When a person without a Hen on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of the service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the, provisions of Clause (2) of Article 311 of the Constitution of India. If the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract.

8. It is argued that this rule applies only to a person who is appointed to hold a temporary post or to officiate in a permanent post and not to casual labourers.

9. Chaper XXV of the Indian Railway Establishment Manual (referred to in this judgment as ('the manual') deals with 'casual labour'. Under paragraph 2503 it is stated that casual labourers are not entitled to rights and privileges other than those statutorily admissible under the various Acts, such as, Minimum Wages Act, Workmen's Compensation Act, etc., or those specifically sanctioned by the Railway Board from time to time. Paragraph 2505 states that except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour. Their services will be deemed to have terminated when they absent themselves or on the close of the day.

10. Chapter XXIII of the Manual deals with temporary railway servants. Paragraph 2301 defines a 'temporary railway servant' as a railway servant without a lien or a permanent post in a railway or any other administration or office under the Railway Board. The term does not include 'casual labour.' Paragraph 2302 states that service of a temporary railway servant shall be liable to termination of 14 days' notice on either side. Paragraph 2302 (4) provides that in the case where the provisions of the Industrial Disputes Act, 1947 apply he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act. Paragraph 2501 states that such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment, In this case it is admitted that all the petitioners have completed more than six months in the same work without a break. It, therefore, follows they have to be treated as temporary railway servants even though they were recruited as casual labour. Note 2 of paragraph 2501 says that once any individual acquires temporary status, be retained that status so long as he is in continuous employment on the railways. Paragraph 2505 which provides that no notice is necessary in the case of termination of service of casual labour, contains a note that in the case of casual labourer who is to be treated as temporary after completion of six months' continuous service the period of notice will be determined by the rules applicable to temporary railway servants. Reading the above provision relating to casual labour and temporary servants, it is clear that casual labourers who have completed six months service continuously without break acquire temporary status and will be treated as temporary servants. Hence, Rule 149 which applies to persons appointed to a post temporarily will equally apply to casual labourers who have acquired temporary status. I am, therefore, of the view that Rule 149 was properly applied to this case in the matter of giving notice of termination of service. In W.A.407/71 dated 30-3-1972 a Bench of this Court held that a casual labourer who had acquired temporary status would be entitled to a notice before his services were terminated.

11. I am unable to understand how the petitioners can put forth this contention or how that contention would help the petitioners. Even according to the petitioners' own case, they have acquired temporary status having worked continuously for more than six months. If so, I am unable to see how they can contend that Rule 149 has no application. Further, it is contended that Rule 149 has no application on the ground that they are casual labourers, then they are not entitled to any notice at all fender the provisions of Chapter XXV, paragraph 2505.

12. Under Rule 149 the temporary servant is not entitled to any notice if the termination is due to the several reasons mentioned in the first part of that Rule it is admitted that the termination in question is not due to any of those reasons. Hence the first part of the rule is not applicable, the termination in this case is due to ('some other cause') within the meaning of the second part of the rule. Hence the employees are entitled a month's notice if they were engaged on a contract for a definite period and the contract does not provide for any other period of notice and to a notice of 14 davs if they were not engaged on a contract. Such a notice was given in this case and hence the provisions of Rule 149(1) have been complied with.

13. It is then contended that there is no compliance with Rule 149(I) which provides that notwithstanding anything contained in Clauses (1), (2) and (4) of this rule, if the railway servant or apprentice is one to whom the provisions of the Industrial Disputes Act, 1947 apply, he shall be entitled to a notice or wage in lieu thereof in accordance with the provisions of that Act. Under Section 25F of the Industrial Disputes Act 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 that employer until one month's notice in writing indicating the reason for retrenchment is given or the workman has been paid in lieu of such notice compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months ; and notice in the prescribed manner is served on the appropriate Government. Under Section 25G where any workman in an industrial establishment is to be retrenched the employer shall ordinarily retrench the workman who as the last person to be employed in that category unless for reasons to be recorded the employer retrenches any other workman. It is admitted that the Industrial Disputes Act applies to workmen employed in the railways. It is contended, therefore, that under Rule 149(6) the petitioners were entitled to notice in accordance with the provisions of the Industrial Disputes Act. Admittedly, the requirements of Section 25F were not complied with, as in several cases only 14 days notice was given, no reasons for retrenchment were given no compensation under Section 25F(b) was paid and the principle of ('last come first go') enunciated in Section 25G of the Act was not applied, The notices it is, therefore, argued contravene, the provisions of Section 25F and Section 25G of the Industrial Disputes Act and for that reason violate Rule 149(6) of the Code.

14. The learned Counsel for the railways contend that Rule 149(6) of the Code applies only to a railway servant or apprentice and the petitioners are not railway servants. Secondly, Section 25F and 25G of the Industrial Disputes Act apply only in the case of retrenchment and in the case there has been no retrenchment but only termination of the service of casual labourers simpliciter. He draw my attention to the definition of ('railway servant') in Rule 102(13) of the rules. 'Railway servant' is defined as a person who is a member of service or who holds a post under the administrative control of the Railway Board and who holds a post in the Railway Board. This term excludes casual labour for whom special orders have been framed. He, therefore, contended that casual labourers are not servants within the meaning of the Code and hence Rule 149 is not applicable. It is true that this definition of the ('railway servant') excludes ('casual labourers') but in this case casual labourers are those who have completed continuously more than six months service and acquired temporary status. Therefore, they have all the rights of a temporary railway servant. The definition of ('railway servant') does not exclude a servant appointed temporarily to a post. Hence, I am of the view that the expression ('railway servant') in the Rule 149(6) will take in the petitioners also.

15. It is then contended by the learned Counsel for the railways that Section 25F and 25G apply only in cases of retrenchment and not to termination of services of casual labourers or temporary servantssimpliciter after giving the prescribed notice. He drew my attention to the decision of the Supreme Court in Hariprasad v. A.D.Divelkar A.I.R. 1957. S.C.C. 121, where it was held that retrenchment means the discharge of surplus labour or staff by the employer for any reason whatsoever and it has no application where the services of all workmen have been terminated by the employer on a real bona fide closure of business or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer. In spite of the wide definition under Section 2(oo) of the Industrial Disputes Act defining 'retrenchment' as meaning the 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, the Supreme Court held that the definition merely gives effect to the ordinary accepted notion of retrenchment in an existing or running industry and does not go beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the employer. On the other hand reference was made by the counsel for the petitioners to a decision of the Kerala High Court in L. Krishnan v. Southern Railway, 1972-II L.L.J. 568. In that case the employees who like the petitioners were employed as khalasies and acquired the status of temporary workmen challenged the termination of their services on the ground that Section 25F was not complied with as notice of one month was not given. It was held that the definition of the term ('retrenchment') indicates that cases of termination by employer for any reason other than the four cases referred to in the definition would amount to retrenchment. Their Lordships observed that they saw no support for the proposition that if retrenchment was pursuant to any standing order or any service condition governing employer that will not come within the scope of retrenchment. Referring to the decision in Hariprasad v. A. D. Divelkar (supra), they observed that the Court laid down the rule that unless it be a case of discharge of surplus staff in no event could it be characterised as retrenchment nor could they find any support for the proposition that if retrenchment is pursuant to any standing order or any service condition governing employees it will not come within the scope of the definition of retrenchment. It was contended by the learned Counsel for the Railways that in that case the Court found that the services of the petitioners were terminated because they were found to be surplus and, therefore such termination would be retrenchment within the meaning of that as stated in the decision of the Supreme Court in Hariprasad v. A.D. Diveklar supra. He contended that the further observations that even if the services had not been terminated because they were found surplus still it will be a case of retrenchment and are in the nature of obiter. The learned Counsel for the petitioners also referred to a decision of this Court in Prasad Rao v. Divisional Supdt. [1972] II A.W.R.P. 296, where it was held that the action of the Railways in terminating the services of substitute khalasies who had acquired the status of temporary employees without complying with the provisions of the Industrial Disputes Act was invalid. It was held that as the petitioners were workmen within the meaning of the Industrial Disputes Act, they were entitled to the protection of Sections 25G and 25J of the Act- It would appear that in that case the termination of the service was treated as retrenchment even though it was not a termination of services of surplus staff. It is true as pointed out by the learned Counsel for the Railways that it was assumed that such termination amounted to retrenchment and the Court did not consider the question whether the termination of such services in such circumstances would amount to retrenchment within the meaning of the Industrial Disputes Act.

16. It may be that in the case of termination of service of a particular individual after giving him notice there is such to be said in favour of the contention that it may not amount to retrenchment. But in the case of termination of services of a large number of individuals en masse I am inclined to take the view having regard to the wide definition of the expression 'retrenchment' in Section 2(oo) of the Act and the authorities discussed above the termination of services in such cases would amount to retrenchment. As admittedly the provisions of Sections 25F and 25G of the Industrial Disputes Act were not complied with the petitioner's contention that the notices are invalid has to be upheld.

17. Even assuming that the termination of the services of the petitioners cannot be construed as retrenchment within the meaning of the Industrial Disputes Act it is contended that the termination though on the face of it appear to be a termination simpliciter after giving the required notice is in truth and in fact a termination by way of punishment and is in violation of Article 311 of the Constitution and the Disciplinary Rules, as the termination was not effected after giving a reasonable opportunity to show cause against such termination. An examination of the decisions of the Supreme Court in regard to this question would reveal that though the services of a temporary servant which can be terminated under the rules would not attract the operation of Article 311 of the Constitution the circumstances proceeding or attendant on the order of termination must be examined in each case. If the order visits the public servant with evil consequences or cast aspersion against his character or integrity it must be considered to be one by way of punishment no matter whether he was a mere probationer or a temporary servant. In Union of India v. R. S. Dhaba, I.T. Officer, Hoshiarpur A.I.R. 1969 N.S.C. 21, in which the Commissioner of Income Tax had said that the officer concerned should be reverted because of the large number of complaints which the department had received against his integrity and the bad reports received by him from his superiors, it was held that the order had not been made by way of punishment. It was observed:

The test for attracting Article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion of termination of service of the temporary employee.

18. In that case it was held that the order of reversion does not contain express words of stigma attributed to the conduct of the officer. Therefore, the order of dismissal was not made by way of punishment. In State of Bihar v. S.B.Mishra A.I.R. 1971 S.C. P. 1011, these observations were stated with approval, but it was observed by the Supreme Court that they did not understand the ratio of the above decision to be that so long as there are no express words of stigma attributed to the conduct of a Government Officer in the impugned order it cannot be held to have been made by way of punishment. The test was whether the misconduct or negligence was mere motive for the order of reversion or whether it was the very foundation of that order. The form of the order was not conclusive of its true nature and it night merely be a cloak of camouflage for an order founded on misconduct. The Court is not debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. In the case before them, the Supreme Court observed that order of reversion was made owing to the note of the Deputy Inspector General of Police following the report of the Commandant. The order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector General said relating to the respondent's conduct generally and in particular with reference to the incident of assault by him on his orderly. They, therefore, agreed with the view of the High Court that it was by way of punishment. In Sate of U.P. v. Sughar Singh : (1974)ILLJ260SC , after a formal proceeding held against the officer and explanation which was not accepted, certain adverse entries were made in his character roll. After two years an order of reversion was made reverting the officer as head constable. The order merely stated that on reversion from the post of officiating sub-inspector he was taken back to his substantive post of head constable. It was contended that, the order was not attendant with any stigma. There was nothing to show that after two years the authorities proposed to rake up that matter and inflict a heavier punishment on the respondent than they had previously proposed and also inflicted. The Court was not concerned with the motive behind the reversion. In those circumstances it was contended that the order of reversion was not by way of punishment. But the Supreme Court found that from out of a group of about 200 officers most are junior to the respondent the respondent alone had been reverted tothe...substantive post of head constable and this made it absolutely clear that there was no administrative reason for this reversion. There was no suggestion that the post had been abolished or that the respondent was for administrative reasons, required to go back to his own post of head constable. It was, therefore, held that the order was by way of punishment though all outward indicia show the order to be a mere order of reversion.

19. In the light of these decisions it has to be seen whether the orders of termination of services though issued in the form of termination simpliciter after giving due notices were in fact intended to be by way of punishment. It has already been noticed that the Central Minister for Railways issued a warning that if employees who participated in the strike did not return by 9th afternoon severe action would be taken. It is also admitted in the counter-affidavit in view of this statement it was decided that persons who returned to duty before 8 A. M. on the 10th morning would be permitted to join duty ; whereas the services of others who did not do so would be terminated. Even in the additional counter-affidavit filed on behalf of the Railways it is admitted that in conformity to the Ministry's call no action was proposed to be taken against the person who joined duty before 8 A. M. on 10-5-1974 but even after such concession was given if the employees were not prepared to resume duty action was proposed to be taken against such employees. In pursuance of this decision termination notices were given. It is, therefore, clear from the statement of the Railway Minister as well as the counter-affidavit filed in this case that by giving the termination notices severe action or action was taken against the recalcitrant employees. In the face of these statements it has to be held that the termination of services of these employees was really by way of punishment for not having joined duty on the 10th morning in obedience to the call of the Minister. It is not the case of the Railways that the services were terminated because there was not enough work for these persons. If it was merely on that ground they would have terminated the services of the juniors in the first instance. But in this case admitted that there were several persons who are juniors to the petitioners who have been retained merely because they had joined duty before 10th May. Having regard to the circumstances of the case I am also of the view that the termination would cast a stimga on the petitioners as the termination would be interpreted to mean that the petitioners had joined an illegal strike and had not joined duty in spite of the call by the employers and hence it was not desirable to continue them in service. In fact, in the counter-affidavit it is stated that it was not in the interests of the community that the petitioners either should be continued or should be taken back into service and continued (vide paragraph 9 of the counter-affidavit). It cannot be denied that the statement that it is not in the interests of the life of the community that the petitioners should be continued in service even though it is not stated in the order itself but in the counter-affidavit as an explanation to the order would constitute a stigma on the petitioners.

20. It is contended that even if the termination is not treated as by way of punishment, still it violates Articles 14 and 16 of the Constitution, as even in case of termination of service simpliciter the principle of 'last come first go' should be followed. In State of U.P. v. Sughar Singh supra, it has already been noticed that where the petitioner had been singled out from a group of about 200 officers who were juniors to him it was held that even if it were not passed by way of punishment the order was liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution. It was observed in that case that the authorities faced in fact a dilemma. Either such a reversion would be by way of punishment, or it is not. If it was not a case of punishment it was difficult to explain why this discrimination was made against the particular officer vis-a-vis at least 200 officers who were juniors to him. If it was as a result of adverse entry which had been made earlier, it would be by way of punishment and would infringe Article 311. The position is very nearly the same in this case. If the termination of services is not construed to be by way of punishment for the reason they did not join duty before 10th morning as directed, then there is no other rational basis for termination of the services of the petitioners while retaining the services of juniors to them. Hence the petitioners are justified in contending that the termination of their services would constitute violation of Articles 14 and 16 also.

21. Lastly, it was urged that after the writ petitions were filed an order was issued on 27-6-1974 wherein it was stated that such of the casual labourers in whose cases the period of prescribed notices had not lapsed prior to 25-6-1974 need not be stopped from services, but staff stopped from service prior to 25-6-1974 should not be taken back to duty. It was contended that there was no rational basis for making such a distinction. I agree. I am unable to see how the mere fact that notice period expired in some cases would place them in a worse position than those in regard to whom notice had expired at the time of making the order. This order was sought to be explained in the additional counter-affidavit in this manner:

The strike came to an end on 28-5-1974. The writ petitions were filed by casual labour in whose cases the period of notice had expired or was under expiry and interim orders were received from the 'Hon'ble Court to continue such persons in service. In respect of those who had already been ousted on expiry of the period of notice before the receipt of stay orders, the respondents submitted to this High Court that the interim orders of stay became in fructuous and prayed for vacating the said orders. In respect of others whose period of notice had not expired, they were continued in service without stopping them on expiry of the notice period in compliance with the orders of this Court. The position was reviewed in the context of the Court's orders and with a view to see that those who have not gone to Court and for whom the notice period had not still lapsed are not placed at a disadvantage merely because of the fact that they have not gone to the Court, it was decided on 24-6-1974 by the General Manager in consultation with me to continue such persons provided the notice period bad not expired by 25-6-1974.

22. Thus, the object seems to be to see that persons who had not gone to Court and in whose case notice period had not expired are placed in the same position of the persons is who had gone to Court and obtained orders of stay. But this does not explain the reasons for making any distinction between cases where notice period had expired and notice period had not expired. The date 25- 6-1974 was arbitrarily fixed and there is no reason why the employees whose notice period had expired before that date which was so fixed arbitrarily should be placed on a worse position than these whose notice period had not expired. This distinction has no rational connection with the termination of the services. If the real basis for the termination of service was to make a distinction between the persons who returned to duty before 10th May or those who did not join duty before that date, the subsequent order of 25-6-1974 has no relations at all to that reason. I am, therefore, of the view that the subsequent order dated 27-6-1974 also is discriminatory. But in the view I have taken regarding the original order of termination of services, it is not necessary to issue separate writ quashing the subsequent order.

23. In the result, the writ petitions are allowed, but in the circumstances without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //