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Union of India (Uoi) (Through the General Manager, North-eastern Railway) Vs. R.D. Dixit and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1977)ILLJ400All
AppellantUnion of India (Uoi) (Through the General Manager, North-eastern Railway)
RespondentR.D. Dixit and anr.
Excerpt:
- - 3. we have heard learned counsel at some length, and we are satisfied that the conclusion reached by the learned single judge was justified. 13. that the agreement is terminable by the railway administration on the trade apprentice being physically unfit for service, or guilty of misconduct or on ida failure to pass any of the prescribed tests or excruciations......at his option.it will thus be seen that under clause 12 there is no guarantee of employment in the railway service after completion of period of apprenticeship. it was open to tin railway administration to diclinous to appoint him to any service. therefore, it cannot be said that during the period of apprenticeship the worker was engaged in any service of the railway. clause 13 sped. finally provides for the termination of the agreement. this would not have been the position if the respondent was intended to be taken in service, in which case the agreement would not have been terminable, but the service would have been terminable.11. the requirement of the definition clause of the term 'duty' which provides that such service should be followed by confirmation is also not fulfilled,.....
Judgment:

Satish Chandra, J.

1. The Union of India has come up in appeal against the judgment of a learned single Judge quashing an order dated 8th May, 1970, whereby the appellant compulsorily retired the respondent No. 1 from service. At that time the respondent was holding the post of charge-man Grade A in Class III of the North-Eastern Railway.

2. The respondent had challenged the order of compulsory retirement by way of a writ petition, which was sought to be pressed on three grounds. The learned single Judge felt that the petition was liable to succeed on one of the three grounds, namely, that the petitioner had not put in the requisite thirty years of service and, therefore, could not validly be compulsorily retired. In this view he did cot express any opinion on the other two grounds. In the present appeal the same point has been re-agitated before us.

3. We have heard learned Counsel at some length, and we are satisfied that the conclusion reached by the learned single Judge was justified.

4. The respondent was ob August 15, 1939, taken as a trade apprentice in the Mechanical Workshop of the East Indian Railway under an agreement contemplated a five-year period of apprenticeship, on the completion of which the respondent was appointed to the post of boiler maker on October 22, 1944. The railway authorities felt that the period of apprenticeship was livable to be included in computing the requisite thirty years of service on the completion of which a railway servant was liable to be compulsorily retired under Clause(k) of Rule 2046 of the Railway Establishment Code, Vol. II.

5. Clause (k) aforesaid applies to a railway servant who is not governed by any Pension Rules. Under it such a railway servant can be retired after he has completed thirty years of service. The term 'service' has not been defined in Chapter 20, in which Rule 2046 occurs.

6. For the appellant reliance was placed upon the definition of 'service' occurring in Clause (10) of Rule 1302 of the Code. This definition includes service as paid apprentice. this definition is confined to Chapter 13 wherein it occurs and which relates to Provident Fund Rule. The definition clause says that-

Service for the purpose of the special contribution admissible under Rule 1314 means...

Thus on its own terms the definition of service is confined to the mentioned purpose. Clause (k) of Rule 2046 is not included as one of the purposes for which the definition has been given in Clause (10).

7. In the next place the definition includes 'service as paid apprentice' within the definition of service for purposes of that Chapter. Before the definition of service' can apply even for purposes of Provident Fund. Rules, it must be shown that the worker had been in service as an apprentice. This definition, therefore, does not advance the case of the appellant.

8. Reliance was also placed upon the definition of the term 'Duty' given in Clause (6) of Rule 2003 of the Code, which occurs in Chapter 20. The term 'duty' is defined to include service as probationer or as apprentice provided that service is followed by confirmation. Here again, merely being are apprentice is not sufficient. The man should be in service as an apprentice. This raises the same question as the definition of 'service' mentioned above.

9. In the next place, functioning as an apprentice would be 'duty' within meaning of the definition provided the workers is confirmed immediately after she completion of his service as an apprentice. In the present case neither of these conditions exits.

10. The respondent was taken as an apprentice under an agreement executed by him with the railway authorities. Clause 12 of the agreement provided:

12. That on successful completion of the apprenticeship the railway administration may engage the set-vices of the said Trade Apprentice in such capacity and on such pay as may be considered fit, but no guarantee or promise of employee, temporary or permanent, on completion of apprenticeship is given or implied by the railway administration.

Clause 13 provided:

13. That the agreement is terminable by the railway administration on the trade apprentice being physically unfit for service, or guilty of misconduct or on Ida failure to pass any of the prescribed tests or excruciations. The trade apprentice or the person who executes the agreement on his behalf may terminate the agreement at his option.

It will thus be seen that under Clause 12 there is no guarantee of employment in the railway service after completion of period of apprenticeship. It was open to tin railway administration to diclinous to appoint him to any service. Therefore, it cannot be said that during the period of apprenticeship the worker was engaged in any service of the railway. Clause 13 sped. finally provides for the termination of the agreement. This would not have been the position if the respondent was intended to be taken in service, in which case the agreement would not have been terminable, but the service would have been terminable.

11. The requirement of the definition clause of the term 'duty' which provides that such service should be followed by confirmation is also not fulfilled, because the trade apprentice is to be appointed afresh to a railway service after completion of the period of apprenticeship. He is not straightaway to be confirmed on any particular post held by him as an apprentice.

12. On facts also it has not been asserted that after completion of his apprenticeship he was straightaway confirmed. On the other hand after such completion, of 'service' the respondent was appointed to the post of boiler market on October 22, 1944 and it appears that he was confirmed that post subsequently.

13. In this context it cannot be said that the respondent was covered by the definition of the term 'duty'. It is hence unnecessary to find out whether the significance of the term 'duty' is relatable to the connotation of the term 'service' as occudng in Clause (k) of Rule 10 2046. In our opinion the period of apprenticeship of five years could not be counted while computing the thirty years period of service for purposes of compulsory retirement.

14. The appeal has no substance and is accordingly dismissed with costs.


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