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Jodha Vasta and ors. Vs. Assist. Engineer and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR1141
AppellantJodha Vasta and ors.
RespondentAssist. Engineer and ors.
Cases ReferredBombay Union of Journalists v. State of Bombay
Excerpt:
.....principles of last-come-first-go ought to have been adopted by the railway administration. the railway administration having not paid anything upto this date, the notice of retrenchment is bad......and a temporary status was conferred on all the petitioners in year 1972-73. even according to the railway, temporary status has been conferred on the petitioners from 1970 to 1973, i.e. earlier than what is mentioned by the petitioners. therefore, there is no dispute that the petitioners were temporary workmen. except petitioner no. 4, who joined as labourer according to the respondent-railway in year 1954, no dates in respect of other petitioners are given and, therefore, the same shall have to be accepted. the petitioners are not claiming that at the initial recruitment as casual labourers their age was less than 25 years. therefore, nothing will turn on the date of recruitment.2. mr. h.l. patel, learned advocate for the petitioners, has clarified that the petition has not been filed.....
Judgment:

S.A. Shah, J.

1. The petitioners are the employees of the Western Railway, and were originally working as Casual Labourers Khalasis at Dhola Junction. According to Rule 2501 of the Indian Railway Establishment Manual (hereinafter referred to as 'the Manual'), when a Casual Labourer works for a period exceeding four months continuously, he is conferred a temporary status. As shown in para 4 of the petition, the petitioners had joined their services as casual Labourers (Khalasis) in the Western Railway from 1961 to 1972 on different dates mentioned in para 2 of the petition, and a temporary status was conferred on all the petitioners in year 1972-73. Even according to the railway, temporary status has been conferred on the petitioners from 1970 to 1973, i.e. earlier than what is mentioned by the petitioners. Therefore, there is no dispute that the petitioners were temporary workmen. Except petitioner No. 4, who joined as Labourer according to the respondent-railway in year 1954, no dates in respect of other petitioners are given and, therefore, the same shall have to be accepted. The petitioners are not claiming that at the initial recruitment as casual labourers their age was less than 25 years. Therefore, nothing will turn on the date of recruitment.

2. Mr. H.L. Patel, learned Advocate for the petitioners, has clarified that the petition has not been filed to acquire regular absorption, but has only been filed with a view that the petitioner may be continued in their temporary status since the railway has employed them after knowing the dates and have granted them status of temporary workmen from years 1970 to 1973, and since then for a number of years they have been continued as temporary workmen, and the petitioners have also passed the screening test. Therefore, there is no reason for the railway to terminate their services and retaining most juniors in their place, who also, according to Mr. Patel, have not been initially recruited before they attained the age of 25 'years.

3. By individual notices dated 29-5-1978 (Annexure 'A' to the petition) the petitioners' services have been terminated on the ground that, they have failed to qualify for regular absorption on the Railway cadre. The petitioners have filed this petition against this order. However, they have been continued on their posts on account of the interim order of this Court uptil now. The only question, therefore, that requires my consideration is whether the termination of the services of the petitioners is in accordance with law.

4. Mr. H.L. Patel for the petitioners has made the following submissions:

(1) The petitioners have been picked out by the respondents arbitrarily, and similarly situated other persons have been continued, and the reason given for termination is extraneous inasmuch as the petitioners have never claimed regular absorption.

(2) The petitioners have been given service cards which clearly mention the dale of their recruitment, date on which employed, nature of assignment, etc. and the same have been signed by the Supervisor Therefore, if there is no other reason for terminating the services of he petitioners when there are vacancies, the termination is arbitrary.

(3) The retrenchment of the petitioners is in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), because they have not been paid retrenchment compensation in advance; uptill now no compensation has been paid and, therefore, the notice is illegal.

(4) In any view of the matter, the order has been passed in violation of principles of natural justice and appeal rules framed by the Railway.

5. So far as the first contention of Mr. Patel is concerned, the same shall have to be accepted, because in paragraph 12 of the petition, the petitioners have in terms stated that in I.O.W. Department (Inspection of Works Department) there are 8 railway servants who are juniors to the petitioners working in Dhola Junction. There are also many other railway employees who are much junior to the petitioners working in Bhavnagar Para Division, of the Western Railway. The petitioners have also stated that they are prepared to work at any other place in Bhavnagar Division or elsewhere in Western Railway. In the affidavit-in-reply filed by Shri Jagannath Ramkrishna Holey, Assistant Personnel Officer, Western Railway, Bhavnagar Para, Bhavnagar, there is no denial to the averments made by the petitioners in para 12 of the petition that there are other railway employees who are juniors to the petitioners and they are working at Dhola Junction and elsewhere. Therefore, Rule 2511, and particularly Clause (b) thereof, quoted by the Railway does not enjoin the Railway Administration to dispense with the services of a temporary servant who cannot be regularly absorbed. No doubt, under the provisions of Rule 2511 (a) of the Manual, the Western Railway may not waive the age bar, if by relaxing the period for which the petitioners have done duty, their age would be exceeding 25 years at the initial recruitment. That does not mean that those who cannot be absorbed should necessarily be retrenched even if there are vacancies where the petitioners can be continued.

6. It is true that a temporary servant has no right to a post on which he has been appointed, and a competent authority can always terminate his services. But even then, such power cannot be exercised arbitrarily. The Supreme Court has in The Manager, Govt. Branch Press v. D.B. Belliappa : (1979)ILLJ156SC , deduced the principle of termination of service of a temporary servant as under:

The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16. Conversely, if the services of a temporary Government servant are terminated arbitrarily, and nut on the ground of his unsuitability unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same; service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2). Proviso (ci, the authority cannot withhold such information from the Court on the lame excuse that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service.... 'there is nothing like unfettered discretion immune from judicial reviewability'. The executive, no less than the judiciary, is under a peneral duty to act fairly. Indeed, fairness founded on reason is the essence or the guarantee epitomised in Articles 14 and 16(1).

7. In the instant case, the reason which has been given by the authority for terminating the services of the petitioners is totally extraneous. The petitioners had passed the qualifying age of recruitment when they were recruited as casual labourers and temporary status was granted to them to the knowledge of the Railway Administration. If they have been continued for a number of years and if their work is not found to be unsatisfactory or they are not found to be unsuitable vis-a-vis their juniors on the principle enunciated in the aforesaid decision of the Supreme Court, discretion to terminate the services for no reason is totally erroneous and unfair to the petitioners. However, only exception to this rule would be that if a senior is found unsuitable to his job or he cannot be retained for the reasons which should be disclosed to the Court his services can be terminated keeping his junior in the same cadre. The Railway Administration is not in a position to point out any reason of unsuitability or why the persons junior to the petitioners are continued. Therefore, on the well-recognised principles of last-come-first-go ought to have been adopted by the Railway Administration. )

8. Mr. Patel has also cited before me the decision of the Supreme Court in National Iron and Steel Co. Ltd. v. The State of West Bengal AIR 1967 Supreme Court 1206, for the proposition that the Railway Administration has terminated the services of the petitioners by way of retrenchment which has been specifically mentioned in the notice itself and therefore, under the provisions of Section 25-F of the Act the Railway Administration was bound to pay retrenchment compensation to the petitioners in advance or with the notice. The Railway Administration having not paid anything upto this date, the notice of retrenchment is bad. The Supreme Court in para 9 of the said judgment has considered the scheme of Section 25-F of the Act and implications thereof. It is observed therein:

The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or 'if it was shown that there was victimisation of the workman etc. Learned Counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as Section 25-F of the Industrial Disputes Act had not been complied with. Under that section a workman employed in any industry should not be retrenched until he had been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressee's services were terminated with effect from the 17th November and that he would get one month's wages in lieu of notice of termination of his Service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25-F, had not been complied with under which it was incumbent on the employer to pay the workman the. wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the. time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25-F. we need not consider the other points raised by the Learned Counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC , Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go', Sushil could not be called upon to leave the company's service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that his pica had not been put forward in the written statements of the company and we do not sec any reason why we should take a different view.

9. In the instant case, the Railway Administration has not ascertained the amount, nor has shown the figure nor has paid the amount and, therefore the notice is illegal. In view of the aforesaid decisions, it is not necessary to decide the other points raised by Mr. Patel. In the result, the petition is allowed. The impugned notices (Annexure 'A') against all the petitioners in regard to their termination (retrenchment) are quashed and set aside. Since the petitioners have continued on the same post in view of the interim order of this Court, it is not necessary to pass any consequential orders. Rule is made absolute with costs.


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