L. ROBERT D'SOUZA v. THE EXECUTIVE ENGINEER SOUTHERN RAILWAY & ANR

Citation: [1982] 3 S.C.R. 251

Court: Supreme Court of India

Bench: D.A. DESAI, R.B. MISRA

Case summary

9A is not attracted the question of seeking exemption from it in the case falling under Gopalan, who was a renowned trade union leader, espoused the cause of the appellant, his transfer was cancelled and he was reposted and allowed to continue at Ernakulam after paying the...

Judgment text

L. ROBERT D'SOUZA v. THE EXECUTIVE ENGINEER SOUTHERN RAILWAY & ANR. • 8 February 16, 1982 (D. A. DESAI AND R. B. MISRA, JJ. ] Industrial Disputes Act, 19471 sections 2(oo) and 25F, scope of-"Termlnation of se~vice for any reason whatsoever'' in the definition "retrench. ient"· :-,>-···. darified. Construction of Section_ 9A-Casuaf labour, termination ofservices Qf- Railway Establishme1u Code, Rules 2501 and 2505, explained. The appellant joined service as a gangm1-n in Southern Railway on July 1, 1948. In course of his service be was transferred to varioui places. While he wa:s working as a Lascar at Ernakulam, he was transferred, some time in March 1970 by way of punishment for his Union activities in the capacity of _General Secretary of the Southern Railway Construction Workers Union, Eroakulam, to Podannur in Tamil Nadu. However, bis transfer was cancelled and he joined duty on· 20-2-1971 at Ernakulam.

The Ministry of Labour, Government of India, by its letter dated April 23, 1974 directed treatment of his entire period of absence from 8tb March, 1970 to 19th February, 1971 as duty. Later, the appellant approached the Labour Court for recovering some of his dues ll which remained pending fo[ a long time. As the appellctnt and thoie similarly situated were likely to reach the age of superannuation and by the unfair labour practice, namely, treating them only as 'daily rated labour', of the Railway Administration, they were likely ~o be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala, praying for a direction that they should be treated at least as temporary railway servant with attendant benefits.

During the pendency of the matter, in connection, with the demand for a11 the benefits granted by the Central Pay Commission being extended to the category of employees t-0 which the appellant belonged the appellant undertook a fast. but-broke the rsame on September 28, 1974 at the intervention of [the Assistant Labour Commissioner. Taking advantage of the appellant's absence, the . respondents termina. ted his service with retrospective effect, i. e. , from 18~9-1974 on the gronnd of unauthorised absence. A learned single Judge having dismissed the liame, theJmatter was taken. in appeal before the Division Bench. In the appe1l, it was coaten,ded that the terminatioti of service of the appellant in the circumstances wo. uld constitute retrenchment within the meaning. of section 2SF of the Industrial Disputes Act, 1947 and, therefore:, the order ()f termination was invalid.

,The matter was referred to the Full Bench which held that there ,was no retrencbme0t and cjismi$ed the appeal: Hence, the appeal by special leave. Allowing the appeal, the Gou. rt, HELD : 1. The expression "termination of service for any reason whatsoever" in the definition "retrenchm~nt" in section 2(oo) of the Industrial Disputes Act, 1947 covers every kind of termination of service except those not expressly included in section 25F or not expressly provided ior by other pro· visions of the Act such as sections 25FF and 25FFF. The excepted categories are (i) termination by way ·-or punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) retirement of the workman I! on reaching the age of superannuation if the contract of emplo}·ment between the employer and the workman concerned contains a _-stipulation in that behalf; (iv) or termination of the services on the ground of continued ill·health.

_Once the case does npt fall in any of the excepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of ·expression in -section 2(oo) of the Act. It must as a corollary follow that if the name of the workman is struck off the roll, that itself would constitute retrenchment. - [259 B-C, 206 H, 261 A-B] . Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherji, [1978] I ,_ 1 SCR 591, followed•. State Bank ofIndia v. N. Sundera Money, [1976] 3 S. C. R. 160; Hindustan Steel Ltd. v. Presiding Officer, Labour Court, [1977] 1 S. C. R. 586; Santosh Gupta v, State Bank of Patia/a, [1980] 2 S. C. R 884 at 892; Mohan Lal v. Bharat Electronics Ltd. , [1981] 3 S. C. C. 225, referred to. 1:2. There is neither apparent nor real conflict between the decision of the constitution· bench in Hariprasad Shivshanker Shukla v. A.. D. Divikar, [1957] S. C. R.

121 and the later five decisions commencing from Sundera Money and ending with Mohan/al's case. Re~ex:amining a contention over again so as to cover the familiar ground would, apart from giving a gobye to _the doctrine of stare decisis, would be a sheer waste of time and mere lengthening of the judgment. [260 C'D] Surendra Kumar Verma & Ors, v. Central Gover:nment Industrial-cum- ·Labour Court, New Delhi & Anr. , [1981] 4 S. C. C. 443, View of Pathak, J. held inapplicable. ] 2:1. Notice contemplated by clause (a) of section 25F would not be dispensed with, in. view of the provision contained in proviso (b) of section 9A, which is ~n independent provision having no co-relation with section 25F. [264 BJ 2:2. Section 9A imposes an otligation on the employer, who pro~·.

ses to effect ·any change in the conditions of service applicable to any workman in respect of any matter specified in the F_ourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving ·to the workman likely to be effected by such change, notice in the prescribed manner of the nature of the change proposed to be effected, and the change cannot be effected within 21 days of the giving of such notice. In order to attract . section 9A tbc; 1. ;pange propose get. The response of S. N. Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve, he would tender his resignation voluntarily. The management did ·not reply to the letter with the result that the workman did not report for work at the newly offered post.

On January 19, 1966, the management wrote to the workman that his nllme has been struck off from the rolls with effect from August 24, 1965, for continued absence without intimation. Such termination of service was held to be covered by the expression 'retrenchment' and it was struck down on the ground that the pre. condition to valid retrenchment was not complied with. It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the Act. And here recall the order of termination of service of the appellant wherein it is stated that "You have absented yourself unauthorisedly from 19. 8. 1974 and hence your services are deemed to have been terminated from the day you have absented yourself. " Is any other 262 SlJPREME COURT REPoars [1982) 3 S. C. R.

' conclusion possible save and except the one recorded by this Court in Delhi Cloth &~General Mills Ltd case that this constitutes retrenchment and for non-compliance with pre-condition, it is invalid. Before referring to other contentions of Mr. Francis, we may dispose of one contention based upon construction of s. 9A of the Act as in our opinion, it is utter)y untenable. Mr. Francis says that if valid retrenchment presages a notiCe contemplated by s. 25F, the same would stand dispensed with in view of the proviso (b) of s. 9A of the Act and therefore even if the termination is held to be ~, __ retrenchment, the same would be valid. There are two basic fallacits in this submission. Retrenchment to be valid must comply with three conditions set out in s. 25F. They are (a) subject to the provi!

O to clause (a), one month's notice in writing specifying the reasons for retrenchment or wages in lieu of notice; (b) compensation to be paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government. If the termination in this case otherwise constitutes retrenchment admittedly clauses (b) and (c) of s.. 25F have not been complied with. That apart, the submission that in view of the provision contained in proviso (b) of s. 9A, the notice contemplated by clause (a) of s. 25F would be dispensed with, is without merits. Section 9A imposes an obligation on the employer, who proposes to effect any change in the .

conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be affected by such change, nollce in the prescribed manner of the nature of the change proposed to"be effected, and the change cannot be effected within 21 days of the giving of such notice. Jn order to attract s. 9A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule. If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescrib'd manner·and waiting for 21 days after giving such notice. There is a proviso· to s. 9A which exempts the employer from giving the notice of change if the case falls in any of the two provisos. According to Mr.

Francis the case would be covered by proviso (b). It reads as under : "9A. No employer, who proposes to effect any change in the conditions of service applicable to any workman in L. R. D'SOUZA v. EX. ENG. , s. RAI~WAY (Desai, J. ) 263.. respect of any matter specified in the Fourth Schedule, shall effect such change- (a) x x x x • (b) x x x x Provided thai no notice shall be required for effecting any such change : (a) x x x x (b) where the workmen. likely to be effected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Servic. es (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules, or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply".

It was obligatory upon the employer, who wants to retrench· the workmen to give notice as contemplated by clause (a) of s. 25. When a workman is retrenched it cannot be said that change in his conditions of service is e1fected. The conditions of service are set out in Fourth Schedule. No item in Fourth Schedule covers the case of retrenchment. In fact, retrenchment is specifically covered by Item IO of the Third Schedule. Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth ---~. \ Schedule, S. 9A would not be attracted. In order to attract s. 9A the employer must be desirous of effecting a 'change in conditions of service in respect of any . matter 'specified in Fourth Schedule. If the change proposed does not cover any matter in Fourth Schedule s. 9A is not attracted and no notice is necessary. See Workmen of Sur Iron & Steel Co. (P) Ltd. v. Sur Iron & Steel Company (P) Ltd.

,(') Tata Iron & Steel Company Ltd. v. Workmen(') and Assam Match Co. Ltd. v. Bijoy Lal . Sen('). Thus if s. 9A is not attracted the question of seeking exemption from it in the case falling under (1>:[1971] . 1 L. L. J. 570. (2) [1973] l S. C. R. 594. 0) [1974] l S. C. R. 116. the proviso would hardly arise. Therefore, ·neither s 9A nor the Yproviso•is attracted in this case. The basic fallacy in the submission is that notice of change contemplated by s. 9A and notice for a valid retrenchment under s. 25F are two different aspects of notice, · one having no co-relation with the other. It is, therefore, futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by s. 25F would be dispensed with in view of the provision contained in s. 9A, proviso (b). That apart, it is an indisputable position that none of the other pre-conditions to a valid.

retrenchment have been complied wi>h in this case because the very letter of termination of service shows that services were deemed to have been terminated from a back date which clearly indicates no notice being given, no compensation being paid and no notice being given to the. prescribed authority. Therefore, termination of service, being retrenchment, for failure to comply with s. 25F, would be void ab initio. Mr. Francis next contended that as the appellant belonged to the category of casual labour as defined in rule 2501 in Chapter XXV of the Indian Railway Establishmeot Manual ('Manual' for short), no notice prior to termination of bis service is necessary or required by law in view of the pro. visions contained in Rule 2505. The submission is that in the case of casual labour the service will be deemed to have been terminated when such employee absents himself or on the close of the day. Rule 2501 reads as under: "2501.

Definition- (a) Casual labour refers to labour whose employment is seasonal,. intermittent, sporadic or extends over shorf periods. Labour of. this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour, , (b) The casual labour on railway should be employed only in the following types of cases, namely : (i) Staff paid from contingencies except those retained for more than six months continuously. Such of those· persons who continue to do the same work L. R. D'SOUZA v. BX ENG. , s. RAILWAY (Desai, J. ) 265 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.. (ii) Lal\our on projects, irrespective of duration, except those transferred from other temporary or permanent employment.

(iii) Seasonal labour who are sanctioned for specific works of less than six months duration. If such labour is shifted from one work to another of the same type, e. g. , relaying and the total continuous period of such work at any one time is mor. e than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. For the purpose of determining the eligibility of labour to be treated as 0 temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers.

x x x Note: (I) x x (2) Once any individual acquires temporary status, after fulfilling the conditions indicated in (i) or (iii) above, he retains that status so Jong as he is in continuous employment on the railwayg, In other words, even if he is transferred by the administration to work of a different nature he does not lose his temporary status. (3) x x x (4) Casual labour should not be deliberately discharged . with. a view to causing an artificial break in their service aad thus prevent their ~ attaining the temporary status, - 266 SUPREMB COURT REPORTS [1982] 3 s. c. R. (5) x x x Rule 2505 may as well be extracted. It reads as under : "2505. Notice of termination of service-Except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour. Their service• will be deem· ed to have terminated when they absent themselves or on the close of the day.

Note : In the case of a 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". In order to satisfactorily establish that the applicant belonging to the category of casual labour whose service by deeming fiction enacted in Rule 2505' will stand terminated by the mere absence, it must be shown that the appellant was employed· in any of the categories set out in clause (b) of role 2501. What has been urged on behalf of the respondent is that the appellant was employed in construction work and, therefore, labour on projects irrespective of duration would belong to the category of' casual labour. ·That, however, does not mean that every construction work by itself ·becomes a work-charged project.

· On the contrary sub· clause (I) of clause (b) of rule 2501 would clearly show that such of those persons belonging to the category of casual labour who continued 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. Similarly, seasonal labour sanctioned for specific works for less than six months' duration would belong to the category of casual labour. However, sub clause (iii) of clause (b) of rule 2501 provides that if such seasonal labour is shifted from one work to another of the same type, as for example, 'relaying' and the '. total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment.

The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual L. R. D'SOUZA v. EX. ENG. , s. RAILWAY (Desai, J. ) 267 labour on the same type of work and not the period put in collectively by any particular gang or group of Jabourers. It is thus abundantly clear that if a person belonging to the category of casual labour -employed in construction work other than work-charged projects ' renders six months' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment. It is equally true of even seasonal labour. Once the person acquired the status of tcmp-orary railway servant by operation of law, the conditions of his service would be governed_ as. set out in Chapter XXIII.

Rule 2301 in Chapter XXIII defines a temporary railway servant. It reads as under : "2301. Definition-A 'temporary railway servant' means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. _ The term . does n not include 'casual labour', a: 'contract' or 'part- ' time' employee or an 'apprentice'. " The service of a temporary railway servant may be terminated as provided in Rule 2301. •The benefits which a temporary railway servant enjoys are set out iri the same chapter. The question, therefore, is whether the appellant who was recruited as \casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service. In the affidavit filed irr the High Court the respondents contended that the appellant was employed in construction work on work-charged project.

The High Court did not examine this contention on merits and, therefore, it has become obligatory upon us to probe it. The appellant has stated that he joined as a Gangman on July I, 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State. He confessed that he does not have any record to show tliis employment but urged that if the pay roll of the relevant period would be produced by "the Railway administration, the fact alleged would be completely borne out. We would bypass this controversial period, without recording any finding on it one way or th• other. The appellant further contends that on Nov_ember IS, 1954, on transfer he joined in th~~Qffice of lns? ector of Work~ 268 SUPREME COUllT REPORTS (19$2] 3 S. C. k. · I . at Mangalore and since then he has been in continuous employment in the construction branch of the Southern Railw"ay till the date of his illegal termination of . service on . Qctober 8, 1974.

These averments are incontrovertible and have not rightly been controverted before us, in view of unimpeachable evidence produced by the appellant. The Executive Engineer, Ernakulam, where the appellant at the relevant time, i. e. September 5, 1966, was working, addressed a letter to various Executive Engineers inquiring from them whether the surplus staff on his establishment could be absorbed by any of them. The material portion of the letter reads as under : Ext. P-3 Executive Engineer's Office, Ernakulam · Dated 5. 9. 1966 Subject :- Surplus staff (Casual labour staff) absorption of "Since the major portion of the work in this construction unit is over the list of the C. L. staff who are likely to be rendered surplus by 30. 9. 66 and 31. 12. 66 due to expiry of sanction to the post held by them, is enclosed. Please advise whether you can absorb any of these personn~I in your construction division so that they may . be relieved in time if they are willing''. Enclosures : 1) List.

List of C. L. Sta. ff Working in Xen's Office/Ers. Sr. No. Name Presenrly working as Date of appointment x x x . JO. Robert D'Souza. Peon/Lascar. 15. l l. 54 x x x This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15, 1954. Recall here, the fact that his service was terminated by the impugned '-{- .... order contained in the letter Aunexure I dated October 8, 1974. }'herefore, apart f,r()! " the period in controversy from 1948 to 1964 L. R. D'SOUZA v. EX. ENG. , s. RAILWAY (Desai, J. ) 269 it is unquestionably established that the appellant was in continuous _ uninterrupted service from Nor;ember 1954 to October 1974, a period of 20 years and he was working as Peon/Lascar.

Undoubtedly he has belln referred to as belonging to casual labour staff but would it be fair to _hold that after 20 years of continuous service, he would still continue to be a casual labour and therefore, his service could be terminable at will, and he would not be entitled to any of the benefits which a temporary or a permanent railway employee would ei;ijoy ? There is, 'however, one more aspect to Wtlich we would refer before we proceed to pronounce upon the status of the appellant. The definition of casual labour e~tracted by us above clearly indicates that person belonging to casual labour is not liable to transfer. The appellant has stated that he was transferred to Madras in 1957, to Tuni in Andhra Pradesh in 1958, to Rajahmundry in 1960, to Samalkhotan in 1961, to Virudhnagar in 1962 and to Manamadurai in 1965 and then to Ernakulam in 0 August 1965.

It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re-transferred to Ernakulam on March 19, 1971. This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the' appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam, which advice has been carried out and the. intervening period for which he did not report for duty, i. e. from March 6, 1970 to. February 19, 1971, he would be paid the wages as if he was on duty. In the face of these incontrovertible facts could it at all be said that the appellant though transferred ad nauseum. still continued to belong to the category of casual labour ? An additional fact which butresses this conclusion may be referred to. The appellant and several others filed petition in the High Court of Kerala from which the present appeal arises.

All the petitioners before the High Court contended that each of them having rendered continuous. service for decades they could not be said to be belonging to the category of casual labour and if anything all of them had acquired. status of temporary employees. The ttSl\! lndent filed counter-affidavit and contended that the appellant and his co-petitioners in the High Court never acquired the status of temporary railway servant and each of them belonged 'to the category of casual labour. D\! rin~ th~ pendency of the petition • in the High Court service of the appellani was terminated but his co-petitioners continued in service. • After the dismissal of the writ petition by the learned single judge appellant and three others preferred Writ Appeal No. 218 of 1973 in the same High Court.

By the time the appeal came up for hearing three co-appellants of the present appellant who were appellants before the Division Bench were informed that they were treated as on regular employment and ceased to belong to the category of casual labour. Unfortunately as the service of the appellant was already terminated' hc was not given this benefit.. This fact clearly emerges from the manner in which the Division Bench disposed of the appeal before it. The relevant observation is as under: "In view of the letters received from the Executive j, Engineer, Southern Railway, addressed to Shri K. P. Pathrosa, advocate, appearing for respondents in the writ appeal, it has bfcome unnecessary to ·consider this writ "D appeal on merits". With reference to the appellant it was stated as under : . "As regards the first appellant, it is stated th11t he absented himself from (duty and so he had been denied · employment. Since then another Writ Petition 0. P. No. 4401/74 bas been filed by the fits!

appellant and is now pending before this Court. The contention of the first appellant incluaing what has been 'raised in this petition will be considered in O. P. 4401/74". ' By the letters referred to. by the Division Bench, the Executive Engineer informed the advocate appearing for Railway administration that appellants other than the present appellant were absorbed as regular railway employees and hence . the appeal has become infructuous. - Unfortunately for the appellant he was denied this benefit as his service was already terminated. If his service was not terminated, his case was not distinguishable from the case of his co-appellants and he would have been entitled both in Jaw and facts to the same treatment. The approach of the Railway administration to say the least is amazing. For years they did not act according to law and confer status of temporary railway servant on the appellant and his colleagues in the High Court.

,When appellant espoused ttis cause he was thrown out but his colleagues were given the l>enefit rjchly deserved in law. This discriminatory treatment cannot • LR.. D'souzA v. EX. ENG. , s. RAILWAY (hesai, J. ) 2t1 help the respondent because appellant's case cannot be distinguished. If the status of temporary railway employee was already acquired before the tetmination of service in the manner brought about, the same would be ipso facto invalid. At this stage we would again revert to the annexure to the letter of Executive ·Engineer dated • September 5, 1966, in which the name of the appellant appears at Serial No. IO, One of the co-petitioners of the appellant in the High Court, who got the benefit of regular employment pursuant to the writ petition was one Shri K. N. Balakrishna. His name -· appears at Serial NQ. I in the annexure to the letter of Executive Engineer referred to above. His date of appointment is shown to be March 24, 1954.

It would thus appear at a glance that the case of the appellant could not be distinguished from the case of Shri K. N. Balakrishna and if Shri Balakrishna was accorded the status of regular employee, the appellan. t coufd not be treated otherwise,. but for a singular unfortunate event of his termination of service. He . could not be singled out for such treatment, Had his service not been terminated, the Railway administration could not have denied him the status and this status he would have acquired long back. If by operation of law, to wit, Rule 2501 the appellant had acquired the status of temporary railway servant by rendering continuous uninterrupted service for . more than six months, his service could not have been terminated under rule 2505. It, however, needed' moral force of fast and costly court proceedings by a low daily paid workman against the Railway administration in the High Court to obtain such meagre benefit.

It would thus clearly appear that even 'the appeilant would have acquired the status of at least a temporary railway servant. But we would rather like to refer to the legal ' position in this behalf more accurately. To start with, let us recall the rule 250l(b) (i) and (iii) and note below rule 2505. The underlying intendment of the provison is that a casual labourer who has rendered six months' continuous service would be place in the category of temporary railway servant unless he is employed on work-charged project. Rule 2501(b) (i) clearly provides that even where staff is paid from contingencies; they would acquire the status of temporary railway servants after expiry of six . months of continuous employment. But reliance was placed on rule 2501(b) (ii) which provides that lab our on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as casual. Jabour.

In order to bring the case within the 272 StJPllEMti COUllT llEPollTS (1982) 3 s. C. 11. ambit of this provision it must be shown that for 20 years appellant was employed on projects. Every construction work does not imply project. Project is Correlated to planned projects in which the workman is treated as work-charged. The letter dated September 5, 1966, is by the Executive Engineer, Ernakulam, and he refers to the staff as belonging to construction unit. It will be doing violence to language to treat the construction unit as project. Expression 'project' is very well known in a planned development. Therefore, the assertion that the appellant was working on the project is belied by two facts : (i) that contrary to tlie provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ext. P-1 dated January 24, 1962, and Ext.

P-2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in the letter, but the department is described as construction unit. If·he became surplus on completion of project there was no- necessity to absorb him. But the letter dated September 5, 1966, enquires from other executive engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them. This shows that. the staff concerned had acquired a status higher than. casual labour, say temporary railway servant. And again eonstruction unit is regular unit all over the Indian Railways. It is a permanent unit and cannot be equated to project. Therefore, the averment of the Railway administration that the appellant was working on project cannot be accepted. He belonged to the construction unit.

He was transferred fairly often and he worked contjnuously for 20 years and when ·he questii>ned the bona }ides of his transfer he had to be re-transferred and paid wages for the period he did not report for duty at the place where he was transferred. Cumulative effect of these facts complettily belie the suggestion that the appellant worked on project. Having rendered continuous uninterrupted service for over six months, be acquirea the status of a temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505. Once it is held that by operation of statntory rule in the . Manual, the appellant had acquired a status of- temporary railway servant and assuming, as contended by Mr. Francis, that the termination of service in the circumstances alleged does not constitute retrenchment stricto sensu, would the termination be still valid ? l.. k. ti SOUZA v. llX. ENG. , s. RAILWAY (Desai, J.

) 273 The answer is an emphatic no. On the admission· of the Railway administration, . service was terminated on account of absence during the period appellant was on fast. Absence wjtbout leave constitutes misconduct and it is not open to the employer to terminate . service without notice and inquiry or at any rate without ·• complying with the minimum principle of natural justice. Further, rule 2302 clearly prescribes the mode, manner and methodology of terminating service ofa temporary railway servant and admittedly the procedure therein prescribed having. not been carried out, the termination is void and invalid. Accordingly, the same conclusion would be reachep even while accepting for the purpose of the facts of this case simultaneously rejecting it in i,Iaw that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative.

We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary ·to constitutional philosophy of secio-economic justice if we fail to point out that Rule 250I which J)ermits a man serving for 10, 20, 30 years at str•tch without break bein. g treated as daily rated servant, is thoroughly opposed to the notion of socio-economic justice and it is high time that the Rai! Way administration brings this part of . the provision of the Manual, antequarian and antidiluvian, in conformity with the Directive Principles of State Policy as enunciated. in Part IV . of the Constitution. It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing montli. ly minimum wage by 26 so as to provide a paid holiday. Maybe, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed.

It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus. That was at a time when planning and projects were foreign to the Indian economy. Today, Railways perspective plans spreading over decades. If one project is complete another has to be taken over. Railway administration bas miles to go and promises to keep and this becomes clear from thefact that the appellant, daily rated workman, continued to render continuous service for twenty years which wo! ild imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily --~rated casual labour whose service can be terminated at the whim ' SUPREME COURT REPokTS (1982] . 3 s. c. k. _ and fanc/of the local satraps. " . Itis high .

time that theS(: μiterly unfair provisions wholly denying socio-economic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and lowliest in Railway admi11istration. ·s Now, if appellant had become at least a temporary railway servant he is entitled to many benefits set out in Rule 23_03 onwards. We have no doubt in our minds that the appellant whose case was on par with Shri K. N. Balakrishna who had already been offered regular employee status, would be entitled to be placed in the same category and that too from the date much earlier -to the date of termination of his service. In this situation terminatiOn of his service not being covered by any of the excepted categories and not after notice would be retrenchment within the meaning of the expression jas used in the Act _and for the failure to comply with -the pre· condition the termination of service would be void.

Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that be conti. nued to belong to the category of casual labour, would the termination of the service in the circumstances mentioned by the Railway administration constitute retrenchment under the Act ? . E Section 25F of the Act provides that no workman employed i. n any industry who bas been in continuous service for not less than one year under an employer shall be- retrenched by that employer untill the conditions set out in Act ate satisfiecJ. The expression 'workman' is defined as nnder : . ,.. "In this Act, unless there is anything repugnant in the subjeePor context : . - 7 "Workman" means · any person (including an apprentice) employed in any industry to do any skilled or ' tinskil! Cd manual, super~isory, technieal or Clericl\l work for .

hire or reward, whether the terms of employment be - expresssed or implied, and for the purposes of any ·proceeding under this Act in relation to an industriaf dispute, includes any such person 'Who has been dismissed, discharged or retrenched in connection with, or as a consequence of, - that dispute, or whose dismis~a'. li discharge or retrenchment , .... hi! ~ Jed to tl;tat dispute, but d\)es. nQt. ~uclu~e any. ,such , person,- . . . ,. ·(i) who. is subject tp tb'e'~rmy Act, 1950, oi'the Ai. t · . Force Act, 19SO or the Navy (Discipline) Act, 1934, or (ii) who is employed in the police service or as an'-; officer or other employee of a prison; or (iii) who is employed mainly in a. managerial or admi· nistrative capacity; or (iv) who, being employed in a supervisory capacity, I draws wages exceeding five hundred rupees per i -~ mensem or exercises, either by the nature of the duties attached to the. office or by reason of the \ powers vested in him, functions mainly of manageri!

tl nature! ' 1 I There is no dispute that the ajlflellant would be a workman within the meaning of the expression in s. 2(s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over twenty years. Therefore, the first ·condition of s. 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for • the reason hereinbefore given would constitute retrenchment. It is immaterial that he is a. daily rated worker. He is either doing mannual or technical work and his salary was less_ than Rs. 500/· and the termination of his service does not fall in any of the except· ted _catagori~s. Therefore, assuming that he was. a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more. within the meaning of s. 25F of the Act and his service is terminated for any reason.

whatsoever and the case does not fall in any of the excepted catagories. notwithstanding the fact that Rule 2505, would be attracted, it would have to be read subject to the provisions of the Aet. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditiOJ! S to valid retrenchment, the ord~r of termination would be illegal and invalid. 27~ St1Pil! MB cotllT ll! POlts il982J ! I s. C. l. A 'Accordingly, we allow this appeal, set aside the order of the High Court and declare that the termination of service of the app~llant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at Rs. 2,000. · B S. R. Appeal allowed. ·~ / . - . • •