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1976 DIGILAW 153 (ALL)

Hardayal v. Union Of India

1976-03-08

K.N.SINGH

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JUDGMENT K.N. SINGH 1. ALL the 53 petitioners were employed as Khalasis in the North Eastern Railway, their services were terminated by giving them fifteen days notice by the Divisional Engineer, North Eastern Railway, Varanasi, dated November 17, 1974, under rule 149 of the Indian Railway Establishment Code, Volume I. The petitioners challenge the validity of that order by means of this petition on a number of grounds. During the pendency of the writ petition, the notice dated November 17, 1974, was cancelled and a fresh order was passed on December 1, 1974, terminating the petitioners services under rule 149 of the Indian Railway Establishment Code by giving them one month's notice. The petitioners got the petition amended and challenged the validity of the order dated December 1, 1974. 2. THERE is no dispute between the parties that initially the petitioners were employed as casual labourers (Khalasis) by the Inspector of Works, North Eastern Railway, Varanasi. On completion of 4 to 6 months continuous service the petitioners were given by benefits of temporary railway servants. It is further admitted by the parties that on the date of termination of their service all the petitioners except petitioners Hardayal, Komal, Barhoo, Sitansu,Ramayan, Baliram, Mangla Singh and Bishwanath (Nos. 1,3,4,5,6,7,12 and 13) had completed one year's continuous service. Mahendroo, petitioner No. 11, left his service in May, 1974, and he could not complete one year's continuous service. THERE is further no dispute that the petitioners services have been terminated under rule 149 treating them temporary Railway servants. Rule 149 of the Indian Railway Establishment Code, Volume I, contains provision for the termination of service of temporary railway servants. Clauses (1) to (5) to the Rule lay down provision for the termination of service and period of notice and payment of salary to the railway servants of various classes, namely, apprentices, gazetted servants, probationary officers etc. Clause (6) of the rule lays down that if the services of a temporary employee are terminated to whom provisions of the Industrial Disputes Act, 1947, are applicable, he would be entitled to notice or wages in lieu thereof in accordance with the provisions of the Industrial Disputes Act. In such a case the competent authority while exercising powers under rule 149 in terminating the services of a railway servant must comply with the provisions of the Industrial Disputes Act in the matter of notice and wages. In such a case the competent authority while exercising powers under rule 149 in terminating the services of a railway servant must comply with the provisions of the Industrial Disputes Act in the matter of notice and wages. Section 25-F of the Industrial Disputes Act, 1947 lays down conditions precedent necessary to be followed before services of an employee can be retrenched. According to it, services of a workman employed in any industry who may have been in continuous service for not less than one year shall not be retrenched unless the workman has been given a notice in writing indicating the reasons for retrenchment and he has further been paid compensation at the rate prescribed therein and a notice in the prescribed manner is served on the Appropriate Government. These three conditions prescribed under Section 25-F are conditions precedent for the exercise of power to retrench a workman. 3. IN the instant case, it is contended that the impugned notice dated December 1, 1974, was issued in violation of clause (a) of Section 25-F of the Industrial Disputes Act inasmuch as the notice does not contain any reason for retrenchment. A perusal of Annexure C-1 to the counter-affidavit of Sri R.C.S. Kichi shows that the impugned notice of termination issued under rule 149 does not indicate any reason for retrenchment. Clause (a) of Section 25-F contemplates that the order of retrenchment must contain reasons for retrenchment. Absence of reasons in the notice itself will render the order invalid, any subsequent reasons given by the authorities in the affidavit would not be sufficient to meet the requirement of clause (a) of Section 25-F of the Act. The reasons, must appear on the face of the notice itself. In Writ Petition No. 42 of 1975- Bishwanath v. Union of India (Decided on November 17, 1975), I have taken the same view. The impugned notice dated December 1, 1974, is therefore invalid. Learned counsel for the respondent railway urged that this Court should not interfere with the impugned notice, instead the petitioners should be directed to pursue their remedy under the Industrial Disputes Act. Reliance is placed on the observations made by the Supreme Court in Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others(1975 31 FLR 196= AIR 1975 SC 2238 ). Reliance is placed on the observations made by the Supreme Court in Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others(1975 31 FLR 196= AIR 1975 SC 2238 ). In that case Supreme Court considered the jurisdiction of civil court to issue permanent injunction restraining the employers from enforcing or implementing the terms of settlement arrived at between the Union of the workmen and the employers which had been duly registered under the Industrial Disputes Act. While considering the extent of the jurisdiction of the civil court the Supreme Court observed that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suit or is to get an adjudication under the Act. The observations made by the Supreme Court do not affect the jurisdiction of this Court under Article 226 of the Constitution. It is well settled that the jurisdiction of this court under Article 226 of the Constitution is much wider than that of the civil courts and even matters arising out of Industrial Disputes Act are amenable to challenge before this Court. On the admitted facts all the petitioners except those mentioned earlier had completed continuous service and their services could be terminated under rule 149 of the Railway Establishment Code in accordance with the provisions of clause (a) of Section 25-F of the Act. The provisions of rule 149 and Section 25-F are statutory in nature. The petitioners were not in the employment of any private company, instead they were in the employment of Indian Railways, a department of the Union Government. In such a situation if the respondents terminated petitioners services in violation of statutory provisions it is always open to this Court to issue writ for the redress of the petitioners grievance. In the circumstances the respondents' contention that the petitioners should not be granted relief in the writ petition is untenable. 4. ANNEXURE C-1 to the affidavit of Sri Kichi is in the following words: "In pursuance of Rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby give notice to Shri Sridhar, son of Ghuletan Temp. kh. In the circumstances the respondents' contention that the petitioners should not be granted relief in the writ petition is untenable. 4. ANNEXURE C-1 to the affidavit of Sri Kichi is in the following words: "In pursuance of Rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby give notice to Shri Sridhar, son of Ghuletan Temp. kh. (name and designation of the temporary Railway Servant) that his services shall stand terminated with effect from the date of expiry of one month (period of notice prescribed in Rule 149-II, as applicable to the case should be indicated here) from the date on which this notice is served on OR as the case may be tendered to him. Earlier 15 days notice issued is here by cancelled. It is admitted that similar notices were issued and served on the remaining petitioners. As already discussed the notice, ANNEXURE C-1, does not contain any reasons and for that reason it is invalid, I therefore hold that the petitioners' services have been terminated in violation of Section 25-F of the Industrial Disputes Act, therefore the order of termination is liable to be quashed. In the result, I allow the petition partly and quash the notices of termination dated December 1, 1974, issued to the petitioners. The petition fails in so far as Hardayal. Komal, Barhoo, Sitansu, Ramayan, Baliram, Mangla Singh and Bishwanath are concerned. Parties shall bear their own costs.