Hari Rai v. Union of India — 1978 DIGILAW 92 (PAT)

Judgment Hari Lal Agrawal, J. These four writ applications under Articles 226 and 227 of the Constitution of India were heard together as common questions of law and facts are involved in them. All of them are being accordingly disposed of here with. I shall indicate very briefly the facts of the petitioners in each of the writ application. C.W.J.C. No. 2012 of 1976 2. There are 31 petitioners in this case. All of them were employed as casual labourers (Khalasi) in the Engineering Department of the North Eastern Railway under the Divisional Engineer (I), Samastipur. Their case is that they had worked for more than ten years in any event, had completed more than 120 days of continuous service and thereby were entitled to the rights and privileges provided under various provisions contained in Chapter XXV of the Indian Establishment Manual (to be referred hereinafter simply as the 'Manual'), one of them being the right to acquire the status of 'temporary employee'. The petitioners have stated that the competent authority prepared a panel of 479 employees on or about 26.9.1973 who were found suitable in the screening test of casual labourers substitutes of A.E.N. held on different dates at Samastipur and the names of the petitioners were also included in the said panel. They have appended a chart as Annexure 1' to this application showing the dates of their appointments, the dates on which 120 days were completed and their position in the said panel. After completing 120 days of continuous service, the petitioners made a representation to the Divisional Engineer (I), North Eastern Railway, Samastipur for grant of time scale of pay in accordance with the provisions contained in Chapter XXV of the Manual mentioned above and subsequent circulars issued from time to time by the Railway Board. 3. The grievance of the petitioners is that instead of considering their representation and giving them the benefits to which they have become entitled, the administration threatened them with terminating their employment and discontinuing their services on and from 16.9.1976 to make room for the sons and relatives "of the loyal workers". A prayer has, accordingly been made to issue an appropriate writ to the respondents to forbear from terminating the services of the petitioners and to accord them the time scale of pay with the status of quasi-permanent or at legist temporary employees. 4. A prayer has, accordingly been made to issue an appropriate writ to the respondents to forbear from terminating the services of the petitioners and to accord them the time scale of pay with the status of quasi-permanent or at legist temporary employees. 4. In the counter-affidavit filed on behalf of respondents 1 to 3, although the claim of the petitioners that they had worked for more than ten years was challenged, it was admitted that the petitioners were engaged as casual labourers from time to time and that they had completed 120 days of continuous service but their services had earlier been terminated on different dates in February 1976 due to non-requirement of their service and they were now re-employed since April. 1976. Their stand in the counter-affidavit, however, is that after their termination on 15.2.1976 and consequent break in service, the petitioners further worked as casual labourers in different spells of time as per chart enclosed in Annexure A and did never complete 120 days of continued service which could enable them to have acquired temporary status, Rather, it has been stated there specifically that all the petitioners, except Raman (petitioner no. 13) and Ramautar (petitioner no.31), had completed 120 days on 17.1.1976. With respect to petitioner nos. 13 and 31, it is admitted that petitioner no. 13 completed 120 days on 26.1.1976 and petitioner no. 31 on 21.12.1975. From the above statement, it is apparent that the completion of 120 days of continuous service by each of the petitioners at some point or the other till the termination of their services on 15.8.76 is admitted. But their claim is refute d on the plea that there being a break in their service in February, 1976 and they having not completed 120 days of continuous service thereafter till 15.8.1976, they were not entitled to the status and privileges claimed by them. 5. A series of supplementary counter-affidavits and rejoinders thereto have been filed by each side asserting and refuting many subsidiary allegation, which being not relevant to the question falling for our consideration, I need not refer to them. 5. A series of supplementary counter-affidavits and rejoinders thereto have been filed by each side asserting and refuting many subsidiary allegation, which being not relevant to the question falling for our consideration, I need not refer to them. The hearing of the cases was adjourned on the request of the learned counsel for the petitioners for a long time in view of a purported announcement made by the Minister for Railways in his budget speech in the Parliament on 28th March 1977 regarding the reinstatement of the employees dismissed/removed/suspended as it was expected that the petitioners would not be disturbed. But we were ultimately informed that the administration had not taken any action in the matter and accordingly all the applications were beard on merits. C.W.J.C. Nos. 2017 and 2310 of 1976 6. There are 184 petitioners In C.W.J.C. No. 2017 of 1976 and 18 in C.W.J.C. No. 2310 of 1976. Their case is that in the panel of 479 employees prepared by the authority after the screening test, the names of all these petitioners were also appended to the said panel, as the names of the petitioners of C.W.J.C. No. 2012 of 1976, and they have prayed for similar reliefs on similar grounds as those petitioners. They have also referred to the Railway Board's Circular No. E/NG/11/75 CL dated 12.11.1975 (Annexure-2) wherein the Board has decided that 'casual labours whether employed on projects or otherwise, who have completed 4 months of continuous service should hence forward be considered for empanelment by the screening committee for absorption against regular class IV posts "The petitioners contend that by this circular, the break in their service was of no consequence and although they had acquired a status in view of the provisions contained in Chapter XXV of the Manual, their services were terminated on 15.8.1976 in the case of petitioners of C.W.J.C. 2017 of 1976 and on 16.8.1976 in the case of petitioners of C.W.J.C. No. 2310 of 1976 in violation of the provisions of the Manual and the circular issued by the Railway Board. These petitioners alleged that termination of their services was also bad as neither any notice was given to them nor they have been paid the retrenchment benefits contemplated under sections 25-G and 25-H of Chapter V-A of the Industrial Disputes Act, 1947. 7. These petitioners alleged that termination of their services was also bad as neither any notice was given to them nor they have been paid the retrenchment benefits contemplated under sections 25-G and 25-H of Chapter V-A of the Industrial Disputes Act, 1947. 7. The stand of the respondents in the counter-affidavits, as in the first case, is that Circular no. E. (N.G.) 11/75 G.L. dated 12.11.1975 does not purport to condone the break in service of casual workers. C.W.J.C. No. 1218 of 1976 8. There are only five petitioners In this case. These petitioners were also employed as khalasis in the Engineering Department of the North Eastern Railway on different dates at different places and on completion of certain period of continuous service all of them were also granted time scale of pay. The petitioners were served with notices dated 19.4.1976 by the Assistant Engineer, North Eastern Railway, Darbhanga, terminating their services with effect from 15.6.1976 as their services were no longer required with effect from that date. The petitioners claim that they being in continuous service as temporary staff had acquired the status of temporary railway servants under rules 2318 and 2514 of the Manual and their services could not be terminated unless it was in accordance with the provisions of the rules and the Industrial Disputes Act, and they will be deemed to be in continuous service. They have accordingly, prayed for quashing the notices (Annexures 2 series). 9. In the counter-affidavit filed by the respondents, the stand taken is that the petitioners were casual labours and were engaged against 'works charged post' and their services were liable to be terminated at any time on 14 days notice. As the petitioners were casually employed for works of new station building at Darbhanga, their services were terminated on completion of the said building and the notice of termination was quite valid and effective. 10. The main case was argued by Mr. B.C. Ghose who proceeded on the basis of the various provisions of the Industrial Disputes Act. He firstly referred to section 26B falling under Chapter V.A. of the Industrial Disputes Act, dealing with "Layoff and Retrenchment"'. 10. The main case was argued by Mr. B.C. Ghose who proceeded on the basis of the various provisions of the Industrial Disputes Act. He firstly referred to section 26B falling under Chapter V.A. of the Industrial Disputes Act, dealing with "Layoff and Retrenchment"'. Section 25-B defines "continuous service" in sub-section (1) as follows:- "1) a workman shall be said to be in continuous service for a period if he is, for that period in uninterrupted service, including service which may be Interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman" Sub-section (2) lays down that: "where a workman Is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) xx xz (b) for a period of six months, if the workman, during a period of six calendar months proceeding the date with reference to which calculation is to be made has actually worked under the employer for not less than- (i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case." In this connection reference was also made to Rule 2512 of the Manual, already referred to in the writ applications. It prescribes that a casual labour who acquires temporary status as a result of having worked for more than six months (other than on projects) shall be considered for regular employment without having to go through employment Exchanges. We have seen that this period of six months has been subsequently reduced to four months, in other words, to 120 days by the Railway Board. 11. From the above provisions, it is manifest that a casual labour who has worked for more than four months would acquire a temporary status. Chapter XXII of the Manual deals with the terms and conditions applicable to the Railway servants in temporary service. 11. From the above provisions, it is manifest that a casual labour who has worked for more than four months would acquire a temporary status. Chapter XXII of the Manual deals with the terms and conditions applicable to the Railway servants in temporary service. The rule for termination of service and the period of notice in the case of non-gazetted staff is prescribed in rule 2302 (4) of the Manual which provides that in the case of a railway servant to whom the provisions of the Industrial Dispute Act, 1947, apply shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act. It is clear from the above provision that in cases where the provision of the Industrial Disputes Act, apply, the termination of service of the Rail way servant will not be governed by rule 2302, but by the corresponding provisions of the Industrial Dispute Act. In other words, the Manual incorporates, the provisions of the Industrial Disputes Act. I may straightaway refer to a decision of this court in Basant Lal Sah Vs. Divisional Mechanical Engineer, where relying upon a decision of the Supreme Court In the case of State of Bombay Vs. Hospital Mazdoor Sabha it was held that the railway was an industry within the meaning of the 'industrial Disputes Act, and, therefore, the provisions of the Industrial Disputes Act, were applicable in appropriate cases relating to Railways. Referring to the definition of the word 'retrenchment' under section 2 (oo) of the Industrial Disputes Act, it was held by this court that it was wide enough to include 'termination of service' and, therefore, the terminated employee was entitled to the benefits under Chapter V-A of the Industrial Dispute Act, one of them being a notice under section 25-F. 11. Section 25-F of the Industrial Disputes Act, prescribes the conditions precedent to retrenchment of workmen and reads as follows :- "No workmen 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- (a) the workmen has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workmen has been paid in lieu of such notice, wages for the period of the notice. Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service: (b) the workman has been paid, at the time of retrenchment, 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 (c) xx xx xx" The facts in Basant Lal Sah's Case (Supra) were that the petitioner in that case was appointed as a substitute carriage Khalasi in the railway on 9.4.1969. In the year 1974, he could not join his duties for a period of little more than one month on account of his arrest by the police and was not allowed to join after his release and was served with a notice of termination. He challenged the order in this court on the ground that the provisions contained in Chapter V-A of the Industrial dispute Act, were not complied with in his case and, therefore, the order of termination was invalid, On a consideration of a large number of cases this court accepted the contention and set aside the order of termination. 12. Reference in this connection was made on behalf of the petitioners to a decision of the Supreme Court in the State Bank of India Vs. N. Sundara Moneys where section 2(oo) of the Industrial Disputes Act, fell for consideration. In that case a composite order was passed, one giving appointment and the other ending it. It was held by the Supreme Court that in the circumstances section 25-E of the Industrial Disputes Act, was attracted and the preemptive provision to terminate was struck by the same vice as the post appointment termination. Reliance was placed on behalf of the petitioners on an unreported decision of this court in Civil Writ Jurisdiction Case No. 1386 of 1975 (Birendra Kumar Sinha and ors Vs. The Railway Board, through Chairman Railway Board, New Delhi and others) decided on 7th July, 1977, where the Railway administration had terminated the services of some substitute assistant teachers of a High School after they had worked continuously for a period of six months. Their appointments were made for a specified period of six months. The Railway Board, through Chairman Railway Board, New Delhi and others) decided on 7th July, 1977, where the Railway administration had terminated the services of some substitute assistant teachers of a High School after they had worked continuously for a period of six months. Their appointments were made for a specified period of six months. Thereafter their services were continued for a further period of six months by issuing orders of re-appointment contemporaneously with the orders terminating their services at the expiry of the six months period. After the expiry of the extended period, their services were terminated. These orders were challenged both on the ground that they had acquired the status of temporary railway servants in the above manner except in accordance with the provisions of rule 2302 of the Manual and rule 140 of the Indian Railway Establishment Code (Vol. I) which require 14 days notice to be given to the temporary Railway servant for termination of their services. Relying upon rule 2318 of the Manual which confers upon the substitutes all the rights and privileges admissible to temporary railway servants from the time of completion of six months continuous service (three months in the case of school teachers), it was held that the petitioners had acquired the status of temporary railway servants and, therefore, termination of their services was governed by rule 2302 of the Manual which prescribes 14 days notice on either side, and accordingly, the orders of termination were quashed. The Supreme Court in the case of M/s Hindustan Steel Ltd. Vs. The Presiding Officer, Labour Court and others held that termination of service by running out of time stipulated in the contract of service amounted to retrenchment and non compliance of section 25-F (b) rendered the retrenchment Illegal. Following the decision in the State Bank of India, it affirmed the order of reinstatement with full back wages passed by the Labour Court. The petitioners have alleged in their writ applications that the respondents passed the prejudicial order against them in order to make room for the sons and relatives of the so called 'Loyal workers' and other favourites. In the counter and supplementary affidavits filed on behalf of each side, this point was asserted and controverter, but it is admitted that at some point of time the railway administration followed this principle. According to their affidavits, this policy has subsequently been given up. 13. In the counter and supplementary affidavits filed on behalf of each side, this point was asserted and controverter, but it is admitted that at some point of time the railway administration followed this principle. According to their affidavits, this policy has subsequently been given up. 13. Confronted with the above situation, particularly the various decisions referred to above according to which the impugned action of the respondents cannot be supported, Mr. P.K. Bose emphasised that the writ applications should be dismissed in view of section 58 of the Forty two Amendment of the Constitution of India as they had an alternative remedy available to them, namely raising of an industrial dispute and in support of his contention he cited the full Bench decisions of the Gujrat, Andhra Pradesh and Madhya Pradesh High Court in A bad Cotton Mrg. Co. Ltd Vs. Union of India and others The Government of India and others Vs. The National Tobacco Co. of India Ltd. and the Madhya Pradesh State Road Transport Corporation Vs The Regional Transport Authority. It is not necessary to discuss the above decision of the various High Courts as it is not possible to accept the contention of Mr. Bose that the petitioners have got alternative remedy in these cases which may be said to be equally efficacious and speedy. There is sufficient observation in the Gujrat Case itself to the effect that the expression •any other remedy has to be for redress of the injury for which the writ jurisdiction is conferred and therefore, it must be equally adequate or efficacious so that qualitatively and quantitatively the same relief would be given for the redress of the injury of the petitioner. Therefore, adequate efficacious remedy is always Implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition. Sitting with M.P. Singh, J I my self have followed the above principle in C.W.J.C. No. 788 of 1975 (M/s Motipur Zamindari Co. Ltd Vs. The State of Bihar and another) disposed of on 24th January, 1978, and rejected the plea of non-maintainability on the ground of the existence of alternative remedy. The same view has also been expressed by our learned Chief Justice sitting with another learned Judge in Bata India Ltd Vs. Ltd Vs. The State of Bihar and another) disposed of on 24th January, 1978, and rejected the plea of non-maintainability on the ground of the existence of alternative remedy. The same view has also been expressed by our learned Chief Justice sitting with another learned Judge in Bata India Ltd Vs. The Assistant Collector of Central Excise, Patna and others where it has been observed that a remedy has to be a real remedy and not illusory Relying upon the decision of the Supreme Court in the case of the Premier Automobile, Ltd Vs Kamlakar Shantaram Wedke and others, Mr. P.K. Bose contended that the nature of the dispute in the case being specifically industrial, the only remedy available to the petitioners, was to get adjudication under the Industrial Disputes Act. The position in this case was, however, different. The Supreme Court was deciding a question of jurisdiction, of the Civil Court in relation to an industrial dispute under section 9 of the Code of Civil Procedure and has ruled that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerns enforcement of certain rights and liabilities created only under the Act. With respect to disputes arising out of contract or liability under the general common law and n0t under the Industrial Disputes Act, although the nature of the dispute may be Industrial, the jurisdiction of the Civil Court was held to be competent, the remedy, of course, being alternative, leaving it to the discretion of the suit or concerned. The argument of Mr. Bose is fallacious and must be rejected on the ground that the alternative remedy of the petitioners to raise an industrial dispute is not real and absolute as that of a writ, inasmuch as according to the scheme of the Industrial Disputes Act, the aggrieved Individual cannot approach the Tribunal or labour court directly for the redress of his grievance without the intervention of the appropriate Government. The appropriate Government may not in its wisdom think it proper to make a reference, Section 1 (1) of the Industrial Disputes Act, confers discretion on the appropriate Government either to refer the dispute or not to refer it for industrial adjudication. Although not conclusively decided, but my learned brother Shambhu Pd. Singh, J, who delivered the judgment for the Bench in a batch of cases, namely C.W.J.C. Nos. Although not conclusively decided, but my learned brother Shambhu Pd. Singh, J, who delivered the judgment for the Bench in a batch of cases, namely C.W.J.C. Nos. 320, 321, 322, and 335 of 1976 (R) (Parabhu Ram Mishra and others Vs. Union of India and others on 4th November, 1977 has made somewhat similar observation. 14. The petitioners in all the present writ applications, large in number are poor Khalasi and their matter is pending in this court from a long time. Therefore, at this stage if they are called upon to prosecute the so called alternative remedy in my opinion that will simply prove illusory to them. 15. There is yet another and more substantial ground for rejecting this contention of Mr. Bose. It has been seen that the provisions and principles of the Industrial Disputes, Act, on which the orders passed by the respondents are impugned, have been adopted by the Railway Administration in the Manual itself, and for this purpose reference may be made to rule 2614 in particular, which has incorporated a large number of beneficial provision of Chapter V-A of the said Act. It will not be, therefore, quite correct to contend that the objection taken by the petitioners is exclusively within the four corners of the Industrial Disputes Act. 16. The facts are not In dispute that the petitioners are casual labours and have been working as such at various places under the North Eastern Railway. It has also been seen that the petitioners have completed more than 120 days of continuous services and therefore, have become entitled to the rights and privileges provided under the various rules of the manual and acquired the status of temporary employees. Once it is held that the petitioners have acquired the status of temporary employees, then in that case, their services could not have been terminated in the manner as has been purported to be done by the respondents as they were entitled to be absorbed in regular services as laid down in rule 2512 of the Manual. For similar reason, the termination of their services without giving the requisite notice or wages in lieu there of in view of section 25-F of the Industrial Disputes Act, which ii made applicable by rule 2302 of the manual, is bad. For similar reason, the termination of their services without giving the requisite notice or wages in lieu there of in view of section 25-F of the Industrial Disputes Act, which ii made applicable by rule 2302 of the manual, is bad. It is not disputed on behalf of the respondents that they have not followed the above mandatory provision and their stand is that the petitioners had not acquired temporary status and, therefore, were not entitled to the above protection which has been found to be erroneous. 17. The petitioners of C.W.J.C. No. 2012 of 1976 have come to this Court before the date fixed for termination of their services in .the notice had expired, which, however expired only a few days thereafter, but the petitioners in the other three cases have come to this court after their services already stood terminated. The petitioners, except those of C.W.J.C. no. 1218 of 1976, have not annexed the order of termination of their services, but the fact of termination of their services is not in controversy, The petitioners of C.W.J.C. No. 1218 of 1976, however have annexed the said orders which are contained in Annexures 2 to 2/D. 18. In the result, all the writ applications are allowed. Termination of the services of such of the petitioners whose services have already been terminated is quashed. A further direction is also issued to the respondents not to terminate the services of petitioners, except in accordance with the relevant provisions of the Railway Establishment Code, the Railway Establishment Manual, circulars and orders issued by the Railway Board and the Industrial Disputes Act, in the light of the discussion made in this judgment. There will be no order as to costs. Applications allowed.