S. R. PAPANNA v. UNION OF INDIA — 1981 DIGILAW 134 (KAR)

M. RAMA JOIS, J. ( 1 ) IN this writ petition in which the petitioner, who is an ex-employee of the Railways has prayed for quashing the order by which his services were terminated, the following questions of law arise for consideration: (i) Whether the termination of services of the petitioner who is a civil servant and also a workman as defined in the Industrial Disputes act (hereinafter referred to as 'the act') without complying with the conditions laid down in S. 25f of the Act is invalid? (ii) Whether the petitioner, who is a civil servant and also a workman as defined in the Act can seek relief against an order of termination made in contravention of S. 25f of the Act in a petition under Art. 226 of the Constitution or he should resort to the remedy available under the Act? ( 2 ) THE facts of the case are as follows: the petitioner was appointed as a ticket Collector as per order dated 19-7-76 made by the Assistant Personnel Officer, Hubli. Pursuant to the said order, the petitioner reported for duty. He was continuing in service. A notice dated 15th February, 1979 Annexure-C was issued informing the petitioner that he was being given one month's notice of termination of his service. After the expiry of one month notice period, order of termination dated 29-3-79 was issued. This order reads as follows:"shri S. R. Papanna, Ticket collector / Hubli has been served with one month's notice for termination of his service by senior dgs/uhl vide order of even number dated 15-2-79. 2. Accordingly the services of shri S. R. Papanna, Ticket Collector / Hubli will stand terminated from the forenoon of 24-3-79. "aggrieved by the said order, the petitioner has presented this writ petition. ( 3 ) SRI K. Subba Rao, learned counsel appearing for the petitioner raised the following contentions: (i) The order of termination amounts to imposition of penalty of removal from service and, therefore, violative of Article 311 (2) of the Constitution. (ii) The order of termination was issued by an authority lower in rank than the appointing authority and, therefore, it is bad for contravention of Art 311 (1) of the Constitution. (ii) The order of termination was issued by an authority lower in rank than the appointing authority and, therefore, it is bad for contravention of Art 311 (1) of the Constitution. (iii) The petitioner was a workman within the meaning of that expression as used in the Act and as the petitioner had completed more than 240 days of service before the date of termination, termination was void as it amounts to retrenchment without complying with the condition precedent for the making of retrenchment as provided under clause (b) to sec. 25 of the Act. ( 4 ) I shall take up the last contention first. There is no dispute that though a month's notice as required under sec. 25f (a) of the act has been given, there was no payment of retrenchment compensation, at the rate of fifteen days salary for every completed year of service, which is a mandatory requirement prescribed in sec. 25f (b) of the act, to the petitioner though he had put in more than two years of service. With reference to the plea that the termination is bad for non- compliance with the mandatory condition specified in sec. 25f (b) of the Act, the plea taken by the respondents in the statement of objection is that the petitioner has an alternative remedy by way of raising an industrial dispute under S. 10 of the act and, therefore, this Court should not interfere in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. In support of the above submission, reliance was placed on the judgment of the Supreme Court in Khajavalli v. Divisional supdt. S. Rly. (1 ). A true copy of the said judgment was produced before the court at the time of hearing. The said judgment reads-"these appeals turn on the question of retrenchment of casual labour. The appellants did not go to the labour Court. They instead went to the High Court. The High Court did not accept the contentions of the appellants and dismissed their writ petitions. We are of the opinion that this is a matter where the appellants if they have any grievance, might have gone to the Labour Court. The appellants did not go to the labour Court. They instead went to the High Court. The High Court did not accept the contentions of the appellants and dismissed their writ petitions. We are of the opinion that this is a matter where the appellants if they have any grievance, might have gone to the Labour Court. The proper order in the facts and circumstances of the case to be made is that if the appellants have any grievance in these matters, they may go to the Labour Court and the Labour Court will deal with the matters in accordance with law. It is made clear that as far as the high Court judgments are concerned, these will not stand in the way of the appellants provided it is open and competent to them to go to the Labour Court on this question under the law of the land. As far as respondents are concerned, they want to adopt conclusions and reasonings of the judgments of the High Court in aid of their contentions to meet the case of the appellants before the labour Court. This course may be open to the respondents. The appeals are dismissed. There will be no order as to costs. "sri G. Dayananda, learned counsel appearing for the respondents, submitted that as held by the Supreme court in the above cases, this is also a case in which the petitioner should be asked to approach Industrial Court as was done in the above case. ( 5 ) THE plea of the petitioner in para 4 of the petition that the Railway is an industry and the petitioner was a workman in terms of the provisions of the Act, is not specifically controverted in the statement of objection. This plea is met only by way of relying on the judgment of. the supreme Court extracted above and stating that the petitioner should be asked to work out his remedy under the provisions of the Act. On the other hand, the very plea taken in the statement of objection to the effect that the petitioner should be asked to approach the Labour Court, itself goes to show that even according to the respondents, the petitioner is a workman. On the other hand, the very plea taken in the statement of objection to the effect that the petitioner should be asked to approach the Labour Court, itself goes to show that even according to the respondents, the petitioner is a workman. Therefore the question for consideration is as to whether the petitioner should be asked to resort to the remedy available under the act in view of the Supreme Court judgment referred to above. ( 6 ) ALL the facts and circumstances of the case are not to be found in the judgment of the Supreme Court, on which the learned counsel for the respondents relied. It however indicates that the case of the appellants therein involved disputed questions of fact and was not a case like this in which there is no dispute that the petitioner was a workman and his challenge to the termination of service is based only on the violation of a statutory provision to wit S. 25f of the Act. There can be no doubt that if the case involves any disputed question of fact, writ petition is no appropriate remedy. If the claim of a person that he was a workman as denned in the Act, is disputed, it may become a disputed question of fact, which could appropriately be decided by an industrial court. Similarly if a workman had been removed from service on the basis of any misconduct or charges, the proper course for the aggrieved workman would be to approach the Labour Court or Industrial Tribunal constituted under the ect, as such a case would involve investigation into questions of fact and further even in a case where there is any procedural irregularity, the management would be entitled to prove the charges before the Industrial Tribunal, and even if the charge is held to have been proved, the industrial tribunal can, if it considers proper to do so, reduce the penalty in exercise of its powers under S. 11a of the Act and all these cannot be undertaken or done in a petition under Art. 226 of the Constitution. ( 7 ) THE petitioner in the present case is a civil servant and the respondent is State. The petitioner, therefore, can seek relief by means of presenting. a writ petition under art. ( 7 ) THE petitioner in the present case is a civil servant and the respondent is State. The petitioner, therefore, can seek relief by means of presenting. a writ petition under art. 226 of the Constitution before this Court on the ground that his termination of service has been made in contravention of statutory provisions governing his conditions of service. Such statutory provisions which regulate the condition of service of a civil servant could be found either in the rules made or law enacted under Art. 309 of the Constitution or under any other enactment made by a competent legislature. S. 25f of the Act is a statutory provision which is applicable to the case of the petitioner because in addition to being a civil servant, he is also a workman as defined in the Act. The petitioner had already put in more than 2 years of service before the date of termination of the service. Therefore, in terms of clause (b) of s. 25f of the Act, the termination of his service should have been preceded bv the payment of prescribed amount of retrenchment compensation as specified in S. 25f (b) of the Act, admittedly, no such payment has been made. It is well settled that a termination of service of a workman or a civil servant without complying with the provisions of S. 25f of the act or any similar condition imposed by the rules regulating his condition of service is void. (See State of Bom- bay v. Hospital Mazdoor Sabha, air 1960 SC 610 . and Sr. Supdt. R. M. S. Cochin v. K. V. Gopinath, AIR 1972 SC 1487 . Therefore, the order of termination issued against the petitioner without complying with the condition precedent prescribed under S. 25f (b) of the Act, has to be declared invalid. ( 8 ) SRI G. Dayananda, learned counsel appearing for the respondent, however, contended that in view of the terms of appointment (Ex-A dated 19-7-76) in which one of the specific terms set out was that the service of the petitioner was terminable at any time without notice, the case of the petitioner does not amount to retrenchment and is outside the scope of S. 25f of the Act. I do not find any substance in this contention. The expression 'retrenchment' is defined in S. 2 (oo) of the Act. I do not find any substance in this contention. The expression 'retrenchment' is defined in S. 2 (oo) of the Act. It reads: "'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary, action, but does not include. (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health; (underlining (italics) by me) the above provision came up for interpretation before the Supreme court in Santhosh Gupta v. State Bank of Patiala, AIR 1980 SC 219. The Supreme Court held that the expression 'termination of service for any reason whatsoever' found in Section 2 (oo) of the act can cover every kind of termination of service except those not expressly included in Section 25f or not expressly provided for by other provisions of the Act such as S. 25ff and 25fff. The only type of termination which falls outside the provision of S. 25f (a) of the Act and in respect of which no notice of retrenchment is necessary is an appointment under an agreement for a specific period. It is true that in the appointment order it is specifically stated that the service of the petitioner was terminable at any time without notice. But such an condition cannot over-ride statutory provisions. Therefore the conditions prescribed both by clauses (a) and (b) of S. 25f had to be complied with. The only exception to clause (a) which prescribes one month's notice for effecting a valid termination of service is in respect of an appointment for a specific period i. e. , upto a specified date. The case of the petitioner did not come under that exception. The appointment of the petitioner though temporary was not for any specific period or date on the expiry of which the tenure would automatically come to an end. In fact the respondents have complied with sec. 25f (a ). The complaint in this case is about violation of section 25f (b ). No exception is provided to S. 25f (b) which prescribes payment of compensation as a condition precedent for retrenchment. In fact the respondents have complied with sec. 25f (a ). The complaint in this case is about violation of section 25f (b ). No exception is provided to S. 25f (b) which prescribes payment of compensation as a condition precedent for retrenchment. Therefore, compliance to the conditions prescribed in S. 25f (b) of the act was mandatory and its non-compliance renders the termination invalid. ( 9 ) IN the result, I accept the third contention urged for the petitioner and answer both the questions of law set out in the first paragraph in favour of the petitioner. Hence, I consider it unnecessary to deal with the first and the second contentions. ( 10 ) THE only next question for consideration is about consequential benefits. Regarding this, the Supreme court in the case of Managing Director, u. P. Warehousing Corpn. v. Vijaya nantyana Vajpayee, AIR 1980 SC 840 . has held that in a case of this type, the Court should only grant a declaration tha,t the order of the termination is invalid and as regards consequential benefits, the party should be allowed to take appropriate proceedings under the provisions of the industrial law. ( 11 ) FOR the reasons aforesaid, I make the following order: (i) Rule is made absolute. (ii) The impugned notice of termination dated 15-2-79 (Annexure-C) and 1he order of termination dated 21-3-79 (Annexure-D) are quashed. (iii) As regards consequential benefits, the petitioner is at liberty to resort to the remedies as are open to him in law. (iv) No costs. --- *** --- .