L ROBERT DSOUZA Vs. EXECUTIVE ENGINEER SOUTHERN RAILWAY
LAWS(SC)-1982-2-19
SUPREME COURT OF INDIA (FROM: KERALA)
Decided on February 16,1982

L.ROBERT D'SOUZA Appellant
VERSUS
EXECUTIVE ENGINEER,SOUTHERN RAILWAY Respondents

JUDGEMENT

Desai - (1.) APPELLANT L. Robert D'Souza joined service as a Gangman at Mangalapuram in Southern Railway on July 1, 1948. In course of his service he was transferred to various places. When he was last working as Lascar at Ernakulam, on October 8, 1974 the Executive Engineer (Construction), Ernakulam intimated to him that his services were deemed to have been terminated from September 18, 1974, from which date the appellant was said to have absented himself from duty. This letter has an important bearing on the issues raised in this appeal, and, therefore, relevant portion may be extracted here: You have absented yourself unauthorisedly from September 18, 1974 and hence your services are deemed to have been terminated from the day you have absented yourself. Please note. Since you are no longer on the rolls of this office you should vacate the quarters allotted to you immediately failing which action will be taken to evict you; According to the appellant, up to the date of unauthorised and illegal termination of his service he had rendered continuous service for a period of 26 years yet the Railway Administration wrongfully denied him the status of a temporary and/or regular workman and treated him a daily-rated casual labourer. This treatment according to the appellant was so unfair that it prompted persons who were victims of this unfair treatment by the Railway Administration to form a Union named Southern Railway Construction Workers' Union, Ernakulam, of which the appellant was the General Secretary. The Union submitted a charter of demands which presumably irritated the authorities and chagrined by it, the appellant was transferred to Padannur in Tamil Nadu by way of punishment. As the late Shri A.K. Gopalan, who was a renowned trade union leader, espoused the cause of the appellant, his transfer was cancelled and he was reported and allowed to continue at Ernakulam after paying the arrears of wages and granting continuity of service for the period he did not join duty at the place of his transfer. This is quite evident from the letter of the Under-Secretary, Ministry of Labour, dated April 23, 1974, which reads as under: With reference to your letter dated May 28, 1973, on the above subject, I am directed to say that it has been reported by the Ministry of Railways that the Southern Railway Administration has been advised that as you were transferred back to Ernakulam on March 19, 1971, you should be deemed to have been on duty for the intervening period from March 8, 1970, to February 19, 1971, and your wages paid accordingly.
(2.) THE local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant. In the meantime the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time. As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice of the Railway Administration they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala. According to the appellant, for the various reasons stated in the petition, appellant and those similarly situated could not be treated as daily-rated casual labour and under the relevant rules appellant and his co-workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellants service was terminated and that they would be entitled to all the retiral benefits. THE petition came up before a learned Single Judge who dismissed the same. THE matter was taken in appeal before the Division Bench. In the appeal it was contended that the termination of service of the appellant in the circumstances as set put earlier would constitute retrenchment within the meaning of Section 25-F of the Industrial Disputes Act, 1947 ('Act' for short), and therefore, the order of termination, inter alia, is invalid. THE Division Bench found the question raised before it of such importance and magnitude that it referred the same to the Full Bench. In the meantime the appellant was actively pursuing his trade union activities. A demand was made that all the benefits granted by the Central Pay Commission be extended to the category of employees to which the appellant belonged and when these demands fell on deaf ears, it was resolved to give a strike notice. The matter was taken in conciliation which ultimately resulted in failure. The appellant approached the Central Government to make a reference under Section 10 of the Act in respect of the demands for adjudication by National Tribunal. As the Central Government was gobbling in its approach, the appellant declared his intention to go on fast unto death for redressal of the grievances suffered for decades by the lowest category of railway employees. At that stage the Assistant Labour Commissioner intervened and persuaded the appellant not to precipitate the matter. The appellant accordingly broke his fast on September 28, 1974, in the hospital where he was confined during his fast. Taking advantage of his absence during the fast immediately the order of termination of his service was served and this led to the present proceedings which have culminated in this appeal. The appellant, inter alia, contended before the Full Bench of Kerala High Court that the termination of his service for the reasons and in the manner brought about is illegal and invalid, that it was victimisation for trade union activities; that it was unfair labour practice and that it was mala fide. It was also contended that in view of his long uninterrupted service admittedly over 20 years he was at the minimum a temporary railway servant and, therefore, his service cannot be terminated unless he was rendered surplus or by way of disciplinary measure after complying with Article 311 of the Constitution. The legal submission put in the forefront was that in the circumstances herein mentioned the termination of service constituted 'retrenchment' within the meaning of Section 25-F of the Act and as the pre-condition to valid retrenchment having not been satisfied, the termination is illegal and invalid. The Full Bench answered the point referred to it against the appellant holding that there is no retrenchment as contended for, on behalf of the appellant and finally dismissed the petition. Hence this appeal by special leave.
(3.) AT the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression 'retrenchment' in Section 2(00) of the Act that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L. Robert D'Souza v. Executive Engineer, Southern Railway, has been specifically overruled by this Court in Santosh Gupta v. State Bank of Patiala. This Court has consistently held in State Bank of India v. N. Sundara Money, Hindustan Steel Ltd. v. Presiding Officer, Labour Court, and Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji, that the expression 'termination of service for any reason whatsoever' now covers every kind of termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections 25-FF and 25-FFF. It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, the ratio of which was reaffirmed by a Constitution Bench of this Court in Hariprasad Shivshankar Shukla v. A.D. Divikar, all the later decisions run counter to the ratio of the Constitution Bench and must be treated per incuriam. This contention need not detain us because first in Hindustan Steel Ltd. case, then in Santosh Gupta case and lastly in Mohon Lal v. Bharat Electronics Ltd., it was in terms held that the decision in Sundara Money case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla case and not only required no reconsideration but the decision in Sundara Money case was approved in the aforementioned three cases. This position is further buttressed by the decision in Delhi Cloth and General Mills Ltd. case wherein striking off the name of a workman from the rolls was held to be retrenchment. It is, therefore, the settled law that the expression 'termination of service for any reason whatsoever' in the definition of the expression 'retrenchment' in Section 2(00) of the Act covers every kind of termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections 25-FF and 25-FFF. Two things thus emerge, firstly, that the decision of the Full Bench of Kerala High Court under appeal has been specifically overruled by this Court in Santosh Gupta case and secondly, in view of the decision in Delhi Cloth and General Mills Ltd. case striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression 'retrenchment' in Section 2(oo). This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court. Sheet-anchor of Mr Francis' submission is that this Court should proceed on the construction of expression 'retrenchment' as set out in Hariprasad Shukla case, and ignore the construction of the expression 'retrenchment' put in the decisions of this Court in Sundara Money case, Hindustan Steel Ltd. case, Santosh Gupta case, Delhi Cloth and General Mills Ltd, case as being per incuriam. We are not disposed to undertake this recurring futile exercise for the obvious reason that on four different occasions, in Hindustan Steel Ltd. case, a Division Bench of this Court consisting of Chandrachud, Goswami and Gupta, JJ.; in Sundara Money case, a Bench consisting of Chandrachud, Krishna Iyer and Gupta, JJ.; in Santosh Gupta case, a Bench consisting of Krishna Iyer and Chinnappa Reddy, JJ. and a Bench of two Judges consisting of Gupta, J. and one of us in Mohan Lal case, have repeatedly undertaken this very detailed exercise and held that there is no inconsistency of any nature and kind nor any conflict, contradiction or repugnancy between the decision of the Constitution Bench in Hariprasad Shukla case and aforementioned later four decisions and they stand in harmony with each other and the later decisions take note of an amendment in the relevant provisions of Industrial Disputes Act and, therefore, the construction put on the expression 'retrenchment' in the aforementioned decisions pronounced the settled view of this Court. We, therefore, consider it futile and waste of precious time of the Court to re-examine the submission of Mr. Francis negatived on four different occasions in the past. Undoubtedly, Mr. Francis pointed out that in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi, Pathak, J. in his concurring judgment has stated that his concurrence with the majority view propounded by Reddy, J. should not be taken to imply his agreement with the interpretation of Section 2(00) rendered in Santosh Gupta case. It may, however, be mentioned that the majority in that case has affirmed the earlier decision. Therefore, after meticulously examining on five distinct and different occasions, it is clearly and unequivocally stated that there is neither apparent nor real conflict between the decision of the Constitution Bench in Hariprasad Shukla case and the later five decisions commencing from Sundara Money and ending with Mohan Lal case, it would be sheer waste of time and merely adding to the length of the judgment to re-examine this contention over again, so as to cover the familiar ground.;


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