- Bookmark
- Share
- CaseIQ
Asstt. Personnel Officer v. K.T Antony
Structured Summary of the Opinion
Factual and Procedural Background
The respondent (the Writ Petitioner below) was a casual labourer employed by the Southern Railway. He was appointed on 5 April 1973. An order identified in the record as Ext. P-3, dated 5 April 1975, terminated his services. Ext. P-3 stated that his services were being dispensed with and that no formal order of appointment was being issued because verification of his character and antecedents showed that he would not be a desirable person to be appointed to the Railway Service.
The learned Judge (trial court) quashed Ext. P-3. The Railway (appellant) preferred this Writ Appeal against that judgment. The appellate court (bench headed by Gopalan Nambiar, C.J.) considered whether the termination was permissible under Rule 149 of the Indian Railway Establishment Code, Vol. I, and whether, alternatively, the termination amounted to "retrenchment" under the Industrial Disputes Act and thus violated section 25-F. The appellate court ultimately sustained the learned Judge's order (quashing the termination) though on a different ground, and dismissed the Writ Appeal.
Legal Issues Presented
- Whether Rule 149 of the Indian Railway Establishment Code applies to the respondent's employment and, if so, what notice (if any) was required for termination (including whether Rule 149(3)(c) applied, entitling the respondent to one month's notice).
- Whether the termination effected by Ext. P-3 constitutes "retrenchment" within the meaning of Section 2(oo) of the Industrial Disputes Act, and if so, whether the requirements of Section 25-F (notice or wages in lieu, compensation, and notice to the appropriate Government) had been complied with.
- Whether the existence of an alternative remedy (reference to an Industrial Tribunal) precludes the maintenance of a writ petition under Article 226 of the Constitution in the present facts.
- Whether the Writ Petition was defective for non-joinder of the Union of India (Government of India) as a necessary party.
Arguments of the Parties
Respondent's Arguments
- Initially contested the application of Rule 149 to his case; the learned Judge held that the rule applied only in certain appointments and concluded the respondent did not fall within those categories.
- Subsequently (as recorded), counsel for the respondent accepted that Rule 149(3)(c) applied (entitling termination with one month's notice) and shifted to argue that the termination was nevertheless unlawful because it amounted to "retrenchment" under Section 2(oo) of the Industrial Disputes Act and therefore had to comply with Section 25-F.
- Argued that because compensation had not been paid and other requirements of Section 25-F were not complied with, the termination was illegal. Reliance was placed on a Division Bench ruling in Krishnan v. Southern Railway and on two Supreme Court decisions (State Bank v. N.S. Money and Hindustan Steel v. Labour Court, Orissa), together with earlier decisions cited within those authorities, to support the proposition that once a termination occurs it must be tested under Section 25-F.
Appellant's (Railway's) Arguments
- Asserted that Rule 149 applied to temporary/contractual employees and that termination was permissible under that rule.
- Contended that even if termination was technically irregular, the respondent had an alternative remedy by way of reference to an Industrial Tribunal, and therefore a petition under Article 226 should not be entertainable.
- Raised an objection that the Union of India (Government of India) should have been impleaded in the Writ Petition, relying on authority (Ranjeet Mal v. G.M. Northern Railway) to support the non-joinder objection.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Krishnan v. Southern Railway (Division Bench ruling) | Support for the proposition that once there has been a termination of service the reasons are immaterial and it must be tested by the provisions of Section 25-F of the Industrial Disputes Act. | The respondent relied on this Division Bench ruling; the court treated it as one of the authorities supporting the view that the termination had to be examined under Section 25-F. |
| State Bank v. N.S. Money (Supreme Court decision) | Principle that a termination of service, once effected, is to be tested against the statutory safeguards in Section 25-F. | The bench regarded this as an "earlier Supreme Court decision" that categorically stated the testing of termination under Section 25-F; the court considered it among the authoritative pronouncements that informed its conclusion that the termination in this case satisfied the definition of retrenchment. |
| Hindustan Steel v. Labour Court, Orissa (Supreme Court decision) | Consideration of retrenchment and Section 25-F in the light of earlier Supreme Court decisions (including Pipraich Sugar Mills and Hariprasad Shivashankar Shukla). | The court noted that this decision examined the position in light of prior Supreme Court pronouncements and concluded that, on the facts before the Supreme Court, there was retrenchment. The appellate bench relied on this reasoning as part of the body of Supreme Court authority confirming that termination may amount to retrenchment for purposes of Section 25-F. |
| Pipraich Sugar Mills (Supreme Court decision referenced) | One of the prior Supreme Court decisions considered in later authorities dealing with retrenchment and Section 25-F. | Referred to as one of the decisions examined by the Supreme Court in Hindustan Steel; the appellate court relied on the chain of authority including this case to conclude that the present termination satisfied the definition of retrenchment. |
| Hariprasad Shivashankar Shukla (Supreme Court decision referenced) | Another prior Supreme Court decision considered in the analysis of retrenchment jurisprudence. | Referred to as part of the judicial context considered by the Supreme Court in subsequent cases; the appellate court treated these earlier decisions as contributing to the settled approach that termination must be tested under Section 25-F. |
| (1976) 4 SCC 222 : AIR 1977 SC 31 (reported Supreme Court decision cited in the opinion) | Example where termination of a workman was for purposes of streamlining organisation and effecting economies; treated as retrenchment and considered under Section 25-F jurisprudence. | The opinion cites this reported decision to illustrate how the Supreme Court analysed termination as retrenchment; the bench relied on the line of Supreme Court pronouncements, including this report, in reaching the conclusion that the present termination was retrenchment. |
| Ranjeet Mal v. G.M. Northern Railway (Supreme Court decision) | Authority supporting the proposition that non-joinder of the Union of India may be a fatal defect in certain petitions involving central government action. | The appellant relied upon Ranjeet Mal to urge that the Union should have been impleaded. The appellate bench observed the authority but declined to entertain the non-joinder objection because it had not been raised in the counter affidavit or at the hearing of the writ petition; the defect could have been cured earlier and it was unfair to raise it late. |
Court's Reasoning and Analysis
The court proceeded in logical steps:
- Interpretation of Rule 149: The learned Judge initially held that Rule 149 applied when a person without a lien on a permanent post was appointed to hold a temporary post or to officiate. The learned Judge also held that the respondent did not fall within the categories specified in the Rule. On appeal the bench disagreed with the learned Judge's conclusion on applicability: it found that Rule 149(3)(c) clearly applied to the respondent's case and that, under that provision, termination could be effected with one month's notice.
- Shift in respondent's defence and invocation of statutory scheme: Because counsel for the respondent recognised that Rule 149(3)(c) applied, he changed the defensive posture and argued that even if Rule 149 permitted termination with notice, the actual termination amounted to "retrenchment" under the Industrial Disputes Act and therefore had to comply with Section 25-F.
- Statutory definitions and requirements considered: The court set out the statutory definition of "retrenchment" in Section 2(oo) (termination by employer for any reason whatsoever other than certain listed exceptions) and the conditions precedent in Section 25-F (one month's notice or wages in lieu, payment of compensation equivalent to fifteen days' average pay for each completed year of service subject to the excess-of-six-months rule, and notice to the appropriate Government).
- Reliance on judicial authority: The court considered a line of decisions of the Supreme Court and a Division Bench ruling (Krishnan v. Southern Railway) which, taken together, supported the proposition that where there is a termination of service that falls within the definition of retrenchment, the protections of Section 25-F must be satisfied. The opinion explicitly referenced the earlier Supreme Court holdings and accepted the legal proposition that a termination which meets the statutory definition of retrenchment is to be tested by Section 25-F.
- Application to the facts and conclusion on retrenchment: Having regard to the statutory definition and the authorities, the appellate bench concluded that the termination in this case satisfied the definition of "retrenchment" under Section 2(oo). Because the statutory requirements of Section 25-F (including payment of compensation) were not complied with, the termination violated Section 25-F. On that basis the court held that the learned Judge's conclusion that the termination was illegal was correct (even though the learned Judge had reached his conclusion on a different understanding of Rule 149).
- Objections raised by appellant considered and rejected: The court rejected the appellant's contention that the respondent's remedy lay exclusively by reference to an Industrial Tribunal. The bench observed that reference to a Tribunal can only be made at the instance of the Government under Section 10 of the Industrial Disputes Act and therefore could not be treated as an alternative remedy available to the respondent for the purpose of ousting writ jurisdiction under Article 226. As to the non-joinder of the Union of India, the court noted authority supporting the objection but refused to entertain it because the point had not been raised earlier in pleading or at trial and could have been cured by impleading the Union at that stage.
- Disposition: The court sustained the order of the learned Judge (that had quashed Ext. P-3) though on the statutory ground of contravention of Section 25-F, and dismissed the Writ Appeal. There was no order as to costs.
Holding and Implications
Holding:
The Writ Appeal is dismissed and the order of the learned Judge quashing Ext. P-3 (terminating the respondent's services) is sustained.
Implications and consequences:
- The court held that the termination amounted to "retrenchment" within the meaning of Section 2(oo) of the Industrial Disputes Act and therefore contravened Section 25-F because the statutory conditions (including payment of compensation) were not complied with.
- As a direct effect, the termination order (Ext. P-3) was quashed and the Writ Appeal dismissed; there was no order as to costs.
- The court rejected the appellant's contention that the respondent's only remedy was a reference to an Industrial Tribunal, explaining that references arise only on the Government's initiative under Section 10 and therefore are not an alternative remedy for the respondent to oust writ jurisdiction.
- The objection of non-joinder of the Union of India was not entertained because it was not raised in a timely manner and could have been cured earlier by impleading the Union.
- The opinion sustains the earlier judgment on the statutory ground of non-compliance with Section 25-F; the text does not articulate any broader constitutional or jurisprudential doctrine beyond the direct effect on the parties, and does not state that a new precedent was intended to be laid down.
Gopalan Nambiyar, C.J:— The learned Judge, against whose judgment this Writ Appeal is preferred, quashed Ext. P-3 order terminating the services of the Writ Petitioner (respondent in this Writ Appeal) who was a casual labourer in the service of the Southern Railway. The termination was sought to be justified with respect to Rule 149 of the Indian Railway Establishment Code Vol. 1, which is as follows:
“149. Termination of service and periods of notice:—
(1) Temporary railway servants. When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India. If the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract. The periods of notice specified above shall apply on either side, and steps should be taken to bring this condition to the notice of the railway servants concerned.
Note.—No notice of termination will be necessary in a case where a railway servant is deemed to have resigned his appointment and ceased to be in railway employ in the circumstances detailed in ‘Note 2’ b low Exception (ii) to rule 732(1).
(2) Apprentices—Except as otherwise provided in his service agreement, the service of an apprentice shall be liable to termination on one week's notice.
(3) Certain other railway servants the services of certain other railway servants specified below shall be liable to termination on notice on either side for the periods shown against each. Such Notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution and compulsory retirement due to mental or physical incapacity—
(a) Probationary Officers and Gazetted railway servants on probation other than those in the Medical Department. 3 months notice. (b) Gazetted railway servants on probation in the Medical Department. 1 month's notice. (c) Non-gazetted railway servants on probation. 1 month's notice.
(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the ser???ice of a railway servant by paying him the pay for, the period of notice.
Note.— The appointing authorities are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded.
This power cannot be re-delegated.
(5) The notice of termination of service under this rule should be given by an authority not lower than the appointing authority;
This amendment takes effect from 1-4-1959.
(6) Notwithstanding anything contained in clauses (1)(2) and (4) of this rule, if the Railway Servant or Apprentice is one to whom the provisions of the Industrial Disputes Act, 1947, apply he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act.”
2. The learned Judge was of the view that the above rule was applicable when a person without a lien on a permanent post under Government was appointed to hold a temporary post or to officiate in a permanent post.
3. It was observed that the respondent would not come within the categories specified in the Rule, and that Ext. P3 order itself had stated that his services were being dispensed with and no formal order of appoitmemt was being issued as the verification of the character and antecedents of She petitioner showed that he would not be a desirable person to be appointed to the Railway Service.
4. The respondent was appointed on 5-4-1973 and Ext. P3 order was on 5-4-1975. We think, the learned Judge was wrong in holding that rule 149 had no application. It appears to us that rule 149(3)(c) clearly applies to the case of the respondent, and therefore, in his case, termination could be effected with one month's notice. Counsel for she respondent himself realised that rule 149(3)(c) was applicable in his case. He therefore rightly shifted his ground of defence, and sought to sustain the order by contending that the termination of the services of the Writ Petitioner was contrary to the provisions of section 25-F of the Industrial Disputes Act. Our attention was called to the definition of the term ‘retrenchment’ in Section 2(00) of the Industrial Disputes Act, which is as follows;
“‘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 superan???uation 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.”
5. section 25-F of the Industrial Disputes Act provides:
“25-F. Conditions precedent to retrenchment of workmen.—No workman 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 untill—
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman 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, com pensation 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) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official Gazette.”
6. In the light of the above provisions it was argued that having regard to the statutory definition of ‘retrenchment’ as a termination of service ‘for any reason whatsoever’; it bad to satisfy the requirements of section 25-F in order to be regarded as valid and proper. As compensation had not been paid, it was contended that the termination was illegal and ineffective, and therefore, the learned Judge was justified in quashing the same. Counsel for the respondent placed reliance on the Division Bench Ruling of this court in Kxishnan v. Southern Railway (1) and on two recent decisions of the Supreme Court viz., State Bank v. N.S Money (2) and Hindustan Steel v. Labour Court. Orissa (3). The earlier Supreme Court decision states in categoric fashion that, once there has been a termination of service, the reasons therein would be immaterial and that it must be tested on the touch stone of the provisions of section 2S-P. The latter decision in (3), has considered the position in the light of the two previous pronouncements of the Supreme Court in Pipraich Sugar Mills case (4) and Hariprasad Shivashankar Shukla's case (5) and has pointed out that, on the actual facts of the case before the Supreme Court, the conclusion that, there was retrenchment of the workman, was quite consistent with the two previous decisions of the Supreme Court. In (1976) 4 SCC 222 : AIR 1977 SC 31 the termination of service of the workman was to streamline the organisation and to effect economics wherever possible.
7. In the light of these pronouncements of the Supreme Court, we are of the opinion that the termination in this case satisfies the definition of ‘retrenchment’ under section 2(oo) of the Industrial Disputes Act, and therefore, violates the provisions of section 2S-F of the Act, In that view, the conclusion of the learned Judge that the termination was illegal, is correct.
8. Counsel for the appellant contended that, even if the termination be illegal, the respondent has an alternative remedy by way of reference of the dispute to the Industrial Tribunal, and therefore, a petition under Article 226 of the Constitution would not be entertainable. We are unable to accept this argument. Reference of industrial dispute to the Tribunal can only be at the instance of the Government on certain conditions mentioned in section 10 of the Act. We cannot regard it as an alternative remedy available to the respondent for the purpose of holding that a petition under Article 226 is not maintainable, and attracting clause (3) of Article 226 of the Constitution, as amended by the 42nd Amendment read with section 58 of the 42nd Amendment Act.
9. It was objected by counsel for the appellant that the Union of India should be impleaded in the Writ Petition, and that the Writ Petition was improperly constituted in the absence of the Government of India. The counsel's plea seems to be supported by the decision of the Supreme Court in Ranjeet Mal v. G.M Northern Railway (6) but, the plea was rot raised either in the counter affidavit or even at the hearing of the Writ Petition; and if a timely objection of non-joinder of parties had been raised, the defect could have been cured by impleading the Union of India. It is unfair and improper at this late stage, to entertain such a plea; and we, accordingly, decline to entertain the same.
10. In the result, we sustain the order passed by the learned Judge, although on a different ground, and dismiss this Writ Appeal. There will be no order as to costs.
Alert