- Bookmark
- Share
- CaseIQ
Kailash Paswan And Others v. The Union Of India And Others
Structured Summary of the Opinion (Satya Brata Sanyal, J.)
Factual and Procedural Background
The petitioners are casual labourers employed by the North Eastern Railway who were shut out from work and sought a writ of mandamus directing the Railway to allow them to resume work, to disregard an alleged oral termination, and to grant consequential benefits. The petitioners said their work was stopped from 15.8.1981. They had earlier worked in the categories of mason and, later, khalasi. The opinion sets out the dates of employment for each petitioner when they worked as masons and records that all the petitioners worked as khalasis from 16.3.81 to 15.8.81.
The petitioners rely on alleged illegality in the termination, in particular non-compliance with section 25F of the Industrial Disputes Act and breach of chapter XXV of the Indian Railways Establishment Manual as amended by Railway Board's circular dated 12.7.73. They also produced a letter (annexure 1) dated 16.3.81 in which they consented to work as khalasis because the post of mason was not sanctioned and requested continued service and payment of scale rates.
Procedurally, the writ petition was admitted and the parties filed affidavits and counter-affidavits; the matter had been pending in the High Court since 1981 at the time of this opinion.
Legal Issues Presented
- Whether the termination/shutting out of the petitioners was illegal for non-compliance with section 25F of the Industrial Disputes Act.
- Whether the work rendered in two different categories (mason and khalasi) can be aggregated to satisfy the requirement of 240 days' service in the preceding 12 months (i.e., whether the petitioners were in "continuous service" under section 25B and therefore protected by section 25F).
- Whether the petitioners' letter consenting to work as khalasis (Annexure 1) amounted to a waiver of their rights or constituted a disengagement from the category of mason and a fresh engagement as khalasi, thereby breaking continuity.
- Whether the petitioners attained temporary employee status (after four months' continuous employment) under the Railway Board circular dated 12.7.73 and relevant paragraphs of the Railway Establishment Manual, entitling them to notice or notice pay.
- Whether the writ petition was maintainable in view of the alternative remedy under the Industrial Disputes Act (i.e., whether the existence of the statutory remedy should preclude continuation of the writ after admission and interlocutory proceedings).
Arguments of the Parties
Appellants / Petitioners' Arguments (as advanced by Mr. Abhijit Sinha)
- All petitioners worked continuously for more than 240 days and thus fall within the deeming fiction of section 25B (continuous service) and are therefore protected by section 25F; their dismissal without complying with section 25E/25F is illegal.
- They should be treated as temporary employees after completion of four months' continuous employment under Railway Board's letter of 12.7.73 and paragraph 2501 of the Railway Establishment Manual, making them entitled to 14 days' notice under paragraph 2302 or to notice pay.
- The petitioners had sought continuance in service as khalasis while efforts were made to secure payment of scale rate; their letter of 16.3.81 only reflects consent to work in a lower category and does not amount to abandonment of their continuity of service.
Respondent / Railway's Arguments (as advanced by Mr. A. B. Ojha)
- Section 25F does not apply because the petitioners were not in continuous employment for 240 days: there was a break in service on 15.3.81 when their work as masons ceased.
- The petitioners themselves, by the letter (Annexure 1), volunteered to work in a lower category (khalasi), which the respondents treat as disengagement from the post of mason and fresh employment as khalasi — thus continuity in the same category is broken.
- The petitioners waived their right to compensation by issuing Annexure 1.
- The petitioners were employed in a "Project" (conversion of broad gauge to meter gauge) and therefore the four-month rule for becoming temporary may not apply (relying on Note 1 of paragraph 2501 of the Manual).
- The writ petition is not maintainable because the Industrial Disputes Act provides an alternative remedy (section 10), and that remedy should preclude writ relief.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surendra Kumar Verma ((1980) 4 SCC 443 : AIR 1981 Supreme Court 422) | Explains the operation of section 25B and 25F (deeming fiction) and indicates ordinary remedy of reinstatement with back wages when illegal retrenchment is established. | The court relied on this decision to interpret the deeming fiction in section 25B/25F and to apply the ordinary rule of reinstatement with full back wages to the petitioners. |
| Mohan Lal v. Management of M/s Bharat Electronics Ltd. ((1981) 3 SCC 225 : AIR 1981 Supreme Court 1253) | Describes the method to invoke the deeming fiction in subsection (2)(a): ascertain the date of termination, look back 12 months, and check whether the workman rendered 240 days of service in that period. | The court applied this method to determine that the petitioners had rendered 240 days' service in the relevant period and could be deemed to be in continuous service for the purposes of section 25F. |
| Series of High Court and other citations (1971 S.C. 33; 1971 BLJR 98; 1976 BBCJ 1; 1973 M.P. 175; 1976 M.P. 98; 1974 TLR 1740; 1975 TLR 1497; 1978 BBCJ 704; 1983 PLJR 142; 1977 Pun LR 24) | Support the principle that once a writ petition has been admitted and parties have filed affidavits, the High Court should be loath to dismiss the petition on the ground of an alternative statutory remedy where there are no disputed questions of fact to be tried. | The court relied on this collective authority to justify not dismissing the admitted and pending writ petition solely because an alternate remedy exists, given the absence of disputed factual questions on the principal legal issue. |
| Assorted Supreme Court citations on discretion vs jurisdiction (1977 SC 1132; 1958 SC 86; 1937 SC 882; 1932 SC 192; 1954 SC 207) | Support the proposition that the refusal to entertain or denial of writs in favour of alternative remedies is a matter of discretion, not jurisdiction; exercise of that discretion depends on the wrong or illegality alleged. | The court invoked these authorities to frame its discretionary approach in deciding whether to proceed with the writ despite the alternative remedy under the Industrial Disputes Act. |
| 1978 BBCJ 340 (decision of this Court referenced) | Referenced for the proposition that a decision of this Court indicated that the remedy under the Industrial Disputes Act might not be equally efficacious; the specific principle is the subject of fuller consideration by a Full Bench. | The court noted this earlier decision and observed that the issue whether the statutory remedy is an equally efficacious alternative has been referred to a Full Bench and was not finally determined in that regard for present purposes. |
Court's Reasoning and Analysis
The court proceeded in a layered fashion addressing threshold procedural objections before reaching statutory interpretation and facts:
- Alternative Remedy: The court considered the respondents' contention that the petition was not maintainable because of an alternative remedy under the Industrial Disputes Act. The judge declined to decide generally whether the statutory remedy is equally efficacious but observed that, having admitted the writ and with affidavits on file and the matter pending since 1981, the court should be reluctant to dismiss the petition on that ground where no disputed questions of fact remain. The court relied on authority establishing this discretionary approach.
- Factual Foundation for Section 25F Protection: The court identified the core factual dispute as whether the petitioners had rendered 240 days' service in the relevant 12-month period and whether the work in two categories (mason and khalasi) could be aggregated for that purpose. The court accepted that it was admitted the petitioners had worked for 240 days.
- Construction of Section 25B and Section 25F: The court reviewed the effect of the 1964 amendment (Act 36 of 1964) to the Industrial Disputes Act which inserted the deeming fiction under section 25B. The court explained (following Surendra Kumar Verma and Mohan Lal) that where a workman has actually worked at least 240 days in the preceding 12 months, he is to be deemed in continuous service for one year for the purposes of Chapter V-A, and that to apply subsection (2)(a) one must determine the date of termination and then look back 12 months to see if 240 days were worked.
- Whether the Same Type of Work is Required: The court rejected the respondents' submission that the workmen must have performed the same type of work throughout to meet the 240-day requirement. The opinion states that section 25F and section 25B "nowhere postulate rendering same type of service or same service for a period of 240 days." The statutory test is that the worker rendered work for 240 days in the preceding 12 months, not that it be of the same category.
- Effect of Annexure 1 (consent letter): The court held that the petitioners' letter consenting to work as khalasis did not amount to disruption or disengagement from service; at most it showed change of category. Even if the letter caused a cessation for a day, that cessation was not due to any fault of the workmen, so it would be ignored under section 25B(1) (which provides that certain interruptions are to be ignored for the purpose of continuous service).
- Disputed Question Left Open: The court recognized that the question whether the work constituted a "project" and whether petitioners attained temporary status under paragraph 2501 as amended by the Railway Board involves disputed factual inquiries (e.g., whether the particular conversion work was a project and whether the workmen did the same type of work for 120 days). These factual disputes could not be decided in the writ petition and were therefore left open.
- Conclusion on Illegality: On the statutory construction and admitted facts, the court concluded that the petitioners satisfied the 240-days requirement such that section 25F protection applied; since the mandatory procedure under section 25F was not followed, the terminations were void and the petitioners were to be deemed to have continued in service.
Holding and Implications
Holding: The writ petition was allowed. The court directed that the petitioners be reinstated with full back wages and awarded costs. The court explicitly found that the petitioners are deemed to have been in continuous service for the purposes of section 25F and that the termination without compliance with section 25F was void.
Implications / Direct Consequences:
- The core ruling: DISPOSED IN FAVOUR OF THE PETITIONERS — they are to be reinstated with full back wages.
- The salary on reinstatement will be the salary they were drawing when retrenched, subject to any intervening revision of scales.
- The period from the date of retrenchment to the date of reinstatement will not be counted for the purpose of reckoning seniority among temporary employees.
- The respondent is free to deal with its temporary employees according to law (i.e., procedural and statutory rules still apply for subsequent actions).
- The court awarded costs and noted a hearing fee (the text reads "Hearing fee Rs. ???.").
- No broader rule-modifying precedent was stated beyond application of existing authorities (the court applied established authorities on section 25B/25F and on discretion to continue with an admitted writ despite an alternative remedy when there are no disputed facts). The opinion does not purport to lay down a new principle beyond those applications.
Note: This summary is strictly limited to information contained in the provided opinion. Sections of the opinion that raised factual disputes (e.g., whether the work constituted a "project" or whether the petitioners qualified as temporary employees under the Railway Manual) were left undecided by the court and are reported here as such.
Satya Brata Sanyal, J.:— The petitioners are employees of North Eastern Railway. They are casual laborers. They have been shut out from work. Their grievance is that the action of the respondent Railway authority is illegal and without jurisdiction. They pray for a writ of mandamus to allow them to work. The termination of their service by oral direction be ignored. They be given all consequential benefits. The illegalities alleged are: non compliance of section 25F of the Industrial Disputes Act, breach of chapter XXV of the Indian Railways Establishment Manual as amended by the Railway Board's Circular No. PO-72.P LT-69/3(1) dated 12.7.73
2. The petitioners work has been stopped from 15.8.1981 They were employed on various dates. It is said that they are in continuous service for more than 240 days. Their initial employment is as masons. On the date of the termination of their service, work of Khalasi was being taken from them. The dates during which the petitioners worked as mason and the dates from which they served as Khalasi are as follows:
As Mason
Petitioner No. 1. 16.7.80 to 15.3.81
Petitioner No. 2. 21.7.80 to 15.3.81
Petitioner No. 3. 24.10.80 to 15.3.81
Petitioner No. 4. 10.10.80 to 15.3.81
Petitioner No. 5. 21.7.80 to 15.3.81
Petitioner No. 6. 12.8.80 to 15.3.81
Petitioner No. 1. 1.10.80 to 15.3.81
Petitioner No. 2. 1.10.80 to 15.3.81
As Khalasi
16.3.81 to 15.8.81
All the petitioners.
3. The petitioners agreed to work on lower scale from 16.3.81, due to non-sanction of the post of mason, even though they became entitled to scale rate prior to that date on view of duration of their service. They, however, prayed that efforts be made to pay them the scale rate, but in the meanwhile their service be continued as Khalasi. According to respondents, this letter (Annexure 1) is of great significance and is decisive of the dispute. The relevant extract of the letter in English reads as follows:—
The Assistant Engineer,
Broad Gauge Line Construction, Barauni.
Through Works Inspector,
Sahebpur Kamal, Camp Garhhara.
We, the undersigned masons who were working under you for the last 4, 6, 7, 8 months and had become entitled to receive scale rate or were likely to become so, give our consent to work as Khalasis due to non-sanctioning of the post of mason so that we can maintain our family and can serve the railway.
We hope that action also will be taken to pay us the scale rate and we may be continued in service (Sabko Barkarar Rakha Jai).
Date 16.3.81Yours faithfully,”
4. Mr. Abhijit Sinha, learned counsel appearing for the petitioners contended that all the petitioners have been in continuous service for more than 240 days. Their service was uninterrupted within the meaning of section 25B of the Industrial Disputes Act. In spite of the same their services were ter minated without following the procedure laid down under section 25E. Mr. Sinha learned counsel further contends that the petitioners have achieved the status of temporary servant by working continuously for four months in view of Railway Board's Letter No. P.G 72.RLT. 69/3(1) dated 12.7.73 (Annexure 3) “Sub employment of casual labour on Railways”. They, therefore, were entitled to 14 days notice under paragraph 2302 of Railway Establishment Manual or notice pay therefor. The relevant portion of the circular which is relied upon by the counsel reads as hereunder:—
“It has been decided by Railway Board that casual labour other than those employed in ‘Projects’ should he treated, as temporary after completion of four months continuous employment instead of six months of at present laid down in Board's letter no. E (NG)60 CL 13 dated 22.8.62 (b)(1).”
5. The counsel also drew our attention to paragraph 2501 of Railway Establishment Manual. For these twin reasons, the termination of the petitioners services is said to null and void, entitling them to continuity of service with full back wages. Mr. A.B Ojha, learned counsel for the Railways, submitted that section 25F of the Industrial Disputes Act has no application at all. According to him, the petitioners were not in continuous employment for 240 days. It is said that there is break in their service on 15.3.81 from the job of Mason. On petitioners own representation (Annexure 1), when their services were going to be ter urinated within 240 days, they volunteered to work in lower category of Khalasi. The petitioners did not continuously work in the same category for 240 days. Mason and Khalasi constitute two different class. There in a deemed termination of service as a Mason and fresh employment as a Khalasi. In any view, learned counsel submits, petitioners waived their right to compensation by issuing the letter annexure ‘1’. As far as the question of petitioners attending the status of temporary employee, he contends that the petitioners were working in a ‘Project’. The Project was conversion of Broad gauge to Meter gauge from Barauni to Katihar. Herries upon Note ‘1’ of paragraph 2501 of Railway Establishment Code. Learned counsel lastly submits that this writ petition is not maintainable as the petitioners have an alternative remedy under the Industrial Disputed Act.
6. It will take up the last contention first. Assuming redress provided under section 10 of the Industrial Disputes Act is a proper, efficacious alternative remedy which ordinarily would be a bar to the filing of a writ petition, but even then the question remains, can this writ petition be dismissed on the said ground after its admission and pendency in this Court since 1981? I do not wish to decide in this case as to whether the redress provided under Industrial Disputes Act is equally efficacious, prompt and adequate alternative remedy even though the decision of this Court say it not (see 1978 BBCJ 340). The said question has been referred to full Bench, and pending decision in this Court.
7. One view, however, seems to be fairly established that once a writ petition is admitted and parties have filed affidavits and counter affidavits, and the matter remained pending in the High Court for some time, unless there are disputed, questions of (?) fact to be gone into, the Court should be very loath to dismiss the writ petition on the ground of alternative remedy. It should ordinarily not do so (1971 S.C 33, 1971 BLJR 98, 1976 BBCJ 1, 1973 M.P 175, 1976 M.P 98, 1974 TLR 1740, 1975 TLR 1497, 1978 BBCJ 704, 1983 PLJR 142, 1977 Pun Law Reports 24). After all it is a self imposed restriction. It is a matter of discretion and not of jurisdiction (See 1977 SC 1132, 1958 SC 86, 1937 SC 882, 1932 SC 192, 1954 SC 207) The exercise of discretion depends upon the wrong and illegality alleged and complained against.
8. In the instant case the illegality alleged shutting out the wrokman from work, thus terminating their service without compliance of the mandatory requirement of section 25F of the Industrial Disputes Act. There is no disputed questions of fact involved. It is admitted on all Courts that they have worked for 240 days. The only dispute between the parties is whether for reckoning “continuous service for 240 days,” the work rendered in different categories can be taken into consideration. In other words whether on proper interpretation, Ext. ‘1’ mean disengagement from the work of Mason on 15.3.81 and re-engagement as Khalasi from 16.5.81 at the request of the workmen.
9. Its true in deciding the second submission of the learned counsel as to workman's attainment of temporary status, certain disputed questions of fact have to be decided, for instance whether the work of conversion of Broad Gauge to Meter Gauge from Barauni to Katihar is a project or not. Whether it is a work for day to day running of railway or providing large scale additional facilities to improve the carrying capacity of the railways. Again it is required to be found whether the workmen were doing the same type of work for a period of 120 days as required under paragraph 2501 of the Manual as amended by Railway Board on 12.7.73 The facts for the determination of this point being in dispute, the said question cannot be decided in a writ petition.
10. Amendment Act 36 of 1964 has drastically changed. The provision of section 25B and has repealed section 2(eee) of the Industrial Disputes Act. These changes brought about by the aforesaid amendment is designed to provide that a workmen who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been, in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. (See (1980) 4 SCC 443 : AIR 1981 Supreme Court 422-Surendra Kumar Verma v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi). Section 25 B of the Act introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. It provides (a) a deeming fiction that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of reasons enumerated in the said section. One of such reason is “cessation of work which is not due to any fault on the part of the workman”. “These interruptions have to be ignored to treat the workman in uninterrupted service”, (b) The other deeming fiction is for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under the employer for net less than 240 days. It the deeming fiction of sub-section (1) do not cover a case in such a case if the workman satisfied the condition of sub-section (z)(a) he would be deemed to be in continuous service for a period of one year. It is not necessary for the purposes of sub-section (z)a) that the workman should be in service for a period of one year. In the case of Mohan Lal v. Management Of M/S Bharat Electronics Ltd. ((1981) 3 SCC 225 : AIR 1981 Supreme Court 1253) it was held “to invoke the fiction enacted in sub-section (2)(a) it is necessary to determine first the relevant date, i.e the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25F.
11. Section 25F and section 25B of the Industrial Disputes Act nowhere postulate rendering same type of service or same service for a period of 240 days. The section only postulate rendering of work for 240 days in the preceding period of 12 months. This section confer certain benefits to them. I am unable to accept the submission of the learned counsel that for “continuity of service” for a period of one year, the workmen must do aid continue to do the same work for which they were engaged or other work of the same type for a period of 240 days in the preceding period of 1 months. The letter (annexure do not bring about any disruption of service and/or bring about their disengagement from work. It only shows that from a particular date the petitioners rendered work for another category. Even assuming the letter (annexure ‘1’) brings about a cessation of work for a day, the said cessation was not due to any fault on the part of the workmen. Therefore, as well there would be no interruption in service in view of the provisions of section 25B(1). For the aforesaid reasons, I find force in the contention of the learned counsel for the petitioners that the petitioners having rendered 240 days of service on the date the termination of their services has been brought about there having been infection of the provisions of section 25F read with section 25B the said termination is void. In the eye of law they will be deemed to continue in service irrespective of the termination impugned in this writ petition. It is immaterial that the petitioners were a daily rated workmen. It hey were either doing manual or technical work. They have rendered 240 days service in a period of one year. The termination be whatever reasons, entitles them to the protection of section 25F which has admittedly been not complied with.
12. The next question which falls for decision is to what benefit are these workmen entitled to. In the case of Surendra Kumar Verma (supra) the ordinary rule is reinstatement of the workmen along with back wages. Only in exceptioual circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. I do not find any exceptional circumstance for deviating from ordinary rules. It think the petitioners are entitled to the same relief as was allowed in the case of Surendra Kumar Verma (supra). In the result, the petition is allowed with cost. Hearing fee Rs. ???. The petitioners are directed to be reinstated with full back wages. The salary on reinstatement of the workmen will be the salary which they were drawing when they were retrenched (subject of course to any revision of scales that might have been made in the meanwhile). The period from the date of retrenchment to the date of reinstatement will not be taken into account fr the purpose of reckoning seniority of the workmen among temporary employees. The respondent is free to deal with its employees, who are temporary, according to law.
Alert