JUDGMENT
1. The petitioner's case is that he was appointed as an employee of the Calcutta telephones by the Sub-Divisional Officer of phones (South), Russa External, respondent 2 herein for the first time on 6 December 1976, and continued in his service till 31 March 1977. Thereafter, he was again employed after a break in service of seven days on 8 April 1977, and continued in service uninterrupted and without any break whatsoever for about fifteen months, when his service was verbally terminated on 1 July 1978, by the order of respondent 2. According to the petitioner he was described as a “casual” employee. It is further stated by the petitioner that he worked as a helper of wiremen in the matter of installation of telephones.
2. It is stated by the petitioner that though he was described as a casual labourer yet his services were utilized on regular basis inasmuch as he was to perform work of regular nature which formed integral part of installation of telephones. The petitioner has further stated that the work which he was entrusted to do was of a routine and regular nature and somebody or the other has still to perform the said job and the basis of his appointment was regular although he was termed as casual labourer. According to the petitioner his term of engagement was not on “no work, no pay basis” but he was paid wages on the fifth day of every month for the work rendered in the preceding month the amount being calculated at a daily-rate (which was Rs. 5.80 per day when the petitioner's services was terminated) for all the days of the whole of the month including Sundays and holidays when he did not have to do any work. According to the petitioner he was not entitled to get wages if he remained absent but he always got his wages even for these days when he was present but no work was offered to him and also for those holidays when he did not attend his work. According to the petitioner his work was of regular nature which has got to be performed even today and, therefore, cannot be said to be of short duration and further there were casual labourers, whose names were borne on the same register with the permanent staff of the Calcutta Telephones. According to the petitioner the work allotted to him was essentially manual in nature. It is further stated by the petitioner that he also used to sign the attendance register regularly.
3. Petitioner's grievance is that at the time of verbal termination of his service the petitioner was neither paid any retrenchment compensation or other compensation of any manner, nor he was given any notice as required under the law for effecting such termination of service or any pay in lieu of such notice. The petitioner's case is that inasmuch as the Calcutta Telephones carries on systematic activity organized by co-operation between employer and employee for production and or distribution of goods and services calculated to satisfy human wants and wishes it is an industry and as the petitioner was in uninterrupted service under the Calcutta Telephones for a period of about fifteen months before 1 July 1978, the date of termination of service of the petitioner and in any event he had actually worked under the said employer for not less than 240 days during a period of twelve calendar months preceding 1 July 1978, termination of the petitioner's service amounted to retrenchment and the same admittedly not having been made in compliance with S. 25F was in effective and invalid and as such the petitioner should be deemed to be in service of the respondent Calcutta Telephones.
4. The respondent's case as stated in their affidavit-in-opposition filed in this application is that the services of the petitioner along with thirty-six others were utilized on purely casual basis and as casual labourers (DRMS) by respondent 2, the Sub-Divisional Officer of Phones (South), Russa External, Calcutta Telephones, in connexion with urgent works relating to the construction of cable laying against minor estimates and also installation works pertaining to 46, 41 and 42 telephone exchanges. The said 37 “casual mazdoors” including the petitioner were engaged without any letter of appointment being given to any of them and they were so engaged on purely casual basis and entirely as casual labourers. Their engagement as “casual mazdoors” was on “no work, no pay” basis and they were not departmental employees. Those casual mazdoors were, in fact, simply picked up and engaged as unskilled casual labourers to assist in the execution of some specific jobs of very short duration such as trenching, carrying ladder, loading and unloading of store materials, etc. Their names were borne on muster-roll and not in the register of regular establishment of instant unit of the department. Unlike regular staff of the telephone department the conditions of service of those persons are not governed by any departmental rules having statutory force. It is further alleged that as there was no appointment the question of serving any letter of dismissal did not arise. It is further alleged that the petitioner was not appointed in any vacancy or in any existing post of the regular establishment of Calcutta Phone District. These casual mazdoors were allowed to sign in daily attendance register purely as an extra measure to keep a check on them. Signing of attendance register regularly or payment of daily wages did not confer any right to work or employment on regular basis to the petitioner. According to the respondents, the petitioner, being a casual labourer appointed purely on casual work charge basis, did not at all acquire any right whatsoever to any notice or retrenchment compensation or any other compensation whatsoever. The petitioner was not at all entitled to be served with any notice for the alleged termination of service or for payment of any money in lieu of such notice. It is further stated by the respondents that uninterrupted service as a casual labourer, appointed purely on casual work charge basis, for a period of 15 months or for 240 days in a year would not at all confer upon the petitioner any right to any regular employment under the establishment of the Calcutta Telephones. It is further stated that because there were repeated requirements of manual labourers, the petitioner was repeatedly engaged as a matter of co-incidence only and such requirement ultimately came to an end. Respondents' further case is that Calcutta Telephones is neither and “industry” within the meaning of S. 2 (j) of the Industrial Disputes Act nor the petitioner is a “workman” as defined in S. 2 (s) of the said Act. Therefore, according to the respondent the petitioner was not entitled to any retrenchment notice or retrenchment compensation and hence this application should be dismissed and rule nisi should be discharged.
5. Sri P.S Sen Gupta, learned counsel appearing for the petitioner, has submitted that Calcutta Telephones is an industry as defined under S. 2 (j) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). According to Sri Sen Gupta in the affidavit in opposition filed on behalf of the respondents there is no proper denial of the fact for which according to the petitioner Calcutta Telephones is an “industry” within the meaning of S. 2 (j). He has further submitted that a bare denial of fact is no denial at all. In this connexion he has referred to the case of Sahu Jain, Ltd. v. Deputy Secretary, Ministry of Finance [(1966) 70 C.W.N 399). Sri Sen Gupta has also submitted that Calcutta Telephones is an “industry” because it carries on systematic activity organized by co-operation between employer and employee for production and/or distribution of goods and services calculated to satisfy human wants and wishes. It is also his submission that in view of the various Court rulings defining and explaining the expression “industry,” Calcutta Telephones should be held to be an industry within the meaning of S. 2 (j) of the Act. Sri Sen Gupta has farther submitted that Calcutta Telephone is a public utility service within the meaning of S. 2 (n). Referring to S. 10 proviso and S. 22 of the Act it is submitted that unless public utility services are industries then why there should be provisions in the Act relating to those services. In support of his above contentions reliance has been placed on the cases of D.N Banerji v. P.R Mukkerjee [A.I.R 1953 S.C 58], State of Bombay v. Hospital Mazdoor Sabha [A.I.R 1960 S.C 610] and Union of India v. Jaydev Mondal [(1977) 34 F.L.R 359].
6. Sri Sen Gupta has further submitted that the petitioner being a casual labourer is a “workman” within the meaning of S. 2 (s) of the Act. According to him Industrial Disputes Act being a beneficial legislation wide meaning shall be given to the expression “workmen” in S. 2 (s). Referring to S. 25C of the Act Sri Sen Gupta has submitted that exclusion of casual workmen from the purview of the said section is because of the fact that otherwise a casual workman is a “workman” as defined in S. 2 (s) of that Act. In this connexion counsel has referred to the cases of Elumalai (E.) v. Simplex Concrete Piles (India), Ltd., Madras [1970-II L.L.J 454] and Assistant Personnel Officer, Southern Railway, Olavakkot v. K.T Anthony [1978-II L.L.J 254]. According to Sri Sen Gupta in the instant case inasmuch as the termination of the service of the petitioner, who is a workman within the meaning of S. 2 (s) of the Act and as such is entitled to the protection under S. 25F, was made without fulfilling the conditions and without following the procedure as laid down in Ss. 25F and 25G of the Act it was invalid. It is further submitted that non-compliance of the conditions of S. 25F of the Act would make the order of retrenchment invalid and the employee would be deemed to be in service and in this connexion reliance has been placed upon the decision of B.M Gupta v. State Of West Bengal & Ors. [1979-II L.L.N 63]. Therefore, in the instant case inasmuch as the termination of service of the petitioner amounted to retrenchment within the meaning of S. 2 (oo) of the Act and as the same was made without complying with the provisions of S. 25F of the Act it was invalid and the petitioner should be deemed to have continued in service.
7. Regarding the absence of a written order of termination of service it has been submitted by Sri Sen Gupta that in the instant case as the fact of termination of service is admitted there could be no question of any written order terminating the service of the petitioner. He has submitted that a written order is necessary only where termination of service is disputed. It is further submitted on behalf of the petitioner that a party at fault cannot take advantage of his own wrong and technical point should not be allowed to defeat the justice in a case coming under Art. 226 of the Constitution and in this connexion reference has been made to the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon [(1969) 1 SCC 869 : A.I.R 1969 S.C 1267]. On the question whether alternative remedy was available to the petitioner by way of a reference of the dispute under S. 10 of the Act it has been submitted on behalf of the petitioner that the presence of alternative remedy is not an absolute bar to a proceeding under Art. 226 of the Constitution. On behalf of the petitioner reliance was placed on the cases of Divisional Superintendent, Southern Railway, Madurai v. Sasidharan [1978 L. & I.C 1042), Director, Enforcement Directorate, Government of India v. Soraj Kumar Bhotika [(1977) 2 C.L.J 483], K.C.P Employees' Association, Madras v. K.C.P Ltd., Madras ((1978) 36 F.L.R 217], Pilot Pen Company (India) (Private), Ltd. v. Additional Labour Court, Madras [1971-I L.L.J 241] and K.R.B Kaimal v. Director of Postal Services, Trivandrum [1979-I L.L.J 176.]
8. Sri Anwar Hossain, learned counsel appearing for the respondents, has taken preliminary objections regarding the prayers of the petition. He has submitted that the prayers of the petitioners are defective. According of him prayer (a) is vague; prayer (c) cannot be granted in a writ application but such prayers can be allowed in a suit and prayer (b) praying for a direction of reinstatement with back-wages cannot be allowed in the instant application. He has further submitted that in the instant case no specific order complained of by the petitioner has been annexed to the petition. According to counsel in the instant case the petitioner was not a casual worker because his employment was for a particular work or a fixed type of work and his employment remained and/or continued so long as the work remained. Such employment automatically came to an end immediately upon completion of the work. He has further submitted that in the instant case as the petitioner was appointed for a particular piece of work he could not be said to be casual worker entitled to the benefit conferred by the Industrial Disputes Act. In this connexion counsel has referred to the cases of P. Joseph v. Gopal Textile Mills [1975-I L.L.J 136] and Crompton Engineering Company (Madras) (Private), Ltd. v. Additional Labour Court, Madras [1974-II L.L.N 262]. Sri Hossain has further submitted that in the instant case it has not been stated by the petitioners as to why the alternative remedy, i.e, by way of a reference under S. 10 of the Act could not be availed of by the petitioner. It is the submission of Sri Hossain that in view of S. 2A of the Act the question relating to the dismissal or termination of service of an individual workman can be referred for adjudication under S. 10 of the Act. It is admitted that inasmuch as an alternative remedy was available to the petitioner and as it was not stated as to why such remedy could not be availed of by him the instant application is not maintainable and should be rejected. In this connexion counsel has referred to the cases of Union Of India & Ors. v. Bholanath Karmakar [(1977) 4 C.H.C.N 972], Director, Enforcement Directorate, Government of India v. Saroj Kumar Bhotika [(1977) 2 C.L.J 482] (vide supra) and Dabur (Dr. S.K Burman) (Private), Ltd. v. State of West Bengal [1978 C.H.C.N 138].
9. The questions that mainly arise for determination in this case are:
(i) Whether Calcutta Telephones is an “industry” as defined in S. 2 (j) of the Act;
(ii) whether the petitioner being a casual labourer is a “workman” under S. 2 (s) of the Act; and
(iii) whether the termination of service of petitioner in the instant case amounts to retrenchment within the meaning of S. 2 (oo) of the Act.
The respondents do not dispute that the requirements of S. 25F of the Act have not been complied with in this case.
10. It is stated in Para. 5 of the petition as to why Calcutta Telephones is an “industry.” Those statements as correctly submitted by the learned counsel of the petitioner, have not been properly or specifically denied in the affidavit-in-opposition filed on behalf of the respondents. The tests for deciding the question what is an industry has been laid down by a series of decisions of the Supreme Court and other High Courts. It is not necessary to refer those decisions in any detail. In the case of State of Bombay v. Hospital Mozdoor Sabha [A.I.R 1960 S.C 610] (vide supra), Supreme Court has observed as follows:
“We have yet to decide which are the attributes the presence of which makes an activity an undertaking within S. 2 (j), on the ground that it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and employees; and its object is the satisfaction of material human needs. It must be organized or arranged in a manner in which trade or business is generally organized or arranged. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organized or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which S. 2 (j) applies. Judged by this test there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of hospitals in question.”
11. The Supreme Court in the case of Bangalore Water Supply and Sewarage Board v. A. Rajappa [1978-I L.L.N 376], has in detail explained the import and meaning of the word “industry” as defined in S. 2 (j) of the Act. According to Supreme Court the above expression has a wide import. The decision has laid down the test for determining the question what is an industry.
12. In the case of Union of India v. Jaydev Mondal [(1977) 34 E.L.R 359] (vide supra), a Division Bench of this Court confirmed the finding of the single Judge that the railway is an industry as contemplated under the Industrial Disputes Act, 1947.
13. In the case of K.R.B Kaimal v. Director of Postal Services [(1977) I L.L.J 176], referring to the decisions of the Supreme Court it was observed by the Kerala High Court that the Supreme Court had held that a public utility service such as railways, telephones and the supply of power, light and water to public even if it is carried on by corporations would be an industry coming within the ambit of the Act.
14. Applying the tests as laid down by the Supreme Court and on the basis of the above decisions I am of the opinion that Calcutta Telephones is an “industry” in view of the fact that the activity habitually undertaken by it is for rendering material services to the community at large or a part of such community with the help of employees. The service rendered by the Calcutta Telephonestis in the nature of a public utility service. Therefore, Calcutta Telephones is an industry within the meaning of S. 2 (j) of the Act.
15. The next question is whether the petitioner being a casual labourer is a “workman” within the meaning of S. 2 (s) of the Act.
16. In the case of Pilot Pen Company (India) (Private), Ltd. v. Additional Labour Court, Madras [1971-I L.L.J 241], it was contended on behalf of the company that sixteen persons, whose services were terminated, were casual labourers and could not be said to be the workmen within the meaning of S. 2 (s) of the Act. Considering the said contention the Court has observed that from the language of the definition of S. 2 (s) there is no room to incorporate into it the idea that only a permanent employee can be construed to be a workman. Regarding the said contention after dealing with the decision of the Supreme Court in the case of Workmen of Orient Paper Mills, Ltd. v. Orient Paper Mills, Ltd. [1969-I L.L.J 398] and relying on the decision of the Supreme Court in the case of Elumalai v. Simplex Concrete Piles [1970-II L.L.J 454] (vide supra), the Madras High Court confirmed the finding of the Labour Court that the said sixteen persons were workmen within the meaning of the Act. The Court observed that:
“Therefore, there is no room to think that a ‘casual workman’ cannot be construed to come within the scope of the definition of ‘workman’ as contended on behalf of the petitioner. If a casual workman satisfies the requirements of S. 25B then he would be a person in continuous service for one year and would be entitled to the benefits of the Act.”
17. In the case of P. Joseph v. Gopal Textile Mills, Kovilpatti [1975-I L.L.J 136] (vide supra), it has been held that a badli is a workman as defined in the Industrial Disputes Act and hence would be entitled to get lay-off compensation provided his name is borne on the muster-rolls and he completes 240 days of service. The Court observed that:
“The definition of ‘workman’ does not exclude even a casual employee or a substitute like badli. Unless the context requires otherwise or it would be repugnant, the normal definition of ‘workman’ will have to govern the section in the Act for the purpose of that interpretation. There is nothing in S. 2 (kkk) which would allow bypassing the definition.”
It is also to be noted that S. 25C of the Act excludes a badli workman or a “casual” workman from the benefit of lay-off compensation under the Act. This as has been correctly submitted by the counsel for the petitioner, shows that unless a badli workman or a “casual” workman is not a workman within the meaning of S. 2 (s) there is no necessity for specifically excluding them from the benefit of lay-off compensation under S. 25C.
18. In the case of Elumalai v. Simplex Concrete Piles (India), Ltd., Madras [1970-II L.L.J 454] (vide supra), the Court accepted the contention of the petitioner's counsel that the definition of the term “workman” in S. 2 (5) would include even a casual labourer.
19. In this case it has also not been defined by respondents that by working for six consecutive days the petitioner used to get pay for the week, namely, seven days, calculated on the basis of a particular amount per day. Further, if that petitioner used to report for work he was entitled to payment notwithstanding that no work was given to him.
20. In the light of the above decision I hold that the petitioner being casual “workman” comes within the definition of “workman in S. 2 (s) of the Act.
21. Next question is whether termination of the petitioner's service in the instant case amounted to retrenchment. As stated earlier, the controversy is whether in the facts and circumstances of this case the petitioner could be said to have been retrenched. It is not disputed that a casual worker who comes within the definition of “workman” under S. 2 (j) is entitled to retrenchment compensation in appropriate cases. But the question is whether the petitioner as a casual worker was entitled to retrenchment compensation in the facts and circumstances of the case. It is also not disputed that the necessary conditions for effecting a valid retrenchment as laid down in the Act have not been complied with in this case and that non-compliance of such conditions would make the retrenchment invalid and ab initio void.
22. On the basis of the facts stated in the petition it was submitted on behalf of the petitioner that the petitioner's service was of a regular nature. Although the petitioner was a casual labourer his employment was not for a specific period or for a specific job. In fact the petitioner continued in service uninterrupted and without any break for about fifteen months. The payment of the petitioner's salary was not on “no work, no pay” basis but the manner and mode of payment of his salary, on the contrary would support the fact that the nature of the petitioner's service was in that of a regular employment. Further, according to the petitioner at the time when the petitioner's service was wrongfully terminated the work for which he was engaged was still required to be done and, therefore, it could not be said that the work for which the petitioner was employed came to an end at the time when his service was terminated.
23. Relying on the decision of the Supreme Court in the cases of State Bank Of India, Kuzhithurai Branch v. Sundaramony (N.) [1976-II L.L.N 5] and Hindustan Steel, Ltd v. Labour Court, Orissa [1976-II L.L.N 479], it was submitted that termination of service for any reason whatsoever would amount to retrenchment. According to counsel termination embraces not merely the act of termination, but the fact of termination howsoever produced. Termination takes place where a term expires either by activity step of the master or the running out of the stipulated term. As the employment of the petitioner ceased there was termination of his service which amounted to retrenchment in this case.
24. On this aspect of the case respondent's contention is that the petitioner was engaged for a specific work. His service was required only in connexion with the specific work, i.e, urgent work relating to construction of cable laying and installation work pertaining to 46, 41 and 42 telephone exchanges. Whenever the regular employees of the Calcutta Telephones could not cope with a particular work casual labourers were employed. Such specific urgent work was for a short duration. Inasmuch as the need for doing such urgent work arose repeatedly it became necessary to engage such casual labourers repeatedly and thus the petitioner had to do work for fifteen months. Therefore, the petitioner's employment was only for the specific urgent work for which services of extra labourers became necessary. It was further submitted that the petitioner used to get pay on daily-rate basis but payment was made after the expiry of the month and for working five consecutive days the petitioner used to get one day's off with pay at the same daily-rate. These facts have not been disputed by the petitioner and have been corroborated by the relevant personnel muster-rolls for several months of the years 1977 and 1978, which were produced before me by the respondents. It was, therefore, submitted that as the petitioner's service was for a specific work it automatically came to an end immediately after the work was over and there was no question of termination of the petitioner's service by the employer. Hence termination of the petitioner's service did not amount to retrenchment as defined in S. 2 (oo) of the Act. Reliance was placed on the cases of Workers of K.N.S.P.R Weaving Factory v. K.N.S.P.R Weaving Factory, Karur [(1956) 10 F.J.R 442] (LATI) and Harbans Singh v. Labour Court, Jullundur [(1962-63) 23 F.J.R 480].
25. At this stage a reference may be made to the cases cited at the Bar on the point.
26. In the case of Workers of K.N.S.P.R Weaving Factory v. K.N.S.P.R Weaving Factory, Karur [(1956) 10 F.J.R 442] (vide supra), it was held by the Labour Appellate Tribunal of India that workmen could not be denied the compensation on the ground that they were only temporary casual labourers if they can claim compensation under S. 25F of the Act.
27. In the case of Harbans Singh v. Labour Court, Jullundur [(1962-63) 23 F.J.R 480] (vide supra), the Punjab High Court while considering the question of retrenchment observed that:
“Unless the statute clearly suggests to the contrary the expiry of the contractual period of service of a workman would not amount to retrenchment.”
28. In the case of Crompton Engineering Company (Madras) (Private), Ltd. v. Additional Labour Court, Madras [1974-II L.L.N 262], facts were as follows: The petitioner company employed respondents 2 to 4 temporarily for a specific period or in respect of a particular contract work undertaken by the petitioner-company and the services of respondents 2 to 4 came to an end as soon as the period of the job was over. The said respondents raised an industrial dispute on the allegation that they were not given any work with effect from a particular date. The Labour Court following the decision in Elumalai v. Simplex Concrete Piles (India), Ltd. [1970-II L.L.J 454) (vide supra), came to the conclusion that even casual labourers were included in the definition of “workmen” in S. 2 (s) of the Industrial Disputes Act and, therefore, respondents 2 to 4 were entitled to reinstatement. According to the Madras High Court the above finding of the Labour Court was wrong. It was observed that:
“I may point out immediately that there is no order terminating the services of any of these respondents and even though respondents 2 to 4 stated in their evidence that their services were terminated or they were dismissed from service, there was no order to that effect and on the other hand, as I pointed out already, the very orders of appointment themselves show that they were appointed, only for a particular period or for a particular job and as the period or the job was over, the appointment automatically came to an end and this position was not disputed before me.”
29. Counsel for the petitioner relied upon the following observation of the above case:
“No principle or provision of law was brought to my notice to show that a worker who was employed for a specific period or a specific work and whose employment automatically came to an end on the expiry of the period or completion of the work is entitled to reinstatement simply because he was so employed on more than one such occasion and so he worked in that manner for a long period and no case of retrenchment was pleaded either before the Labour Court or before me.”
30. According to the petitioner's counsel, above observation would show that even a casual worker engaged for a specific period or a specific job is entitled to retrenchment benefit if required conditions are fulfilled. It is to be noted that in the above case Court was considering a case of reinstatement and did not express any view on the question of retrenchment as is involved in the instant case.
31. In the case of State Bank Of India, Kuzhithurai Branch v. Sundaramony (N.) [1976-II L.L.N 5] (vide supra), the Supreme Court considered the question whether there was retrenchment of the respondent-employee within the meaning of S. 2 (oo) of the Industrial Disputes Act, 1947. The respondent was appointed off and on by the State Bank of India between 31 July 1980 and 29 August 1973. The intermittent breaks notwithstanding, his total number of days of employment answered the test of “deemed” continuous service within S. 25B (2) and both sides accepted that fact situation. But the order of appointment which bore in its bosom the “good bye” to the employee after a few days, called for construction in the light of Ss. 2 (oo) and 25F of the Act. It was held that a composite order, one giving employment and the other ending or limiting it, would also, amount to retrenchment within the said section and a separate, subsequent determination is not the sole magnetic pull of the provisions. In the said case Krishna Iyer, J., observed as follows in Para. 9, at page 9:
“A break-down of S. 2 (oo) unmistakably expands the semantics of retrenchment. ‘Termination … for any reason whatsoever’ are the key words. Whatever the reason, every termination spells retrenchment. So the sole question: is has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination, howsoever produced. May be, the present may be a hard case, but we can visualize abuses by employers, by suitable verbal devices, circumventing the armour of Ss. 2 (oo) and 25F. Without speculating on possibilities, we may agree that ‘retrenchment’ is no longer terra in cognita, but area covered by an expansive definition. It means ‘to end, conclude, cease. In the present case, the employment ceased, concluded, ended on the expiration of nine days — automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from S. 25F (b) which is inferable from the proviso to S. 25F (a). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract S. 25F and automatic extinguishment of service by effluxion of time cannot be sufficient …”
His Lordship further observed that in Para. 11, at page 9:
“Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision….”
32. The above decision was followed by the Supreme Court in the case of Hindustan Steel, Ltd. v. Labour Court, Orissa [1976-II L.L.N 479] (vide supra). In this case the Supreme Court held that termination of service by running out of time stipulated in the contract of service amounted to retrenchment. Non-compliance of S. 25F (b) renders the retrenchment illegal. The Supreme Court upheld the decision of the Labour Court granting relief of reinstatement with full wages to the concerned workers. The Supreme Court observed in Para. 3, at page 482 that:
“… It may also be noted that S. 25F (a) which lays down that no workman who has been in continuous service for not less than one year under an employer shall be retrenched by that employer unless he has been given one month's notice or wages in lieu of such notice, has a proviso which says that
‘no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service.’
Clearly, the proviso would have been quite unnecessary if retrenchment as defined in S. 2 (oo) was intended not to include termination of service by efflux of time in terms of an agreement between the parties. This is one more reason why it must be held that the Labour Court was right in taking the view that the respondents were retrenched contrary to the provisions of S. 25F.”
33. The Supreme Court in the cases cited hereinbefore has given a very wide meaning to the expression “retrenchment” appearing in S. 2 (oo) of the Act. But the observation of the Supreme Court is to be read and understood in the context of the facts of those cases. There Supreme Court was considering cases where the contract of employment, which was for a specified period came to an end by efflux of time in terms of the agreement between the parties. In the above context Supreme Court made the observations extracted earlier. But the facts involved in the instant case are different. Here termination of service is neither by the employer nor by efflux of time in terms of agreement between the parties. In the instant case, inasmuch as the employment of the petitioner was only for doing a particular urgent work it came to an end immediately upon completion of such work. As stated hereinbefore the petitioner alongwith other thirty-seven labourers, was engaged on casual basis for doing urgent piece of work in connexion with laying of telephone lines in exchanges 46, 41 and 42. Thus, the employment of the petitioner was for the specific piece of work for which extra-hands became necessary and it was not for any specified period. After the work was over his service automatically came to an end. There is no written service contract or letter of appointment. But from the facts of this case it appears that the services of the petitioner along with other thirty-six casual labourers were required repeatedly for doing urgent piece of work and hence they had to do the work for a considerable time. When such urgent work was over and there was no necessity for extra labour the petitioner's service automatically came to an end. Unlike a case where the employment is for a particular period and hence there is a composite order, one giving employment and the other ending or limiting it, there is no question of preemptive provision to terminate or any order of termination implicit in the order of employment.
34. In the above view of the matter it cannot be said that the termination of the petitioner's service in the facts and circumstances of this case amounted to retrenchment as defined in S. 2 (oo). Hence the question of fulfilment of or compliance with the conditions laid down in S. 25F did not arise.
35. Other points raised on behalf of the respondents are that this application is act maintainable because no specific order has been challenged in this writ application and an alternative remedy by way of reference under S. 10 of the Act is available to the petitioner. It is contended on behalf of the petitioner that no specific or written order has been passed by the respondents. Respondents' contention is that the petitioner's service was for doing a particular urgent piece of work upon completion whereof it came to an end; therefore, it was not necessary to pass any order terminating the petitioner's service. It appears that a writ under Art. 226 of the Constitution lies, inter alia, for redress of any injury of a substantial nature for contravention of the matters as mentioned in Cl. (1) (b) of the said article. In the instant case, although there is no written order but if it can others wise be proved by the petitioner that he has suffered a substantial injury within the meaning of Art. 226 (1) (b) then his application is maintainable. Further, in this case the remedy by way of reference under S. 10 cannot be said to be an effective alternative remedy because the petitioner is not entitled to any reference as a matter of course and it is for the Government to decide after an application is made to it as to whether the order of reference should be made or not. Further, according to the decided cases alternative remedy contemplated by Art. 226 (3) should be a specific remedy provided as such by law and would not include any general remedy by way of suit of civil nature. Therefore, it cannot be said that the remedy by way of reference under S. 10 of the Act is an alternative remedy in the instant case. In this connexion reference may be made to the cases of Union of India v. Jaydev Mondal [(1977) 34 F.L.R 359] (vide supra), Divisional Superintendent, Southern Railway, Madurai v. Sasidharan [1978 L & I.C 1042] (vide supra) and Dabur (Dr. S.K Burman) (Private), Ltd. v. State of West Bengal [1978 C.H.C.N 138] (vide supra).
36. For all the reasons stated hereinbefore, this application, in my view, fails. This application, is, therefore, dismissed. Rule nisi is discharged. There will, however, be no order as to costs.