Divisional Personnel Officer, Southern Railway vs General Secretary, Dakshina Railway Casual Labour Union and Others

J.B. Koshy, J.—One K. T. Kannan, represented by the first Respondent-Union, was engaged as a casual labourer in the Southern Railway from December 27, 1981. According to the union, he was denied employment from March 21, 1983 without notice. It is the case of the union that the workman had attained temporary status in view of Para 2302 of the Railway] Establishment Manual, Chapter XXXIII. Before terminating the services of such persons who have completed 120 days of service, 14 days'' notice should be given. Denial of employment is also illegal retrenchment as provision of Section 25-F of the Industrial Disputes Act was not complied with. Several representations were made against the denial of employment. One of the representations is W3, which was sent on October 31, 1985. The above W3 representation also refers to his earlier representations to the Railway. Since no reply was given, union addressed the Assistant Labour Commissioner (Central). As no reference was made, a writ petition was filed before this Court as O.P. No. 9946 of 1988 and, on the basis of the directions in the judgment, the matter was, finally, referred for adjudication. The issue referred for adjudication before the Industrial Tribunal is as -follows:

"Whether the action of the management of D.P.O., Southern Railway. Palghat, in terminating the services of T. Kannan, Ty. Gangman under P.W. 1/Palghat with effect from August 21, 1993 (sic March 21,1983) is legal and justified? If not, to what relief the workman concerned is entitled?"

The reference was numbered as I.D. No. 22 of 1996. On the side of the Union the workman was examined as WW1 and marked W1 to W5 documents. Apart from filing of the written statement, no oral or documentary evidence was adduced by the railways. The union also pointed that for non-payment of wages due to him, the workman has filed an application before the Labour Court, u/s 33-C(2) of the Industrial Disputes Act, claiming Rs. 1966-20. According to him, he should have been paid CPC scale from November 1, 1982 in the scale of Rs. 200 to Rs. 250 whereas he was paid only at the rate of Rs. 8/- per day. Respondent, in the counter statement, admitted that he was entitled to the scale rate of wages from January 2, 1983. Finally, an amount of Rs. 769-10 was offered and that was accepted in Exhibit P2 and the claim petition was closed. It is true that in Exhibit P2 the question whether he was a temporary status employee or not was not decided. According to the Railway, the matter was compromised as he is entitled to central rate of wages. Admittedly, the workman has completed 240 days of work in a calendar year.

The present contention of the Railway is that he absented from duty and never turned up after August 7, 1983 and, therefore, he has abandoned employment. The definite case of the workman was that he was denied employment in spite of his request. The Tribunal came to the conclusion that the above case of the Railway is factually not correct. It is a finding of fact based on evidence in this case. So long as the employee has continuously worked as a casual employee for more than an year, if he was absent from duty, Railway should have proceeded for absence without leave. Admittedly, no notice was given and no disciplinary action was taken. According to the 1 Railway, a casual employee need not be given any notice when he abandoned employment. It is true that daily rated employee employed for a project, if not employed further after the period of contract employment is over, has no right to get continued employment and it is not retrenchment. But, here the workman was not employed only for a project. In fact Railway has no such case. He was employed as a casual labourer under the Permanent Way-Inspector/Salem Junction and case of the Railway is that his name was struck off due to absence of the service. The Tribunal found that if the employee was unauthorisedly absent, he should have been proceeded with before denying employment. At least, a notice should have been issued before striking off his name on the ground of abandonment of service. Therefore, his name could not have been struck off without complying with the formalities of retrenchment or at least a notice for complying with the principles of natural justice. This procedure is accepted by the Supreme Court in Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, . Therefore, when he presented himself for work, he should have been engaged in the absence of any disciplinary proceedings taken against him for unauthorised absence. In this connection, we refer to the Apex Court in M/s. Scooters India Ltd. Vs. M. Mohammad Yaqub and Another, . The Tribunal also noticed that in the oral evidence, it was stated that he was a temporary status attained employee. In any event, there cannot be any dispute that he had completed more than 240 days of work and the principles contained in the Apex Court judgment in L. Robert D''souza Vs. Executive Engineer, Southern Railway and Another, is directly applicable in this case and his service cannot be terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act.

Oral evidence adduced by the petitioner cannot be ignored in the absence of any contra evidence especially when no documentary evidence or oral evidence was adduced by the employer. The Tribunal, by considering the evidence, as a finding on fact, found that the mandatory provision of Section 25-F was violated. Learned counsel for the Railway relied on Sub-section (bb) of Section 2(oo). The above sub-section was added only in 1984 and in 1983 when the workman was denied employment that sub-section was not in existence. But, even otherwise, we note that no evidence was adduced by the Railway to show that he was only a work charge employee, appointed on provisional basis, and there is no case for the Railway that his services were terminated or came to an end on the completion - of the project or of the work for which he was engaged. According to the Railway, his name was struck off as he was unauthorisedly absent and not because his service became redundant due to the completion of the project or work. The Apex Court in S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, held that engagement of a workman as a daily wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. It was also held as follows at p. 364 of LLJ:

"14....To exclude the termination or a scheme or project employee from the definition of retrenchment, it is for the 5 employer to prove the abovesald ingredients so as to attract the applicability of sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of sub-clause (bb), as stated hereinabove, All that has been proved is that the appellants were engaged as casual workers or daily wagers in a project. For want of proof attracting applicability or sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."

Normally, if there is violation of Section 25-F, the workman will be entitled to full back wages as if there was no termination. . This position was explained by the Supreme Court in The State Bank of India Vs. Shri N. Sundara Money, and followed in many cases. A Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, affirmed the above view. It is true that retrenchment without complying with Section 25-F will be void ab initio and such action would normally entitle the workman to a declaration for continuation in service with full back wages as held by the Apex Court in Mohan Lal Vs. Management of Bharat Electronics Ltd., . But, in appropriate cases, reinstatement or award of full back wages can be denied on the facts of each case. In Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, , the Supreme Court held that invalid retrenchment must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. In this case, the Labour Court has not awarded back wages in view of the delay. Union did not challenge the award denying back wages. Moulding of relief is the duty of the Tribunal. The Tribunal did not cause unnecessary burden to the Railway but only granted the following relief without granting the relief of back wages:

"Considering the facts and circumstances of the case at hand, I am of the view that for the ends of justice it would be only proper to direct the Management to engage the workman on the same service conditions as he had been engaged earlier but without back wages. However, on his re-employment he shall be paid wages as applicable to the persons who had attained temporary status. The period from September 17, 1991, i.e., the date of Exhibit W4 representation and the date of re-employment of the workman shall be considered as service for the purpose of terminal benefits and not for any other purpose."

The learned single Judge considered the entire matter and did not interfere with the matter, exercising the powers under Articles 226 and 227 of the Constitution of India. Hon''ble Apex Court in Municipal Corporation, Faridabad Vs. Siri Niwas, held that interference in the award of the Industrial Tribunal is not justified unless the same is illegal or irrational. We are of the opinion that on the facts of this case, considering the individual termination of service of a workman, on the basis of finding on of facts entered into by the Tribunal. On the basis of available evidence, no interference is required in the award of the Tribunal by this Court by exercising the extraordinary jurisdiction in writ jurisdiction. There is no patent illegality or jurisdictional error for interference under Articles 226 and 227 of the Constitution of India. We agree with learned single Judge and the Tribunal. The writ appeal is dismissed.