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Judgment
106 paragraphs · 2,068 wordsR. Banumathi, J.—Challenge in this Writ Petition is the award of the Second Respodent/Labour Court in I.D. No. 461/2001 dated
11.04.2002.
The brief facts in a nutshell are as follows:
(i) 1st Respondent/Workman joined in the service of the Second Petitioner on 30.11.1988 as a peon. After 360 days of continuous service, 1st
Respondent was granted ""temporary status"" w.e.f. 24.11.1989 and designated as Project Casual Labourer by Order 08.12.1989. By Order
dated 06.07.1990, 1st Respondent was transferred to the Integral Coach Factory (ICF), Madras and posted as Bungalow Lascar in ICF. By
Order dated 11.08.1990, 1st Respondent was designated as Substitute Bungalow Lascar w.e.f. 12.07.1990 to one S. Jayamohan, while he was
posted as CMM/Shell/ICF. By order of the 2nd Petitioner, dated 2.11.1990, the service of 1st Respondent was terminated retrospectively w.e.f.
30.10.1990, without notice.
(ii) 1st Respondent was again engaged as Lascar w.e.f. 14.12.1991 and he was terminated on 30.09.1991, without notice. Challenging the order
of termination, 1st Respondent preferred an Appeal to the 1st Petitioner, which was inturn forwarded to General Manager, South Eastern Railway,
Calcutta and 2nd Petitioner. Since,the Appeal was dismissed, 1st Respondent filed 2-A Petition for Conciliation before the Assistant Regional
Labour Commissioner, which ended in failure.
(iii) Aggrieved, 1st Respondent preferred an Industrial Dispute in I.D. No. 982/2001 on the file of 2nd Respodent, which by award dated
11.04.2002 held that the 1st Respondent is entitled to be reinstated into service and the 1st Petitioner was directed to consider the reinstatement of
the Workman for regular absorption as Gr. ""D"" post in the next immediate arising vacancy.
Petitioners filed a counter contending that the 1st Respondent was engaged only as a Substitute Bungalow Lascar, doing domestic work, which
is a choice post to be filled in by the individual Officer at his discretion. 1st Respondent''s service was not continuous and therefore, he is not
entitled for invocation of Section 25(f) of ID Act. 1st Respondent was engaged only as Substitute, and therefore, no notice of termination is
necessary.
Upon consideration of the evidence, the Labour Court held that without recognising the 1st Respondent as a Railway employee, the 1st
Respondent would not have been granted temporary status. 1st Respondent has completed 240 days of continuous service and in recognition of
his service in Railway, he was transferred to ICF. Referring to Management Of MCD Vs. Prem Chand Gupta and Another, , Labour Court held
that, ""when the Workman has completed service not less than 240 days of continuous service for one calendar year, immediately preceding to the
order of termination, the termination amounts to retrenchment and that non-payment of retrenchment compensation makes the termination null and
void and the Workman is entitled to be reinstated in service"".
Challenging the impugned award, the learned Central Government Standing Counsel for the Petitioners Mr. V. Radhakrishnan, has submitted
that the Labour Court erred in ordering reinstatement. 1st Respondent was appointed as Substitute Bungalow Lascar and the appointment of
Bungalow Lascar is a choice appointment and are engaged by the Officer, to whom they are attached and they are liable to be discharged without
any notice. The Bungalow Peons are not Railway employees and that only on completion of three years either with the same Officer or more than
one Officer, Bungalow Peons will be given the same rights as regularly recruited Peons and therefore 1st Respondent''s earlier services cannot be
taken into account for the purpose of his regularisation.
The learned Counsel for the 1st Respondent Mr. S.N. Ravichandran has contended that having regard to the fact that the 1st Respondent has
been given scale of pay of Rs. 750-940, Labour Court rightly ordered absorption. Placing reliance upon C.R. Hariharan v. Chief Personnel Officer
and Ors. (1990) 14 ATC 106, it was submitted that Substitute Bungalow Lascar is a ""Workman"" and termination of the 1st Respondent''s service
is not justifiable. It was further argued that Labour Court by award dated 11.04.2002 held that the 1st Respondent is entitled to be reinstated into
service and the order of absorption cannot be interfered with. Taking me through the documents, the learned Counsel for the 1st Respondent has
contended that the 1st Respondent was given temporary status and the Record of Service as Casual Labour was maintained by the South Eastern
Railway.
Main contention of the writ petitioner is that Section 2(oo) and 25F of the ID Act are not applicable to the present case and the Railway
servants are governed by the provisions of Indian Railways Establishment Manual and Indian Railways Establishment II. It was further submitted
that even assuming without admitting ID Act is applicable, the findings of the Tribunal that Section 2(oo) and 25F are violated and is erroneous and
contrary to the admitted facts of the case.
It was further submitted that the 1st Respondent was appointed afresh on 13.02.1991 as a fresh entrant and he was discharged on 30.09.1991
and that he has not put in 240 days continuous service. Learned Counsel for the Petitioner further contended that all the Bungalow Peons are
attached to Administrative grade Officers and Divisional Superintendents and they may recruit men of their choice and Bungalow Peons can be
discharged without any notice and therefore discharge of such persons during the period of probation will not be deemed as removal or dismissal
from service under Discipline & Appeal Rules.
Emphasis was laid upon Ex.M.1 circular dated 25.09.1965 and Writ Petitioner Railways contended that the 1st Respondent was appointed on
13.02.1991 as substitute Bungalow Lascar and posted to G.M/I.C.F on the basis of his representation dated 11.02.1991 and on 30.09.1991 the
1st Respondent was terminated and the termination was in accordance with the instructions contained in the circular dated 25.09.1965. Learned
Counsel for the Petitioner further contended that 2nd Respondent Labour Court erroneously concluded that the 1st Respondent was having
continuity in service from the date of his appointment i.e. 25.11.1988 and the finding of the Labour Court is perverse and without reference to
fresh order of appointment by the Petitioner Management on 13.02.1991. Main plank of argument is that the order of appointment given to the 1st
Respondent on 13.02.1991 is fresh appointment for all purposes which was not kept in view by the Labour Court. Viewed in the light of
documents, evidence and sequence of events the above contention does not merit acceptance.
The Senior Personnel Officer, Constructions, vishakhapatnam has given Ex.M2 letter for appointing the 1st Respondent as casual Bungalow
Peon under the Controller of Stores (construction) Vishakhapatnam on the terms and conditions applicable to casual labour on railways. The 1st
Respondent was subjected to medical examination and was found fit for the proposed appointment and therefore he was appointed as casual
Bungalow Peon w.e.f. 30.11.1988 (Ex.M3). After completion of 360 days of service the 1st Respondent was granted temporary status w.e.f
24.11.1989(Ex.W1). Ex.W2 is the office order dated 08.12.1989, wherein the 1st Respondent was issued an identity card for service by the
Controller of Stores(Construction). When Mr. Jayamohan, Controller of Stores (Construction) was transferred to Integral Coach Factory (ICF),
on his request, 1st Respondent was relieved by the order dated 06.07.1990 with direction to report to ICF. By the Ex.W4 (11.08.1990) the
Petitioner was appointed as substitute Bungalow Lascar and posted to said Jayamohan w.e.f 12.07.1990.
Consequent upon the transfer of the said Jayamohan CMM/ shell from ICF to Southern Railway w.e.f 30.10.1990 forenoon, the services of
the 1st Respondent, Bungalow Lascar appointed to Jayamohan was terminated w.e.f 30.10.1990 forenoon.
Subsequent to his termination from service 1st Respondent gave a requisition to the General Manager, Integral Coach Factory, Madras to
consider the 1st Respondent for the vacancy of the post of Bungalow Peon. In pursuant of his requisition, the 1st Respondent was reappointed by
the order dated 13.02.1991 appointing the 1st Respondent as substitute Bungalow Lascar and he was posted to General Manager/ICF. The
service of the 1st Respondent substitute Bungalow Lascar attached to General Manager was terminated from 30.09.1991 afternoon.
All the above order/communications are admitted by the writ petitioner Management. Having regard to the earlier order passed i.e. Ex''s.W1&
W2 it cannot be contended that the appointment dated 13.02.1991 is a new appointment. As held by the Labour Court the appointment order
dated 13.02.1991 is a reappointment to the 1st Respondent who was already granted temporary status. The learned Counsel for the writ
petitioner Management contended that the 1st Respondent was doing only domestic work only in the Bungalow of the railway official and the 1st
Respondent cannot be considered as a railway employee. It was further argued that though railway has been recognised as ''industry'' under
Industrial Disputes Act and the 1st Respondent cannot be considered as workman under the writ petitioner railways. It was further argued that
removing the 1st Respondent from service does not amount to retrenchment and violation of Sections 2(oo) and 25F of the ID Act.
An indentical matter came up for consideration before the Central Administrative Tribunal (CAT) in [1990] 14 ATC 106 C.R. Hariharan v.
Chief Personnel Officer, applying the ratio of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , the CAT has held as
under:
...even the railway establishment would be an industry and therefore the observations referred to above would apply to the present case. If the
applicant is employed in an industry, then the other question to be decided is whether he would fall within the other limb of Section 2(s) of the Act
which defines ''Workman''.
Referring to S.K. Verma Vs. Mahesh Chandra and Another, and applying the test laid down there on CAT has held that Bungalow Lascar is a
Workman"" within the meaning of I.D. Act. Referring to Section 2(oo)(bb) CAT has further held that the termination of service of substitute
Bungalow Lascar CAT has held that such termination of service without sufficient notice would amount to retrenchment and directed the parties to
take appropriate steps in terms of ID Act.
On instruction learned Counsel for the 1st Respondent submitted that Hariharan raised an Industrial Dispute and later he has been absorbed.
The ratio of the decision of CAT in Hariharan''s case is squarely applicable to the present case. The 1st Respondent having worked as Bungalow
Lascar from 1988 termination of his services without proper notice would amount to violation of Section 25F.
Learned Counsel for the 1st Respondent had laid emphasis upon Sri Rabinarayan Mohapartra Vs. State of Orissa and others, and submitted
that appointment on 13.02.1991 cannot be taken as fresh appointment. In the said decision teachers were appointed for 89 days and after a day''s
break they were appointed again. Answering the question where the teachers seek for such regularisation Hon''ble Supreme Court has held that
there was short break the earlier services are to be taken into account for regularisation. Hon''ble Supreme Court further observed that
appointment for 89 days basis with one day break which deprives a teacher of his salary for summer vacation and other service benefits is wholly
arbitrary and suffers from the vice of discrimination.
As pointed out by the Labour Court when the 1st Respondent has completed service of 240 days of continuous service and in recognition of
his earlier service, the 1st Respondent has been granted temporary status and transferred to ICF. It can at the best be considered as his continuous
service in the railway. Labour Court was right in holding termination of service without any notice without any pay or any compensation is clear
violation of 2(oo) and 25F of I.D. Act as held by the Hon''ble Supreme Court in Management Of MCD Vs. Prem Chand Gupta and Another,
Having regard to the continuity of service and other circumstances Labour Court was justified in issuing direction to the railways to consider
reinstatement of the 1st Respondent workman for regular absorption as ''Group D'' staff in the next immediately arising vacancy. The impugned
order of the Labour Court does not suffer from any perversity or legal infirmity warranting interference.
In the result the award of the Labour Court in I.D. No. 461/2001 dated 11.04.2002 is confirmed and this writ petition is dismissed.
The Writ Petitioner shall consider the case of the 1st Respondent for reinstatement as expeditiously as possible, preferably within a period of three
months from the date of receipt of a copy of this order.