Somu Kumar Chatterjee and Others vs The District Signal Telecommunication Engineer Construction, N.F. Railway and Others cases

S. Akbar Hussain, J.—In all these cases the petitioners have obtained a rule from This Court under Articles 226 and 227 of the Constitution of India challenging termination of their services by different respondents with effect from different dates and the impugned orders are contained in different Annexures to the writ applications which will be dealt with separately. The contentions and the facts leading to these applications being substantially the same and the grievances also being the same in all the cases they are being disposed of by a common judgment.

The petitioners'' case is that they were initially employed as casual labourers and on completion of their continuous six months of service acquired the status of temporary employees and were granted the authorised scales of pay and allowances with effect from the dates mentioned against their names in Office Order No. E/I/Misc/CPC/CON, dated the 20th December 1965, issued by the District Signal and Telecommunication Engineer (Construction), N.F. Railway, Katihar. The relevant extracts of the aforesaid office order are contained in Annexures 1 to 6 to these applications. The petitioners got the scale of pay recommended by the Central Pay Commission and were also paid annual increments as and when they fell due. They were also allowed benefits of paid casual leave., sick leave and earned leave. It is said that the Railway Board by its circular No. E(NG) 6b-CL 25, dated the 29th January, 1966, clarified that the continuity of service of the casual labourers after acquisitioning temporary status would count for the purposes of post retirement passes and they would be allowed to carry out the leave at their credit to any new post and fixed 58 years as the age of superannuation. The Railway Board by another circular No. E(NG) 60CL/13, dated the 2nd August, 1962, directed that the casual labourer shall be employed in regular vacancies. The Railway Board further provided that the casual labourers who have acquired temporary status will have a prior claim over others to permanent recruitment and will not have to observe the formalities of going through the employment exchange. By another circular, the Railway Board ordered that the staff rendered surplus in project, construction, etc., were not required to submit their applications in the usual form applicable for outsiders for the advertised posts, but the Railway project/construction concerned would forward the full service particulars of such staff with their qualifications to the screening committee, and that the casual labourers who have attained the temporary status will be entitled to the benefits of Discipline and Appeal Rules. It is said that opposite party No. 1 terminated the services of the petitioners by orders dated the 1st January, 1969, and the 17th January, 1968, and the petitioners thereupon moved This Court in C.W.J.C. Nos. 289, 360 and 361 of 1968, against their termination of services, and by its judgment dated the 23rd May, 1969, This Court allowed all the writ petitions and issued a writ of mandamus against the opposite parties commanding them to reinstate the petitioners in their services and to pay their arrears and other allowances after adjusting the amount that they had received. (See Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, ).

The opposite parties filed applications for certificate of fitness to appeal to the Supreme Court which, however, were withdrawn on the 7th August, 1969. The petitioners, accordingly, submitted their joining reports to the opposite parties, but they were not allowed to join. Opposite party No. 1 also refused to reinstate them on the plea that the judgment of This Court was not received by them. This letter is Annexure 2 to this application. Thereupon, a certified copy of the judgment was supplied to the Divisional Superintendent, (S. & T.), N. F. Railway, Katihar on the 23rd June, 1969 (Annexure 3) and thereafter opposite party No. 5 by Annexure 4 asked the petitioners to attend his office for reinstatement with their non-employment certificates from the civil authorities for the period of the illness of the petitioners. The petitioners, accordingly, appeared with the required affidavits of non-employment (Annexure 5) for joining duties on the 30th August, 1969, and 1st September, 1969, but they were not allowed to join on the plea that their services had already been terminated, and they were informed to that effect by registered post at their home addresses. According to the petitioners, opposite party No. 5 by his order No. E/263/1 (COM), dated the 20/22nd August, 1969, terminated the services of the petitioners with immediate effect with one month''s wages in lieu of notice. This order of termination is Annexure 6 to this application. The petitioners were later asked to take payment of their due salary and arrears and when they went to receive the aforesaid payment, they were asked to accept retrenchment compensation also which they refused to take. They were, therefore, not reinstated in spite of the writ of mandamus from This Court.

Mr. Ranen Roy appearing for the petitioners challenged the impugned order (Annexure 6) on the following grounds:

(i) The termination of service of the petitioners amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947.

(ii) The instant case being of retrenchment is covered by the provisions of Sections 25F, 25FF, 25FFF, 25G and 25H of Chapter VA of the Industrial Disputes Act, 1947.

(iii) There has been non-compliance of Section 25F because retrenchment compensation has not been paid or offered at the time of termination which is a condition precedent and if it is not so done, the retrenchment becomes void ab initio,

(iv) The provisions of Section 25G have also not been followed in the case of the petitioners, and the principle of "last come first go" has also not been observed.

(v) Non-compliance of Section 25H in the case of the petitioners has occurred and the petitioners being retrenched hands were not given preference in employment.

(vi) The impugned order of termination is a mala fide action and is in defiance of the writ of mandamus issued by This Court against opposite parties Nos. 1 to 4 in C.WJ.C. Nos. 289, 360 and 361 of 1968 (see Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, . The petitioners, according to him, are entitled to be deemed in law to be continuing in employment on account of the termination order being illegal, inoperative and also because they are entitled to employment in preference to the persons mentioned in Annexure 7.

Mr. Lal Narain Sinha appearing for respondent No. 1 on the other hand has canvassed the propositions that the authorities had acted according to Rule 2514, Clause (vii) of the Indian Railway Establishment Manual. He has also contended that there has been substantial compliance of the provisions of Section 25F of the Act, and that a large number of the petitioners, according to him, have already been employed. As regards the submissions of the petitioners with respect to the provisions of Section 25G, it is contended by Mr. Sinha that the aforesaid section is not enforceable by means of a writ. As for the alleged non-observance of the provisions contained u/s 25H of the Act, his submission is that it is entirely an administrative discretion, and the employers have acted after examining the fitness of the petitioners. It is further contended that mere violation of the mandatory provisions are not enough. Justice should also be on the side of the petitioners.

Mr. Ranen Roy, in support of his argument, relied on the law laid down in the case of Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , for the proposition that the petitioners are entitled to the relief under Article 226 of the Constitution on the termination of their services under Rule 149 of the Indian Railway Establishment Code (Volume I). The ratio of the aforesaid case is to the following effect:

It is clear from the relevant rules in the Railway Code that a permanent post carries a definite rate of pay without a limit of time, and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed, and that, in terms, means that a permanent servant has a right to hold the post until, of course, he reaches the age of superannuation, or until he is compulsorily retired under the relevant rule. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must per se amount to his removal within the meaning of Article 311 of the Constitution.

There is no doubt that on a fair construction, Rules 148(3) and 149(3) authorise the Railway Administration to terminate the services of all the permanent servants to whom the rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof, and that clearly amounts to the removal of the servant in question. The termination of the permanent servant''s tenure which is thus authorised by the said rules is no more and no less than their removal from service within Article 311 and so Article 311(2) must come into play in respect of such cases. That being so the rules which do not require compliance with the procedure prescribed by Article 311(2) must be struck down as invalid.

The other case relied on by Mr. Ranen Roy is the case of Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, . In this case This Court held that the "conditions prescribed u/s 25F(a) and 25F(b) were obligatory and conditions precedent and nonpayment of compensation at the rate prescribed u/s 25F(b) before retrenchment rendered the retrenchment illegal and bad in law. It was further held that the subsequent payment of compensation could not validate illegal retrenchment. The fact that the workers voluntarily received compensation subsequently could not estope them from challenging the validity of retrenchment". On the question of violation of Section 25G it was held as follows:

Industrial Disputes Act, Section 25G-Industrial Disputes (Central) Rules, Rule 77. Principle of ''last come, first go. Seniority list as required under Rule 77 of the Industrial Disputes Act (Central) Rules, not maintained by the respondent railway administration-Respondent contending that workmen retrenched were working in one of their two establishments which was closed pursuant to completion of work and, therefore, provisions of Section 25G not attracted-Question whether the place of working of the petitioner was part of one establishment or a distinct establishment by itself considered and decided-Applying the tests whether the different branches were working at different places, there were different scales of wages, the workmen were recruited for the particular branch where they were employed, whether they were transferred from one branch to another and whether different categories of workmen on different scales of wages were paid at various branches for the same kind of work, held that the working at two different places in the instant case constituted one establishment and juniors to the petitioners working in different category retained in service in violation of the mandatory provisions of Section 25G and, therefore, the retrenchment was illegal.

Our attention has been drawn to the counter-affidavit of opposite party No. 1 in which it is stated that the petitioners in C.W.J.C. Nos. 289, 360 and 361 of 1968 were reinstated to their services with their back wages, when their services were terminated with one month''s pay in lieu of notice as contemplated in Rule 149 of the Indian Railway Establishment Code (Volume I) and to all compensation to which they were entitled. This is the averment made in paragraph 13 of the said counter-affidavit. The statements made in paragraphs l5,16 and 18 of the counter-affidavit have been placed to show about the termination of services of the petitioners under Rule 149 and in connection with the observance of all the provisions and pre-requisites for discharging the petitioners under the Industrial Disputes Act, as well as the offering of retrenchment compensation to them. In paragraph 18 of the counter-affidavit it is stated that the notice was duly given to the authorities concerned on the 23rd August, 1969, as is evidenced by Annexure D to the counter-affidavit. It is said that the impugned retrenchment order contained in Annexure 6 is a retrenchment within the meaning of Section 2(oo) of the Act, and, that being so, requires all necessary formalities. For this proposition, the learned Counsel relies on a decision of the Supreme Court in the case of Hari Prosad Shivshanker Shukla and Anr. v. A.D. Divelkar and Ors. 1957 I L.L.J. 243 : AIR 1957 S.C. 121. In this case retrenchment as defined u/s 2(oo) and as used u/s 25F of the Act has been fully examined and it has been laid down that "retrenchment" as defined in the aforesaid sections has no wider meaning than the ordinary accepted connotation of the word. In paragraph 19, the Court in its judgment has laid down the law in the following terms:

(19) For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that retrenchment as defined in Section 2(oo) and used in Section 25F has no wider meaning than the ordinary, accepted connotation of the word; it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the railway company....

The two cases cited for the same proposition is the case of The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, . In this case also Section 25F(b) and its implications were the subject of consideration and in paragraph 6 of the judgment, the Court held as follows:

On a plain reading of Section 25F(b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workmen. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid....

Our attention has been drawn to the rejoinder to the reply-affidavit (for the workmen) to the counter-affidavit of the railways. In paragraph 3 of the aforesaid affidavit it is stated as follows:

...It is, however, stated that the casual labourers employed in the project works were retrenched batch by batch at different times and the last batch was retrenched in July, 1969, when the project work was completed and as such some of the petitioners'' services were retained till July, 1969....

Again in paragraph 10 at page 93 it is stated as follows:

...The provisions of the Industrial Disputes Act as well as Rule 149 of the Indian Railway Establishment Code (Vol. 1) were both complied with in this case and as such the question becomes academic whether Rule 149 of the Indian Railway Establishment Code (Vol. 1) applies in this case or not. Individual notices were served on all the staffs before their discharge or retrenchment.

The above averments on behalf of the railways are met by the notice (Annexure D) which discloses the termination of service in the following words:

The workmen were appointed purely on temporary basis as casual labourers against work charged posts, on construction works and subsequently on completion of six months they were given C.P.C. scale of pay. The work is completed and the workmen, therefore, rendered surplus to the requirements and as such their services have to be terminated with effect from 26-8-69 F.N.

The substance, therefore, of the entire submission is that the workmen had been retrenched illegally and the provisions of Section 25Fwere not followed. The conditions laid down in the aforesaid section is a pre-requisite of retrenchment and failure to follow them would render the retrenchment void ab initio as held in the case reported in Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, . Annexure 6, which is the impugned order, has been placed to show that there was an offer for payment of one month''s pay in lieu of notice, but no offer of pay meant for retrenchment compensation. In Annexure D also which is the notice to the Government, the railways have specifically stated that "the workman will be given on 26-8-1969 one month''s pay in lieu of notice as required under cl. (a) of Section 25F of the Act" but Mr. Ranen Roy has emphasised the point that whereas Annexure 6 is dated 20/22-8-1969, Annexure D is dated the 28th March, 1969, and in this connection it has been argued that the averments made by the petitioners on oath in paragraphs 20, 21 and 21(a) of the petition have not been denied. These statements are as follows:

That the petitioners appeared with affidavits of non-employment for joining duties on 30-8-69 and 1-9-69, but they were not allowed to join on the plea that the services of the petitioners had already been terminated and issued to them by registered post to their home addresses.

A true copy of the joining letters along with the endorsement enclosed is marked Annexure 5 for identification and forms part of this petition.

That the Divisional Personnel Officer (opposite party No. 5) Katihar, by his order No. E/263/l(CON) dated 20/22-8-69 terminated the services of the petitioners with immediate effect and directed to pay one month''s wages in lieu of notice.

A true copy of the order of termination is enclosed marked Annexure 6 for identification and forms part of this petition.

21(a). That subsequently the petitioners were asked to take payment of their due salary and arrears.

It is further argued that the retrenchment compensation was neither paid nor offered before the 22nd August, 1969, when the retrenchment or termination of the petitioners occurred on the 20/22 August, 1969. Mr. Ranen Roy has drawn our attention to Annexure 7, which is a list of junior staff working in the District Signal Telecommunication Engineering Construction, N.F. Railway, Katihar, and it has been specifically stated in paragraph 26 of the petition that the persons named in Annexure 7 are juniors to the petitioners whose services have been retrenched by the opposite party in violation of the provisions contained u/s 25G of the Act.

Mr. Ranen Roy drew our attention to paragraph 17 of the counter-affidavit filed by the opposite party to show the reasons for not following the provisions of Section 25G of the Act which is quoted hereunder:

...Out of the persons mentioned in Annexure 7 of the petition the persons from S. Nos. 1 to 35 appeared in the recruitment selection board for appointment to regular service along with the petitioners and they were selected and empanelled for appointment to regular service. The persons named from S. Nos. 36 to 45 were engaged purely as casual labourers on daily rate for an emergent work in connection with the ghat shifting at Khejuria Ghat and Manihari Ghat. The persons mentioned from S. Nos. 46 to 88 are the casual labourers working in the mechanical department which is a separate service unit for the purpose of recruitment, etc., and the vacancies of other branches have nothing to do with the absorption of the petitioners. Apart from this, since the petitioners have already attained the status of temporary employees and were entitled to C.P.C. scale, they could not be employed as casual labourers on daily basis. It may be mentioned here that persons mentioned in S. Nos. 36 to 45 of Annexure 7 to the petition were employed as casual labourers only for a period not exceeding 30 days, and they have long been discharged after the ghat shitting work was over for which they were employed. So far as S. Nos. 46 to 88 are concerned, it has already been stated above that they were employed as casual labourers in the mechanical department which is a separate service unit altogether.

It is lastly contended that before the retrenchment, the employer should show that the retrenched hands were surplus, but, if there were vacancies, the employer cannot show the petitioners as surplus and thereby terminate their services. The provisions contained in Rules 2511, 2512 of the Government of India, Ministry of Railways Manual, ensure the rights and privileges...to casual labourers who are treated as temporary after completion of six months'' continuous service including their absorption in regular vacancies. The relevant portions of Rules 2511 and 2512 are in the following terms:

Rule 2511(a):

Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. Rights and privileges admissible to such labour also include the benefits of discipline and appeal rules. Their service, prior to the date of completion of six months'' continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority, etc. Such casual labourers will also be allowed to carry forward the leave at their credit in the new post on absorption in regular service.

Rule 2511(b):

Such casual labour who acquire temporary status will not, however, be brought on the permanent establishment unless they are selected through regular selection Board for class IV staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through Employment Exchange. Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for class IV posts to the extent of their total service which may be either continuous or in broken periods.

Rule 2512(1):

Casual labour who acquire temporary status as a result of having worked on other than projects for more than six months, or who have worked for more than six months, shall be considered for regular employment without having to go through Employment Exchange. Other casual labour who have not completed six months will, of course, be required to get themselves registered with the relevant exchanges before they are considered by the Selection Boards. They will have a prior claim over outsiders. In order to ensure this, the names of all casual labourers, wherever employed should be entered in the registers maintained by divisions or districts or by any other convenient unit of recruitment strictly in the order of their taking up casual appointment at the initial stage, and for the purposes of empanelment for regular class IV posts, they should, as far as possible, be selected in the order maintained in the aforesaid registers. While showing preference to casual labour over other outsiders in the matter of recruitment to regular class IV establishment, due consideration and weightage should be given to the knowledge and experience gained by them, other conditions being equal, total length of service as casual labour, either continuous or in broken periods, irrespective of whether they have attained the temporary status or not, should be taken into account so as to ensure that casual labour who are senior by virtue of longer service are not left out.

Mr. Lal Narain Singh, on the other hand, appearing for the opposite party No. 1, has supported the propositions which he has formulated for repelling the submissions made by learned Counsel for the petitioners by citing a number of decisions reported in Veerappa Pillai v. Raman and Raman Ltd. and Ors. (1952) S.C.R. 582 D.N. Banerji Vs. P.R. Mukherjee and Others, and Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, and also Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, . The first three cases referred to above are for the propositions that merely the violation of mandatory provision are not enough. Justice should also be on the side of the petitioners. In Veerappa Pillai v. Raman and Raman Ltd. (1952) S.C.R 582 reliance is placed on the following paragraph at page 594:

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers acted wholly without jurisdiction, or in excess of it or in violation of the principle of natural justice or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as it enables the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or ordered to be made.

In D.N. Banerji Vs. P.R. Mukherjee and Others, our attention has been drawn to the following paragraph at page 305:

Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the Tribunal to decide and here the Tribunal held that the dismissals were clear cases of victimisation and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.

Similarly in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, Mr. Lal Narain Sinha relies on the following passage at page 8:

That, however, is not to say, that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not and should not act as Courts of appeal under Article 226 Their powers are purely discretionary, and though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily; and want of limitations imposed by the High Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned out into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these Constitutional powers, it is a sound exercise of discretion to bear in mind the policy of the Legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.

In the Patna case reported in Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, Mr. Lal Narain Sinha has placed reliance on the concluding portion of the judgment, in paragraph 21 which is as follows:

...It may be pointed out here that the retrenchment compensation had been paid to the petitioners after they had filed the application in the High Court for quashing the order of retrenchment. If the retrenchment order is invalid in law, subsequent payment of compensation cannot validate it. It may be a ground for not exercising our writ jurisdiction in favour of the petitioners, but since there is another serious infirmity to which I shall presently refer, in the order of retrenchment, subsequent receipt of compensation cannot stand in the way of the petitioners.

In order that the instant case is examined in proper perspective and in the light of the various decisions cited by the parties, it would be useful to refer to the impugned order itself which is as follows:

Order of termination of service issued under Rule 149 of the Indian Railway Establishment Code, Volume I, with pay in lieu of notice No. E/263/I (CON).

In pursuance of Rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby terminate forthwith the services of Shri Ajit Kr. Choudhary, Temporary MSM (name and designation of temporary railway/apprentice/probationer railway servant) and direct that he/she shall be paid a sum equivalent to the amount of pay and allowance from 26-8-69 to 25-9-69 (period of notice prescribed in Rule 149-R.I. as applicable to the case should be indicated here (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which this order is served on or, as the case may be tendered to him.

Place : Katihar, dated 20/22-8-69. Sd. Divisional Personnel Officer, N.F. Railway, Katihar.

To

Shri Ajit Kr. Choudhary, Tempy. W.C. C/o Ranjit Kr. Choudhary, Mirchai Bari, Bhaluki Block, Katihar.

It is evident that this is an order of termination of service forthwith under Rule 149 of the Indian Railway Establishment Code (Volume I) and offers payment of a sum equivalent to the pay and allowance for one month in lieu of the period of notice.

The first question which has to be answered is as to whether the termination of service by means of Annexure 6 amounts to retrenchment within the meaning of Section 2(oo) of the Act. While dealing with this question reference may be made to Annexures C and D of the counter-affidavit of opposite party No. 1. From Annexure C it is evident that the termination of service was due to the fact that the project against which these people were working, had since been closed and completed, none of them were in service, and this latter (Annexure C) was written from the office of the General Manager to DP/KIR on 2-8-1968, to seek confirmation of the same. Similarly from Annexure D which is the form of notice of retrenchment to be given by an employer u/s 25F(c) of the Act, it is apparent that respondent No. 5, the Divisional Personnel Officer, N.F.Ry. Katihar by this notice dated the 23rd August, 1969, addressed to the Secretary, Government of India, Ministry of Labour, New Delhi, has acted u/s 25F(c) of the Act and has informed the latter about the decision to retrench 74 workmen with effect from the 28th June, 1969 for the reason explained in the Annexure to the said notice, which is as follows:

The workmen were appointed purely on temporary basis as casual labours against work charged posts on construction works and subsequently on completion of six months, they were given CPC scale of pay. The work is completed and the workmen, therefore, rendered surplus to the requirement and as such their services have to be terminated with effect from 26-8-69 F.N.

D.P.O. Katihar.

It is, therefore, clear that the termination of service under Annexure 6 of the petition is retrenchment within the meaning of Section 2of the Act, and this view about the termination of service of the petitioners in the instant case is supported by a decision of the Supreme Court, reported in Hari Prasad Shivshankar Shukla v. A.D. Divelkar AIR 1957 S.C. 121. In placitum (e) the meaning and scope of Section 2(oo) which defines retrenchment is laid down as follows:

Retrenchment as defined in Section 2(oo) and as used in Section 25F has no wider meaning then the ordinary accepted connotation of the word. It means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where services of all workmen have been terminated by the employer on a real and bona fide closure of business or where the services of all the workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of a railway company which is purchased and taken over by the Government under the terms of the contract under which the company constructed the railway and operated it.

In the instant case, therefore, it must be held that the termination of service is retrenchment within the meaning of Sections 2(oo) and 25F of the Act.

The question now arises is as to whether the retrenchment of the workmen in the instant case is bad and illegal and if so on what grounds. The main ground of attack which has been stated earlier at length is contained in paragraphs 21, 21(a), 24, 25 and 26 of the writ petition and they are to the effect that the condition precedent to the retrenchment have not been observed, namely that the retrenchment compensation under Chapter VA of the Act has neither been paid nor offered to the petitioners before their termination of service, and the workmen junior to the petitioners were retained in service while the petitioners were retrenched. In the counter-affidavit, opposite party No. 1 have dealt with paragraphs 20 and 21 of the petition in the following manner.

That with regard to the facts mentioned in paragraphs Nos. 20 and 21 of the petition, it is stated that in accordance with the instructions contained in letter dated 2-8-69 of the General Manager (P), Maligaon, a copy of which is annexed hereto and marked as Annexure ''C'' which forms part of this affidavit, all the 73 staff who were petitioners in C.W.J.C. No. 289, 360 and 361 of 1968 were reinstated in service with their back wages for and up to 25-8-69 when their services were terminated with one month''s pay in lieu of notice as contemplated in Rule 149 of the Indian Railway Establishment Code (Vol. 1) and with all compensation to which they were entitled. All the requisite conditions under the Industrial Disputes Act for termination of their services were also followed. The petitioners were, therefore, treated as on duty for all purposes from 19-8-69 to 25-8-69 for the period to which they were kept out of employment prior to this date. The averments made in paragraphs 23, 24 and 25 of the petition are as follows:

That the termination of service of the petitioners amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1647.

That the conditions precedent of retrenchment were not complied with and as such the termination of services of the petitioners are illegal and void.

That the retrenchment compensation payable under Chapter VA of the Industrial Disputes Act, 1947, has not been paid or offered to be.paid to the petitioners before their termination of service.

These statements have been dealt with in paragraphs 15 and 16 of the counter-affidavit. It is evident that the question of termination of service which amounted to retrenchment within the meaning of Section 2(oo) of the Act has not been specifically denied nor it is said in reply to the petitioners'' case set out in paragraph 25 of the petition that the retrenchment compensation payable under Chapter VA of the Act had not been paid or offered to be paid before their termination of service. On the other hand, the assertion that the retrenchment compensation was offered to the petitioners, but the same was refused, as is evident from paragraph 21(b) of the petition, is misleading because the said statement is to the effect "that when they went to receive the payment of their due salary/wages they were asked to accept retrenchment compensation also which they refused to take". This in my opinion is not the same thing as payment of retrenchment compensation under Chapter VA of the Act which must take place before the termination of service. On these facts and in view of the non-denial of the positive stand of the petitioners that they were not paid the retrenchment compensation at the time of their retrenchment, in accordance with the provisions of Section 25F(b) of the Act, it must be held that this condition precedent not having been observed, the retrenchment was illegal. Both from Annexure C which is the impugned order of termination of service as well as Annexure D, which is the notice of retrenchment to the Government u/s 25F(c) of the Act, it is clear that there was neither offer to pay the retrenchment compensation nor was there any payment on the 20/22 August, 1969, when the retrenchment/termination occurred.

Regarding the contention that there has already been no compliance of Section 25G of the Act, the specific statement of the petitioners is contained in paragraph 26 which is as follows:

That the persons junior to the petitioners have been retained in service while the petitioners are retrenched.

A list of persons who are juniors to the petitioners and whose services have been retained by the opposite parties is given in Annexure 7 enclosed herewith and forms part of this petition.

This stand has been controverted in paragraph 17 of the counter-affidavit to which I have made reference earlier and in which the reasons for termination of service of the petitioners have been given in relation to Annexure 7. To meet the reasoning given in paragraph 17 of the counter-affidavit, the petitioners have referred to Annexure C of the counter-affidavit in their rejoinder in paragraph 15, which, according to them, does not show the principle of "last come, first go" as contained in Section 25G of the Act. In my opinion the explanation given by the opposite party in paragraph 17 in their attempt to show that there has been compliance of Section 25G of the Act is not acceptable and it is held accordingly.

It may be further stated that the comment contained in paragraph 17 of the counter-affidavit regarding "the persons mentioned from S. Nos. 46 to 88 are the casual labourers working in the mechanical department which is a separate service unit for the purpose of recruitment, etc., and the vacancies of other branches have nothing to do with the absorption of the petitioners" will not, in my opinion, constitute a different establishment and they must be held to belong to one establishment and juniors to the petitioners, working in different categories and retained in service in violation of the mandatory provisions of Section 25G of the Act, and, therefore, the retrenchment was illegal.

Accordingly,'' on the findings of nonpayment of the compensation at the rate prescribed u/s 25F(b) of the Act before the retrenchment of the petitioners and on account of the persons juniors to the petitioners having been retained in service (per Annexure 7) against the provisions of Section 25G of the Act, it renders the retrenchment of the workmen illegal. This view is fully supported by a Bench decision of This Court which has already been referred to above, namely, Somu Kumar Chatterjee and Another Vs. District Signal Tele-Communication Engineer and Another, the relevant placitum of which is as follows:

Industrial Disputes Act, Section 25F (a), (b) and (c)-Conditions prescribed u/s 25F(a) and 25F(b) held to be obligatory and conditions precedent, while condition in Section 25F(c) are only directory-Non-payment of compensation at the rate prescribed u/s 25F(b) before retrenchment held, rendered the retrenchment illegal and bad in law-Held further, that subsequent payment of compensation could not validate an illegal retrenchment. The fact that the workers voluntarily received compensation subsequently, could not estop them from challenging the validity of retrenchment.

Industrial Disputes Act, Section 25G. Industrial Disputes (Central) Rules, Rule 77-Principles of ''last come, first go''-Seniority list as required under Rule 77 of the Industrial Disputes (Central) Rules, not maintained by the respondent railway administration-Respondent contending that workmen retrenched were working in one of their two establishments which was closed pursuant to completion of work and, therefore, provisions of Section 25G not attracted-Question whether the place of working of the petitioner was part of one establishment or a distinct establishment by itself considered and decided -Applying the tests whether the different branches were working at different places, there were different scales of wages, the workmen were recruited for the particular branch where they were employed, whether they were transferred from one branch to another and whether different categories of workmen on different scales of wages were paid at various branches for the same kind of work, held that the working at two different places in the instant case constituted one establishment and juniors to the petitioners working in different category retained in service in violation of the mandatory provisions of Section 25G, and, therefore, the retrenchment was illegal.

For the reasons stated above, the application succeeds and the order contained inAnnexure 6 of C.W.J.C. No. 1177 of 1969 is quashed.

C.W.J.C. No. 1031 of 1969:

There are in all 18 petitioners in this case and their services have been terminated exactly under similar circumstances with effect from the 20th June, 1969, by giving one month''s notice under Annexure 2 dated the 16th June, 1969. In this case there was also no retrenchment notice or offer of compensation of retrenchment. The list of junior officers in this case who have been retained in employment, according to the petitioners, is contained in Annexure 6.

C.W.J.C. No. 1075 of 1969:

There are altogether eight petitioners in this case whose services have been terminated under similar circumstances with effect from the 1st June, 1969, under Annexure 2 dated the 1st May, 1969. In this case also there is one month''s notice but no offer of retrenchment compensation.

C.W.J.C. No. 1076 of 1969:

There are six petitioners in this case whose services have been terminated with effect from the 7th July, 1969, by Annexure 2 with one month''s pay in lieu of notice.

C.W.J.C. No. 1099 of 1969:

There are seven petitioners in this case whose services have been terminated with effect from the 15th June, 1969, by Annexure 2, dated the 13th May, 1969, with one month''s notice.

C.WJ.C. No. 1101 of 1969,:

There are six petitioners in this case whose services have been terminated on the 9th June, 1969, by Annexure 2, dated the 9th May, 1969, giving one month''s notice.

Apart from the different dates of termination of services, other main factors of retrenchment in the above cases are the same and as has already been said at the very outset, all these cases will be governed by this common judgment. Thus on a careful consideration of the facts and circumstances of all these cases and the legal position arising out of the contentions raised by the parties, I am of the view that the impugned orders contained in Annexures 6 and 2 by which the petitioners have been retrenched are illegal and invalid, and are hereby quashed.

The result is that all the applications succeed and are, therefore, allowed. Let a writ in the nature of mandamus issue against the respondents commanding them to reinstate the petitioners in their services and pay the arrears and back wages and other allowances to which they might be entitled after making adjustments of the amounts they have already received. In the circumstances of the cases, there will be no order as to costs.

S.N.P. Singh, J.

I agree.