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Chinnappa Reddy, J.—The primary question raised in these Writ Appeals is one which neither the abstract reasonable man whose opinion the judges often invoke nor the common man whose opinion the others seek elsewhere would have any hesitation in answering in a certain way but which the learned Advocate-General would have us answer the other way because, he said, such was the law. The facts are as follows:- The respondents in most of the Writ Appeals are casual labourers employed by the Administration of the Southern Railway, who are entitled to be treated as temporary employees having completed more than six months of continuous employment in terms of paragraph 2501 (a) (i) of the Indian Railway Establishment Manual. Between 3-5-1974 and 28-5-1974 there was a nation-wide strike of Railway employees. Even on 15-11-73 the Government of India, Ministry of Labour in exercise or its power under Rule 118 of the Defence of India Rules, 1971 had issued an order prohibiting any strike in connection with any Industrial Dispute in any of the Railway Services in India for a period of six months with effect from 26-11-1973. On 25-4-74 the General Manager of the Railway Administration had drawn the attention of the members of the staff to the contents of the order and had notified by prominent display on notice boards at all offices and otherwise that any strike on the part of the employees would be illegal. On 8-5-1974 the Union Minister of Railways warned the striking workers, through the media of the radio and the news papers, that those that failed to report for duty by the afternoon of 9-5-1974 would be placed under suspension and further severe action would follow. In respect of casual labourers it was decided by the Railway Administration that if they did not report for duty by mid-night of 9/10th May, 1974 action would be taken to terminate their employment by invoking the provisions of Rule 149 of the Indian Railways Establishment Code, Volume J. This decision also was much publicised. The respondents who had absented themselves from duty since 3-5-1974 did not report for duty as directed. According to them they did not intentionally participate in the strike but they were unable to report for duty as they apprehended physical violence from some of the striking workers. Some of them did report for duty after 20-5-1974 and before the strike was called off on 28-5-1974. Notices were served on the respondents in the following form:-
Notice of Termination of Service Issued Under Rule 149 of The Indian Railway Establishment Code Volume I by Giving Prescribed Period of Notice.
In pursuance of rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby give notice to Sri............. on Aps/DsL/Mech/Gooty, that his service shall stand terminated with effect from the date of expiry of 14 days notice from the date on which this notice is served on or as the case may be tendered to him.
On the service of these notices, the respondents invoked the jurisdiction of this court under Article 226 of the Constitution seeking writs to restrain the Railway Administration from implementing the notices. The writ petitions were allowed by our learned brother Kuppuswamy, J., on two main grounds: 1) The impugned notices were invalid as they contravened sections 25F and 25. C. G. of the Industrial Disputes Act, and (2). The services of the respondents were terminated by way of punishment, but without complying with the provisions of Article 311 (2) of the Constitution and the Disciplinary Rules. The termination was therefore bad. The learned judge also held that if it was to be construed that the termination was not by way of punishment, then there was a violation of Art. 14 and 16 of the Constitution, as the principle of ''last come first go'' was not followed. The Railway Administration has appealed.
The leaned Advocate-General, for the appellants, strenuously contended that the notices were innocuous and cast no stigma on the respondents, that the notices were authorised by Rule 149 of the Indian Railway Establishment Code and that it was immaterial what the motive was behind the notices. He argued that if the Government had the right by reason of the terms of the employment, contractual or statutory, to terminate the services of an employee by giving notice of a prescribed period, it was not for the court to go behind the notice and probe into the motive that inspired the notice. He argued that where action was taken pursuant to a rule and nothing was said about any misconduct in the order of termination of service, such order could not be questioned. True, he agrued the Supreme Court had stated that the test for attracting Article 311 (2) of the Constitution was whether the misconduct was a mere motive of the order of termination of services or whether it was the very foundation of such order, but he said, misconduct which did not appear on the face of the order could never be considered to be the very foundation of the order. In the instant case, he submitted, Rule 149 of the Indian Railway Establishment Code enabled the Railway Administration to terminate the services of a temporary employee by giving one month''s notice. The individual orders issued to the respondents made no reference to any misconduct. Article 311 (2) of the Constitution was therefore not attracted. The learned Advocate-General cited a large catena of cases.
In S.R. Tewari v. District Board, Agra AIR 1964 S.C. 1680 the Supreme Court observed at page 1686:
It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in re-laity a clock for an order of dismissal as a matter of punishment, the court would not be debarred merely because of the form of the order in giving effect to the right conferred by statutory rule upon the employee.
In Champaklal Chimanlal Shah Vs. The Union of India (UOI), he Supreme Court once again observed that the more, use of expressions like "terminated" or "Discharged" was not conclusive and that inspite of the use of such innocuous expressions, the court had to apply the tests mentioned in Parshotam Lal Dhingra Vs. Union of India (UOI), . It was pointed out that even though misconduct, negligence inefficiency of other disqualification was the motive or the inducing factor which influerced the Government to take action under the terms of the Contract of employment or the specific service rule, nevertheless, if a right existed, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government was wholly irrelevant. Care was however taken to state that whether such termination would amount to dismissal or removal within the meaning of Article 311 (2) would depend on the facts of each case and the action taken by the Government which finally led to the termination of service.
In State of Punjab and Another Vs. Shri Sukh Raj Bahadur, Mitter, J., summarised the principles which he was able to cull out from the previous decisions of the Court as follows:--
1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution :
2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial :
3) If the order vested on the public servant with any evil consequences or casts an aspersion his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant:
4) An order of termination of service in exceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
5) If there be a full--scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.
It will be seen that according to the learned Judge, not merely the order of termination of service, but the circumstances preceding or attendant on the order had to be examined in each case, though motive was immaterial.
In Union of India v. R.S. Dhaha AIR 1969 N.S.C. 21, 1971 S L R 442 Ramaswamy, J., observed that the test for attracting Article 311 (2) of the Constitution in a case where action was taken pursuant to the terms of employment (statutory or contractual) was whether the misconduct or negligence was a mere motive for the order of reversion or termination of service or whether it was the very foundation of the order of termination of the temporary employee.
In Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, it was held that an order of termination of service, which was unexceptionable in form but which was preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant could be retained in service did not attract the operation of Art. 311 of the Constitution.
In The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, the Supreme Court observed :
We are unable to accede to the contention of the appellants that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government officer in the impugned order, it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba''s case Civil Appeal No. 882 of 1966, dated 7-4-69 it was not found that the order of revision was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this court that one has only to look to the order and if does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a clock or camouflage for an order founded on misconduct (see S.R. Tewari Vs. District Board Agra and Another, It may be that an order which is innocuous on the face of it and does not contain any imputation of misconduct is a circumstance or piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances or proceedings attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is mere motive or is the very foundation of the order.
This decision is a clear authority that notwithstanding fact that an order of termination is authorised by the terms of employment and notwithstanding the facts that the order of termination contains no express words of stigma, it is nevertheless open to the court to look at all the attendant circumstances to discover whether the order was made by way of punishment. The overriding test is whether the misconduct was a mere motive or whether it was the very foundation of the order. Merely because the order does not contain any words of stigma, it does not follow that misconduct was not the very foundation of the order. This decision is clearly against the submission of the learned Advocate-General.
In The State of U.P. Vs. Sri Shyam Lal Sharma, Ray, J. (as he then was observed that in ascertaining whether the order of compulsory retirement is one of punishment it had to be considered whether there were any words of stigma or imputation or any implication of misbehaviour or incapacity in the order of compulsory retirement. If there were no such words, then, there should be any enquiry into the Government fibs to discover whether any remark amounting to stigma could be found in the service. All that the learned judge was saying was that Courts should not be too astute to delve into the Government files to discover motives for the action of the Government. We do not think that the learned Judge meant to depart from the well; established principle that, where necessary, the court could and should look at the attendant circumstances and go behind the order.
In Madan Mohan Prasad v. State of Bihar 1973 (1) SLR 630 the Supreme Court considered the statement of the Chief Minister of Madhya Pradesh in the Assembly to arrive at the conclusion that an order of termination of service was a punishment, though it did not contain words of stigma on its face.
In State of U.P. and Others Vs. Sughar Singh, Mathew J. noticed that though the law in the matter had been laid down in a large number of decisions of the Supreme Court, considerable difficulty had arisen in applying the various principles enunciated by the decisions to the facts of particular cases and that the moulding of the principles to suit the needs of the varying circumstances of different cases had often led to formulation of principles with varying contours which suggested at least superficially that some of them were anamolous and even contradictory. In that case a Head Constable who had been promoted as an officiating cadet Sub-Inspector was served with a notice to show cause why an adverse entry should not be made in his character sheet. He submitted an explanation which was, not accepted. An adverse entry was made in his character roll in 1966. In 1968 he was reverted to his substantive post of Head Constable. He challenged the order of reversion. It was pointed out that at least 200 Head-Constables who bad taken training as cadet Sub-Inspectors after him and who were junior to him were allowed to retain their status as sub-Inspectors and had not been reverted Mathew, J. pointed out that unless it could be justified as a measure of punishment his reversion would amount to discrimination in contravention of the provisions of Arts. 14 and 16. The learned Judge referred to the Statement of the Standing Counsel before the High Court to the effect that the order of reversion was the result of the adverse entry made in the appellant''s confidential character roll. The learned judge observed:
If this statement of the learned Standing Counsel has to be accepted, it is impossible to resist the suggestion that the respondent''s order of reversion was really an order of punishment in disguise in which event the order must be struck down for non-compliance with the requirements of Art. 311 of the Constitution. The appellant (the State of Uttar Pradesh) in fact faces a dilemma, if it was not a case of punishment it becomes difficult to explain why this discrimination was made against the respondent vis-a-vis at least 200 other officers who were junior to him in the substantive cadre. That would make the order liable to be struck down as violative of Art. 16 of the Constitution. If, on the other hand, the order has to be justified with reference to an adverse entry in the character roll it becomes not merely a case of double punishment, but also a case of infringment of Art. 311 of the Constitution. It is true that the order ex-facie does not show anything which can suggest the contravention of Article 311 of the Constitution we have already analysed the order and discussed that aspect of the matter. But the compelling logic of the totality of circumstances attending the order of reversion candidates that if the order is not discriminatory and has to be justified with reference to the proceedings against the respondent and the earlier order regarding his character roll, it is impassible to avoid the criticism that it was really a punishment in the garb of an order of reversion.
The observations of Mathew J., appear to apply with great force to the facts of the cases before us. The petitioners have alleged in the writ petition that several persons far junior to them are retained in service while they have been singled out for termination of service. The termination of service was undoubtedly because of their alleged participation in the strike. The orders terminating the services of the respondents must, on the basis of the observations of Mathew J. be held to have been made in contravention of either Article 14 and Article 16 or Article 311 of the Constitution.
In R.S. Sial Vs. The State of U.P. and Others, Supreme Court, 1317 the Supreme Court once again observed.
The test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of revision or termination of service or whether is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirity of circumstances proceeding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
On a Consideration of the several decisions of the Supreme Court we may summarise the legal position as follows :--The question whether the order of termination of service is a punishment arises in cases whether the employer has the right to terminate the services of an employee by the very terms of employment contractual or statutory. The question cannot be answered solely with reference to the question whether the order of termination of service refers to any misconduct or unsatisfactory service of the employee concerned. The omission to refer to misconduct or unsatisfactory service in the order of termination of service is prima facie or presumptive evidence that the order of termination of service is not a punishment. But the form and silence of the order is not the last word in the matter. In cases where the order is silent about any misconduct or unsatisfactory service, where necessary, the court is entitled to look into the preceding and attendant circumstances to arrive at a conclusion whether the order is in fact a punishment. This does not mean that the court will delve deep into Government files to discover whether some misconduct or unsatisfactory service may not have influenced the order of termination of service. The test in such cases is "whether the misconduct is a mere motive or is the very foundation of the order". A more practical test perhaps is whether the order of termination of service is a direct or indirect consequence of the misconduct or unsatisfactory service. Without doubt, it is a difficult task for courts to decide on which side of the line the facts of a case fall. But that is a task which the Courts have to face. Each case much naturally depend upon its own facts and circumstance. In one case greater weight may be attached to the presumptive evidence afforded by the silence of the order. In another case greater weight may be attached to other circumstances. The weight to be attached to any individual circumstance must depend on the entirity of the circumstances of the case. If on a superficial reading decided cases do not appear to be unanimous it is because of the weight attached in individual cases to particular circumstances.
The facts of the present case have already been mentioned by us. There was an open declaration by the Union Minister for Railways that those who failed to report for duty by the afternoon of 9th would be suspended and that the suspension would be followed by severe action. There was a further announcement that the Railway Administration had decided that the services of causal labourers would be terminated by resort to the provisions of Rule 149 of the Indian Railway Establishment Code if they failed to report for duty by raid night of 9/10-5-1974. The respondents failed to report for duty as directed. Effect was then given to the warning of the Union Minister and the decision of the Railway Administration, The services of the respondents were terminated by the issue of the impugned notices. In the counter affidavit it is stated that the respondents were considered as persons not desirable to continue in service in the interests of the life of the community, and, therefore, in exercise of the powers conferred under Rule 149 (1) of the Indian Railway Establishment Code. Surely it cannot be contended that this statement does not cast a stigma on the respondents. On, these facts, there cannot be the slightest doubt that the termination of services of the respondents was penal. At the very outset of our judgment we pointed out that answer to the question posed would present no difficulty either to the reasonable man on whose judgment judges rely or the common men whose opinion is sought elsewhere. We see no justification for allowing our legal ingenuity to lead us to a different conclusion, as suggested by the learned Advocate-General.
In the view that we have taken on the principal question arising in the case, it is really unnecessary for us to go into the question whether the orders of termination of service violate the provisions of sections 25F and 25G of the Industrial Disputes Act. But having regard to the arguments advanced we will briefly indicate our view. The answer to the question depends on whether it could be said that the respondents were retrenched from service. Retrenchment is defined in Sec. 2 (oo) of the Industrial Disputes Act, 1947 as follows :--
(oo) Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include.
(a) voluntary retirement of the workman ; or
: (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf ; or
(c) termination of the service of a workman on the ground of continued ill-health.
The expression is defined in the widest possible terms as meaning the termination of the service of a workman for any reason whatsoever. What is not included in the definition is also expressly mentioned and that must mean that except in the cases not expressly included every termination of service is retrenchment. The learned Advocate General however, argued that the definition was considered by the Supreme Court in Hariprasada Singh Shukla v. A. D. Divelkar AIR 1957 SC 121 and it is held that ''retrenchment as defined in Sec. 2 (00) had no wider meaning than the ordinary accepted connotation of the word; it meant the discharge of surplus labour or staff in a continuing or running industry for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action It is true that the Supreme Court has considerably narrowed the definition. But, perhaps, as suggested by the Kerala High Court in Krishnan v. Divisional Personal Officer 1972 2 Lah. L.J. 568 the several observations of the Supreme Court must be understood in the context of the question which the learned judges of the Supreme Court posed.
The question, however before us does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the employer ?
But the learned Advocate-General argued that the view of the Kerala High Court was not correct in view of the following observation of the Supreme Court.
On our interpretation in no case is there any retrenchment unless there is discharge of surplus labour or staff in a continuing or running industry.
Having regard to the question posed we thought that the emphasis was on ''in a continuing or running industry'' rather than on "discharge of surplus labour or staff''. But the words'' discharge of surplus labour or Staff have been italicised by the Supreme Court as may be seen from official as well as unofficial reports of the case. The decision of the Kerala High Court was referred to by Kuppuswami, J. in his judgment Kuppuswami, J, held that the services of the respondents had been retrenched within the meaning of Section 2 (00). But he did not rest his conclusion on the decision of the Kerala High Court but preferred to state that the termination of the services of large number of individuals enmasse would amount to retrenchment. We do not wish to express any final opinion in the matter except to say that we find great force in what was said by the learned Judges of the Kerala High Court and by our learned brother, Kuppuswami, J.
The learned Advocate General raised a subsidiary question whether casual labourers could be termed ''Railway servants'' within the meaning of the notification in rule 102 (13) of the Indian Railway Establishment Code. But having regard to paragraph 2501 (b) of the Indian Railway Establishment Manual which directs that casual labour employed continuously for more than six months without break should be treated as temporary, he did not dispute that under paragraph 251 of the same manual casual labour treated as temporary were emitted to all the rights and privileges admissible to temporary Railway servants as laid down in Chap. XXIII of the Manual including the benefits of the Discipline and Appeal Rules. It is, therefore, unnecessary to decide the question whether they are Railway Servants within the meaning of the definition in Rule 102 Clause (13) of the Railway Establishment Code.
In the result, all the Writ Appeals are dismissed with costs. Writ Appeal Nos. 888, 889, and 890, relate to employees of the South Central Railway. But they were not separately argued. They are also dismissed with costs. Advocates fee Rs. 1001/- in each.