me that these utterly unfair provisions wholly denying socio economic justice are properly modified and brought in conformity with the modern concept of justice and faieplay to the lowest and the lowliest in Railway administration
273 C D 274 A B  CIVIL APPELLATE JURISDICTION Civil Appeal No 1613 of 1979
Appeal by special leave from the Judgment and Order dated the 9th January 1979 of the Kerala High Court in OP No 4401 of 1974
KRR Pillai for the Appellant
PA Francis and Miss A Subhashini for the Respondents
The Judgment of the Court was delivered by DESAI J
Appellant L Robert D Souza joined service as a gangman at Mangalapuram in Southern Railway on July 1 1948
In course of his service he was transferred to various places
When he was last working as Lascar at Ernakulam on October 8 1974 the Executive Engineer Construction Ernakulam intimated to him that his services were deemed to have been terminated from September 18 1974 from which date the appellant was said to have absented himself from duty
This letter has an important bearing on the issues raised in this appeal and therefore relevant portion may be extracted here You have absented yourself unauthorisedly from 1891974 and hence your services are deemed to have been terminated from the day you have absented yourself
Please note
256 Since you are no longer on the rolls of this office you should vacate the quarters allotted to you immediately failing which action will be taken to evict you
According to the appellant up to the date of unauthorised and illegal termination of his service he had rendered continuous service for a period of 26 years yet the Railway administration wrongfully denied him the status of a temporary and or regular workman and treated him a daily rated casual labourer
This treatment according to the appellant was so unfair that it prompted persons who were victims of this unfair treatment by the Railway administration to form a Union named Southern Railway Construction Workers Union Ernakulam of which the appellant was the General Secretary
The Union submitted a charter of demands which presumably irritated the authorities and chagrinned by it the appellant was transferred to Podannur in Tamil Nadu by way of punishment
As the late Shri AK Gopalan who was a renowned trade union leader espoused the cause of the appellant his transfer was cancelled and he was repasted and allowed to continue at Ernakulam after paying the arrears of wages and granting continuity of service for the period he did not join duty at the place of his transfer
This is quite evident from the letter of the Under Secretary Ministry of Labour dated April 23 1974 which reads as under With reference to your letter dated the 28th May 1973 on the above subject I am directed to say that it has been reported by the Ministry of Railways that the Southern Railway Administration has been advised that as you were transferred back to Ernakulam on 19th March 1971 you should be deemed to have been on duty for the intervening period from 8th March 1970 to 19th February 1971 and your wages paid accordingly
The local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant
In the meantime the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time
As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice of the Railway administration they were likely to be denied the full retirement benefits appellant and several others filed a writ petition in the High Court of Kerala
According 257 to the appellant for the various reasons stated in the petition appellant and those similarly situated could not be treated as daily rated casual labour and under the relevant rules appellant and his co workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellant s service was terminated and that they would be entitled to all the retiral benefits
The petition came up before a learned single judge who dismissed the same
The matter was taken in appeal before the Division Bench
In the appeal it was contended that the termination of service of the appellant in the circumstances as set out earlier would constitute retrenchment within the meaning of section 25F of the  Act  for short and therefore the order of termination inter alia is invalid
The Division Bench found the question raised before it of such importance and magnitude that it referred the same to the Full Bench
In the meantime the appellant was actively pursuing his trade union activities
A demand was made that all the benefits granted by the Central Pay Commission be extended to the category of employees to which the appellant belonged and when these demands fell on deaf ears it was resolved to give a strike notice
The matter was taken in conciliation which ultimately resulted in failure
The appellant approached the Central Government to make a reference under section 10 of the in respect of the demands for adjudication by National Tribunal
As the Central Government was wobbling in its approach the appellant declared his intention to go on fast unto death for redressal of the grievances suffered for decades by the lowest category of railway employees
At that stage the Assistant Labour Commissioner intervened and persuaded the appellant not to precipitate the matter
The appellant accordingly broke his fast on September 28 1974 in the hospital where he was confined during his fast
Taking advantage of his absence during the fast immediately the order of termination of his service was served and this led to the present proceedings which have culminated in this appeal
The appellant inter alia contended before the Full Bench of Kerala High Court that the termination of his service for the reasons and in the manner brought about is illegal and invalid that it was victimisation for trade union activities that it was unfair labour practice and that it was mala fide
It was also contended that in view of his long uninterrupted service admittedly over twenty years 258 he was at the minimum a temporary railway servant and therefore his service cannot be terminated unless he was rendered surplus or by way of disciplinary measure after complying with Article 311 of the Constitution
The legal submission put in the forefront was that in the circumstances herein mentioned the termination of service constituted retrenchment  within the meaning of section 25F of the and as the pre condition to valid retrenchment having not been satisfied the termination is illegal and invalid
The Full Bench answered the point referred to it against the appellant holding that there is no retrenchment as contended for on behalf of the appellant and finally dismissed the petition
Hence this appeal by special leave
At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression retrenchment  in section 2oo of the that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L Robert D Souza vs Executive Engineer Southern Railway and Anr1 has been specifically overruled by this Court in Santosh Gupta vs State Bank of Patiala 2 This Court has consistently held in State Bank of India vs N Sundera Money3 Hindustan Steel Ltd vs Presiding Officer Labour Court4 and Delhi Cloth  General Mills Ltd vs Shambhu Nath Mukherji5 that the expression termination of service for any reason whatsoever  now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the such as sections 25FF and 25FFF
It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd vs Pipraich Sugar Mills Mazdoor Union6 the ratio of which was re affirmed by a Constitution Bench of this Court in Hariprasad Shivshanker Shukla vs AD Divikar7 all the later decisions run counter to the Constitution Bench and must be treated per in curium
This contention need not detain us because first in Hindustan Steel Ltd case then 259 in Santosh Gupta s case Supra and lastly in Mohan Lal vs Bharat Electronics Ltd1 it was in terms held that the decision in Sundera Money s case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla s case and not only required no reconsideration but the decision in Sundera Money s case was approved in the aforementioned three cases
This position is further buttressed by the decision in Delhi Cloth and General Mills Ltd case wherein striking off the name of a workman from the roll was held to be retrenchment
It is therefore the settled law that the expression termination of service for any reason whatsoever  in the definition of the expression retrenchment  in section 2oo of the covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the such as sections 25FF and 25FFF
Two things thus emerge firstly that the decision of the Full Bench of Kerala High Court under appeal has been specifically overruled by this Court in Santosh Gupta s case Supra and secondly in view of the decision in Delhi Cloth General Mills Ltd case Supra striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression retrenchment  in section 2oo
This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court
Sheet anchor of Mr Francis s submission is that this Court should proceed on the construction of expression retrenchment  as set out in Hariprasad Shukla s case and ignore the construction of the expression retrenchment  put in the decisions of this Court in Sundera Money s Hindustan Steel Ltd case Santosh Gupta s case Delhi Cloth  General Mills Ltd case as being per in curium
We are not disposed to undertake this recurring futile exercise for obvious reason that on four different occasions in Hindustan Steel Limited case a Division Bench of this Court consisting of Chandrachud Goswami and Gupta JJ
in Sundera Money s case a Bench consisting of Chandrachud Krishna Iyer and Gupta JJ in Santosh Gupta s case a Bench consisting of Krishna Iyer and O Chinnappa Reddy JJ
and a Bench of two judges consisting of Gupta J and one of us in Mohanlal s case have repeatedly undertaken this very detailed exercise and held that there is no inconsistency of any nature and kind nor any conflict contradiction or repugnancy between the decision of the Constitution Bench in Hariprasad Shukla s case and aforementioned later four decisions 260 and they stand in harmony with each other and the later decisions take note of an amendment in the relevant provisions of and therefore the construction put on the expression retrenchment  in the aforementioned decisions pronounced the settled view of this Court
We therefore consider it futile and waste of precious time of the Court to re examine the submission of Mr Francis negatived on four different occasions in the past
Undoubtedly Mr Francis pointed out that in Surendra Kumar Verma  Ors
vs Central Government Industrial Tribunal cum Labour Court New Delhi  Anr1 Pathak J in his concurring judgment has stated that his concurrence with the majority view propounded by Reddy J should not be taken to imply his agreement with the interpretation of section 2oo rendered in Santosh Gupta s case
It may however be mentioned that the majority in that case has affirmed the earlier decision
Therefore after meticulously examining on five distinct and different occasions it is clearly and unequivocally stated that there is neither apparent nor real conflict between the decision of the Constitution Bench in Hariprasad Shukla s case and the later five decisions commencing from Sundera Money and ending with Mohanlal s case it would be sheer waste of time and merely adding to the length of the judgment to re examine this contention over again so as to cover the familiar ground
As we are not prepared to examine the contention over again the submission of Mr Francis that retrenchment  contemplates some overt act on the part of the employer that it inheres the principle of last come first go which again requires an overt act on the part of the employer that when retrenched workmen and required to be re employed first option for re employment has to be given to the retrenched workmen which necessitates some overt act on the part of the employer would be beside the point and of no relevance and significance
The reference to Rules 76 77 and 78 of the Industrial Disputes Central Rules
1957 does not advance his case a step further
The definition of expression retrenchment  in section 2oo is so clear and unambiguous that no external aids are necessary for its proper construction
Therefore we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever it would be retrenchment except if the case falls within any of the excepted categories ie i termination by way of punishment inflicted pursuant to disciplinary action ii voluntary retirement of the work 261 man iii 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 iv or termination of the service on the ground of continued ill health
Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in section 2oo
It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment as held by this Court in Delhi Cloth  General Mills Ltd case
We specifically refer to this case because the facts in the case before us are on all fours with the facts in the aforementioned cases and on parity of reasoning and judicial comity the same conclusion must follow unless something to the contrary is indicated
In that case respondent section N Mukherji who was recruited as a labourer came to be promoted in course of time to the post of Motion Setter
On October 1 1964 pursuant to some re organisation in the establishment the post of Motion Setter was abolished
The management offered employment to the respondent section N Mukherji on any other suitable post which was indicated to be the post of Assistant Line Fixer Assistant Grade I without loss of wages
He was to be on probation
The management found him unsuitable for this post even after extending the period of probation by 9 months and therefore offered him post of Fitter on the same pay which he as a Motion Setter used to get
The response of section N Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve he would tender his resignation voluntarily
The management did not reply to the letter with the result that the workman did not report for work at the newly offered post
On January 19 1966 the management wrote to the workman that his name has been struck off from the rolls with effect from August 24 1965 for continued absence without intimation
Such termination of service was held to be covered by the expression retrenchment  and it was struck down on the ground that the pre condition to valid retrenchment was not complied with
It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the 
And here recall the order of termination of service of the appellant wherein it is stated that You have absented yourself unauthorisedly from 1981974 and hence your services are deemed to have been terminated from the day you have absented yourself
 Is any other 262 conclusion possible save and except the one recorded by this Court in Delhi Cloth  General Mills Ltd case that this constitutes retrenchment and for non compliance with pre condition it is invalid
Before referring to other contentions of Mr Francis we may dispose of one contention based upon construction of section 9A of the as in our opinion it is utterly untenable
Mr Francis says that if valid retrenchment presages a notice contemplated by section 25F the same would stand dispensed with in view of the proviso b of section 9A of the and therefore even if the termination is held to be retrenchment the same would be valid
There are two basic fallacies in this submission
Retrenchment to be valid must comply with three conditions set out in section 25F
They are a subject to the proviso to clause a one month s notice in writing specifying the reasons for retrenchment or wages in lieu of notice b compensation to be paid according to the measure provided in the clause the payment to be simultaneous with the retrenchment and c the notice in the prescribed manner to be served on the appropriate Government
If the termination in this case otherwise constitutes retrenchment admittedly clauses b and c of section 25F have not been complied with
That apart the submission that in view of the provision contained in proviso b of section 9A the notice contemplated by clause a of section 25F would be dispensed with is without merits
Section 9A imposes an obligation on the employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be affected by such change notice in the prescribed manner of the nature of the change proposed to be effected and the change cannot be effected within 21 days of the giving of such notice
In order to attract section 9A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule
If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice
There is a proviso to section 9A which exempts the employer from giving the notice of change if the case falls in any of the two provisos
According to Mr Francis the case would be covered by proviso b
It reads as under 9A No employer who proposes to effect any change in the conditions of service applicable to any workman in 263 respect of any matter specified in the Fourth Schedule shall effect such change a x x x x b x x x x Provided that no notice shall be required for effecting any such change a x x x x b where the workmen likely to be effected by the change are persons to whom the Fundamental and Supplementary Rules Civil Services Classification Control and Appeal Rules Civil Services Temporary Service Rules Revised Leave Rules Civil Services Regulations Civilians in Defence Services Classification Control and Appeal Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette apply
It was obligatory upon the employer who wants to retrench the workmen to give notice as contemplated by clause a of section 25
When a workman is retrenched it cannot be said that change in his conditions of service is effected
The conditions of service are set out in Fourth Schedule
No item in Fourth Schedule covers the case of retrenchment
In fact retrenchment is specifically covered by Item 10 of the Third Schedule
Now if retrenchment which connotes termination of service cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule section 9A would not be attracted
In order to attract section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule
If the change proposed does not cover any matter in Fourth Schedule section 9A is not attracted and no notice is necessary
See Workmen of Sur Iron  Steel Co P Ltd vs Sur Iron  Steel Company P Ltd Tata Iron  Steel Company Ltd vs Workmen and Assam Match Co Ltd vs Bijoy Lal Sen
Thus if section 9A is not attracted the question of seeking exemption from it in the case falling under 264 the proviso would hardly arise
Therefore neither s 9A nor the proviso is attracted in this case
The basic fallacy in the submission is that notice of change contemplated by section 9A and notice for a valid retrenchment under section 25F are two different aspects of notice one having no co relation with the other
It is therefore futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by section 25F would be dispensed with in view of the provision contained in section 9a proviso b
That apart it is an indisputable position that none of the other pre conditions to a valid retrenchment have been complied with in this case because the very letter of termination of service shows that services were deemed to have been terminated form a back date which clearly indicates no notice being given no compensation being paid and no notice being given to the prescribed authority
Therefore termination of service being retrenchment for failure of comply with section 25F would be viod ab initio
Mr Francis next contended that as the appellant belonged to the category of casual labour as defined in rule 2501 in Chapter XXV of the India Railway Establishment Manual  Manual  for short no notice prior to termination of his service is necessary or required by law in view of the provisions contained in Rule 2505
The submission is that in the case of casual labour the service will be deemed to have been terminated when such employee absents himself or no the close of the day
Rule 2501 reads as under 2501
Definition a Casual labour refers to labour whose employment is seasonal intermittent sporadic or extends over short periods
Labour of this kind is normally recruited from the nearest available source
It is not liable to transfer and the conditions applicable to permanent and temporary staff do not apply to such labour b The casual labour on railway should be employed only in the following types of cases namely i Staff paid from contingencies except those retained for more than six months continuously
Such of those persons who continue to do the same work 265 for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment
ii Labour on projects irrespective of duration except those transferred from other temporary or permanent employment
iii Seasonal labour who are sanctioned for specific works of less than six months duration
If such labour is shifted from one work to another of the same type eg relaying and the total continuous period of such work at any one time is more than six months  duration they should be treated as temporary after the expiry of six months of continuous employment
For the purpose of determining the eligibility of labour to be treated as temporary the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers
x x x Note  1 x x 2 Once any individual acquires temporary status after fulfilling the conditions indicated in i or iii above he retains that status so long as he is in continuous employment on the railways
In other words even if he is transferred by the administration to work of a different nature he does not lose his temporary status
3 x x x 4 Casual labour should not be deliberately discharged with a view to causing an artificial break in their service and thus prevent their attaining the temporary status
266 5 x x x Rule 2505 may as well be extracted
It reads as under 2505
Notice of termination of service Except where notice is necessary under any statutory obligation no notice is required for termination of service of the casual labour
Their services will be deemed to have terminated when they absent themselves or on the close of the day
Note In the case of a casual labourer who is to be treated as temporary after completion of six months  continuous service the period of notice will be determined by the rules applicable to temporary Railway servants
In order to satisfactorily establish that the applicant belonging to the category of casual labour whose service by deeming fiction enacted in Rule 2505 will stand terminated by the mere absence it must be shown that the appellant was employed in any of the categories set out in clause b of rule 2502
What has been urged on behalf of the respondent is that the appellant was employed in construction work and therefore labour on projects irrespective of duration would belong to the category of casual labour
That however does not mean that every construction work by itself becomes a work charged project
On the contrary sub clause 1 of clause b of rule 2501 would clearly show that such of those persons belonging to the category of casual labour who continued to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment
Similarly seasonal labour sanctioned for specific works for less than six months  duration would belong to the category of casual labour
However sub clause iii of clause b of rule 2501 provides that if such seasonal labour is shifted from one work to another of the same type as for example relaying  and the total continuous period of such work at any one time is more than six months  duration they should be treated as temporary after the expiry of six months of continuous employment
The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary the criterion should be the period of continuous work put in by each individual 267 labour on the same type of work and not the period put in collectively by any particular gang or group of labourers
It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work charged projects renders six months  continuous service without a break by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment
It is equally true of even seasonal labour
Once the person acquired the status of temporary railway servant by operation of law the conditions of his service would be governed as set out in Chapter XXIII
Rule 2301 in Chapter XXIII defines a temporary railway servant
It reads as under 2301
Definition A temporary railway servant  means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board
The term does not include casual labour  a contract  or part time  employee or an apprentice 
 The service of a temporary railway servant may be terminated as provided in Rule 2301
The benefits which a temporary railway servant enjoys are set out in the same chapter
The question therefore is whether the appellant who was recruited as casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service
In the affidavit filed in the High Court the respondents contended that the appellant was employed in construction work on work charged project
The High Court did not examine this contention on merits and therefore it has become obligatory upon us to probe it
The appellant has stated that he joined as a Gangman on July 1 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State
He confessed that he does not have any record to show this employment but urged that if the pay roll of the relevant period would be produced by the Railway administration the fact alleged would be completely borne out
We would bypass this controversial period without recording any finding on it one way or the other
The appellant further contends that on November 15 1954 on transfer he joined in the office of Inspector of Works 268 at Mangalore and since then he has been in continuous employment in the construction branch of the Southern Railway till the date of his illegal termination of service on October 8 1974
These averments are incontrovertible and have not rightly been controverted before us in view of unimpeachable evidence produced by the appellant
The Executive Engineer Ernakulam where the appellant at the relevant time ie September 5 1966 was working addressed a letter to various Executive Engineers inquiring from them whether the surplus staff on his establishment could be absorbed by any of them
The material portion of the letter reads as under Ext
P 3 Executive Engineer s Office Ernakulam Dated 591966 Subject  Surplus staff Casual labour staff absorption of Since the major portion of the work in this construction unit is over the list of the CL staff who are likely to be rendered surplus by 30966 and 311266 due to expiry of sanction to the post held by them is enclosed
Please advise whether you can absorb any of these personnel in your construction division so that they may be relieved in time if they are willing
Enclosures 1 List
List of CL Staff Working in Xen s OfficeErs
No Name Presently working as Date of appointment X X X 10
Robert D Souza
PeonLascar
151154 X X X This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15 1954
Recall here the fact that his service was terminated by the impugned order contained in the letter Annexure 1 dated October 8 1974
Therefore apart from the period in controversy from 1948 to 1964 269 it is unquestionably established that the appellant was in continuous uninterrupted service from November 1954 to October 1974 a period of 20 years and he was working as PeonLascar
Undoubtedly he has been referred to as belonging to casual labour staff but would it be fair to hold that after 20 years of continuous service he would still continue to be a casual labour and therefore his service could be terminable at will and he would not be entitled to any of the benefits which a temporary or a permanent railway employee would enjoy  There is however one more aspect to which we would refer before we proceed to pronounce upon the status of the appellant
The definition of casual labour extracted by us above clearly indicates that person belonging to casual labour is not liable to transfer
The appellant has stated that he was transferred to Madras in 1957 to Tuni in Andhra Pradesh in 1958 to Rajahmundry in 1960 to Samalkhotan in 1961 to Virudhnagar in 1962 and to Manamadurai in 1965 and then to Ernakulam in August 1965
It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re transferred to Ernakulam on March 19 1971
This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam which advice has been carried out and the intervening period for which he did not report for duty ie from March 6 1970 to February 19 1971 he would be paid the wages as if he was on duty
In the face of these incontrovertible facts could it at all be said that the appellant though transferred ad nauseum still continued to belong to the category of casual labour  An additional fact which buttresses this conclusion may be referred to
The appellant and several others filed petition in the High Court of Kerala from which the present appeal arises
All the petitioners before the High Court contended that each of them having rendered continuous service for decades they could not be said to be belonging to the category of casual labour and if anything all of them had acquired status of temporary employees
The respondent filed counter affidavit and contended that the appellant and his co petitioners in the High Court never acquired the status of temporary railway servant and each of them belonged to the category of casual labour
During the pendency of the petition 270 in the High Court service of the appellant was terminated but his co petitioners continued in service
After the dismissal of the writ petition by the learned single judge appellant and three others preferred Writ Appeal No 218 of 1973 in the same High Court
By the time the appeal came up for hearing three co appellants of the present appellant who were appellants before the Division Bench were informed that they were treated as on regular employment and ceased to belong to the category of casual labour
Unfortunately as the service of the appellant was already terminated he was not given this benefit
This fact clearly emerges from the manner in which the Division Bench disposed of the appeal before it
The relevant observation is as under In view of the letters received from the Executive Engineer Southern Railway addressed to Shri KP Pathrosa advocate appearing for respondents in the writ appeal it has become unnecessary to consider this writ appeal on merits
With reference to the appellant it was stated as under As regards the first appellant it is stated that he absented himself from duty and so he had been denied employment
Since then another Writ Petition OP No 440174 has been filed by the first appellant and is now pending before this Court
The contention of the first appellant including what has been raised in this petition will be considered in OP 440174
By the letters referred to by the Division Bench the Executive Engineer informed the advocate appearing for Railway administration that appellants other than the present appellant were absorbed as regular railway employees and hence the appeal has become infructuous
Unfortunately for the appellant he was denied this benefit as his service was already terminated
If his service was not terminated his case was not distinguishable from the case of his co appellants and he would have been entitled both in law and facts to the same treatment
The approach of the Railway administration to say the least is amazing
For years they did not act according to law and confer status of temporary railway servant on the appellant and his colleagues in the High Court
When appellant espoused this cause he was thrown out but his colleagues were given the benefit richly deserved in law
This discriminatory treatment cannot 271 help the respondent because appellant s case cannot be distinguished
If the status of temporary railway employee was already acquired before the termination of service in the manner brought about the same would be ipso facto invalid
At this stage we would again revert to the annexure to the letter of Executive Engineer dated September 5 1966 in which the name of the appellant appears at Serial No 10
One of the co petitioners of the appellant in the High Court who got the benefit of regular employment pursuant to the writ petition was one Shri KN Balakrishna
His name appears at Serial No 1 in the annexure to the letter of Executive Engineer referred to above
His date of appointment is shown to be March 24 1954
It would thus appear at a glance that the case of the appellant could not be distinguished from the case of Shri KN Balakrishna and if Shri Balakrishna was accorded the status of regular employee the appellant could not be treated otherwise but for a singular unfortunate event of his termination of service
He could not be singled out for such treatment Had his service not been terminated the Railway administration could not have denied him the status and this status he would have acquired long back
If by operation of law to wit Rule 2501 the appellant had acquired the status of temporary railway servant by rendering continuous uninterrupted service for more than six months his service could not have been terminated under rule 2505
It however needed moral force of fast and costly court proceedings by a low daily paid workman against the Railway administration in the High Court to obtain such meagre benefit
It would thus clearly appear that even the appellant would have acquired the status of at least a temporary railway servant
But we would rather like to refer to the legal position in this behalf more accurately
To start with let us recall the rule 2501b i and iii and note below rule 2505
The underlying internment of the provision is that a casual labourer who has rendered six months  continuous service would be place in the category of temporary railway servant unless he is employed on work charged project
Rule 2501b i clearly provides that even where staff is paid from contingencies they would acquire the status of temporary railway servants after expiry of six months of continuous employment
But reliance was placed on rule 2501b ii which provides that labour on projects irrespective of duration except those transferred from other temporary or permanent employment would be treated as casual labour
In order to bring the case within the 272 ambit of this provision it must be shown that for 20 years appellant was employed on projects
Every construction work does not imply project
Project is correlated to planned projects in which the workman is treated as work charged
The letter dated September 5 1966 is by the Executive Engineer Ernakulam and he refers to the staff as belonging to construction unit
It will be doing violence to language to treat the construction unit as project
Expression project  is very well known in a planned development
Therefore the assertion that the appellant was working on the project is belied by two facts i that contrary to the provision in Rule 2501 that persons belonging to casual labour category cannot be transferred the appellant was transferred on innumerable occasions as evidenced by orders Ext
P 1 dated January 24 1962 and Ext
P 2 dated August 25 1964 and the transfer was in the office of the Executive Engineer Construction ii there is absolutely no reference to project in the letter but the department is described as construction unit
If he became surplus on completion of project there was no necessity to absorb him
But the letter dated September 5 1966 enquires from other executive engineers not attached to projects whether the surplus staff including appellant could be absorbed by them
This shows that the staff concerned had acquired a status higher than casual labour say temporary railway servant
And again construction unit is regular unit all over the Indian Railways
It is a permanent unit and cannot be equated to project
Therefore the averment of the Railway administration that the appellant was working on project cannot be accepted
He belonged to the construction unit
He was transferred fairly often and he worked continuously for 20 years and when he questioned the bona fides of his transfer he had to be re transferred and paid wages for the period he did not report for duty at the place where he was transferred
Cumulative effect of these facts completely belie the suggestion that the appellant worked on project
Having rendered continuous uninterrupted service for over six months he acquire the status of a temporary railway servant long before the termination of his service and therefore his service could not have been terminated under Rule 2505
Once it is held that by operation of statutory rule in the Manual the appellant had acquired a status of temporary railway servant and assuming as contended by Mr Francis that the termination of service in the circumstances alleged does not constitute retrenchment stricto sensu would the termination be still valid  273 The answer is an emphatic No
On the admission of the Railway administration service was terminated on account of absence during the period appellant was on fast
Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice
Further rule 2302 clearly prescribes the mode manner and methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out the termination is void and invalid
Accordingly the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative
We would be guilty of turning a blind eye to a situation apart from being highly unethical wholly contrary to constitutional philosophy of secio economic justice if we fail to point out that Rule 2501 which permits a man serving for 10 20 30 years at a stretch without break being treated as daily rated servant is thoroughly opposed to the notion of socioeconomic justice and it is high time that the Railway administration brings this part of the provision of the Manual antiquarian and antediluvian in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution
It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour the daily wage is fixed by dividing monthly minimum wage by 26 so as to provide a paid holiday
Maybe for seasonal employment or for other intermittent work daily rated workmen may have to be employed
It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus
That was at a time when planning and projects were foreign to the Indian economy
Today Railways perspective plans spreading over decades
If one project is complete another has to be taken over
Railway administration has miles to go and promises to keep and this becomes clear from the fact that the appellant a daily rated workman continued to render continuous service for twenty years which would imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim 274 and fancy of the local satraps
It is high time that these utterly unfair provisions wholly denying socioeconomic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and lowliest in Railway administration
Now if appellant had become at least a temporary railway servant he is entitled to many benefits set out in Rule 2303 onwards
We have no doubt in our minds that the appellant whose case was on par with Shri KN Balakrishna who had already been offered regular employee status would be entitled to be placed in the same category and that too from the date much earlier to the date of termination of his service
In this situation termination of his service not being covered by any of the excepted categories and not after notice would be retrenchment within the meaning of the expression as used in the and for the failure to comply with the pre condition the termination of service would be void
Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour would the termination of the service in the circumstances mentioned by the Railway administration constitute retrenchment under the  Section 25F of the provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the conditions set out in are satisfied
The expression workman  is defined as under In this  unless there is anything repugnant in the subject or context Workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual supervisory technical or clerical work for hire or reward whether the terms of employment be expressed or implied and for the purposes of any proceeding under this in relation to an industrial dispute includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal discharge or retrenchment 275 has led to that dispute but does not include any such person i who is subject to the  or the or the Navy Discipline Act 1934 or ii who is employed in the police service or as an officer or other employee of a prison or iii who is employed mainly in a managerial or administrative capacity or iv who being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature
 There is no dispute that the appellant would be a workman within the meaning of the expression in section 2s of the Act
Further it is incontrovertible that he has rendered continuous service for a period over twenty years
Therefore the first condition of section 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration an employer carrying on an industry and that his service is terminated which for the reason hereinbefore given would constitute retrenchment
It is immaterial that he is a daily rated worker
He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories
Therefore assuming that he was a daily rated worker once he has rendered continuous uninterrupted service for a period of one year or more
within the meaning of section 25F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories
notwithstanding the fact that Rule 2505 would be attracted it would have to be read subject to the provisions of the Act
Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre conditions to valid retrenchment the order of termination would be illegal and invalid
276 Accordingly we allow this appeal set aside the order of the High Court and declare that the termination of service of the appellant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at Rs 2000
SR Appeal allowed


Summary:
The appellant joined service as a gangman in Southern Railway on July 1 1948
In course of his service he was transferred to various places
While he was working as a Lascar at Ernakulam he was transferred some time in March 1970 by way of punishment for his Union activities in the capacity of General Secretary of the Southern Railway Construction Workers Union Ernakulam to Podannur in Tamil Nadu
However his transfer was cancelled and he joined duty on 20 2 1971 at Ernakulam
The Ministry of Labour Government of India by its letter dated April 23 1974 directed treatment of his entire period of absence from 8th March 1970 to 19th February 1971 as duty
Later the appellant approached the Labour Court for recovering some of his dues which remained pending for a long time
As the appellant and those similarly situated were likely to reach the age of superannuation and by the unfair labour practice namely treating them only as daily rated labour  of the Railway Administration they were likely to be denied the full retirement benefits appellant and several others filed a writ petition in the High Court of Kerala praying for a direction that they should be treated at least as temporary railway servant with attendant benefits
During the pendency of the matter in connection with the demand for all the benefits granted by the Central Pay Commission being extended to the category of employees to which the appellant belonged the appellant undertook a fast but broke the same on September 28 1974 at the intervention of the Assistant Labour Commissioner
Taking advantage of the appellant s absence the respondents terminated his service with retrospective effect ie from 18 9 1974 on the ground of unauthorised absence
A learned single Judge having dismissed the same the matter was taken in appeal before the Division Bench
In the appeal it was contended that the termination of service of the appellant in the circumstances would constitute retrenchment within the meaning of section 25F of the and therefore the order of termination was invalid
The matter was referred to the Full Bench which held that there was no retrenchment and dismissed the appeal
Hence the appeal by special leave
Allowing the appeal the Court 252  HELD 1
The expression termination of service for any reason whatsoever in the definition retrenchment in section 2oo of the covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the Act such as sections 25FF and 25FFF
The excepted categories are i termination by way of punishment inflicted pursuant to disciplinary action ii voluntary retirement of the workman iii 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 iv or termination of the services on the ground of continued ill health
Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in section 2oo of the Act
It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment
259 B C 206 H 261 A B Delhi Cloth  General Mills Ltd vs Shambhu Nath Mukherji   followed
State Bank of India vs N Sundera Money   Hindustan Steel Ltd vs Presiding Officer Labour Court   Santosh Gupta v State Bank of Patiala at 892 Mohan Lal vs Bharat Electronics Ltd   referred to
There is neither apparent nor real conflict between the decision of the constitution bench in Hariprasad Shivshanker Shukla vs AD Divikar 1957 SCR 121 and the later five decisions commencing from Sundera Money and ending with Mohanlal s case
Re examining a contention over again so as to cover the familiar ground would apart from giving a gobye to the doctrine of stare decisis would be a sheer waste of time and mere lengthening of the judgment
260 C D Surendra Kumar Verma  Ors
vs Central Government Industrial cum Labour Court New Delhi  Anr  View of Pathak J held inapplicable 21
Notice contemplated by clause a of section 25F would not be dispensed with in view of the provision contained in proviso b of section 9A which is an independent provision having no co relation with section 25F 264 B 22
Section 9A imposes an obligation on the employer who promises to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be effected by such change notice in the prescribed manner of the nature of the change proposed to be effected and the change cannot be effected within 21 days of the giving of such notice
In order to attract section 9A the change proposed must be in the conditions of service applicable to 253 the workman in respect of any matters specified in the Fourth Schedule
If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice
In order to attract section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule
If the change proposed does not cover any matter in Fourth Schedule section 9A is not attracted and no notice is necessary
262 E G Workmen of Sur Iron  Steel Co P Ltd vs Sur Iron  Steel Company P Ltd  Tata Iron  Steel Company Ltd vs Workmen   Assam Match Co Ltd vs Bijoy Lal Sen   referred to
Retrenchment to be valid must comply with three conditions set out in section 25F
They are a subject to the proviso to clause a one month s notice in writing specifying the reasons for retrenchment or wages in lieu of notice b compensation to be paid according to the measure provided in the clause the payment to be simultaneous with the retrenchment and c the notice in the prescribed manner to be served on the appropriate Government
It was obligatory upon the employer who wants to retrench the workmen to give notice as contemplated by clause a of section 25
262 C E 24
A careful reading of sections 9A and 25F makes it clear that when a workman is retrenched no change in his conditions of service is effected
No item in Fourth Schedule which sets out the conditions of service covers the case of retrenchment
In fact retrenchment is specifically covered by item 10 of the Third Schedule
If retrenchment which connotes termination of service cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule section 9A would not be attracted
If section 9A is not attracted the question of seeking exemption from it in the case falling under the proviso would hardly arise
Therefore neither section 9A nor the proviso is attracted in this case
That apart none of the other pre conditions to a valid retrenchment have been complied with because the very letter of termination of service shows that services were deemed to have been terminated from a back date which clearly indicates no notice being given no compensation being paid and no notice being given to the prescribed authority
Therefore termination of service being retrenchment for failure to comply with section 25F would be void ab initio
263 D E H 264 A C D 31
The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers
It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work charged projects renders six months  continuous service without a break by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment
It is equally true of even seasonal labour
Once the person acquired the status of temporary 254 railway servant by operation of law the conditions of his service would be governed as set out in Chapter XXIII
The service of a temporary railway servant may be termined only as provided in Rule 2301
266 H 267 A B E 32
The underlying intendment of the Rule 2501b i has rendered six months  continuous service would be placed in the category of temporary railway servant unless he is employed on work charged project
Rule 2501b i clearly provides that even where staff is paid from contingencies they would acquire the status of temporary railway servants after expiry of six months of continuous employment
271 E H In the instant case i the appellant acquired the status of temporary railway servant long before the termination of his service and therefore his service could not have been terminated under Rule 2505 ii he never worked on projects but on a construction Unit
Construction Unit is a regular Unit and cannot be equated to Project
Every construction work does not imply Project
Project is correlated to planned projects in which the workman is treated as work charged
Persons belonging to casual labour category cannot be transferred but the appellant was transferred on innumerable occasions iii as a result of the appellant and others filing a writ petition three co appellants were informed that they were treated as on regular employments and ceased to belong to the category of casual labour
But for impugned termination orders the appellant also would have been treated as temporary and therefore the appellant received discriminatory treatment offending Article 14  16 of the Constitution and iv section 25F of the provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the conditions set out in Act are satisfied
The appellant would be a workman within the meaning of that expression in section 2s of the Act
He has rendered continuous service for a period over twenty years
Therefore the first condition of section 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration an employer carrying on an industry is satisfied
His service is terminated which for the reasons herein before given would constitute retrenchment
It is immaterial that he is a daily rated worker
He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories
Therefore assuming that he was a daily rated worker once he has rendered continuous uninterrupted service for a period of one year or more within the meaning of section 25B of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories notwithstanding the fact that Rule 2505 would be attracted it would have to be read subject to the provisions of the Act
Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre conditions to valid retrenchment the order of termination would be illegal and invalid
271 D 272 A G 275 D G 33
Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice
Further 255 Rule 2302 clearly prescribes the mode manner and methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out the termination is void and invalid
Accordingly the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative
273 A C OBSERVATION Rule 2501 which permits a man serving for 10 20 30 years at a stretch without break being treated as daily rated servant is thoroughly opposed to the notions of socio economic justice and it is high time that Railway administration brings this part of the provision of the Manual antiquarian and antediluvian in conformity with the Directive Principles of State Policy as enunciated in