of India & Ors Vs. Jummasha Diwan  Insc 688 (19 October 2006)
Sinha & Dalveer Bhandari
out of SLP (Civil) No. 7337 of 2006] S.B. SINHA, J :
was appointed as a daily wager in the Railway Electrification Project at Vadodara
Ratlam section. He was granted a temporary status. He is said to have joined
the Railway Electrification Project as a skilled worker under the Divisional
Electrical Engineer, Western Railway (Overhead Equipment) Railway
Electrification Railway Yard, Pratapnagar, Baroda, Appellant No. 3 herein. He was retrenched purportedly on the premise
that railway electrification works at Vadodara Ratlam section came to an end.
He was paid retrenchment compensation in terms of Section 25-F of the Industrial
Disputes Act, 1947 (for short "the Act").
filed an original application before the Central Administrative Tribunal
(Tribunal) questioning the purported retrenchment on the ground that he having
put in 1060 days of continuous service should have been placed much higher in
the seniority list and, thus, could not have been retrenched having regard to
the principle of "last come first go". It was also contended that
while passing an order of retrenchment, the provisions of Section 25-N of the
Act was not complied with.
Tribunal dismissed the said original application. A writ petition came to be
filed wherein the same pleas were raised by Respondent herein.
Section 25-N of the Act, the impugned judgment has been passed setting aside
the order of termination and directing reinstatement of Respondent.
Mohan, learned Additional Solicitor General appearing on behalf of Appellants
inter alia submitted that the provisions of Section 25-N of the Act will have
no application to the facts and circumstances of the case.
S.C. Patel, learned counsel appearing on behalf of Respondent, on the other
hand, submitted that Respondent having put in 1060 days of continuous service,
the order of retrenchment was vitiated in law. It had been pointed out that
different benches of the Central Administrative Tribunal on almost identical
issues had taken different views and in that view of the matter, the impugned
judgment should not be interfered with.
indisputably had started working under Appellant No. 3 1986. His services had
been terminated inter alia on the premise that the electrification project had
come to a close. If the services of a project employee is terminated, it is
trite that statutory requirements of Section 25-F of the Act are required to be
complied with, but, indisputably, Respondent was given one month's notice pay
as also the retrenchment compensation in compliance thereof.
name might not have appeared in the seniority list of the casual labourers
which was being maintained but the question, as to whether he had been in
continuous service in all the departments he had served, was a disputed one.
There are several establishments of the Railway Administration. If a workman
voluntarily gives up his job in one of the establishments and joins another,
the same would not amount to his being in continuous service. When a casual
employee is employed in different establishments, maybe under the same
employer, e.g., the Railway Administration of India as a whole, having different
administrative set up, different requirements and different projects, the
concept of continuous service cannot be applied and it cannot be said that even
in such a situation he would be entitled to a higher status being in continuous
service. It is not in dispute that the establishment of Appellant No. 3 herein
had started a project. His recruitment in the said establishment would,
therefore, constitute a fresh employment. In a case of this nature, Respondent
would not be entitled to his seniority. If the project came to a close, the
requirements of Section 25-N of the Act were not required to be complied with.
Mohammad and Others v. Indian Railway Construction Co. Ltd. and Another [(1999)
1 SCC 596], whereupon reliance has been placed by the High Court, cannot have
any application in the instant case. The Tribunal in its order categorically
opined that his employment was not in an 'industrial establishment' which would
come inter alia within the purview of the definition of a factory as contained
in clause (m) of section 2 of the Factories Act.
attention has been drawn to a decision of this Court in Oswal Agro Furane Ltd.
and Another v. Oswal Agro Furane Workers Union and Others [(2005) 3 SCC 224].
In the said decision, this Court was concerned with closure of an industrial
establishment engaging more than 1000 people.
aforementioned fact situation obtaining therein, this Court held that the
consent of State Government before effecting closure of such establishment was
the reasons aforementioned, we are of the opinion that the impugned judgment
cannot be sustained which is set aside accordingly.
appeal is allowed. No costs.