Engineer (Construction) Vs. Keshava Rao  Insc 160 (9 March 2005)
& S.B.Sinha B.P.Singh, J.
Appeal by Special Leave has been preferred by the Chief Engineer
(Construction), Southern Railways against the judgment and order of the High
Court of Karnataka at Bangalore dated 15th June, 2002 in Writ Appeal No.16 of 1999. The learned Single Judge,
against whose judgment the aforesaid appeal was preferred, had set aside the
award of the Tribunal and held that the services of the Respondent were
illegally terminated. He was therefore, entitled to reinstatement with full
back wages. While affirming the finding of the learned Single Judge that the
...2/- -2- services of the Respondent were illegally terminated, the Division
Bench modified the direction with regard to payment of consequential benefits
by directing that only 50% of the back wages from the date of termination till
the date of death or date of superannuation of the Respondent, whichever is
earlier, shall be paid.
facts of the case are that the Respondent was appointed on 16.7.1975 as a
causal labourer by the Railways on payment of daily wages of Rs.4/- which was
later enhanced to Rs.10.40. The case of the Appellant was that on 1.11.1977 the
Respondent abandoned his work and did not report for duty thereafter.
Consequently he was marked absent in the muster roll and being a casual
employee his name was deleted from the muster roll after five weeks continued
absence from the alleged date of abandonment. About a year and 5 months later,
on 4th April, 1979, the Respondent served a notice
upon the Railways alleging that his services had been illegally terminated. In
the said notice issued through an Advocate the Respondent stated that he had
been appointed by an order of appointment dated 16.7.1975 as a Clerical Mate in
the Southern Railways, Bangalore, on monthly wages of Rs.332.95. He
was also ...3/- -3- issued a Casual Labour Service Card. It was alleged that
despite satisfactory service rendered by him, he was illegally prevented from
doing work without assigning any reason whatsoever. This amounted to wrongful
termination of service and therefore, the Respondent was entitled to be
reinstated with full back wages.
reply of the Southern Railways is dated 11th April, 1979 in which it was stated that he had
been engaged as an extra labour (Casual Labour) in the category of Clerical
Mate on daily wage basis at Rs.4/- per day. He was deputed to work under the
Inspector of Works (Doubling), Bangalore City. He was unauthorisedly absent from duty on his own
accord from 1.11.1977. On 18.11.1977 he only came to receive his wages upto
31.10.1977. He made a request on 25.11.1977 to be re- engaged and though the
Head Clerk (Stores) was willing to engage him as a fresh entrant on daily wage,
he declined to accept the engagement.
he never turned up for work. Since he was unauthorisedly absenting himself from
duty, under Rule 2505 of the Railway Manual his engagement stood automatically
terminated. In view of the aforesaid rule the Respondent had no justifiable
claim either for re-engagement or for ...4/- -4- back wages. Since the
Respondent had voluntarily abandoned his service there was no question of
issuance of notice to him.
the case of the Respondent was that he had been prevented from working on
1.11.1977, and the case of the Appellant on the other hand was that the
Respondent voluntarily abandoned his service and therefore, in accordance with
the relevant rules his name was struck off from the muster roll.
dispute was ultimately referred to the Central Government Industrial Tribunal-cum-Labour Court, Bangalore, being Central Reference No.65 of 1988. It is worthwhile
noticing that the Reference was made almost 10 years after the date of alleged
abandonment of service and/or termination of service of the Respondent.
the Tribunal the Respondent examined himself as a witness whereas the Railways
examined its Office Superintendent.
documentary evidence was also produced such as muster rolls.
Respondent produced no documentary evidence in support of his case.
Tribunal found that the Petitioner was employed as a casual labourer on a
project and, therefore, was not ...5/- -5- entitled to temporary status. The
Tribunal recorded this finding on the basis of the evidence led by the Railways
that he had been employed in connection with project work and was not entitled
to temporary status.
Respondent as a witness before the Tribunal did not deny the fact in his
evidence that he was engaged for project work. The Tribunal considered the
relevant Rules in this regard and came to the conclusion that since the
Petitioner was employed in connection with project work as a causal labourer,
the Rules did not entitle him to be granted temporary status.
Tribunal also considered the evidence on record and after examining the muster
rolls (Exhibits M-1 to M-30) recorded a finding of fact that from 1st November, 1977 onwards the Respondent had not
worked even for a single day. Long thereafter he set up a claim for
reinstatement. The Tribunal also found that the plea of the Respondent was not
justified and that he in fact, had abandoned his service with effect from
1.11.1977. Accordingly, the Tribunal rejected the Reference.
Respondent thereafter preferred a writ petition before the High Court of
Karnataka at Bangalore which came to be disposed of by a
learned Judge of the Court. The ...6/- -6- learned Judge noticed the finding of
fact recorded by the Tribunal that the Respondent had voluntarily abandoned his
service but found the finding to be perverse. The learned Judge observed that
though the Respondent is said to have been appointed as a causal labourer
against a project, it was not the case of the Management that the project work
was over and therefore, he was no more required. The only question therefore,
which arose for consideration was whether this was a case of termination of
service as contended by the Respondent- Workman, or whether it was a case of
voluntary abandonment of service as contended by the Appellant.
learned Judge further observed that merely on the basis of the muster rolls the
Tribunal could not have jumped to the conclusion that the Respondent had
abandoned his service. The High Court laid considerable emphasis on the fact
that his name was deleted from the muster roll only five weeks after the date
of abandonment. According to learned Judge subsequent conduct of the Respondent
assumed considerable significance inasmuch as on 4.4.1979 the Respondent got a
notice issued through an Advocate which was duly replied by the Executive
Engineer. In that notice ...7/- -7- he demanded reinstatement to his original
post together with back wages. The learned Judge observed that the reply by the
Executive Engineer is not to the effect that the Petitioner voluntarily
abandoned his service, but the said reply sought to justify the termination. It
was therefore, clear that within a reasonable time after the relevant date
namely the date of abandonment of service as per the employer and the date of termination
as pleaded by the Appellant, the Workman got issued a notice claiming that his
service had been terminated and he should be reinstated with back wages. To
this notice the Appellant replied justifying the termination which clearly
established the fact that it was a case of termination of service and not a
case of voluntary abandonment of service. Therefore, the Tribunal's conclusion
to the contrary was perverse.
have carefully perused the notice given by the Respondent and the reply thereto
given by the Appellant. No doubt, about a year and 5 months after the alleged
termination of service, such a notice was served upon the Appellant by the
Respondent. The High Court has observed that within a reasonable time the
Respondent had claimed reinstatement on the ground that his service had been
...8/- -8- illegally terminated. In the first instance the period of 1 year and
5 months does not appear to be reasonable time for asserting the factum of
termination of employment. However, what is more important is the fact that in
its reply the Appellant did not justify the termination as has been observed by
the learned Judge. In its reply the Appellant asserted that the Respondent was unauthorisedly
absent from duty on his own accord from 1.11.1977 and that since he had
remained unauthorisedly absent beyond the prescribed period of 3 days, as
provided under Rule 2505 of the Railway Manual, his engagement stood terminated
and he had no claim of reinstatement or back wages. It was, therefore, stated
that in view of the unauthorised absence of the Respondent which amounted to
voluntary abandonment of service, the question of issue of notice, charge sheet
etc. did not arise.
will thus appear from the reply to the Notice dated 11.4.1979 that the
Appellant's reply did not justify the order of termination, but only asserted
the fact that the Petitioner had voluntarily abandoned his service and
therefore, his name had to be deleted from the muster roll.
-9- In our view the High Court has completely mis-read the Appellant's reply to
the Respondent's notice.
learned Judge further held that since the Petitioner had been appointed as
Casual labourer on 16.5.1975 and had continuously worked till end of 1977 it
followed that the Petitioner had put in continuous service as contemplated by
Section 25B of the Industrial Disputes Act.
there was non-compliance of the provisions of Section 25F of the Industrial
Disputes Act, the termination of his service was not legally sustainable. Such
a contention was not raised before the Labour Court, but the learned Judge recorded the aforesaid finding in
his judgment. In doing so the learned Judge has completely lost sight of the
fact that the initial burden of establishing the factum of continuous work for
240 days in a year rested with the Respondent. Unless the said initial burden
was discharged, and the Appellant failed to produce evidence in rebuttal, such
a finding could not have been recorded by the learned Judge.
Appellant preferred an appeal which came to be disposed of by a Division Bench
of the High Court which affirmed the order of the learned Judge but directed
that ...10/- -10- instead of full back wages only 50% of the back wages shall
be paid. We may notice the fact that the Respondent died sometime in the year
2000, and therefore, the direction was to pay 50% of the back wages from the
date of termination till the date of superannuation or till the date of death
whichever was earlier.
of the view that this Appeal should be allowed. The Labour Court recorded two crucial findings of
fact namely, that the Respondent was engaged as a causal labourer in connection
with project work, and secondly, that he had abandoned his service and the
allegation that he was prevented from joining his duties on 1.11.1977 was not
were findings of fact recorded by the Tribunal on the basis of evidence on
record. The muster roll, no doubt, supported the case of the Appellant that
after 1.11.1977 he did not report for duty. We cannot lose sight of the fact
that thereafter till 4.4.1979 the respondent did nothing to assert his right of
reinstatement. The delay of a year and 5 months in issuing a notice appears to
us to be significant. Apart from this no evidence was led by the
Respondent-Workman that he had made any effort to seek reinstatement or
complained against ...11/- -11- the action of the Management to anyone. There
is no material whatsoever to suggest that he had made a grievance about it
before any authority or before the Workers' Union.
have further found that the learned Judge, whose finding was affirmed by the
Division Bench, fell into an error in thinking that the reply given by the
Appellant to the notice of the Respondent justified the order of termination.
As we have noticed earlier, the learned Judge mis-read the reply given by the
appellant-Railways in which it was clearly asserted that the Respondent had
abandoned his service and therefore, in terms of the Rules his name was deleted
from the muster roll. There is nothing in the reply to the notice which is even
suggestive of the fact that the appellant accepted the fact that the services
of the Respondent were terminated, or that there was justification for such
termination. The finding of the Tribunal therefore, did not suffer from the
vice of perversity or unreasonableness.
fact the High Court was in error in interfering with the findings of fact
recorded by the Tribunal.
-12- We therefore, allow this appeal, set aside the impugned judgment and order
of the High Court dated June
15, 2002 and restore
the award of the Industrial
Tribunal-cum-Labour Court, Bangalore dated June 28, 1991.
order as to costs.