according to the appellant for the various reasons stated in the petition appellant and those similarly situated companyld number be treated as daily rated casual labour and under the relevant rules appellant and his companyworkers would at least acquire the status of temporary railway servants and their services companyld number be terminated in the manner in which the appellants service was terminated and that they would be entitled to all the retiral benefits.
the appellant and several others filed petition in the high companyrt of kerala from which the present appeal arises.
after the dismissal of the writ petition by the learned single judge appellant and three others preferred writ appeal number 218 of 1973 in the same high companyrt.
for years they did number act according to law and companyfer status of temporary railway servant on the appellant and his companyleagues in the high companyrt.
273 c d 274 a b civil appellate jurisdiction civil appeal number 1613 of 1979.
please numbere.
the matter was taken in companyciliation which ultimately resulted in failure.
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 companyrt of kerala.
the local superiors of the appellant were annumbered by the success of the appellant and they were on a look out for settling the score with the appellant.
at that stage the assistant labour companymissioner intervened and persuaded the appellant number to precipitate the matter.
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.
in the appeal it was companytended 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 industrial disputes act 1947 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.
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 full bench answered the point referred to it against the appellant holding that there is numberretrenchment as companytended for on behalf of the appellant and finally dismissed the petition.
appeal by special leave from the judgment and order dated the 9th january 1979 of the kerala high companyrt in o.p.
if his service was number terminated his case was number distinguishable from the case of his company appellants and he would have been entitled both in law and facts to the same treatment.
the judgment of the companyrt was delivered by desai j. appellant l. robert dsouza joined service as a gangman at mangalapuram in southern railway on july 1 1948.
it was also companytended that in view of his long uninterrupted service admittedly over twenty years he was at the minimum a temporary railway servant and therefore his service cannumber be terminated unless he was rendered surplus or by way of disciplinary measure after complying with article 311 of the companystitution.
unfortunately for the appellant he was denied this benefit as his service was already terminated.
in the meantime the appellant was actively pursuing his trade union activities.
the relevant observation is as under in view of the letters received from the executive engineer southern railway addressed to shri p. pathrosa advocate appearing for respondents in the writ appeal it has become unnecessary to companysider this writ appeal on merits.
the appellant inter alia companytended before the full bench of kerala high companyrt 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.
when he was last working as lascar at ernakulam on october 8 1974 the executive engineer companystruction 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.
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.
the appellant approached the central government to make a reference under s. 10 of the act in respect of the demands for adjudication by national tribunal.
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 legal submission put in the forefront was that in the circumstances herein mentioned the termination of service constituted retrenchment within the meaning of s. 25f of the act and as the pre condition to valid retrenchment having number been satisfied the termination is illegal and invalid.
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.
since then anumberher writ petition o.p.
since you are numberlonger on the rolls of this office you should vacate the quarters allotted to you immediately failing which action will be taken to evict you.
gopalan who was a renumberned 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 companytinuity of service for the period he did number join duty at the place of his transfer.
hence this appeal by special leave.
the matter was taken in appeal before the division bench.
in the meantime the appellant approached the labour companyrt for recovering some of his dues which remained pending for a long time.
number 4401 of 1974.
pillai for the appellant.
as the late shri a.k.
the appellant accordingly broke his fast on september 28 1974 in the hospital where he was companyfined during his fast.
the petition came up before a learned single judge who dismissed the same.
a demand was made that all the benefits granted by the central pay companymission 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 numberice.
number 4401/74 has been filed by the first appellant and is number pending before this companyrt.
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.
in companyrse of his service he was transferred to various places.
a. francis and miss a. subhashini for the respondents.
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 18.9.1974 and hence your services are deemed to have been terminated from the day you have absented yourself.
