Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Orissa State Road Transport … vs Orissa State Road Transport … on 3 November, 2000
Equivalent citations: (2001) ILLJ 927 Ori
Author: L Mohapatra
Bench: L Mohapatra


JUDGMENT

L. Mohapatra, J.

1. The petitioner in O. J. C. No. 6448 of 1997 is a trade union of employees of the Orissa State Road Transport Corporation (hereinafter referred to as ‘the Corporation’), petitioners in O. J. C. Nos. 6236, 6238, 6243, 6249, 6253 and 6743 of 1999 were working as Traffic Inspectors and the petitioners in rest of the cases were working as Station Masters under the Corporation. They have challenged the respective ciders of termination of their services individually and also through the Association in different writ applications. Since the questions raised in all the cases are the same, all the writ applications are disposed of by this common judgment.

2. The case of the petitioners is that they were appointed in the Corporation in differerent capacities at the time of entry into service and after working for about 12 to 14 years, their services have been terminated when they were holding the posts, such as Station Master and Traffic Inspector.

3. Shri B.B. Mohanty, learned counsel appearing for the petitioners, submits that the Board of Directors of the Corporation in its meeting dated 7-12-1998 taking into consideration the financial condition of the Corporation, decided to

retrench surplus staff. The minutes of the meeting (Annexure-1 teries) indicate that the Board after perusal of the list of redundant employees in 42 categories, prepared by a committee headed by the General Manager (Administration), observed that there were surplus and redundant employees in 42 categories as found by the committee, and decided to retrench such employees under the provisions of the Industrial Disputes Act, 1947 (‘I. D. Act’, for short) after obtaining permission from the appropriate Government. It was further decided that retrenchment would be made on the basis of last come first go principle. After taking into consideration the Committee’s report, it was found that 2,473 employees were redundant in 42 categories and it was required to retrench all the 2,473 employees. So far as Station Master and Traffic Inspectors are concerned it was decided to terminate the services of 14 surplus officers, including 4 D.T.Ms. 4 Senior Station Masters, 4 Station Masters and 2 works Managers. In accordance with the decision taken in the Board meeting, the termination orders were issued. Challenging the said termination orders the present writ applications have been filed. Shri Mohanty further submitted that the Corporation has a service regulation called ‘Orissa State Road Transport Corporation (Classification, Recruitment and Conditions of Service) Regulations, 1978’ (hereinafter referred to as ‘Service Regulations’) framed under section 34 of the Road Transport Corporation Act, 1950. In regulation 49, classification and categories of all the services of the Corporation are provided for. It is submitted that in all the three categories provided in the said regulation, there is no post of Supervisor in the Corporation, though there are specific posts of Managers, such as. General Manager, Deputy General Manager and Divisional Manager belonging to Class I service and District Transport Manager in Class II service of the Corporation. The Station Master has no work of managerial nature. Regulation 116 of the Service Regulations provides for termination of services and termination can be made only on the grounds that an employee has attained the age of superannuation, has failed

to pass the departmental test or examination in probation period or on any other ground stipulated in the contract of employment. Relying on the said provision the learned counsel for petitioners submitted that on no other ground an order of termination can be passed. Therefore, the decision taken by the Board in its meeting to terminate the services of the petitioners on the ground that they are surplus is not in terms of the Service Regulations and therefore, cannot be sustained. He further submitted that in case of retrenchment the question is as to whether the Station Masters/Traffic Inspectors come within the purview of definition of ‘workman’ as defined in the I. D. Act. Relying on a decision of this Court the learned counsel submitted that Station Masters/Traffic Inspectors are to be considered as ‘workmen’ and the mandatory provisions of the I. D. Act having not been followed before retrenchment of these officers, the order of termination is illegal. He further submitted that the principle of last come first go has not been adhered to and persons placed below the petitioners in the gradation list of respective categories have been retained, whereas the services of the petitioners have been terminated. In substance the contention of the learned counsel for the petitioners is that the petitioners who were working as Station Master/Traffic Inspectors are workmen and the mandatory provisions of section 25N of the I. D. Act having not been complied with, the order of retrenchment/ termination is illegal. The last come first go principle having not been followed and persons placed below the petitioners in the gradation list having been retained in service, the order of termination so far as petitioners are concerned cannot be sustained.

4. Shri Ashok Mohanty, learned counsel appearing for the Corporation, submitted that the petitioners cannot be brought within the purview of the definition of ‘workman’ as defined under the I. D. Act. He submitted that even if it is accepted that the petitioners were doing supervisory work, they were drawing much more than the statutory amount towards salary at the time of termination and therefore, cannot be included in the

category of ‘workman’ and as such, compliance of section 25N of the I, D. Act was not necessary. So far as the last come first go principle is concerned, the learned counsel submitted that the said principle has been strictly followed as the Corporation decided to take into consideration the entire length of service of an employee in the Corporation irrespective of the cadre in which a particular employee was and seniority in a particular cadre has not been taken into consideration. Persons who have been retained in service and said to be juniors to the petitioners in the cadre of Station Master/Traffic Inspector have in fact put in more years of service than the petitioners in the Corporation and therefore, they have been retained.

5. Now coming to the first question raised by the petitioners with regard to non-compliance of section 25N of the I. D. Act, it is to be seen as to whether the petitioners come within the definition of ‘workman’ as defined under section 2(s) of the I. D. Act. Reliance has been placed by the learned counsel for petitioners on the decision reported in 1990 Lab. I. C. 1378 : State Transport Accounts Association v. Orissa State Road Transport Corporation and others. In the said decision, this Court observed that drivers do either technical, skilled or operational work, the Station Masters, Assistant Station Masters and Traffic Inspectors do supervisory work and the rest, such as, the Audit Clerks, Lower Division Clerks, etc. do clerical work, and as such they are workmen. I have carefully gone through the entire judgment and it appears that the question as to whether the Station Masters and Assistant Station Masters do supervisory work and are workmen or not was not in dispute. May be, at that point of time, the Station Masters/Traffic Inspectors were drawing less emoluments than the statutory amount as prescribed under the I. D. Act and therefore, the said question was not disputed. It appears that undisputedly the petitioners were drawing more than the statutory amount at the time of their termination. In paragraph 4 of the counter filed on behalf of the Corporation it is stated that the petitioner as Station Master/ Traffic inspector was getting a salary of 3169/- per month with

starting pay of Rs. 1410/- with D. A. and A. D. A.. The definition of ‘workman’ in the I. D. Act runs as follows :

"(s)    'workman'   means   any   person   (including an
apprentice)  employed  in any industry to do any manual,
unskilled,   skilled,   technical,   operational,    clerical   or
supervisory  work for hire or reward, whether the terms
of employment  be expressed or  implied,   and   for   the
purposes of -any proceeding under this Act 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   has   led to that
dispute, but does not include any such person--
 

(i)    who  is subject  to the  Air Force Act, 1950 (45 of,
1950), or the  Army  Act,   1950 (46 of 1950), or the
Navy Act, 1957 (62 of 1957); 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 one thousand six 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."
 

Relying on sub-clause (iv) the learned counsel for petitioners submitted that the said sub-clause applies to those employees whose functions are mainly of a managerial nature and does not apply to employees whose functions are supervisory in nature. I am unable to accept this contention as the statute is very clear in its terms saying that ‘workman’ shall not include any person who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees pet 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 are two pares in the said sub-clause – first one . being ‘persons employed in a, supervisory capacity, drawing wages exceeding one thousand six hundred rupees per mensem’ and the second part is ‘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’. This Court in the Division Bench decision relied upon by the learned counsel for petitioners has held that Station Masters do supervisory work and therefore, the only question to be seen is as to whether they are getting wages more than the statutory amount or not so as to come within the purview of the definition of ‘workman’. Learned counsel for petitioners submits that at the time of entry into service the petitioners were getting much less wages than the statutory amount and therefore, they are workmen within the definition of the I. D. Act. The said contention is also not acceptable as the wages received by the petitioners at the time of termination is material and undisputedly the petitioners were receiving Rs. 3,169/- per month at the time of termination which is much more than the statutory amount and therefore, under no stretch of imagination the petitioners can be brought within the definition of workman as defined in the I. D, Act. In the decision relied upon by the learned counsel for petitioners there is no indication as to what wages- Station- Masters were receiving at that point of time and therefore, the observations made by the Court in that decision cannot have a binding force as the wages might have gone change in the meantime, Since I have held that the petitioners are not workmen as defined under the I. D. Act, the question of non-compliance of section 25N of the said Act does not arise.

6. So far as the second question is concerned, learned, counsel for petitioners submitted that in the cadre of Station Masters / Traffic Inspectors persons junior to the petitioners have been retained and therefore, the principle of last come first go has not been followed. On the other hand, the learned counsel for Corporation submitted that the entire length of service of an employee in the Corporation has been taken into consideration

and accordingly the principle of last come first go has been followed. Persons who have been placed junior to the petitioners in the gradation list of Station Master/Traffic Inspectors must have put in more years of service in the Corporation than that of the petitioners as there used to be direct recruitment to the post of Station Master/Traffic Inspector and therefore, there is no illegality in retaining those who have put in more years of service in the Corporation than the petitioners even though they may be juniors to the petitioners as Station Masters/Traffic Inspectors, The learned counsel for the Corporation has relied on the decision reported in A. I. R. 1980 Supreme Court 1454 ; Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. v. Management of Jorehaut Tea Co. Ltd., wherein the Apes Court has -held that the principle of last come first go is that the employer shall retrrench the workman who came last. Though it is not an inflexible rule and extraordinary situations may justify variations, affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the last come first go principle. The contention of the learned counsel for the Corporation that those who arc junior to the petitioners have been retained in service because of their length of service in the Corporation is not in dispute. The only question is whether the last come first go principle should be cadrewise or should be on the basis of total length of service in the Corporation. If the submission of the learned counsel for petitioners is accepted, that the last go principle should be followed cadrewise, then employees who have put in more years of service in the Corporation and have worked in different capacities have to be thrown out of service and persons who have put in less years of service shall have to be retained. I, therefore, do not find, any unreasonableness or arbitrariness in the decision of the Corporation in following the principle of last come first go by taking into account the total length of service put in by an employee in the Corporation. On this ground also I am unable to accept the contention of the learned counsel for petitioners,

7. As regards the other submissions made by the learned counsel for petitioners that services of the petitioners could not

have been terminated in absence of grounds as mentioned in regulation 116 of the Service Regulation, I am of the view that the petitioners ate not the only officers whose services have been terminated. Considering the submission of the learned counsel for the Corporation that the decision was taken to retrench 2,473 employees whose services were found redundant in 42 categories, it cannot be said that the decision was taken to victimise any particular employee, but it was taken for revival of the Corporation. Since the decision was taken to retrench the redundant employees working in 42 categories for revival of the Corporation, the question of following the service Regulations does not arise. The termination order clearly indicates that the services of the petitioners were found to be redundant and accordingly termination order was passed.

I, therefore, do not find any merit in the writ applications and the same are dismissed.

8. Applications dismissed.


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