UNION OF INDIA AND ORS.versusJUMMASHA DIWAN

                        UNION OF INDIA AND ORS.                                     A
                                       i:
                            JUMMASHA DIWAN

                             OCTOBER 19, 2006

                (S.B. SINHA AND DALVEER BHANDARI, JJ.]                              B


      Labour laws:

      Industrial Disputes Act, 1947-Section 25-N-Applicability a/-
Employment under a project-On closure of project, retrenchment of C
workman-Application challenging retrenchment and seeking seniority on
the ground of non-compliance o/Section 25-N and his having given continuous
service for 1060 days-Dismissal of application-In Writ Petition termination
set aside on the ground of non-compliance of Section 25-N-On appeal,
held: In the facts of the case, workman not entitled to seniority-On closure D
of the project, compliance of Section 25-N not required.

     Continuous service-Meaning of-Held: In a case where a casual
employee is working in different establishments, though under the same
employer, the concept of continuous service cannot be applied
                                                                                    E
      The respondent-workman was employed under a project. On the project
coming to an end, he was retrenched and was given retrenchment
compensation in terms of Section 25-F of Industrial Disputes Act, 1947. He
filed application before Central Administrative Tribunal questioning the
retrenchment on the ground that he having put in 1060 days of continuous
service, should have been placed higher in seniority list, and that while passing   F
the order of retrenchment, the provisions of Section 25-N were not complied
with. Tribunal dismissed the application. In Writ Petition, High Court set aside
the order of termination in view of non-compliance of Section 25-N and directed
his reinstatement. Hence the present appeal.

      Allowing the appeal, the Court                                                G

      HELD: 1. lfthe services ofa project employee is terminated, it is trite
that statutory requirements of Section 25-F of Industrial Disputes Act, 1947
are required to be complied with. 1543-F-G)
                                      54I                                           H
    542                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
                                                                                       ',
A          2. If the project came to a close, the requirements of Section 25-N of
    the Act were not required to be complied with. There are several
    establishments of the Railway Administration. lfa 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, may be under the same employer, e.g.,
B   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
C   project. Recruitment of the respondent in the said establishment would,
    therefore, constitute a fresh employment. In a case of this nature, he would
    not be entitled to his seniority. [543-G-H; 544-A-C[

          Lal Mohammad and Ors. v. Indian Railway Construction Co. ltd and
    Anr., (199911 SCC 596 and Oswal Agro Furane Ltd and Anr. v. Oswal Agro
D   Furane Workers Union and Ors., 120051 3 SCC 224, distinguished.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4552 of2006

         From the final Judgment and final Order dated 8.4.2005 of the High
    Court of Gujarat at Ahmedabad in S.C.A. No. 1165/1998.
E
          R. Mohan, A.S.G. S. Wasim A. Qadri, B. Krishna Prasad and D.S. Mahra
    for the Appellants.

          S.C. Patel for the Respondent.

F         The Judgment of the Court was delivered by

          S.B. SINHA, J. Leave granted.

           Respondent was appointed as a daily wager in the Railway Electrification
    Project at Vadodara Ratlam section. He was granted a temporary status. He
G   is said to have joined the Railway Electrification Project as a skilled worker
    under the Division~! 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
H
                       U.0.1. v. JUMMASHA DIWAN [SINHA, J.]                      543
    Act, I94 7 (for short "the Act").                                                    A
          He 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
    higber 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     B
    passing an order of retrenchment, the provisions of Section 25-N of the Act
    was not complied with.

          The Tribunal dismissed the said original application. A writ petition
    came to be filed wherein the same pleas were raised by Respondent herein.            C

.   Invoking Section 25-N of the Act, the impugned judgment has been passed
    setting aside the order of termination and directing reinstatement of
    Respondent.

         Mr. R. Mohan, learned Additional Solicitor General appearing on behalf
    of Appellants inter alia submitted that the provisions of Section 25-N of the        D
    Act will have no application to the facts and circumstances of the case.

          Mr. S.C. Patel, learned counsel appearing on behalf of Respondent, on
    the other hand, submitted that Respondent having put in I060 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         E
    almost identical issues had taken different views and in that view of the
    matter, the impugned judgment should not be interfered with.

           Respondent indisputably had started working under Appellant No. 3
    1986. His services had been terminated inter a/ia on the premise that the
    electrification project had come to a close. If the services of a project employee   F
    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.

           His name might not have appeared in the seniority list of the casual G
    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. H
    544                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A When a casual employee is employed in different establishments, may be
    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
B   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.
c         Lal Mohammad and Ors. v. Indian Railway Construction Co. Ltd. and
    Anr., [1999] I 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
D   of a factory as contained in clause (m) of section 2 of the Factories Act.

         Our attention has been drawn to a decision of this Court in Oswal Agro
    Furane Ltd. and A nr. v. Oswal Agro Furane Workers Union and Ors., [2005]
    3 SCC 224. In the said decision, this Court was concerned with closure of an
    industrial establishment engaging more than I000 people. In the aforementioned
E   fact situation obtaining therein, this Court held that the consent of State
    Government before effecting closure of such establishment was mandatory.

          For the reasons aforementioned, we are of the opinion that the impugned
    judgment cannot be sustained which is set aside accordingly. This appeal is
F   allowed. No costs.

    K.K.T.                                                        Appeal allowed.




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