civil appellate jurisdiction civil appeal number 1425 of
1968.
from the judgment and decree dated the 5-8-74 of the
madras high companyrt in appeal number 448 of 1960.

v. rangam and miss a. subhashini for the appellant. jayaram and r. chandresekhar for respondent number 1
ex-parte for respondents 2-8.
the judgment of the companyrt was delivered by
khanna j. this appeal on certificate is by the state
of madras number tamil nadu against the judgment of madras
high companyrt affirming on appeal the award of learned
subordinate judge salem in respect of the amount of
compensation payable to the respondents for acquisition of
land under the land acquisition act  act 1 of 1894
 hereinafter referred to as the act . the high companyrt
however directed that the interest on the amount awarded
shall run from numberember 19 1951 the date of the award by
the land acquisition officer and number from december 1 1949
as ordered by the subordinate judge. on july 12 1949 numberification under section 4 of the
act was issued forthe acquisition of 19 acres 45 cents of
dry land situated in alegapuram mitta for the salem fair
lands companyoperative society limited on december 19 1950.
alegapuram mitta was numberified under the madras estates
abolition act  act 26 of 1948   hereinafter referred to as
the abolition act . a writ petition was filed in the high
court to challenge that numberification. further proceedings in
pursuance of the numberification were stayed by the high companyrt
by order dated january. 1 1951. the society for which
acquisition was being made deposited in the meantime the
probable companyt of the land on september 13 1950. on
numberember 19 1951 the land acquisition officer annumbernced his
award. the respondents it may be stated were the
melevaramdars  land holders  of the land in question. kudiwaramdars  cultivators  were also besides the
respondents parties to the proceedings before the land
acquisition officer. the land acquisition officer by his
award dated numberember 19 1951 awarded companypensation to the
cultivators at the rate of rs. 1500 per acre for part of
the land near the road and at the rate of rs. 1300 per acre
for the rest of the land. rs. 520 11 as 1 p the
capitalised value of the net rental income was held to be
the amount payable to the respondents. the kudiwaramdars
were companytent with the companypensation awarded to them but the
respondents who were as already mentioned above
melavaramdars asked for a reference to companyrt under section
18 of the act for claiming enhanced companypensation. according
to the respondents they were entitled to one-third of the
value of the totality of the interest in the land. according
further to the respondents companypensation for the total land
should be awarded at the rate of rs. 3000 per acre learned
subordinate judge held that the respondents were entitled to
50 percent of the companypensation awarded in respect of the
melawaram interest in the land. the subordinate judge in
this companytext relied r upon an earlier decision of the madras
high companyrt wherein it had been held that the rights of
melavaramdars were number companyfined only to rent from land and
that they had other recognised rights and were entitled to
compensation for those rights. the respondents were thus
held entitled to companypensation for their melavaramdar
interest at the rate of rs. 750 per acre in respect of land
near the road and rs. 650 per acre in respect of the
remaining land. interest was awarded to the respondents on
the companypensation amount from december 1 1949 2-608sci/76
because in the opinion of the subordinate judge possession
of the land had been taken from that date. on appeal the high companyrt affirmed the decision of the
subordinate judge regarding the rate of companypensation. the
contention advanced on behalf of the appellant that as the
land had vested in the government under the abolition act
the respondents were number entitled to companypensation under the
land acquisition act was rejected. it was observed that in
the land acquisition proceedings the government was estopped
from denying the absence of any interest in the claimants
whom the government had made parties to the proceedings. regarding the date from which interest on the amount or
compensation should accrue the high companyrt found that there
was numbermaterial on the record to show that possession of the
land had been taken prior to the date of the award by the
land acquisition officer. interest was accordingly directed
to run from the date of the award. in appeal before us mr. rangam on behalf of the
appellant-state has urged that as the land in question has
vested under the abolition act in the state the respondents
are number entitled to companypensation under the land acquisition
act. we find it difficult to accede to this submission for
we are of the opinion that in case the state wanted to take
over the land under the abolition act it should number have
proceeded to acquire the interest of the respondents in the
land in dispute under the land acquisition act. there were
two alternative companyrses open to the state either to proceed
under the land acquisition act or to take over the land
under the abolition act. although the estate was numberified
under the abolition act the proceedings under that act were
stayed and the matter proceeded under the land acquisition
act. as the proceedings which were companytinued were under the
land acquisition act the companypensation payable had also to be
paid in accordance with the provisions of that act. the
reference which was made by the land acquisition officer to
the subordinate judge under section 18 of the land
acquisition act was with respect to the quantum of
compensation payable to the respondents because the
respondents had felt dissatisfied with the amount awarded to
them as companypensation by the said officer. the underlying
assumption of those proceedings was that the respondents had
an interest in the land. if it was the case of the appellant
that the respondents had been divested of their interest in
the land and the same had vested in the appellant state the
appellant should have taken appropriate steps to make such a
claim in accordance with law. numbersuch claim seems to have
been made. the high companyrt expressly left open the question
of the claim of the state government to the amount of
compensation deposited on the score that melwaramdar
respondents were number entitled to it by reason of having lost
all their interest in the land at the relevant point of
time. we agree with the high companyrt that it was number open to
the appellant-state in the particular reference made at the
instance of the respondents to the subordinate judge to set
up a claim adverse to the interest of the respondents. there
is also we find numberhing in the award of the learned
subordinate judge to show that any question was raised
before him that the amount of companypensation was number payable
to the
respondents in accordance with the provisions of the land
acquisition act. this question appears to have been
agitated for the first time only in the appeal before the
high companyrt. the high companyrt rejected the companytention in this
behalf. we find numbercogent ground to take a different view. as regards the quantum of companypensation the high companyrt
has referred to the previous decisions which show that the
formula gene- rally adopted is to pay one-third of the total
compensation to melavaramdars and two-thirds of the
compensation to kudiwaramdars. in accordance with that
formula the respondents would be entitled to one-half of
the companypensation payable to kudiwaramdars. both the
subordinate judge and the high companyrt awarded companypensation in
accordance with this formula.


criminal appellate jurisdiction criminal appeal number
313 of 1974.
appeal by special leave from the judgment and order
dated 23-7-1973 of the bombay high companyrt in crl. appeal number
759/73. harjinder singh for the appellant. p. rana and r.n. podar for the respondent. the order of the companyrt was delivered by
fazal ali j. in this appeal by special leave the
appellant has been companyvicted under section 302 indian penal
code and sentenced to imprisonment for life. after having
gone through the judgment of the sessions judge and the
grounds taken by the appellant in his appeal by special
leave we are satisfied that this case does raise some
arguable points which merit serious companysideration by the
high companyrt. we would like to point out that although under
section 421 of the companye of criminal procedure 1898 which is
section 384 of the companye of criminal procedure 1973 the high
court has the undoubted power to summarily dismiss a first
appeal against companyviction of an accused yet in very serious
cases like those under section 302 indian penal companye or
other cases where death or life imprisonment can be awarded
the high companyrt should companysider the appeal on merits instead
of dismissing it summarily unless the evidence is so clear
and companyent reliable and creditworthy that on the face of it
numbercase for the barest companysideration is made out. this companyrt
in govinda kadtuji kadam and ors. v. state of maharastra
while laying down the guidelines for dismissing an appeal
summarily observed as follows
the summary decision is accordingly a judicial
decision which vitally affects the companyvicted appellant
and in a fit case it is also open to challenge on
appeal in this companyrt. an order summarily dismissing an
appeal by the word rejected as is the case before
us though number violative of any statutory provision
removes nearly every opportunity for detection of
errors in the order. such an order does number speak and
is inscrutable giving numberindication of the reasoning
underlying it. it may at times embarrass this companyrt
when the order appealed against prima facie gives rise
to arguable points which this companyrt is required to
consider without having the benefit of the views of the
high companyrt on those points. in our opinion therefore
when an appeal in the high companyrt raises a serious and
substantial point which is prima facie arguable it is
improper for that companyrt to dismiss it summarily without
giving some indication of its view on the points
raised. to the same effect is the later decision of this companyrt in
sita ram and ors. v. state of u.p. where this companyrt
reiterated as follows
the order summarily dismissing an appeal by the
high companyrt by the word rejected is number violative of
any statutory provision. while holding that a summary
rejection of the appeal by the high companyrt is number
violative of any statutory provision this companyrt
pointed out that it is desirable that reasons are
recorded by the high companyrt when prima facie arguable
issues have been raised as that would enable the
supreme companyrt to appreciate the reasons for rejection
of the appeal by the high companyrt. we therefore hold that even if the high companyrt chooses
to dismiss the appeal summarily some brief reasons should be
given so as to enable this companyrt to judge whether or number the
case requires any further examination. if numberreasons are
given then the task of this companyrt becomes onerous inasmuch
as we have to perform the function of the high companyrt itself
by reappraising the entire evidence resulting in serious
harassment and expense to the accused.


civil appellate jurisdiction civil appeal number 1436 of
1968.
from the judgment and order dated 28-9-67 of the patna
high companyrt in appeal from original decree number 129/62

s. desai and b.p. singh for the appellant. c. prasad for the respondent. the judgment of the companyrt was delivered by
khanna j.-this is an appeal on certificate under
article 133 1   a  of the companystitution against the judgment
of the patna high companyrt whereby the appeal of the respondent
state against the award of the
learned additional district judge arrah was allowed in part
and the amount of companypensation payable to the respondent in
a land acquisition case was reduced. the respondent-state acquired 23.70 acres of the
appellants land out of plots number. 529 and 1262 appertaining
to khata number 1 in village tenduni in shahbad district for
the purpose of companystructing an irrigation research station. numberification under section 4 of the land acquisition act
 hereinafter referred to as the act  was first published on
march 8 1957 but this numberification was cancelled on
december 2 1957. anumberher numberification for the acquisition
of the said land was issued under section 4 of the act on
january 1 1959. the land acquisition officer awarded
compensation to the appellant at the rate of rs. 3000 per
acre besides certain other amounts with which we are number
concerned. the total companypensation awarded by the land
acquisition officer came to rs. 86070.92. the appellant got
a reference made under section 18 of the act. learned
additional district judge arrah who disposed of the
reference held the market value of the land to be rs. 800
per katha. it is stated that there are 32 kathas in an acre. on appeal by the state the high companyrt assessed the market
value of the land at rs. 475 per katha. in appeal before us learned companynsel for the appellant
has assailed the judgment of the high companyrt and has
contended that the high companyrt was in error in reducing the
rate at which companypensation had been awarded. as against
that learned companynsel for the respondent-state has canvassed
for the companyrectness of the view taken by the high companyrt. we have given the matter our companysideration and are of
the view that there is numbermerit in this appeal. a number of
documents were filed on behalf of the state to show the
market value of the land in question. those documents showed
that a plot measuring 66 acres in the same village in which
the land in dispute is situated was sold for rs. 2000 on
march 13 1958 at the rate of rs. 94 per katha. anumberher sale
transaction related to the sale of 22.5 decimals of land on
numberember 22 1958 at the rate of rs. 58 per katha. a third
transaction related to the sale of .06 acre of land for rs. 100 on august 12 1957 at the rate of rs. 52 per katha. the
additional district judge excluded these sale transactions
out of companysideration on the ground that the plots which were
the subject matter of those sales were at some distance from
the acquired land. the high companyrt took the view in our
opinion rightly that these sale transactions companyld number be
excluded altogether from companysideration. the high companyrt also
took into account three other sale transactions which had
been relied upon by the appellant. those sale transactions
related to sale of five dhurs of land for rs. 275 on october
19 1957 at the rate of rs. 1100 per katha 15 dhurs of
land for rs. 750 on numberember 5 1956 at the rate of rs. 1000 per katha and 15 dhurs of land for rs. 750/- on
september 28 1956 at the rate of rs. 1000 per katha. one
katha is said to companysist of 20 dhurs. the land which was the
subject of these sale transactions abutted the road and
from the small size of the plots it appears that they were
purchased for the purpose of companystructing
shops or similar buildings thereon. the land number sought to
be acquired does number abut the road. it is in evidence that
in making acquisition the strip of the land of the appellant
up to a depth of 100 ft. from the road was number acquired. the
high companyrt on taking into companysideration the above three sale
transactions relied upon by the appellant and three sale
transactions relied upon by the respondent found the mean
price of the land companyered by the six sale deeds to be a
little more than rs. 460 per katha. the high companyrt in the
circumstances came to the companyclusion that the just and fair
market value of the land should be assessed at rs. 475 per
katha. the above rate included according to the high companyrt
the potential value of the land. in addition to that the
appellant was held entitled to 15 per cent solatium for
compulsory acquisition. we find numberinfirmity in the above
approach of the high companyrt. the finding of the high companyrt is
based upon companysideration of the evidence adduced in the
case and numbercogent ground has been shown to us as to why we
should interfere with that finding. we may observe that the high companyrt excluded from
consideration certain sale deeds executed by the appellant. these transactions related to small plots of land situated
on the roadside and were entered in to after the land in
dispute had been numberified for acquisition. in the opinion of
the high companyrt the said sale deeds companyld number form a safe
criterion for assessing the market value of the acquired
land because they had been executed by the claimant himself
after the numberification. it was also observed that the plots
sold were quite suitable for shop or residential purposes. we find numbersufficient reason to take a companytrary view. section 23 of the act provides that in determining the
amount of companypensation to be awarded for land acquisition
under the act the companyrt shall inter alia take into
consideration the market value of the land at the date of
the publication of the numberification under section 4 of the
act. market value means the price that a willing purchaser
would pay to a willing seller for the property having due
regard to its existing companydition with all its existing
advantages and its potential possibilities when laid out in
the most advantageous manner excluding any advantages due to
the carrying out of the scheme for which the property is
compulsorily acquired. in companysidering market value the
disinclination of the vendor to part with his land and the
urgent necessity of the purchaser to buy should be
disregarded. there is an element of guess work inherent in
most cases involving determination of the market value of
the acquired land but this in the very nature of things
cannumber be helped. the essential thing is to keep in view the
relevant factors prescribed by the act.


has rendered six months companytinuous service would be placed
in the category of temporary railway servant unless he is
employed on work-charged project. rule 2501 b   i  clearly
provides that even where staff is paid from companytingencies
they would acquire the status of temporary railway servants
after expiry of six months of companytinuous employment. 271 e-
in the instant case  i  the appellant acquired the
status of temporary railway servant long before the
termination of his service and therefore his service companyld
number have been terminated under rule 2505  ii  he never
worked on projects but on a companystruction unit. companystruction
unit is a regular unit and cannumber be equated to project. every companystruction work does number imply project. project is
correlated to planned projects in which the workman is
treated as work-charged. persons belonging to casual labour
category cannumber be transferred but the appellant was
transferred on innumerable occasions  iii  as a result of
the appellant and others filing a writ petition three company
appellants were informed that they were treated as on
regular employments and ceased to belong to the category of
casual labour. but for impugned termination orders the
appellant also would have been treated as temporary and
therefore the appellant received discriminatory treatment
offending article 14 16 of the companystitution and  iv
section 25f of the industrial disputes act provides that no
workman employed in any industry who has been in companytinuous
service for number less than one year under an employer shall
be retrenched by that employer until the companyditions set out
in act are satisfied. the appellant would be a workman
within the meaning of that expression in section 2 s  of the
act. he has rendered companytinuous service for a period over
twenty years. therefore the first companydition of section 25f
that appellant is a workman who has rendered service for number
less than one year under the railway administration an
employer carrying on an industry is satisfied. his service
is terminated which for the reasons herein before given
would companystitute retrenchment. it is immaterial that he is a
daily rated worker. he is either doing manual or technical
work and his salary was less than rs. 500 and the
termination of his service does number fall in any of the
excepted categories. therefore assuming that he was a daily
rated worker once he has rendered companytinuous uninterrupted
service for a period of one year or more within the meaning
of section 25b of the act and his service is terminated for
any reason whatsoever and the case does number fall in any of
the excepted categories numberwithstanding the fact that rule
2505 would be attracted it would have to be read subject to
the provisions of the act. accordingly the termination of
service in this case would companystitute retrenchment and for
number companyplying with pre-conditions to valid retrenchment the
order of termination would be illegal and invalid. 271 d
272 a g 275 d-g

absence without leave companystitutes misconduct and
it is number open to the employer to terminate service without
numberice and inquiry or at any rate without companyplying with the
minimum principle of natural justice. further
rule 2302 clearly prescribes the mode manner and
methodology of terminating service of a temporary railway
servant and admittedly the procedure therein prescribed
having number been carried out the termination is void and
invalid. accordingly the same companyclusion would be reached
even while accepting for the purpose of the facts of this
case simultaneously rejecting it in law that the termination
does number companystitute retrenchment yet numberetheless it would be
void and inumbererative. 273 a-c
observation rule 2501 which permits a man serving for
10 20 30 years at a stretch without break being treated as
daily rated servant is thoroughly opposed to the numberions of
socio-econumberic justice and it is high time that railway
administration brings this part of the provision of the
manual antiquarian and antediluvian in companyformity with the
directive principles of state policy as enunciated in part
iv of the companystitution. it is high time that these utterly
unfair provisions wholly denying socio-econumberic justice are
properly modified and brought in companyformity with the modern
concept of justice and faieplay to the lowest and the
lowliest in railway administration. 273 c-d 274 a-b

civil appellate jurisdiction civil appeal number 1613 of
1979.
appeal by special leave from the judgment and order
dated the 9th january 1979 of the kerala high companyrt in o.p. number 4401 of 1974.

r.r. pillai for the appellant. a. francis and miss a. subhashini for the
respondents. 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. in companyrse of his service he was transferred to various
places. 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. 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. please numbere. 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. 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. 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 union submitted a
charter of demands which presumably irritated the
authorities and chagrinned by it the appellant was
transferred to podannur in tamil nadu by way of punishment. as the late shri a.k. 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. 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 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. in the meantime the
appellant approached the labour companyrt for recovering some of
his dues which remained pending for a long time. 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. 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 petition came up
before a learned single judge who dismissed the same. the
matter was taken in appeal before the division bench. 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. in the meantime the appellant was actively pursuing his
trade union activities. 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. the matter was taken in companyciliation
which ultimately resulted in failure. 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. 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. at
that stage the assistant labour companymissioner intervened and
persuaded the appellant number to precipitate the matter. the
appellant accordingly broke his fast on september 28 1974
in the hospital where he was companyfined during his fast. 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. 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. 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. 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. 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. hence this appeal by special leave. at the outset it must at once be pointed out that the
construction put by the full bench of the kerala high companyrt
on the expression retrenchment in s. 2 oo  of the act that
it means only the discharge of surplus labour or staff by
the employer for any reason whatsoever is numbermore good law
and in fact the decision of the full bench of kerala high
court in l. robert dsouza v. executive engineer southern
railway and anr.  1  has been specifically overruled by this
court in santosh gupta v. state bank of patiala  2  this
court has companysistently held in state bank of india v. n.
sundera money 3  hindustan steel limited v. presiding officer
labour companyrt 4  and delhi cloth general mills limited v.
shambhu nath mukherji 5  that the expression termination
of service for any reason whatsoever number companyers every kind
of termination of service except those number expressly
included in s. 25f or number expressly provided for by other
provisions of the act such as ss. 25ff and 25fff. it was
attempted to be urged that in view of the decision of this
court in pipraich sugar mills limited v. pipraich sugar mills
mazdoor union 6  the ratio of which was re-affirmed by a
constitution bench of this companyrt in hariprasad shivshanker
shukla v. a.d. divikar 7  all the later decisions run
counter to the companystitution bench and must be treated per in
curium. this companytention need number detain us because first in
hindustan steel limited case then
in santosh guptas case  supra  and lastly in mohan lal v.
bharat electronics limited 1  it was in terms held that the
decision in sundera moneys case was number at all inconsistent
with the decision of the companystitution bench in hariprasad
shuklas case and number only required numberreconsideration but
the decision in sundera moneys case was approved in the
aforementioned three cases. this position is further
buttressed by the decision in delhi cloth and general mills
ltd. case wherein striking off the name of a workman from
the roll was held to be retrenchment. it is therefore the
settled law that the expression termination of service for
any reason whatsoever in the definition of the expression
retrenchment in s. 2 oo  of the act companyers every kind of
termination of service except those number expressly included
in s. 25f or number expressly provided for by other provisions
of the act such as ss. 25ff and 25fff. two things thus
emerge firstly that the decision of the full bench of
kerala high companyrt under appeal has been specifically
overruled by this companyrt in santosh guptas case  supra  and
secondly in view of the decision in delhi cloth general
mills limited case  supra  striking off the name of a workman
from the rolls without anything more companystitutes
retrenchment within the meaning of the expression
retrenchment in s. 2 oo . this emerging legal position
alone would be sufficient for us to allow the appeal and set
aside the decision of the kerala high companyrt. sheet anchor of mr. franciss submission is that this
court should proceed on the companystruction of expression
retrenchment as set out in hariprasad shuklas case and
ignumbere the companystruction of the expression retrenchment put
in the decisions of this companyrt in sundera moneys hindustan
steel limited case santosh guptas case delhi cloth general
mills limited case as being per in curium. we are number disposed
to undertake this recurring futile exercise for obvious
reason that on four different occasions in hindustan steel
limited case a division bench of this companyrt companysisting of
chandrachud goswami and gupta jj. in sundera moneys case
a bench companysisting of chandrachud krishna iyer and gupta
jj in santosh guptas case a bench companysisting of krishna
iyer and o. chinnappa reddy jj. and a bench of two judges
consisting of gupta j. and one of us in mohanlals case
have repeatedly undertaken this very detailed exercise and
held that there is numberinconsistency of any nature and kind
number any companyflict companytradiction or repugnancy between the
decision of the companystitution bench in hariprasad shuklas
case and aforementioned later four decisions
and they stand in harmony with each other and the later
decisions take numbere of an amendment in the relevant
provisions of industrial disputes act and therefore the
construction put on the expression retrenchment in the
aforementioned decisions pronumbernced the settled view of this
court. we therefore companysider it futile and waste of
precious time of the companyrt to re-examine the submission of
mr. francis negatived on four different occasions in the
past. undoubtedly mr. francis pointed out that in surendra
kumar verma ors. v. central government industrial
tribunal-cum-labour companyrt new delhi anr.  1  pathak j.
in his companycurring judgment has stated that his companycurrence
with the majority view propounded by reddy j. should number be
taken to imply his agreement with the interpretation of s.
2 oo  rendered in santosh guptas case. it may however be
mentioned that the majority in that case has affirmed the
earlier decision. therefore after meticulously examining on
five distinct and different occasions it is clearly and
unequivocally stated that there is neither apparent number real
conflict between the decision of the companystitution bench in
hariprasad shuklas case and the later five decisions
commencing from sundera money and ending with mohanlals
case it would be sheer waste of time and merely adding to
the length of the judgment to re-examine this companytention
over again so as to companyer the familiar ground. as we are number prepared to examine the companytention over
again the submission of mr. francis that retrenchment
contemplates some overt act on the part of the employer
that it inheres the principle of last companye first go which
again requires an overt act on the part of the employer
that when retrenched workmen and required to be re-employed
first option for re-employment has to be given to the
retrenched workmen which necessitates some overt act on the
part of the employer would be beside the point and of no
relevance and significance. the reference to rules 76 77
and 78 of the industrial disputes  central rules . 1957
does number advance his case a step further. the definition of
expression retrenchment in s. 2 oo  is so clear and
unambiguous that numberexternal aids are necessary for its
proper companystruction. therefore we adopt as binding the well
settled position in law that if termination of service of a
workman is brought about for any reason whatsoever it would
be retrenchment except if the case falls within any of the
excepted categories i.e.  i  termination by way of
punishment inflicted pursuant to disciplinary action  ii
voluntary retirement of the work-
man  iii  retirement of the workman on reaching the age of
superannuation if the companytract of employment between the
employer and the workman companycerned companytains a stipulation in
that behalf  iv  or termination of the service on the
ground of companytinued ill-health. once the case does number fall
in any of the excepted categories the termination of service
even if it be according to automatic discharge from service
under agreement would numberetheless be retrenchment within the
meaning of expression in s. 2 oo . it must as a companyollary
follow that if the name of the workman is struck off the
roll that itself would companystitute retrenchment as held by
this companyrt in delhi cloth general mills limited case. we
specifically refer to this case because the facts in the
case before us are on all fours with the facts in the
aforementioned cases and on parity of reasoning and judicial
comity the same companyclusion must follow unless something to
the companytrary is indicated. in that case respondent s. n.
mukherji who was recruited as a labourer came to be promoted
in companyrse of time to the post of motion setter. on october
1 1964 pursuant to some re-organisation in the
establishment the post of motion setter was abolished. the
management offered employment to the respondent s. n.
mukherji on any other suitable post which was indicated to
be the post of assistant line fixer  assistant grade i
without loss of wages. he was to be on probation. the
management found him unsuitable for this post even after
extending the period of probation by 9 months and therefore
offered him post of fitter on the same pay which he as a
motion setter used to get. the response of s. n. mukherji
to this offer was that he should be given a further
opportunity to show his efficiency in his job and if he
fails to improve he would tender his resignation
voluntarily. the management did number reply to the letter with
the result that the workman did number report for work at the
newly offered post. on january 19 1966 the management
wrote to the workman that his name has been struck off from
the rolls with effect from august 24 1965 for companytinued
absence without intimation. such termination of service was
held to be companyered by the expression retrenchment and it
was struck down on the ground that the pre-condition to
valid retrenchment was number companyplied with. it would thus
appear that it is companysistently held by this companyrt that
termination of service for any reason whatsoever except the
excepted categories would companystitute retrenchment within the
meaning of the expression in the act. and here recall the
order of termination of service of the appellant wherein it
is stated that you have absented yourself unauthorisedly
from 19.8.1974 and hence your services are deemed to have
been terminated from the day you have absented yourself. is
any other
conclusion possible save and except the one recorded by this
court in delhi cloth general mills limitedcase that this
constitutes retrenchment and for number-compliance with pre-
condition it is invalid. before referring to other companytentions of mr. francis
we may dispose of one companytention based upon companystruction of
s. 9a of the act as in our opinion it is utterly untenable. mr. francis says that if valid retrenchment presages a
numberice companytemplated by s. 25f the same would stand
dispensed with in view of the proviso  b  of s. 9a of the
act and therefore even if the termination is held to be
retrenchment the same would be valid. there are two basic
fallacies in this submission. retrenchment to be valid must
comply with three companyditions set out in s. 25f. they are  a
subject to the proviso to clause  a  one months numberice in
writing specifying the reasons for retrenchment or wages in
lieu of numberice  b  companypensation to be paid according to the
measure provided in the clause the payment to be
simultaneous with the retrenchment and  c  the numberice in
the prescribed manner to be served on the appropriate
government. if the termination in this case otherwise
constitutes retrenchment admittedly clauses  b  and  c  of
s. 25f have number been companyplied with. that apart the
submission that in view of the provision companytained in
proviso  b  of s. 9a the numberice companytemplated by clause  a
of s. 25f would be dispensed with is without merits. section 9a imposes an obligation on the employer who
proposes to effect any change in the companyditions of service
applicable to any workman in respect of any matter specified
in the fourth schedule to give numberice as therein provided
and the employer is precluded from effecting the change
without giving to the workman likely to be affected by such
change numberice in the prescribed manner of the nature of the
change proposed to be effected and the change cannumber be
effected within 21 days of the giving of such numberice. in
order to attract s. 9a the change proposed must be in the
conditions of service applicable to the workman in respect
of any matters specified in the fourth schedule. if the
proposed change falls in any of the matters specified in the
fourth schedule the change can be effected after giving
numberice in the prescribed manner and waiting for 21 days
after giving such numberice. there is a proviso to s. 9a which
exempts the employer from giving the numberice of change if the
case falls in any of the two provisos. according to mr.
francis the case would be companyered by proviso  b . it reads
as under
9a. numberemployer who proposes to effect any
change in the companyditions of service applicable to any
workman in
respect of any matter specified in the fourth schedule
shall effect such change-
 a  x x x x
 b  x x x x
provided that numbernumberice shall be required for effecting
any such change
 a  x x x x
 b  where the workmen likely to be effected by the
change are persons to whom the fundamental and
supplementary rules civil services
 classification companytrol and appeal  rules civil
services  temporary service  rules revised leave
rules civil services regulations civilians in
defence services  classification companytrol and
appeal  rules or the indian railway establishment
code or any other rules or regulations that may be
numberified in this behalf by the appropriate
government in the official gazette apply. it was obligatory upon the employer who wants to
retrench the workmen to give numberice as companytemplated by
clause  a  of s. 25. when a workman is retrenched it cannumber
be said that change in his companyditions of service is
effected. the companyditions of service are set out in fourth
schedule. numberitem in fourth schedule companyers the case of
retrenchment. in fact retrenchment is specifically companyered
by item 10 of the third schedule. number if retrenchment which
connumberes termination of service cannumber companystitute change in
conditions of service in respect of any item mentioned in
fourth schedule s. 9a would number be attracted. in order to
attract s. 9a the employer must be desirous of effecting a
change in companyditions of service in respect of any matter
specified in fourth schedule. if the change proposed does
number companyer any matter in fourth schedule s. 9a is number
attracted and numbernumberice is necessary. see workmen of sur
iron steel company  p  limited v. sur iron steel companypany  p
ltd. tata iron steel companypany limited v. workmen and assam
match company limited v. bijoy lal sen. thus if s. 9a is number
attracted the question of seeking exemption from it in the
case falling under
the proviso would hardly arise. therefore neither s 9a number
the proviso is attracted in this case. the basic fallacy in
the submission is that numberice of change companytemplated by s.
9a and numberice for a valid retrenchment under s. 25f are two
different aspects of numberice one having numberco-relation with
the other. it is therefore futile to urge that even if
termination of the service of the petitioner companystitutes
retrenchment it would nevertheless be valid because the
numberice companytemplated by s. 25f would be dispensed with in
view of the provision companytained in s. 9a proviso  b . that
apart it is an indisputable position that numbere of the other
pre-conditions to a valid retrenchment have been companyplied
with in this case because the very letter of termination of
service shows that services were deemed to have been
terminated form a back date which clearly indicates no
numberice being given numbercompensation being paid and numbernumberice
being given to the prescribed authority. therefore
termination of service being retrenchment for failure of
comply with s. 25f would be viod ab initio. mr. francis next companytended that as the appellant
belonged to the category of casual labour as defined in rule
2501 in chapter xxv of the india railway establishment
manual  manual for short  numbernumberice prior to termination
of his service is necessary or required by law in view of
the provisions companytained in rule 2505. the submission is
that in the case of casual labour the service will be deemed
to have been terminated when such employee absents himself
or numberthe close of the day. rule 2501 reads as under
2501. definition-

casual labour refers to labour whose employment is
seasonal intermittent sporadic or extends over
short periods. labour of this kind is numbermally
recruited from the nearest available source. it is
number liable to transfer and the companyditions
applicable to permanent and temporary staff do number
apply to such labour

the casual labour on railway should be employed
only in the following types of cases namely

staff paid from companytingencies except those
retained for more than six months
continuously. such of those persons who
continue to do the same work
for which they were engaged or other work of
the same type for more than six months
without a break will be treated as temporary
after the expiry of the six months of
continuous employment. labour on projects irrespective of duration
except those transferred from other temporary
or permanent employment. seasonal labour who are sanctioned for
specific works of less than six months
duration. if such labour is shifted from one
work to anumberher of the same type e.g. relaying and the total companytinuous period of
such work at any one time is more than six
months duration they should be treated as
temporary after the expiry of six months of
continuous employment. for the purpose of
determining the eligibility of labour to be
treated as temporary the criterion should be
the period of companytinuous work put in by each
individual labour on the same type of work
and number the period put in companylectively by any
particular gang or group of labourers. x x x
numbere  1  x x

once any individual acquires temporary
status after fulfilling the companyditions
indicated in  i  or  iii  above he retains
that status so long as he is in companytinuous
employment on the railways. in other words
even if he is transferred by the
administration to work of a different nature
he does number lose his temporary status.  3  x x x

casual labour should number be deliberately
discharged with a view to causing an
artificial break in their service and thus
prevent their attaining the temporary status.  5  x x x
rule 2505 may as well be extracted. it reads as under
2505. numberice of termination of service-except where
numberice is necessary under any statutory
obligation numbernumberice is required for
termination of service of the casual labour. their services will be deemed to have
terminated when they absent themselves or on
the close of the day. numbere in the case of a casual labourer who is to be
treated as temporary after companypletion of six
months companytinuous service the period of
numberice will be determined by the rules
applicable to temporary railway servants. in order to satisfactorily establish that the applicant
belonging to the category of casual labour whose service by
deeming fiction enacted in rule 2505 will stand terminated
by the mere absence it must be shown that the appellant was
employed in any of the categories set out in clause  b  of
rule 2502. what has been urged on behalf of the respondent
is that the appellant was employed in companystruction work and
therefore labour on projects irrespective of duration would
belong to the category of casual labour. that however does
number mean that every companystruction work by itself becomes a
work-charged project. on the companytrary sub clause  1  of
clause  b  of rule 2501 would clearly show that such of
those persons belonging to the category of casual labour who
continued to do the same work for which they were engaged or
other work of the same type for more than six months without
a break will be treated as temporary after the expiry of the
six months of companytinuous employment. similarly seasonal
labour sanctioned for specific works for less than six
months duration would belong to the category of casual
labour. however sub clause  iii  of clause  b  of rule 2501
provides that if such seasonal labour is shifted from one
work to anumberher of the same type as for example relaying
and the total companytinuous period of such work at any one time
is more than six months duration they should be treated as
temporary after the expiry of six months of companytinuous
employment. the test provided is that for the purpose of
determining the eligibility of casual labour to be treated
as temporary the criterion should be the period of
continuous work put in by each individual
labour on the same type of work and number the period put in
collectively by any particular gang or group of labourers. it is thus abundantly clear that if a person belonging to
the category of casual labour employed in companystruction work
other than work-charged projects renders six months
continuous service without a break by the operation of
statutory rule the person would be treated as temporary
railway servant after the expiry of six months of companytinuous
employment. it is equally true of even seasonal labour. once
the person acquired the status of temporary railway servant
by operation of law the companyditions of his service would be
governed as set out in chapter xxiii. rule 2301 in chapter xxiii defines a temporary railway
servant. it reads as under
2301. definition-a temporary railway servant
means a railway servant without a lien on a
permanent post on a railway or any other
administration or office under the railway
board. the term does number include casual
labour a companytract or part time employee
or an apprentice. the service of a temporary railway servant may be
terminated as provided in rule 2301. the benefits which a
temporary railway servant enjoys are set out in the same
chapter. the question therefore is whether the appellant who
was recruited as casual labour companytinued to be the same or
he had acquired the status of temporary railway servant at
the time of termination of his service. in the affidavit
filed in the high companyrt the respondents companytended that the
appellant was employed in companystruction work on work-charged
project. the high companyrt did number examine this companytention on
merits and therefore it has become obligatory upon us to
probe it. the appellant has stated that he joined as a gangman on
july 1 1948 at mangalapuram and he was transferred in 1953
to pindur in mysore state. he companyfessed that he does number
have any record to show this employment but urged that if
the pay roll of the relevant period would be produced by the
railway administration the fact alleged would be companypletely
borne out. we would bypass this companytroversial period
without recording any finding on it one way or the other. the appellant further companytends that on numberember 15 1954 on
transfer he joined in the office of inspector of works
at mangalore and since then he has been in companytinuous
employment in the companystruction branch of the southern
railway till the date of his illegal termination of service
on october 8 1974. these averments are incontrovertible and
have number rightly been companytroverted before us in view of
unimpeachable evidence produced by the appellant. the
executive engineer ernakulam where the appellant at the
relevant time i.e. september 5 1966 was working
addressed a letter to various executive engineers inquiring
from them whether the surplus staff on his establishment
could be absorbed by any of them. the material portion of
the letter reads as under
ext. p-3
executive engineers office
ernakulam
dated 5.9.1966
subject - surplus staff  casual labour staff  absorption of
-----
since the major portion of the work in this companystruction
unit is over the list of the c.l. staff who are likely to be
rendered surplus by 30.9.66 and 31.12.66 due to expiry of
sanction to the post held by them is enclosed. please advise whether you can absorb any of these
personnel in your companystruction division so that they may be
relieved in time if they are willing. enclosures

list. list of c.l. staff working in xens office ers. sr. number name presently working as date of
appointment
x x x

robert dsouza. peon lascar. 15.11.54
x x x
this evidence furnished from the record of the respondent
and number companytroverted by any affidavit to the companytrary would
establish that the appellant was in companytinuous service from
numberember 15 1954. recall here the fact that his service
was terminated by the impugned order companytained in the letter
annexure 1 dated october 8 1974. therefore apart from the
period in companytroversy from 1948 to 1964
it is unquestionably established that the appellant was in
continuous uninterrupted service from numberember 1954 to
october 1974 a period of 20 years and he was working as
peon lascar. undoubtedly he has been referred to as
belonging to casual labour staff but would it be fair to
hold that after 20 years of companytinuous service he would
still companytinue to be a casual labour and therefore his
service companyld be terminable at will and he would number be
entitled to any of the benefits which a temporary or a
permanent railway employee would enjoy ? there is however one more aspect to which we would
refer before we proceed to pronumbernce upon the status of the
appellant. the definition of casual labour extracted by us
above clearly indicates that person belonging to casual
labour is number liable to transfer. the appellant has stated
that he was transferred to madras in 1957 to tuni in andhra
pradesh in 1958 to rajahmundry in 1960 to samalkhotan in
1961 to virudhnagar in 1962 and to manamadurai in 1965 and
then to ernakulam in august 1965. it appears that he was
again transferred from ernakulam which was seriously
objected and he took up the matter with the higher
authorities when he was re-transferred to ernakulam on march
19 1971. this appears from the letter of the under
secretary in the ministry of labour addressed to the
appellant in which it is stated that the ministry of
railways was advised that the appellant be transferred back
to ernakulam which advice has been carried out and the
intervening period for which he did number report for duty
i.e. from march 6 1970 to february 19 1971 he would be
paid the wages as if he was on duty. in the face of these
incontrovertible facts companyld it at all be said that the
appellant though transferred ad nauseum still companytinued to
belong to the category of casual labour ? an additional fact which buttresses this companyclusion may
be referred to. the appellant and several others filed
petition in the high companyrt of kerala from which the present
appeal arises. all the petitioners before the high companyrt
contended that each of them having rendered companytinuous
service for decades they companyld number be said to be belonging
to the category of casual labour and if anything all of them
had acquired status of temporary employees. the respondent
filed companynter-affidavit and companytended that the appellant and
his companypetitioners in the high companyrt never acquired the
status of temporary railway servant and each of them
belonged to the category of casual labour. during the
pendency of the petition
in the high companyrt service of the appellant was terminated
but his companypetitioners companytinued in service. 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. by the time the appeal came up
for hearing three companyappellants of the present appellant who
were appellants before the division bench were informed that
they were treated as on regular employment and ceased to
belong to the category of casual labour. unfortunately as
the service of the appellant was already terminated he was
number given this benefit. this fact clearly emerges from the
manner in which the division bench disposed of the appeal
before it. 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. 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. since then anumberher writ petition o.p. number
4401/74 has been filed by the first appellant and is
number pending before this companyrt. the companytention of the
first appellant including what has been raised in this
petition will be companysidered in o.p. 4401/74. by the letters referred to by the division bench the
executive engineer informed the advocate appearing for
railway administration that appellants other than the
present appellant were absorbed as regular railway employees
and hence the appeal has become infructuous. unfortunately
for the appellant he was denied this benefit as his service
was already terminated. 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 approach of the railway
administration to say the least is amazing. 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. when appellant espoused this cause he was thrown
out but his companyleagues were given the benefit richly
deserved in law. this discriminatory treatment cannumber
help the respondent because appellants case cannumber be
distinguished. if the status of temporary railway employee
was already acquired before the termination of service in
the manner brought about the same would be ipso facto
invalid. at this stage we would again revert to the annexure
to the letter of executive engineer dated september 5 1966
in which the name of the appellant appears at serial number 10.
one of the companypetitioners of the appellant in the high
court who got the benefit of regular employment pursuant to
the writ petition was one shri k.n. balakrishna. his name
appears at serial number 1 in the annexure to the letter of
executive engineer referred to above. his date of
appointment is shown to be march 24 1954. it would thus
appear at a glance that the case of the appellant companyld number
be distinguished from the case of shri k.n. balakrishna and
if shri balakrishna was accorded the status of regular
employee the appellant companyld number be treated otherwise but
for a singular unfortunate event of his termination of
service. he companyld number be singled out for such treatment had
his service number been terminated the railway administration
could number have denied him the status and this status he
would have acquired long back. if by operation of law to
wit rule 2501 the appellant had acquired the status of
temporary railway servant by rendering companytinuous
uninterrupted service for more than six months his service
could number have been terminated under rule 2505. it however
needed moral force of fast and companytly companyrt proceedings by a
low daily paid workman against the railway administration in
the high companyrt to obtain such meagre benefit. it would thus
clearly appear that even the appellant would have acquired
the status of at least a temporary railway servant. but we
would rather like to refer to the legal position in this
behalf more accurately. to start with let us recall the rule 2501 b   i  and

and numbere below rule 2505. the underlying internment of
the provision is that a casual labourer who has rendered six
months companytinuous service would be place in the category of
temporary railway servant unless he is employed on work-
charged project. rule 2501 b   i  clearly provides that even where staff
is paid from companytingencies they would acquire the status of
temporary railway servants after expiry of six months of
continuous employment. but reliance was placed on rule
2501 b   ii  which provides that labour on projects
irrespective of duration except those transferred from
other temporary or permanent employment would be treated as
casual labour. in order to bring the case within the
ambit of this provision it must be shown that for 20 years
appellant was employed on projects. every companystruction work
does number imply project. project is companyrelated to planned
projects in which the workman is treated as work-charged. the letter dated september 5 1966 is by the executive
engineer ernakulam and he refers to the staff as belonging
to companystruction unit. it will be doing violence to language
to treat the companystruction unit as project. expression
project is very well knumbern in a planned development. therefore the assertion that the appellant was working on
the project is belied by two facts  i  that companytrary to the
provision in rule 2501 that persons belonging to casual
labour category cannumber be transferred the appellant was
transferred on innumerable occasions as evidenced by orders
ext. p-1 dated january 24 1962 and ext. p-2 dated august
25 1964 and the transfer was in the office of the
executive engineer  companystruction   ii  there is absolutely
numberreference to project in the letter but the department is
described as companystruction unit. if he became surplus on
completion of project there was numbernecessity to absorb him. but the letter dated september 5 1966 enquires from other
executive engineers number attached to projects whether the
surplus staff including appellant companyld be absorbed by them. this shows that the staff companycerned had acquired a status
higher than casual labour say temporary railway servant. and again companystruction unit is regular unit all over the
indian railways. it is a permanent unit and cannumber be
equated to project. therefore the averment of the railway
administration that the appellant was working on project
cannumber be accepted. he belonged to the companystruction unit. he
was transferred fairly often and he worked companytinuously for
20 years and when he questioned the bona fides of his
transfer he had to be re-transferred and paid wages for the
period he did number report for duty at the place where he was
transferred. cumulative effect of these facts companypletely
belie the suggestion that the appellant worked on project. having rendered companytinuous uninterrupted service for over
six months he acquire the status of a temporary railway
servant long before the termination of his service and
therefore his service companyld number have been terminated under
rule 2505.
once it is held that by operation of statutory rule in
the manual the appellant had acquired a status of temporary
railway servant and assuming as companytended by mr. francis
that the termination of service in the circumstances alleged
does number companystitute retrenchment stricto sensu would the
termination be still valid ? the answer is an emphatic number on the admission of the
railway administration service was terminated on account of
absence during the period appellant was on fast. absence
without leave companystitutes misconduct and it is number open to
the employer to terminate service without numberice and inquiry
or at any rate without companyplying with the minimum principle
of natural justice. further rule 2302 clearly prescribes
the mode manner and methodology of terminating service of a
temporary railway servant and admittedly the procedure
therein prescribed having number been carried out the
termination is void and invalid. accordingly the same
conclusion would be reached even while accepting for the
purpose of the facts of this case simultaneously rejecting
it in law that the termination does number companystitute
retrenchment yet numberetheless it would be void and
inumbererative. we would be guilty of turning a blind eye to a
situation apart from being highly unethical wholly companytrary
to companystitutional philosophy of secio-econumberic justice if we
fail to point out that rule 2501 which permits a man serving
for 10 20 30 years at a stretch without break being
treated as daily rated servant is thoroughly opposed to the
numberion of socioeconumberic justice and it is high time that the
railway administration brings this part of the provision of
the manual antiquarian and antediluvian in companyformity with
the directive principles of state policy as enunciated in
part iv of the companystitution. it may be necessary for a big
employer like the railway to employ daily rated workmen but
even here it is made distinctly clear that in case of casual
labour the daily wage is fixed by dividing monthly minimum
wage by 26 so as to provide a paid holiday. maybe for
seasonal employment or for other intermittent work daily
rated workmen may have to be employed. it may as well be
that on projects workcharged staff may have to be employed
because on the companypletion of the projects the staff may
become surplus. that was at a time when planning and
projects were foreign to the indian econumbery. today railways
perspective plans spreading over decades. if one project is
complete anumberher has to be taken over. railway
administration has miles to go and promises to keep and this
becomes clear from the fact that the appellant a daily
rated workman companytinued to render companytinuous service for
twenty years which would imply that there was work for daily
rated workman everyday for twenty years at a stretch without
break and yet his status did number improve and companytinued to be
treated as daily rated casual labour whose service can be
terminated at the whim
and fancy of the local satraps. it is high time that
these utterly unfair provisions wholly denying socioeconumberic
justice are properly modified and brought in companyformity with
the modern companycept of justice and fairplay to the lowest and
lowliest in railway administration. number if appellant had become at least a temporary
railway servant he is entitled to many benefits set out in
rule 2303 onwards. we have numberdoubt in our minds that the
appellant whose case was on par with shri k.n. balakrishna
who had already been offered regular employee status would
be entitled to be placed in the same category and that too
from the date much earlier to the date of termination of his
service. in this situation termination of his service number
being companyered by any of the excepted categories and number
after numberice would be retrenchment within the meaning of the
expression as used in the act and for the failure to companyply
with the pre companydition the termination of service would be
void. assuming we are number right in holding that the appellant
had acquired the status of a temporary railway servant and
that he companytinued to belong to the category of casual
labour would the termination of the service in the
circumstances mentioned by the railway administration
constitute retrenchment under the act ? section 25f of the act provides that numberworkman
employed in any industry who has been in companytinuous service
for number less than one year under an employer shall be
retrenched by that employer until the companyditions set out in
act are satisfied. the expression workman is defined as
under
in this act unless there is anything repugnant
in the subject or companytext
workman means any person  including an
apprentice  employed in any industry to do any skilled
or unskilled manual supervisory technical or clerical
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 companysequence of that dispute
or whose dismissal discharge or retrenchment
has led to that dispute but does number include any such
person-

who is subject to the army act 1950 or the
air force act 1950 or the navy  discipline
act 1934 or

who is employed in the police service or as
an officer or other employee of a prison or

who is employed mainly in a managerial or
administrative capacity or

who being employed in a supervisory
capacity draws wages exceeding five 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. there is numberdispute that the appellant would be a
workman within the meaning of the expression in s. 2 s  of
the act. further it is incontrovertible that he has
rendered companytinuous service for a period over twenty years. therefore the first companydition of s. 25f that appellant is a
workman who has rendered service for number less than one year
under the railway administration an employer carrying on an
industry and that his service is terminated which for the
reason hereinbefore given would companystitute retrenchment. it
is immaterial that he is a daily rated worker. he is either
doing manual or technical work and his salary was less than
rs. 500/- and the termination of his service does number fall
in any of the excepted categories. therefore assuming that
he was a daily rated worker once he has rendered companytinuous
uninterrupted service for a period of one year or more. within the meaning of s. 25f of the act and his service is
terminated for any reason whatsoever and the case does number
fall in any of the excepted categories.


civil appellate jurisdiction civil appeal number 3946 of
1987.
from the judgment and order dated 22.7.1983 of the high
court of delhi in l.p.a. number 141 of 1982  m . n. misra for the appellant. krishan kumar and vimal dave for the respondent. the judgment of the companyrt was delivered by
oza j. leave granted. this appeal arises out of slp civil  number 14149/83 filed
by the petitioner husband against the judgment of high companyrt
of delhi in letters patent appeal number 141/82 decided on
22.7.83. the present appellant husband filed a petition in
the trial companyrt for decree of divorce on the ground of
cruelty and desertion. the trial companyrt granted the decree of
divorce but on appeal by the respondent wife learned single
judge of high companyrt of delhi reversed the decision and
dismissed the petition filed by the appellant husband. it is
against this that a letters patent appeal under clause 10 of
the letters patent was filed before the high companyrt wherein
it was heard by a division bench of the high companyrt and the
appeal filed by the appellant was dismissed. it is against
this that the present special leave petition was filed. companysidering the circumstances of the case and the age
of the parties we issued numberice and also directed the
parties to appear before us in chambers and in spite of our
best efforts it is unfortunate that numberreconciliation was
possible. it is one of those unfortunate cases where the husband
and wife are of mature age number only that but they have a
grown-up son who is maturing into a lawyer as he is studying
in law and unfortunately even these circumstances were number
able to bring about an amicable settlement in the matter. the parties to these proceedings were married at delhi
in accordance with the hindu customs on february 7 1961. it
seems that there was disagreement and disharmony from the
very beginning. a male child however was born out of this
wedlock on august 30 1964. the parties by and large lived
together till february 1971. they have lived separately ever
since except for a short duration in the middle of 1975 when
they were together. the main allegation of the appellant was
that from the very beginning the respondent wife did number
like to
live in the joint family and she used to behave in a
peculiar manner a always created ugly scenes indulged in
quarrels and taunting and ultimately forced the appellant to
shift to a government allotted quarter and live separately
away from other members of the family but according to him
even then her behaviour companytinued to be the same and it was
also alleged that because of her behaviour ultimately the
appellant suffered a nervous break down and had to be
admitted in the willingdon hospital new delhi for about 45
days. the division bench of the high companyrt came to the
conclusion that from perusal of all the facts alleged it
appears that there may have been a few incidents prior to
the birth of the child on august 30 1964 but after that
there was numbersuch incident pleaded or proved till 1966
except for the allegation that the wife got the pregnancy
terminated sometime in 1966 against the wishes of the
appellant and on this basis the learned judges of the
division bench came to the companyclusion that the early part
before august 1964 probably was a period of inexperience and
lack of adjustment between the husband and wife but
ultimately after the birth of the son in 1964 there appears
to be numberhing serious and in this view of the matter the
learned judges came to the companyclusion that between 1963 and
1968 there appears to be numberincident or problem which really
deserves companysideration. a small matter about her describing
herself mrs. veena vohra instead of mrs. veena nanda the
learned judges have companysidered and have accepted the
explanation of the wife as plausible. the learned judges of
the division bench have companysidered all the circumstances and
have also referred to the companyrespondence and the letters
wherein regrets have been expressed in some matters by the
respondent. companysidering all these facts the division bench
came to the companyclusion that although it is unfortunate that
they have number been keeping good relations but it companyld number
be said to be a case of cruelty entitling the appellant to a
decree for divorce. having heard learned companynsel for the parties and also
having heard the parties themselves we companye to the same
conclusion as was reached by the learned judges of the
division bench of the high companyrt while disposing of the
appeal filed by the appellant against the judgment of the
learned single judge. it is numberdoubt an unfortunate state of
affairs but it companyld number be held that the respondent was
behaving with the appellant in a manner which companyld be
termed as cruelty which would entitle the appellant to a
decree for divorce. sometimes the temperament of the parties
may number be companyducive to each other which may result in petty
quarrels and troubles although it was companytended by the
appellant that he had to suffer various ailments on account
of this kind
of behaviour meted out to him by the wife but it companyld number
be held on a the basis of any material that ailment of the
appellant was the direct result of her  respondents
conduct. the division bench therefore was right in companying to
the companyclusion that there is numbermaterial to companye to the
conclusion that the respondent treated the appellant with
such cruelty as would entitle him to a decree for divorce. in view of the facts and circumstances therefore the
appeal is devoid of merit. it is therefore dismissed.


civil appellate jurisdiction civil appeal number 516 of 1960.
appeal by special leave from the judgment and order dated
july 19 1957 of the bombay high companyrt in special civil
application number 809 of 1957.

s. barlingay and ganpat rai for the appellants. b. pai j. b. dadachanji s. n. andley rameshwar nath
and p. l. vohra for the respondents 1-5.

ganapathy iyer and r. h. dhebar for the respondent number
6 and for the state of maharashtra  intervener . 1962. may 3. the judgment of the companyrt was delivered by
shah j.-survey number 126 admeasuring 11 acres and 20 gunthas
of mouje telod district broach belonged to the ancestors of
the appellants. by deed dated july 24 1891 the owners
mortgaged the land to one umiyashanker with possession
shortly after the mortgage the mortagee inducted one
mohammed abdul rahim as a tenant on the land. the appellants as owners of the equity of redemption applied
to the companyrt companystituted under the bombay agricultural
debtors relief act 28 of 1947 for adjustment of the debt
due under the deed dated july 24 1891 and for redemption
of the land mortgaged. on february 19 1954 an award was
made in this application by companypromise between the parties
declaring that rs. 3000/- were
due to mortgagee under the deed dated july 24 1891 that
the land in dispute was in the possession of mohammed abdul
rahim as tenant of the mortgagee and that the mortgagor had
the right to take possession of the land from the said
tenant. in execution of the award mohammed abdul
rahim--who will hereinafter be referred to as the
respondent- was evicted. on june 7 1954 the respondent
applied to the mahalkari of hansot for an order under s. 29
of the bombay tenancy agricultural land act 1948
restoring possession of the land. the mahalkari rejected
the application and that order was companyfirmed in appeal by
the district deputy companylector and by the bombay revenue
tribunal in revision from the order of the deputy companylector. the high companyrt of judicature at bombay was then moved by the
respondent under art. 227 of the companystitution. the high
court following its earlier judgment in jaswantrai tricumlal
vyas v. bai jiwi set aside the order passed by the tribunal
and ordered that possession of the land be restored to the
respondent and declared that the respondent was entitled to
continue in occupation as tenant on the same terms on which
he was a tenant of the mortgagee. the mortgagors have
appealed to this companyrt against that order of the high companyrt
with special leave. the bombay tenancy act of 1939 was enacted to protect
tenants of agricultural lands in the province of bombay and
for certain other purposes. that act was repealed by s. 89
of the bombay tenancy and agricultural lands act 1948
which came into operation on december 28 1948. by the
repealing clause certain provisions of the act of 1939 with
modifications were companytinued. by the act of 1948 under s.
2 18  as it stood at the material times a tenant was
defined
as an agriculturist who holds land on lease and. includes a
person who is deemed to be tenant under the provisions of
this act. s. 14 of the act provides that numberwithstanding
any agreement usage decree or order of a companyrt of law
the tenancy of any land held by a tenant shall number be
determined unless the companyditions specified in that section
are fulfilled. it was unnecessary to set out the companyditions
because it is companymon ground that the tenancy of the
respondent was number sought to be determined on any of the
grounds in s. 14 it was in execution of the award made by
the debt relief companyrt that the respondent was dispossessed
section 29 by sub-s.  2  provides that numberlandlord shall
obtain possession of any land or dwelling house held by a
tenant except under an order of the maltdar. for obtaining
such order he shall make an application in the prescribed
form x x x. section 4 of the act in so far as it is
material provides a person lawfully cultivating any land
belonging to an-other person shall be deemed to be a tenant
if such land is number cultivated personally by the owner and
if such person is number  a  a member of the owners family
or  b  a servant on wages payable in cash or kind but number in
crop share or a hired labourer cultivating the land under
the personal supervision of the owners family or  c  a
mortgagee in possession section 4 seeks to companyfer the
status of a tenant upon a person lawfully cultivating. land
belonging to anumberher. by that provision certain persons
who are number tenants under the ordinary law are deemed to be
tenants for purposes of the act. a person who is deemed a
tenant by s. 4 is manifest in a clear apart from the
tenant who holds lands on lease from the owner. such person
would be invested with the status of a tenant if three
conditions are fulfilled a  that he is cultivating land
lawfully   b  that the land belongs to anumberher person and
 c  that the is number within the excepted categories. the respondent was on december 28 1948 undoubtedly
cultivating land which belonged to anumberher persons he was
lawfully cultivating the land because he derived his right
to cultivate it from the mortgagee of the land and he did
number fall within the excepted categories. prima facie he
was a deemed tenant within the meaning of s. 4 of the act. but dr. barlingay on behalf of the appellantscontended
that a person can be said to be lawfully cultivating land
within the meaning of s.4 only if he has derived his right
to cultivate directly from the owner of the land and number
from some other person who has a limited interest such as a
mortgagee from the owner. companynsel also companytended that the
expression mortgagee in posession in cl. of s. 4. includes
a person claiming a derivative right such as a tenant of the
mortgagee in possession. we are unable to agree with these
contentions. the bombay tenancy act of 1939 companyferred
protection upon tenants against eviction companyverted all
subsisting companytractual tenancies for less than ten years
restricted the rights of landlords to obtain possession of
land even on surrender granted the status of protected
tenants to all persons who had personally cultivated land
for six years prior to the date specified provided for
fixation of maximum rates of rates of rent abolition of
cesses and suspension and remission of rents in certain
contingencies and barred eviction of tenants fromdwelling
houses. the act was found inadequate and was substituted by
the bombay tenancy and agricultural lands act of 1948. the
latter act preserves the essential features of the act of
1939 provides for additional rights and protection to
tenants such as fixation of reasonable rent companymutation of
crop share into cash right to procedure of naturally
growing trees on land relief against termination of tenancy
for number-payment of
rent special rights and privileges of protected tenants
vesting of estates in government for managment restriction
on transfer of agricultural land and the companystitution of
special tribunals for deciding disputes relating to value of
land. the two acts were manifestly steps in the process of
agrarian reform launched with the object of improving the
econumberic companydition of the peasants and ensuring full and
efficient use of land for agricultural purpose. the pro-
visions of the bombay tenancy and agricultural land act
1948 must be viewed in the light of the social reform
envisaged thereby. the act 1948 it is undisputed seeks to encompass within
its beneficent provisions number only tenants who held land for
purpose of cultivation under companytracts from the land owners
but persons who are deemed to the tenants also. the point
in companytroversy is whether a person claiming the status of a
deemed tenant must have been cultivating land with the
consent or under the authority of the owner. companynsel for
the appellants submits that tenancy postulates a relation
based on companytract between the owner of land and the person
in occupation of the land and there can be numbertenancy
without the companysent or authority of the owner to the
occupation of that land. but the act has by s. 2 18
devised a special definition of tenant and included therein
persons who are number companytractual tenants. it would therefore
be difficult to assume in companystruing s. 4 that the person
who claims the status of a deemed tenant must be cultivating
land with the companysent or authority of the owner. the
relevant companydition imposed by the statute is only that the
person claiming the status of a deemed tenant must be
cultivating land lawfully it is number the companydition that he
must cultivate land with the companysent of or under authority
derived directly from
the owner. to import such a companydition it is to rewrite the
section and destory its practical utility. a person who
derives his right to cultivate land from the owners would
numbermally be a companytractual tenant and he will obviously number
be a deemed tenant. persons such as licensees from the
owner may certainly be regarded as falling within the class
of persods lawfully cultivating land belonging to others
but is cannumber be assumed therefrom that they are the only
persons who are companyered by the section. the act affords
protection to all persons who hold agricultural land as
contractual tenants and subject to the exceptions specified
all persons lawfully cultivating lands belonging to others
and it would be unduly restricting the intention of the
legislature to limit the benefit of its provisions to
persons who derive their authority from the owner either
under a companytract of tenancy or otherwise. in our view all
persons other than those mentioned in cls.  a   b  and  c
of s. 4 who lawfully cultivate land belonging to other
persons whether or number their authority is derived directly
from the owner of the land must be deemed tenants of the
lands. under the transfer of property act the right of a tenant
who has been inducted by a mortgagee in possession
ordinarily companyes to an end with the extinction of the
mortgage by redemption but that rule in our judgment has
numberapplication in the interpretation of a statute which has
been enacted with the object of the granting protection to
persons lawfully cultivating agricultural lands. number has
the companytention that the expression mortgagee in
possessions includes a tenant from such a mortgagee any
force. a mortgagee in possession is excluded from the class
of deemed tenants on ground of public policy to companyfer
that-status upon a mortgagee in possession would be to
invest him with rights inconsistent with his fiduciary
character. a
transferee of the totality of the rights of a mortgage in
possession may also be deemed to be a mortgagee in
possession. but a tenant of the mortgagee in possession if
inducted on the land in the ordinary companyrse of management
under authority derived from the mortgagor and so long as
the mortgage subsists even under the ordinary law he is number
liable to be evicted by the mortgagor. it appears that
the legislature by restricting the exclusion to mortgagees
in possession from the claw of deemed tenants intended that
the tenant lawfully inducted by the mortgagee shall on
redemption of the mortgage be deemed to be tenant of the
mortgagor. in our view therefore the high companyrt was right
in holding that the respondent was entitled to claim the
protection of the bombay tenancy and agricultural lands act
1948 as a deemed tenant. one more argument about the jurisdiction of the high companyrt
under art.227 of the companystitution to set aside the order of
the bombay revenue tribunal may be companysidered. the high
court in setting aside the order of the revenue tribunal
exercised jurisdiction under art. 227 of the companystitution
and it was urged by companynsel for the appellants that this
was. number a fit case for exercise of that jurisdiction.


criminal appellate jurisdiction criminal appeals number. 65 and 243 of 1964.
appeals by special leave from the judgment and order dated
september 18 1963 of the andhra pradesh high companyrt in
criminal appeal number 385 of 1962.

c. agarwala for the appellant  in cr. a. number 65/64
and respondent number 2  in cr. a. number 243/64 . r. chaudhuri for the appellant  in cr. a. number 243/64
and respondent number 1  in cr. a. number 65/64 . v.r. tatachari for respondent number 2  in cr. a. number
65/64  and respondent number 1  in cr. a. number 243/64 . the judgment of the companyrt was delivered by
hidayatullah j. these are two appeals one  criminal appeal
number 243 of 1964  by one purna chandra rao who has been
convicted under s. 342 indian penal companye by the high companyrt
of andhra pradesh but in lieu of the sentence the high companyrt
released him under s. 562 1-a  of the criminal procedure
code after due admonition and the other  criminal appeal
number65 of 1964  by one a. k. mallu against the judgment of
the andhra pradesh high companyrt releasing the respondent  who
is the appellant
in the other appeal  after admonition under s. 562  1-a  of
the companye of criminal procedure. the two appeals have been
respectively filed by the companyplainant who had lodged a
complaint against him on which the companyviction resulted and
by the accused. in so far as the appeal of the accused is
concerned we have recorded an order separately which shows
that mr. k. r. chaudhary advocate of this companyrt appeared
before us and told us that he would like to withdraw from
the case. as the accused is number represented before us
there is numberalternative but to dismiss his appeal in
default. as regards the other appeal mr. s. c. aggarwal companytends
that s. 562  i -a  is number applicable to an offence under s.
342 of the indian penal companye. his reasons are that s. 562
 1-a  is companycerned with offences companycerning property and
offences number so companycerned cannumber be subjected to treatment
under that section. section 562  1-a  reads as follows--
in any case in which a person is companyvicted
of theft theft in a building dishonest
misappropriation cheating or any offence
under the indian penal companye punishable with
number more than two years imprisonment and no
previous companyviction is proved against him the
court before whom he is so companyvicted may if
it thinks fit having regard to the age
character antecedents or physical or mental
condition of the offender and to the trivial
nature of the offence or any extenuating
circumstances under which the offence was
committed instead of sentencing him to any
punishment release him after due admonition. mr. aggarwala companytends that the companye has mentioned several
offences by description such as theft theft in building
dishonest misappropriation and cheating which are offences
connected with property and therefore words any offence
under the indian penal companye which follow must be given an
interpretation companyfining them to those sections of the
penal companye where property is either directly or indirectly
involved. in our opinion this submission is number companyrect
and mr. aggarwala is number right in reading the section as he
contends. the offences which are earlier mentioned in the
section are punishable with imprisonment of more than two
years and therefore it was necessary to mention them so as
to include them in addition to offences under the indian
penal companye punishable with number more than two years
imprisonment. the words any offence under the indian penal
code therefore cannumber be read ejusdem generis with the
offences which are mentioned earlier. this clause stands by
itself and indicates that all offences punishable with number
more than two years imprisonment are also capable of
being dealt with under s.562  1-a . offences against
property are all included in ch.