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Judgment
S. Murtaza Fazl Ali, J.—This is an application for a writ of certiorari in order to quash an order of the respondents terminating the services
of the petitioner on the ground that he had reached the age of superannuation.
The petitioner was an Assistant Store Keeper in the Industrial establishment known as The Jammu Rosin and Turpentine Factory, Miran Sahib.
This factory is owned by the State and is under the administrative control of respondent No. 2 who is the manager of the factory. The petitioner
joined the service of the factory in the year 1955 and has since then been serving in the factory in the capacity of an Assistant Store Keeper till his
services were terminated by an order dated 22-10-1982. The petitioner urged that he was a workman within the meaning of S. 2(q) of the
Industrial Disputes Act, 2006 and as the termination of his services in the manner described above amounted to retrenchment within the meaning of
S. 25F of the Industrial Disputes Act, he was entitled to compensation before his services could be terminated.
The Advocate-General appearing for the respondents has submitted in the first place, that the petitioner was not a workman as the duties which
he had to perform were of an administrative nature; and secondly that the termination of the services of the petitioner was a discharge simplicities
and could not be termed as a retrenchment within the meaning of S. 25F of the Industrial Disputes Act.
Mr. Avtar Singh appearing for the petitioner has relied on a decision of the Supreme Court in The State of Bombay and Others Vs. The
Hospital Mazdoor Sabha and Others, and submitted that before his services could be terminated or retrenched, it was incumbent upon the
respondents to pay compensation to him. As, however, no compensation was paid to the petitioner in spite of repeated representations, the order
terminating his services was invalid. Doubtless if it is held that the termination of the services of the petitioner amounted to retrenchment within the
meaning of S. 25F of the Industrial Disputes Act, the order has to be declared to be invalid as no compensation was paid to the petitioner which is
a condition precedent for the retrenchment of a workman by the employer. The difficulty in this case; however, is that the petitioner's case is not
covered by the provisions of S. 25F of the Industrial Disputes Act.
In The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, it was conceded before the Court that the workman was in
fact retrenched. It appears from the facts of that case as narrated in Paras. 5 and 6 of the reported judgment that respondents 2 and 3 in the case
before the Supreme Court had been retrenched for the purpose of making room for other government servants with a longer record of service. It
was thus not disputed before the Supreme Court that the respondents before it were retrenched. In the instant case, however, the controversy
centers round the fact as to whether the petitioner has been retrenched or whether his services have been terminated on his reaching the age of
superannuation. In order to determine this question, it will be necessary to refer to the definition of the word retrenchment, appearing in S. 2(mm)
of the Industrial Disputes Act, 2006 which runs as under:
'Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment
inflicted by way of disciplinary action, but does not include:
a. voluntary retirement of the workman, or
b. retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman
concerned contains a stipulation in that behalf, or
c. termination of the service of a workman on the ground of continued ill-health.
Mr. Avtar Singh contended that in view of the fact that there is no proof of the existence of any contract by which the employment of the petitioner
could be terminated on his reaching the age of superannuation, it must be held that the case of the petitioner fell beyond sub-clause (b) of section 2
(mm) quoted supra, and, therefore, the termination of the service of the petitioner would amount to retrenchment within the meaning of this clause.
It was argued that the definition given in section 2 (mm) has not been used in the ordinary sense of retrenchment but is wide enough to include the
case of the petitioner. In my opinion, however, this matter is now settled by a number of decisions of the Supreme Court as also of the High Courts
in India. The language of the Industrial Disputes Act prevalent in India is exactly the same as the language of section 2 (mm) of the State Act
quoted above. While interpreting the import and ambit of this section, the Supreme Court in Hariprasad Shivshankar v. A.D. Divelkar, (S) AIR
1957 SC 121, held that the definition of retrenchment in this section was not different from the one used in the ordinary connotation of the word
retrenchment"". In this connection, their Lordships after considering the entire aspects of the various provisions of this Statute observed as follows :
For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that retrenchment as defined in S.2 (oo) and as
used in S. 25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus labour or staff by the
employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the
services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd.
or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer
in the circumstances like those of the Railway Company.
* * * * *
On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.
As regards sub-clauses (a), (b) and (c) of section 2 (mm) also their Lordships made the following observations:
We do not, however, think that sub-clauses (a), (b) and (c) are conclusive of the question before us; they no doubt, apply to a running or
continuing business only, but whether inserted by way of abundant caution or on account of excessive anxiety for clarity, they merely exclude
certain categories of termination of service from the ambit of the definition. They do not necessarily show what is to be included within the
definition.
In view of this Supreme Court decision, therefore, it is absolutely clear that the termination of the service of the employee in order to amount to
retrenchment must be due to discharge of surplus labour or staff in a continuing or running industry. Any other mode of termination will not amount
to retrenchment within the meaning of section 2 (oo) of the Industrial Disputes Act of India, which is the same as section 2 (mm) of the State Act.
This decision of the Supreme Court has been followed by a Full Bench of the Bombay High Court reported in National Garage, Nagpur v. J.
Gonsalves, AIR 1982 Bom; 152 (FB) where the same view has been expressed. A Division Bench of the Bombay High Court reported in Deoli
Bakaram and Others Vs. The State Industrial Court, Nagpur and Others, , had taken a view contrary to the view expressed by the Supreme
Court and it had, therefore, to be overruled by the latter case referred to above. In Burra Kur Coal Co. Ltd. Vs. Azimuddin Ashraff and Another,
and British India Corporation Ltd. and Another Vs. Industrial Tribunal, Punjab, Patiala and Others, , the same view has been reiterated.
Furthermore, in a recent decision of the Supreme Court reported in Anakapalla Co-operative Agricultural and Industrial Society Limited Vs.
Workmen, , while construing the amended provisions of section 25-F of the Industrial Disputes Act, their Lordships of the Supreme Court
endorsed their previous decision reported in (S) AIR 1957 SC 121 referred to above.
In the instant case, the petitioner has neither pleaded nor are there any materials on the record to show that the termination of his service was
due to the discharge of surplus labour or staff. On the other hand, the case made out by the petitioner is that his services were terminated merely
because he had reached the age of superannuation and was given a notice by his employer to that effect. As the termination of the service of the
petitioner does not amount to retrenchment within the meaning of section 2 (mm) it is manifest that section 25-F has no application to the case of
the petitioner and the argument of the learned counsel for the petitioner on this score must, therefore, be overruled.
In view of my decision on this point, it is not necessary for me to go into the question as to whether or not the petitioner is a workman within the
meaning of section 2 (q) of the Industrial Disputes Act and more so the petitioner has not disclosed in his application the nature of the duties which
he had to perform. Indeed, if his duty was of a clerical nature, there will be no difficulty in holding him to be a workman within the meaning of
section 2 (q) of the Industrial Disputes Act. The Advocate General has submitted that it is open to the petitioner to apply to the State for the
decision of his case by the Industrial Tribunal and when that application is filed to the proper authority, the matter may be considered.
For these reasons, therefore, I End no merit in this application which is dismissed but in the circumstances of the case without any order as to
costs.