Shri Marmeswar Das vs The Presiding Officer, Labour Court and Others

B.L. Hansaria, J.—Law is not static, it cannot be. Changes in life and in general thinking along with the change in the mores and ethos of the society do call for application of fresh mind on social legislative enactments, more particularly if they deal with the weaker sections of the society. There can be no doubt that the Industrial Disputes Act, 1947, hereinafter the Act, is a measure meant, inter alia, to protect the interest of workers. They had to be protected from the principle of "hire and fire". As livelihood is a part of life which cannot be taken away, as pee the mandate of Article 21 of the Constitution, except in accordance with the procedure established by law, the interpretation to a protective measure in the Act has to be construed not only in accordance with the approach manifested in the Directive Principles but also la a way which does not violate fundamental rights.

In the present case, we are concerned with interpretation of the word "retrenchment" as defined in Section 2(oo) of the Act. As retrenchment is principally the termination of the service of a workman, we entertain no doubt that in case two views were reasonably possible, the one which tilts in favor of the workman has to be adopted. In view of some recent pronouncements of the Supreme Court we are, however, not required to widen the horizon ourselves, but while applying the ratio of these decisions to the instant case, we may have to travel a little further in the direction shown by the apex Court.

Let us first note the definition of the word "retrenchment". It has been defined in Section 2(oo) to mean:

(oo) "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 work-man on the ground of continued ill-health;.

There was a time when it was thought, in view of what was stated in Hari Prasad Shivshankar v. A.D. Divikar AIR 1951 SC 121 , that retrenchment is connected with the discharge of surplus labor. The decision in Hari Prasad Shivshankar''s case has been explained in a subsequent decision to be noted later, as being confined to the context in which the matter was examined the same being the closure of an undertaking. A question was, therefore, asked if definition of retrenchment goes so far beyond the accepted notion as to include the termination of review of all workmen in an industry where the industry itself cased to exist..." The question was answered in the negative. As is known, after the decision in Hari Prasad, the Act was amended and Sections 23 FF and 25FFF were inserted to take case of compensation payable to a workman in case of closure or transfer of an undertaking, See Santosh Gupta Vs. State Bank of Patiala,

The conception of retrenchment received a fresh thereby at. the band of Krishna Iyer, J, in The State Bank of India Vs. Shri N. Sundara Money, Relying on the words "for any reason whatsoever" finding place in Section 2(00) it was stated by a Bench of three learned Judges that this would take within its fold any kind of termination not covered by the exceptions mentioned in the section. Sundara Mony was a case where the employment had come to an end by efflux of time. A plea was, therefore, taken that as the termination does not owe to any overt act of the employer, the same was not a retrenchment within the meaning of the provision. The Bench observed that termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. This thinking was accepted as correct by another Bench of three learned Judges in Hindusthan Steel Limited v. Presiding Officer, Labour Court AIR 1977 SC 31. In this case, specific reference was made to Hari Prasad Shivshankar''s case and it, was held that there was nothing inconsistent between Hari Prasad Shivshankar''s case and Sundara Moni''s case; and so it was held that automatic termination of service on efflux of contractual period would also amount to retrenchment.

In sequence of events Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, is the next decision on this question. Again, a Bench of three learned Judges held that siri-king-off the name of a workman from rolls under the provisions of the Standing Orders would also amount to retrenchment.

Then came the decision in Santosh Gupta and it was clearly stated that "retrenchment" includes every kind of termination except those excluded by the section and to which Section 25F would otherwise not apply, Santosh Gupta was a case where the workman had been discharged on the ground that she had not passed the test which would have enabled her to be confirmed. The same was held to be a retrenchment within the meaning of Section 2(oo). It was pointed out that the manifest object of Section 25F and cognate provisions being to compensate the workman for loss of employment and to provide him with where-withal to subsist until he finds fresh employment, it was difficult to make any distinction, between termination of service for one reason and termination of service for another. When a submission was made that retrenchment ought to be confined to discharge from service on account of surplus ages, the Court observed that it was impossible the accept the same, as in that case there would have been no need to define the expression "retrenchment" and in such wide terms. The next case Mohan Lal Vs. Management of Bharat Electronics Ltd., is important for our purpose because that was also a case, as is one at hand, where the incumbent was first appointed on probation for six months which was subsequently extended, and thereafter the termination order came beyond the extended period of probation, As some arguments were advanced that the case did not attract Section 25F as the incumbent was not "in continuous service for not less than one year", the Court explained the scope of Section 25B of the Act which has defined ''continuous service'', and pointed out the difference between its two Sub-sections. (We are not adverting to the same as it is not necessary for our purpose).

The latest decision of the highest Court is in L. Robert D''souza v. Executive Engineer AIR 1982 SC 854, wherein, after referring to all the earlier decisions, it was held that striking-off the name of a workman from rolls without anything more would constitute retrenchment, as it is not covered by the exception mentioned in Section 2(oo) of the Act.

In view of these pronouncement it is not open for an employer to say now that though a case of termination may not be covered by the exceptions mentioned in Section 2(oo), at would not be retrenchment. Nonetheless, an argument to the contrary has been advanced by Shri Deka for the Indian Oil Corporation in whose service the Petitioner was first appointed on 17.8.61 as Fire lighting Operator on probation for a period of six months on salary of Rs. 71/- plus usual allowances. This period was extended for a further period of six mouths with effect from 22.2.1962 by an order passed on 28.5.62. Subsequently however, the service of the Petitioner came to be terminated with effect from 5.11.1962 as he was found "medically unfit". This was done by an order passed on 5.11.1962 which stated that in lieu of one month''s notice, the Petitioner would be paid one month''s salary inclusive of D.A. and D.P. The contention is that as one of the conditions of service of the Petitioner was that his continuance in job is subject to his being found medically fit which he was now the employer exercised his right under the contract and, and such, the present is not a case of retrenchment as it was not a termination of the service, but was a termination of the contract of service.

In view of what has been stated in Sundara mony and Hindustan Steel (supra), the fact that it was a termination of contract of service, rather than of the service has no significance inasmuch as it has been held in these decisions that termination even on efflux of contractual period amounts to retrenchment.

Shri Deka then submits that when a person is retrenched on the ground of physical unfitness, the same cannot be a case of retrenchment. He refers in this connection to the Workmen of Bangalore Woolen Cotton and Silk Mills v. Its Management 1962 (1) LLJ 213, a rendering by three learned Judges of the Supreme Court. It has been stated in this judgment that where a workmen is discharged on the ground of physical unfit-ness or ill-health because be was unfit to discharge the service which he had undertaken to render, the service really comes to ah end itself. In coming to this conclusion, reference was made to Section 25G which visualizes re-employment of a retrenched workman, and it was stated that in case a workman is prevented from carrying out work because of his physical condition, such a person cannot be asked to work again. Shri Deka urges us to follow this pronouncement inasmuch as this is the only decision of the Supreme Court relating to termination of service on the ground of ill-health.

We could hot have demurred at all to follow a pronouncement of the apex Court. But later decision stand in our way to accept all that has been held in the it foresaid tendering. In a way there is no intrinsic clash between the aforesaid decision and the later pronouncements, if it is noted that from the definition of retrenchment, termination of service on the ground of "continued ill-health" has been excepted. But then it has to be continued ill-health, We would, therefore, read the decision in Bangalore Woolen, Cotton and Silk Mills (supra) in the light of later pronouncements to be confined to a case of continued ill-health. Shri Deka, indeed, wants us to hold that the present was a case where the workman was so suffering. He submits that as the Petitioner was found to suffer from (i) chronic recurrent duodenal ulcer and (ii) agitated psychosis, the pre. sent was indeed a case of continued ill-health. In this context, be has referred us to the definition of the word "psychosis" as finding place in Webster''s 20th Century Dictionary. As defined therein illness ''psychosis'' more to do with mental disorder than with physical ailment as such. On the materials before us, we are not in a position to bold that the present was a case of continued ill-health. It may be pointed out that a person can be said to surfer from continued ill-health when the disease is spread-over for some period of time. There is not material before us to show as to since when the Petitioner was suffering from the ailments in question. Indeed, the termination order itself does not say that it was on such a ground that the service were dispensed with. It merely speaks of medical unfitness. In any case, there can reasonably be two views on this question, and as already stated, one which helps the workman has to be adopted in a matter like the one at band.

There is further effort on the part of Shri Deka to persuade us to bold that Section 25F was not attracted in the present case inasmuch as the Petitioner being only a probationer before his service was terminated, he cannot be said to have been in continuous service under the employer. We do not find any merit in this submission because a reference to the Standing Orders of the Indian Oil Corporation would show that probationers have been accepted as employees, (See Standing Order No. 2). This apart, as already noted, Mohanlal was a case where the Supreme Court had examined this matter in the context of termination of service of probationer. In this context we may also usefully refer to Ajit Singh v. State of Punjab 1983 (1) SLJ 370 wherein the Supreme Court has dealt with the genesis of concept of the provision. In Service Jurisprudence. There is nothing to show in this judgment if a probationer would not be an employee. The main right conferred by employing a person on probation is the liberty to terminate the service of a probationer during, or at the end of the probationary period a probationer on the ground of unsuitability without going through the rig our of an enquiry.

There is still another submission advanced by Shri Deka. He submits that as the Petitioner had approached this Court earlier in Civil Rule No. 124/64, the decision therein would operate as res-judjcata. Reference to the judgment in that Rule shows that this Court was approached when the complaint of the Petitioner u/s 31A of the Act was dismissed by the Industrial Tribunal. The dismissal was on the ground that there was no contravention of Section 33 in which case alone a direct approach by an employee to the Labor Court or Industrial is maintainable. There is absolutely no decision on the merit of the case, .which is also examinable in a proceeding u/s 33A. In the present proceeding, the Petitioner re-agitating the question of Violation of Section 33 of the Act. As such, we do not find anything in the earlier proceeding to stand in the way of the Petitioner in the present case.

Our attention is lastly drawn to the inordinate delay on the part of the Petitioner in approaching this Court. That had, however, happened as to the misfortune of the Petitioner, he suffered from paralysis practically from 1970 to 1977. We have, therefore, not thought it fit to send back a poor employee empty handed, and that too after five years of his approach to this Court, especially when we are satisfied that the present was a case of retrenchment and all the provisions of Section 25F were not complied with, the retrenchment has to be regarded as illegal.

This takes us to the question of relief. As the Petitioner was in Firefighting Branch, we do not think if it is a fit case where we should order for reinstatement especially when it has come to our notice that the Petitioner had suffered from paralysis of his right leg though it is stated that he has since been cured of that disease. According to us, damage for wrongful retrenchment would be the proper relief in the present case, keeping in view the entire facts and circumstances of the case, including the suffering undergone by the Petitioner, we award a sum of Rs. 7000/- (Rupees seven thousand) on this count.

In the result, the petition is allowed as aforesaid.

Dr. Singh, J.-

As the decision in the case turns on the meaning of the word "retrenchment" which has indeed been legislatively defined, I venture the quote an apposite observation of apex Court to buttress the view taken by my learned brother on the emerging interpretative technique. In its recent decision in Municipal Corporation of Delhi and Others Vs. Mohd. Yasin, It was observed as follows:

Vicissitudes of time and necessitude''s of history contribute to changes of philosophical attitudes, concept, ideas and ideals and, with them, the meaning of words and phrases and the language itself. The philosophy and the language of laws are no exceptions.

How concepts relevant in the understanding of the developing service jurisprudence are changing in the wake of the judicial trend taking law closer to human suffering reflecting the ethos embodied in the Directive Principles of our Constitution has been carefully traced by my learned brother but I venture again to refer in this connection to the decision of the apex Court in Randhir Singh Vs. Union of India (UOI) and Others, wherein the Court enforced the right, "Equal Pay for Equal Work", giving a new turn to F.R.-D.P. syndrome in the context particularly of the Third World human rights jurisprudence by injecting new life, vigor and meaning into Article 39(d) to enlarge its content in the context of the factual matrix.

I would therefore read the expression "continued ill health" occurring in Sub-clause (c) of proviso to Section 2(oo) to mean not a general physical incapacity or debility but meaning only a particular phase in the worker''s life during the course of his employment and the phase being marked not necessarily by recurrence of illness but by the character of its continuity and the length thereof rendering thereby the worker incapable of being available for employment for a substantial period. I do not read anything in the decision of the apex Court reported in 1962 (1) LLJ 213 (Supra) which may be said to run counter to the above view. Indeed, the Court in that case also applied the same test saying "they were not in a fit condition of health to continue in service at all". This I say because as the employers have now, under different statutory provisions, being obligated progressively to discharge the social responsibility of taking care of the health of their workers and to advance medical facilities to them as and when occasion arises in a manner that may prevent or preempt their disablement by which they may be deprived of the capacity of earning their livelihood.

I am therefore, clearly of the opinion that the case of the Petitioner does not come under exception of "continued ill health" so as to make it a case of non-retrenchment. His services were terminated on the held finding, that he was found. "medically unfit". By this finding, in my opinion, the case could not be brought under the exception. The ground of "continued ill health" was therefore not available in this case to the employer and the contention that the Petitioner''s case was not covered by Section 2(oo) cannot, therefore, be upheld. I agree, therefore, with the conclusion and the order proposed in the leading judgment by my learned brother that in this case the Petitioner must be accordingly held to be entitled to the benefit of Section 25(1) and relief for non-compliance by the employer with the said provision is therefore due to him under the law and must be allowed to him by the Court.