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Deoli Bakaram and ors. Vs. the State Industrial Court, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 117 and 118 to 121 of 1958
Judge
Reported inAIR1959Bom70; (1958)60BOMLR1427; ILR1959Bom550
ActsIndustrial Disputes Act, 1947 - Sections 2, 16(3), 25F, 25G and 25J; Central Provinces and Berar Industrial Disputes Settlement Act, 1947 - Sections 16
AppellantDeoli Bakaram and ors.
RespondentThe State Industrial Court, Nagpur and ors.
Appellant AdvocateV.P. Sathe, Adv.
Respondent AdvocateN.L. Abhyankar and ;K.M. Joshi, Advs.
Excerpt:
industrial disputes act (xiv of 1947), sections 2(oo), 25g - c.p. and beror industrial disputes settlement act (xxiii of 1947), section 16--expression 'contract of employment' in section 2(oo)(b) whether refers to original contract of employment between employee and employer--whether assistant labour commissioner has jurisdiction to entertain application under section 16 of act xxiii of 1947 where provisions of section 25g of central act not complied with--agreement made between union on behalf of workers and employers to be in conformity with law and interests of workers not belonging to union to be protected.;the expression 'the contract of employment' in section 2(oo)(b) of the industrial disputes act, 1947, refers to the original contract of employment where under an employee was..........a case of retrenchment and as the proper procedure laid down in that regard in chapter v-a of the industrial disputes act, 1947, has not been followed, the petitioners are entitled to reinstatement.4. the petitioners had made applications to the labour commissioner under section 16 of the c.p. and berar industrial disputes settlement act, 1947, but those applications were dismissed by the assistant labour commissioner on the ground that the petitioners were retired from service and had not been retrenched. the petitioners thereupon preferred revisions before the state industrial court, which while disagreeing with the view taken by the assistant labour commissioner on the question of the petitioners having been superannuated held all the same that the petitioners though retrenched could.....
Judgment:

J.R. Mudholkar, J.

1. This order will also govern Special Civil Applications Nos. 118 of 1958, 119 of 1958, 120 of 1958 and 121 of 1958.

2. The petitioners in all these cases were employed in the Empress Mills at Nagpur. All of them have been retired from service upon the ground that they have completed 30 years service or over on 1-9-1956. This was done in pursuance of an agreement arrived at between the Rashtriya Mill Mazdoor Sangh on the one hand and the Central India Spinning, Weaving and . respondent No.3 on the other. Under this agreement, each of the petitioners was paid 15 days basic wages and dearness allowance per completed year of service as compensation and in addition one month's salary in lieu of notice.

3. The petitioners contend that the agreement was mala fide, that it was entered into by a Union of which they were not members and that each of them was fit and healthy and able to work in satisfactory manner. They also alleged that while implementing the agreement a number of persons who have completed more than 30 years service have actually been permitted to continue in service despite the agreement. According to Shri Sathe, learned counsel for the petitioners, this is not a case of retirement at all but is a case of retrenchment and as the proper procedure laid down in that regard in Chapter V-A of the Industrial Disputes Act, 1947, has not been followed, the petitioners are entitled to reinstatement.

4. The petitioners had made applications to the Labour Commissioner under Section 16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, but those applications were dismissed by the Assistant Labour Commissioner on the ground that the petitioners were retired from service and had not been retrenched. The petitioners thereupon preferred revisions before the State Industrial Court, which while disagreeing with the view taken by the Assistant Labour Commissioner on the question of the petitioners having been superannuated held all the same that the petitioners though retrenched could not obtain the relief of reinstatement under Section 16 of the Act.

5. It seems to us that both the Assistant Labour Commissioner as well as the State Industrial Court were in error in rejecting the applications of the petitioners under Section 16 of the C.P. and Berar Industrial disputes Settlement Act. There is no doubt that the discharge of the petitioners from service cannot be regarded as retirement at all and in law amounts to retrenchment as defined in Section 2(oo) of the Industrial Disputes Act, 1947. That definition is as follows:

'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;'

According to the learned Assistant Labour Commissioner the case of each of the petitioners fell under Clause (b) of this definition. We would point out that under this clause tow things are necessary. One is that in a contract of employment between the employer and the employee there must be a stipulation on the point of retirement and the second thing is that the stipulation must be with regard to the age of supernnuation. By the expression 'the contract of employment' the legislature clearly refers to the original contract of employment whereunder an employee was accepted in service by the employer. There is no pleading here that in the original contract of employment in the case of any of the petitioners there was a stipulation with regard to the retirement of the employee. The Assistant Labour Commissioner has relied upon an agreement arrived at between the Union and the respondent No.3 and held that the agreement deals with the matter of retirement. In the first place, an agreement of this kind does not fulfil the requirements of Clause (b) because it is not between the employer on the one hand and the employee on the other and is not a contract of employment at all. Secondly, it does not specify the age of superannuation but only says that person who have worked for more than 30 years will be retired from service. That is quite different from superannuation which means causing a person to retire on account of age. For these reasons we have no doubt that none of the petitioners could be said to have been superannuated.

6. Shri Abhyankar then says that they must be deemed to have retired voluntarily from service because they actually accepted the compensation which was offered to them by the respondent No.3. Now, here the fact is that the petitioners, after the order of retirement was served on each of them, made applications to the Assistant Labour Commissioner under Section 16 of the C.P. and Berar Industrial Disputes Settlement act and after the dismissal of their applications they preferred revision applications before the State Industrial court. It was only after the dismissal of their revision applications that they accepted the compensation. It is possible that they did so in the belief that no further remedy was available to them, and in point of fact no remedy was available to them under the Industrial Disputes Act. These being the circumstances, in which the petitioners accepted the compensation it is not open to the respondent No. 3 to say that the petitioners have retired voluntarily.

7. The definition of retrenchment which we have quoted above is a very wide one and it includes every kind of termination of service of a workman otherwise than as a punishment inflicted by way of disciplinary action, or voluntary retirement or retirement by reason having reached the age of superannuation or retirement on the ground of continued ill-health. The case of none of the petitioners fall within any of these exceptions. Therefore it follows that each of the petitioners was retrenched from service.

8. Retrenchment can only be effected in the manner laid down in Chapter V-A of the Industrial Disputes Act, 1947. Section 25F lays down conditions precedent to retrenchment of a workman. Section 25G lays down the procedure for retrenchment. Under this provision the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. it is common ground that the provisions of this Section have not been complied with. In fact, that is also the finding of the State Industrial Court. That being the position, each of the petitioners was entitled to make an application under Section 16 of the C.P. and Berar Industrial Disputes Settlement Act to the Assistant Labour Commissioner for reinstatement.

9. We cannot accept the view of the State industrial Court that the applications did not lie to the Assistant Labour Commissioner for reinstatement under Section 16 of the Act. The reason given by it is that where the complaint of a workman is non-compliance with the provisions of Section 25G of the Industrial Disputes Act, 1947, his remedy lies elsewhere than before the Assistant Labour Commissioner. We find no warrant for this view in the Industrial Disputes Settlement Act. Under this Act where a workman is dismissed, discharged, removed for suspended form service in contravention of the Act or of a standing order or for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge etc, he can make an application under Section 16 of the Act for reinstatement. Now, the Standing Orders of the respondent No.3 must by virtue of the provisions of Section 25J of the Industrial Disputes Act, 1947, be deemed to be subject to the provisions of chapter V-A of that Act. Therefore, it would follow that a workman could not be discharged from service, (of course, otherwise than as a punishment inflicted by way of disciplinary action), without complying with the provisions of Section 25G, Chapter V-A of the Industrial disputes Act. Where the complaint is that the provisions of Section 25G contained in that Chapter have not been complied with, the Assistant Labour Commissioner surely will have jurisdiction to entertain an application under Section 16 of the C.P. and Berar Industrial Disputes Settlement Act.

10. For these reasons we hold that the petitioner in each case is entitled to be reinstated.

11. Now, Section 16(3) of the Act entitled each of the petitioners to back wages as from the date of discharge from service. In the instant case there has been a considerable delay on the part of the petitioners in coming to this Court with the writ petition. The revision applications were dismissed by the State Industrial Court on 26-8-1957. The petitioners were made to this Court on 12-2-1958, that means 5 months and 17 days after the order of the State Industrial Court. We think that one month and 17 days should have been quite sufficient for filing the petitions and the delay of four months was inexcusable. According, we direct that while calculating back wages none of the petitioners will be allowed any back wages for the period between 12-10-1957 and 12-2-1958.

12. Before parting with the cases, there are two points on which we should like to make some observations. ON is that while making an agreement on behalf of the workers the Union as well as the employers will do well to bear in mind that the agreement must be in conformity not only with the provisions of the general law but also in conformity with the provisions of the C.P. and Berar Industrial Disputes Settlement Act, 1947. They should be careful not to make an agreement which contravenes the provisions of any law and in particular the Act which we have referred to above.

13. The second point on which we would like to make some observations is that this is a case where the Union clearly appears to have disregarded the interests of the workers. Apparently the Union did not very much bother about them because they were not members of the Union. No doubt, the law allows a recognised Union to enter into certain types of agreements with the employer, which agreements would binding even on non-members, Where such is the case there is a very heavy duty resting on the Union concerned as well as the employer to see to it that the interests of the workers who do not belong to the recognised Union are well protected. It is also their duty to see that the workers are not discriminated against. Here, we find from the evidence of Panthaki the Factory Manager, that a number of workers who though they had served for more than 30 years were still retained and allowed to work. It is possible that that was because they were members of the Union which had negotiated the agreement. Even if that were not so, the action of the employer in continuing in employment some workers whose cases fell within in employment some workers whose cases fell within the so-called agreement appears to be highly discriminatory. In our view, an agreement of this kind is not binding on the workers.

14. Finally, we would like to add that since the petitioners have already withdrawn amounts of compensation awarded to them under the agreement it will be open to the employer to set-off the amounts so paid by them to the petitioners against the back wages due to them.

15. Costs of these petitions will be borne by the respondent No.3.

16. Order accordingly.


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