J.K. Mohanty, J.
1. The petitioner, Bhubaneswar Municipality, has prayed to issue a writ of certiorari or any other appropriate writ /writs, order/orders quashing the award of the learned presiding Officer, Labour Court (O. P. No. 2) dated 30.12. 1378, as per Anriexure-3, directing the reinstatement of opposite party No. 1, an L. D. Clerk, with full back benefits after declaring his termination of service with effect from 25. 9. 1975 as illegal and unjustified.
2. A reference was made by the State Government to the Labour Court under Section 12(5) read with Section 10(1)(d) of the Industrial Disputes Act (hereinafter referred to as 'the Act') for adjudication of the dispute between the management of Bhubaneswar Notified Area Council (now substituted by Bhubaneswar Municipality) and opposite party No. 1 to the following effect.
'Whether the termination of service of Sri Mojes Gaon by the management of the N. A. C., Bhubaneswar with effect from 25. 9. 1975 is legal and/or justified If not, to what relief he is entitled ?'
The Labour Court, after considering the facts and circumstances, found that opposite patty No. 1 was appointed as L. D. Clerk temporarily and his period of service was extended from time to time. Ultimately, a new post was created in which he was absorbed without taking steps to condone his age. But his services were abruptly terminated on the plea that he was a temporary hand. He has served more than two years, i. e., from 16. 9. 1973 to 25. 9. 1975. His services ware terminated after the probation period was over in violation of the provisions of Section 25F of the Act. On the above grounds, the Labour Court held that the termination of service was illegal and unjustified and opposite party No. 1 is entitled to be reinstated in service with full Hack wages. Against the aforesaid order, the petitioner has come to this Court.
3. On behalf of the petitioner, the following questions have been rained :
That opposite party No. 1 was appointed as a temporary L. D. clerk at the age of 83 1/2 years. He had cossed the maximum age limit at the time of his appointment and as per Rule 408 of the Orissa Municipal Rules, the avernment's approval for appointment by condoning the age has not been obtained. On 15. 12. 1972 the petitioner was retrenched. Pa 5. 1. 1973 he was allowed to continue purely on temporary basis. Finally, his services were terminated which cannot be questioned. The order of reinstatement is illegal and without jurisdiction and there is no question of retrenchment so as to attract the provisions of Section 25F of the Act.
4. On behalf of opposite party No. 1 it is contended that opposite party No. 1 was a workman and had been in continuous employment under the petitioner from 6. 7. 1972 till his services were terminated on 25. 9. 197: (except from 15.12. 1972 to 5. 1.1973). The post of opposite party No. 1 was permanent and he had been finally absorbed against such post. That he had crossed the maximum age limit at the time of his appointment was known to opposite party No. 1 at every point of time during his tenure of employment and this has been found by the Labour Court. Though there was suggestion by the Executive Officer to regularise his service, his services were abruptly terminated. The termination of service amounts, to retrenchment and the action is illegal and in violation of Section 25 F and G of the Act.
5. That opposite party No. 1 was a workman is not disputed in this case. The question is whether his appointment is ab initio void as he had crossed the maximum age limit at the time of appointment and the approval of the State Government under Rule 408 of the Municipal Rules has not been obtained.
6. In this case, the Labour Court has categorically come to the finding :
'...in all respect the second party (O. P. No. 1 here) will be declared as 'workman' as he was working under 'industry'.'
This aspect is not challenged here. The Labour Court has also found that it was decided to regularise the appointment of opposite party No. 1 by moving the Government. But no steps were taken to do so and his services were abruptly terminated. Only after the termination of service of opposite party No. 1, the Government was moved for approval under Rule 408 of the Orissa Municipal Rules and the Government in the U. D. Department replied that there was no need to condone the over-age of the second party (O. P. No. 1) as his service had already been terminated.
7. It transpires that several persons who have exceeded 28 years of age have been appointed by the Municipality and are continuing in service. Moreover, no steps have been taken to get the approval of the Government though it was decided to do so. In view of the above facts and circumstances we are of the opinion that this writ petition cannot be thrown out on the ground that opposite party No. 1 was over-aged at the time of his initial appointment.
8. The next question for consideration is whether the termination of services of opposite party No. 1 amounts to retrenchment under Section 2(oo) of the Act and is in violation of Secs. 25-F and G. As already found, opposite party No. 1 was a workman under the petitioner. He was in continuous service from 16. 9.1972 to 25. 9. 1975 Section 2(oo) of the Act reads as follows :
'2. Definitions-In this Act, unless there is anything repugnant in the subject or context,
XX XX XX(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reasons 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 service of a workman on the ground of continued ill-health; '
Section 25F of the Act is to the following effect :
'25F Conditions to retrenchment of workmen-No workman employed in an industry who has been in continuous service for not less than one year under ah employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice :
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service :(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.'
9. Opposite party No. 1 was of continuous employment under the petitioner for more than two years. From the provisions of the Act as enumerated above, there is no doubt that the termination of services of opposite party No. 1 amounts to retrenchment. Admittedly, no notice whatsoever in writing indicating the reasons for retrenchment was served on opposite party No. 1. He has also not been paid the compensation as per the provision of Section 25F(n) of the Act. So, the finding of the Labour Court that the termination of services of opposite party No. 1 is illegal and that he is entitled to be reinstated with full back benefits cannot be assailed.
10. In the result, therefore, this writ petition is dismissed with costs which is assessed at Rs. 200/-
D.P. Mohapatra, J.