(1) This is a petition under Article 226 of the Constitution brought by the British India Corporation Limited on behalf of the New Egerton Woollen Mills Dhariwal, which happens to be the branch of the said Company and is directed against an award given by the Industrial Tribunal, Patiala, presided over by Shri Kesho Ram Passey on a reference relating to the termination of service of respondent No. 3, Piare Lal by the management.
(2) The Company is governed by the Standing Orders made under the Industrial Employment (Standing Orders) Act XX of 1946 which were duly certified on 11th April 1951 and are admittedly still in force. Respondent no. 3 was a workman employed in the Woollen Mills and by an order dated 13th February 1959, his services were terminated with effect from 14th February 1959 under Standing Order No. 19 (a) This standing Order is in the following terms:
'19. Termination of Service by Mill.
(a) The employment of any 'Permanent' Operative may be terminated by the Manger by giving, notice in writing in form D appended. One month's notice in the case of monthly-rated workmen and two weeks notice in the case of other workmen, or by payment of one month's or two weeks' pay, as the case may be, in lieu of notice. If he draws wages on a piece-rate basis, the wages shall be computed on the average daily earnings of such operative for the days actually worked during the previous wage-period.
The reasons for the termination of service shall be recorded in writing by the Manager and shall be communicated to the operative if he so desires at the time of discharge, unless such communication in the opinion of the Manager may directly or indirectly lay the Company and the Manager or the person signing the communication open to criminal or civil proceedings at the instance of the operative'.
Annexure 'A' to the petition is a copy of the letter sent to respondent No. 3 terminating his service in which all that was stated was-
'You are hereby informed that your service stands terminated with effect from 14-2-1959.
You will be paid two weeks' wages in lien of notice period which may be collected from Accounts Office on any working day'.
In appears that respondent No. 3 made an enquiry by means of a letter dated 23rd February 1959 enquiring the cause of termination of his services and on the same date Shri K. V. Nagaich Administrative Officer of the Mills, informed him that the management 'is satisfied that it is not in the interest of business of the concern to disclose reasons for terminating your service'(Vide Annexure 'B').On 26th June 1959 respondent No. 2 referred the following industrial dispute to the Tribunal:
'Whether the termination of services of Shri Piare Lal, Key No. 1712, is justified, proper and in order? If not to what relief he is entitled?
The Tribunal directed the management to reinstate respondent No. 3 immediately with continuity of service and also pay his full wages from the date of his retrenchment to the date of his reinstatement.
(3) The learned counsel for the petitioner contends that the Industrial Tribunal was in error in taking the view that Ss. 25F, 25G and 25J of the Industrial Disputes Act, as amended (to be referred to as the Act) militate against standing Order 19 which can no longer have any valid existence or force now. The Tribunal examined the definition of the word 'retrenchment' given in clause (00) of S. 2 of the Act and considered that the definition was comprehensive enough to include even termination of service simpliciter unless any of the exceptions mentioned in clause (00) was applicable. Thus the essential question to determine is whether in the present case the definition of the service' under Standing Order 19(a). In Burrakur Coal Co. Ltd. V. Azimuddin Ashraff, 1960-2 Lab LJ 434: (AIR 1960 Pat 554) a Division Bench of the Patna High Court consisting of Ramaswami C. J. and Kanhaiya Singh J. considered the meaning of the word 'retrenchment' in S. 2(oo) in connection with the termination of services of a workman on account of incapacity to work due to old age. There also it was claimed that the workman in question had been retrenched as the workman in comprehensive enough to include discharge from service on account of physical disability and emphasis was laid on the expression 'for any reason whatsoever' in S. 2(oo).
The Patna Bench referred to the law laid down by the Supreme Court in Hariprasad v. A. D. Divelkar 1957-1 Lab LJ 243 : ((S) AIR 1957 SC 121) according to which the view expressed by the Bombay High Court in certain cases to the contrary was wrong and the correct position was that retrenchment as defined in S. 2(oo) and as used in S. 25F had no wider meaning than the ordinary accepted connotation of the word. It meant 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.
A similar view was expressed by the Supreme Court in another case Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, 1957-1 Lab LJ 235: ((s) AIR 1957 SC 95) and retrenchment was held to connote in its ordinary acceptance that the business itself was being continued but that a portion of the staff or the labour force was discharged as surplusage. A Bench of the Bombay High Court in Municipal Corporation of Greater Bombay v. Labour Appellate Tribunal of India, 1957-2 Lab LJ 37: ((S) AIR 1957 Bom 188) came to the conclusion following the aforesaid decisions of the Supreme Court that termination of service of a workman not being a punishment inflicted by way of disciplinary action was not retrenchment unless such termination was the result of surplus labour or staff. In the Bombay case Standing Order 26 was very much in the same terms as Standing Order 19 in the present case and it was held that the termination of employment of the workman concerned could not be regarded to be retrenchment having regard to the test laid down by the Supreme Court.
In another decision of the Nagpur Bench of the Bombay High Court in Devidayual Nanakchand v. State Industrial Court Nagpur, AIR 1959 Bom 65 it has been observed that before action could be taken under Standing Order 23, the provisions of S. 25F had to be complied with. The learned counsel for the respondents who relied on the aforesaid case could not show in the first instance whether Standing Order 23 there was in the same terms as Standing Order 19 in the present case and 26 in the previous Bombay case. At any rate, even if that Standing Order was on same lines, with great respect, there is no discussion of the law laid down by the Supreme Court referred to before, and followed by the Bombay Court previously. The connotation and meaning of the word 'retrenchment' as defined by S. 2(oo) having been settled by the Supreme Court, it must be held that the Industrial Tribunal in the present case was clearly in error in holding that Standing Order 19 had been rendered invalid and ineffective by virtue of the provisions contained in S. 25F, 25G and 25J of the Act in the absence of any repugnancy or conflict between the provisions contained in the aforesaid Standing Order and the Act.
(4) The learned counsel for respondent No. 3 pointed out that the order of termination was more by way of punishment for misconduct than pursuant to the provisions of Standing Order 19. This submission is sought to be reinforced by reference to the absence of any reasons given in the order of termination of service and the mention of it not being in the interest of business to disclose reasons for terminating the service in Annexure 'B' which is not one of the ground contained in the Standing Order itself on which the employer can refuse to give the reasons for termination of service. It is submitted that the Tribunal took all these matters into consideration and came to the conclusion that the evidence of Shri Nagaich the Administrative Officer of the Mills, proved that respondent No.3 had been in fact discharged for misconduct. In that case he should have been given an opportunity to explain away the charge against him under Standing Orders 22 and 23 which was not admittedly afforded to him but it appears to me that the Tribunal was predominantly affected by the misapprehension that Standing Order 19 had been rendered void by the provisions contained in the Act. This is abundantly clear from the trend of his whole order. As the aforesaid error which is apparent vitiates the order passed by the Tribunal, I hereby quash it under Article 226. The industrial dispute must now be decided afresh by the Tribunal on the merits in accordance with law and I direct accordingly in exercise of my powers under Article 227 of the Constitution. In the circumstances I leave the parties to bear their own costs in this Court.
(5) Orders accordingly.