R.S. Narula, J.
1. The management of Goodlass Nerolao Paints (Private), Ltd. (hereinafter referred to as the employer), has filed this petition under Article 226 of the Constitution to quash the order of reference dated 3/9 August 1963, made by the Chief Commissioner, Delhi (respondent 1), under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter called the Act), and to set aside by a writ in the nature of certiorari or by other appropriate direction the award of the industrial tribunal, Delhi (respondent 2), dated 30 August 1965, published in Delhi Gazette, dated 14 October 1965, directing reinstatement of Bansi Lal, respondent 3.
2. The facts giving rise to the filing of the petition are these. Bansi Lal, respondent 3(hereinafter called the contesting respondent), was employed as a salesman by the employer in April 1953. He was confirmed as such on 20 July 1953. It is claimed by the employer that in his capacity as a salesman the contesting respondent was not a workman within the meaning of that expression in the Act. According to the employer the services of the contesting respondent as a salesman were brought to an end with his consent in July 1961, and the employer decided to try him as a godown-keeper with effect from 20 July 1981. The employer has placed on record as Annexure I to the writ petition a copy of its letter of that date addressed to the contesting respondent reading as follows:
We refer to the discussions you have had with Sri Tirodkar and as mutually exchanged, we are prepared to allow you to work as a godown-keeper for a trial period of one year with effect from 20 July 1961, on a salary of Rs. 145 per month plus current dearness allowance in relation to your salary. Should these arrangements be confirmed you will be placed in the grade of Rs. 80-7-115-10-165 -E.B.-10-225.
We wish to record that these alternative arrangements have been made only because your work as salesman was most unsatisfactory. As a godown-keeper you will be required to look after the work of the existing godowns.
3. According to the employer the arrangement was confirmed by the contesting respondent and he started working as a probationer godown-keepar on the basis of the abovesaid letter of appointment. This was followed by the employer's letter, dated 26 July 1961 (Annexure J), wherein the contesting respondent was informed that his salary bad been fixed at Rs. 155 per month and not Rs. 145 per month with effect from 20 July 1961, the other terms and conditions of service remaining unaltered. After the receipt of this communication, the contesting respondent appears to have sent some letter, dated 21 August 1961, of which no copy has been produced before me by either party. But from its reply it appears that the contesting respondent protested against his being on probation as a godown-keeper and not being appointed as a permanent godown-keeper. A copy of the reply to that letter which was sent by the employer to the contesting respondent on 23 August 1961, has been produced with the writ petition (Annexure K). In that letter it is reiterated that the contesting respondent had not come up to the employer's requirements as a salesman and that instead of dispensing with his services altogether it was decided to consider the alternative proposition of offering him a job as the employer's Delhi godown-keeper. Then follow the following paragraphs in the employer's letter (Annexure K):
As the position now being offered to you is work to which you have not previously been accustomed and as you were unsuitable in your previous assignment as junior salesman, I think, we have every right to engage you on a year's probation in a new appointment as a godown-keeper.
The fact that you are a permanent employee of the company does not debar us from ascertaining your suitability in other sections of our organization after it has been found that your usefulness to the company has been wanting.
This being so, you are fortunate in being given the opportunity to work as our godown-keeper in Delhi and the one year's trial period should, therefore, be accepted without question.
I am, however, pleased to learn from Para. 3 of your letter that your terms of employment are now unconditionally accepted.
4. At the end of the period of one year's probation as a godown-keeper the employer did not consider the contesting respondent to be fit enough to be confirmed. The employer, therefore, extended the original period of probation by a further period of three months with effect from 20 July 1962, and communicated the same to the contesting respondent in a letter, dated 8 August 1962 (Annexure N). He was not confirmed even at the end of that period and his probation was again extended till 30 December 1962, by letter (Annexure P), dated 9 November 1962. The last paragraph of that letter reads as follows:
It is noted that your extended probationary period ended on 20 October but having regard to these lapses and the general unsatisfactory work on your part, we are not willing to confirm you as our Delhi godown-keeper. In spite of this and with a view to giving you a last chance you are now advised that your trial period has bean extended up to 31 December 1962. If during this time there is no marked improvement in your work, your services will be automatically terminated with the expiry of the extended trial period.
Ultimately, by letter, dated 24 December 1962 (Annexure S), the contesting respondent was Informed that his work continued to be unsatisfactory and that, therefore, his services would no longer be required with effect from the close of 31 December 1962, the end of his extended period of probation. It was then stated in Annexure S that though it was not necessary to give any notice or salary in lieu of notice to the contesting respondent, the employer was willing, as a special case, to pay the contesting respondent one month's salary in lieu of notice. The contesting respondent on receipt of the letter (Annexure S) requested the petitioners to reconsider his case for appointment as godown-keeper and, on the refusal of the employer to reconsider the matter, approached the appropriate authorities for making a reference to the industrial tribunal when the conciliation officer reported failure of conciliation proceedings. The Chief Commissioner of Delhi issued notification dated 3 August 1965 (Annexure A) under Sections 10(1)(d) and 12(5) of the Act referring the said dispute of the industrial tribunal for the Union Territory of Delhi for adjudication. The matter upon which adjudication by the tribunal was authorized was described in the following words in the said notification:
Whether the termination of services of Bansi Lal is unjustified and to what relief is he entitled
5. It is significant to notice that the appropriate Government did not specify in the notification as to whether the tribunal was to adjudicate upon the legality or otherwise of the termination of the services of the contesting respondent as a godown-keeper or as a salesman. According to the employer, disputes had arisen between the parties only on the termination of the service of the contesting respondent by letter, dated 24 December 1962 (Annexure S), and that, therefore, the scope of proceedings before the industrial tribunal was confined to the termination of the contesting respondent's service as a godown-keeper and that no question of the tribunal going into the validity of the bringing to an end his service as a salesman could arise.
6. Before the industrial tribunal the contesting respondent filed his claim (Annexure B) dated 5 September 1983, Paras. (7) and (8) of the claim are quoted verbatim as the parties have referred to the same again and again:
(7) That the management, vide their letter, dated 20 July 1961, placed Bansi Lal In the job of godown-keepar with immediate effect on a basic salary of Rs. 145 with further allowances. The basic salary was further amended to Rs. 155 by a subsequent letter, dated 22 July 1961. The plea was that the services of Bansi Lal were most unsatisfactory but there was never any proof to that effect nor the same was a fact.
(8) That the management served Bansi Lal with a letter of termination dated 9 November 1962, terminating his services from 31 December 1962 on some vague charges, without holding any enquiry and without, giving any opportunity for giving defence. The charges have not been established and it is also against the principles enunciated in the truce agreement in the tripartite conference. A copy of the said letter of the management is enclosed as Annexure A to the claim statement. This is against the principles enunciated by the Supreme Court of India and is bound to be quashed.
It is, therefore, prayed that necessary directions be passed on the management for treating their letter of discharge dated 9 November 1962, as null and void and allowing Bansi Lal to continue in the service of the management.
It would be noticed from the above-quoted paragraphs of the contesting respondent's claim lodged with the industrial tribunal that he appeared to be aggrieved by the order of termination of his services dated 9 November 1962, and prayed for directing the employer to treat the same as cancelled. In fact, the services were not terminated by letter, dated 9 November 1962 (Annexure P), but only the period of the contesting respondent's probation had been extended by that, letter till 31 December 1962. The employer submitted its written statement, dated 9 October 1963, in reply to the contesting respondent's claim. It was averred therein that as salesman the contesting respondent was not a workman within the meaning of the Act and that the claim, if any, about the alleged rights of the contesting respondent as salesman would be outside the scope of the reference and outside the jurisdiction of the industrial tribunal. The reply to Paras. 7 and 8 of the statement of claim was given by the employer in the following words:
With reference to Para. 7 it is submitted that, as above mentioned, the management having found the work of Bansi Lal as a salesman most unsatisfactory over a period of years and ultimately instead of terminating his services, which they could have done, but purely out of sympathy and in consideration of length of service, gave further opportunity to him to work as a godown-keeper on a trial period, so that if ha could satisfy the management that he could perform the duties of a godown-keeper to their satisfaction, he could continue further in service. During the first year of trial period, his work was found unsatisfactory and various caution letters were served on him and also oral warnings were given to him. Nevertheless, the management gave him a further opportunity to satisfy them by extending the trial period for another six months. Notwithstanding this extension of trial period, hie work continued to be unsatisfactory whereupon the management had no option but to terminate his services which they did by their letter dated 24 December 1962. The last sentence of Para. 7 is denied and it is material to note that he never made an issue of caution letters being without foundation or they were too vague on any earlier occasion. The same, as above, is a farther afterthought to create a prejudice against the management.
It is denied that the management terminated the services of Bansi Lal, vide letter, dated 9 November 1962, as alleged in Para. 8, By this letter the management again recorded their dissatisfaction about Bansi Lal's services as a godown-keeper. Bansi Lal'a services were actually terminated by the company by its letter, dated 24 December 1962. There was no question of any chargesheet to be submitted to Bansi Lal, as he was only on trial period and his services were not confirmed at any stage as a godown-keeper and his work having been found unsatisfactory, the management was justified in terminating his services during trial period and not confirming him in the position of a godown-keeper.
As Banal Lal was only on a trial period and as the various lapses committed by him were pointed to him from time to time, nevertheless he showed no improvement in his work, the management was justified in not confirming him as a godown-keeper and in terminating his services. The discharge of Bansi Lal was effected during his trial period for inefficiency and in any event it was not a dismissal. Without prejudice to the above contentions, in any event, it is submitted that the management was justified on the record of the case to take the action that they have taken. It is further denied that the said letter of 9 November 1982, was null and void. It is further prayed that the claim of Bansi Lal be dismissed with costs and the reference be answered in favour of the management.
After the contesting respondent filed his joinder, dated 6 November 1963 (Annexure D), the industrial tribunal framed the following two issues in the case:
(1) Whether the Industrial dispute of Bansi Lal has been transformed into an industrial dispute and whether the union has any locus standi to raise this dispute ?
(2) Whether the termination of the services of Bansi Lal as a godown-keeper was wrongful and unjustified If so, to what relief is he entitled ?
It is not disputed by the parties that in due course the plea giving rise to issue (1) was given up by the employer and all that remained to be tried by the industrial tribunal was issue (2).
7. By application, dated 29 May 1965 (Annexure E), the employer sought leave of the tribunal to raise an additional objection about the validity of the reference by the Delhi administration on the ground that the employer has only a branch office within the jurisdiction of the Delhi administration. The objection sought to be raised was couched in the following language:
That the branch office of a limited company has no existence in law and the management is not the employer of Bansi Lal. Therefore, the order of reference is bad in law and this tribunal has no jurisdiction to entertain or adjudicate upon the reference.
Bansi Lal contested the application by his reply, dated 1 June 1965 (Annexure P). The tribunal disposed of the said application of the employer by its order, dated 29 June 1965 (Annexure G), in the following words:. Since, however, the case was posted for evidence, the application is allowed to be made subject to the payment of Rs. 30 as costs with the condition that the entire evidence, including on merits, will be recorded on the next Hitting and thereafter the preliminary objection will be heard followed by arguments on merits, if necessary.
8. During the trial of the case before the industrial tribunal an attempt appears to have been made by the employer to show that In his capacity as salesman the contesting respondent was not a workman within the meaning of the word as given in the Act and that, therefore, the tribunal could not go into the question of the legality or otherwise of the termination of Bansi Lal's employment as a salesman. It is obvious that the tribunal did not allow this matter to be agitated before it. The tribunal made a note in the following words in its record about the reason for which questions relating to the contesting respondent not having been a workman while being employed as salesman were being disallowed:
These questions seem to relate to the point, whether a salesman was a workman or not and since this is not an issue all the questions were not permitted.
The employer examined only its Delhi manager in support of its case. To rebut the same the contesting respondent himself entered the witness-box and did not produce any other evidence before the tribunal. The tribunal by its impugned award, dated 30 August 1965 (Annexure V), hold that the termination of the services of the contesting respondent, in the way in which the termination was effected, was wrongfull and unjustified and that at worst the employer could have reverted Bansi Lal to his original post of salesman or to any other suitable post without reducing his emoluments and without affecting his continuity of service. On that basis it was held by the tribunal that the contesting respondent was entitled to be reinstated on the salary which he was drawing on the date of the termination of his services and the continuity of his service had also to be restored. The tribunal added in its award that in the circumstances of the case the contesting respondent would not be entitled to any increments which he could have earned otherwise during the period of his appointment as godown-keeper or if his appointment had continued after 31 December 1962 and that the employer would be at liberty to reinstate him either as a godown-keeper or as a salesman without altering the scale and other emoluments which were being drawn by Mm at the time of the termination of his service. The award was published on 14 October 1965. On 4 January 1966, this writ petition was filed and it was admitted by the Motion Bench (S. B. Capoor and S.K. Kapur, JJ.) on the next day. The operation of the impugned award was stayed ad interim. The ex parte stay order was confirmed by Khanna, J., on 25 January 1966.
9. Respondents 1 and 2 have not entered appearance and have not contested the writ petition. The contesting respondent has filed his written statement dated 25 January 1966, through the union which has been prosecuting his cause.
10. At the hearing of the writ petition before me, learned Counsel for toe petitioner did not seriously press the additional ground taken by his client before the industrial tribunal relating to the alleged invalidity of the reference. The ground on which the reference was sought to be attacked in this connexion was that the registered head office of the employer was in Bombay, that the employer could not be deemed to reside where it had only a branch office, that the contesting respondent had been appointed at Bombay and the entire control of his service was from Bombay. Even it(sic) this objection had been pressed by the counsel I would have held that there is no fores in it. The petitioner before me is also the management of the company at Delhi. There is no doubt that the writ petition had to be filed by the person who was a party before the industrial tribunal and against whom an award had been made. But the branch office is merely an address and the legal person is the company. Moreover, the contesting respondent was employed as the Delhi godown-keeper of the petitioner and his services were terminated at Delhi. I, therefore, hold that the Chief Commissioner, Delhi, was the appropriate Government for making this reference to the industrial tribunal and that the impugned reference is not invalid on that account.
11. Sri G. B. Pal, the learned Counsel for the petitioner, has then urged the following points in support of the writ petition:
(1) The award of the industrial tribunal is outside the scope of the reference made by the Delhi administration as the reference related only to the termination of the service of the contesting respondent as a godown-keeper and the tribunal had no Jurisdiction to embark on an enquiry about the illegality or otherwise of the termination of the contesting respondent's service as salesman.
(2) In any case even if the reference made by the Government could be deemed to include any claim relating to the ending of the contesting respondent's services as a salesman, the same would be outside the scopa of the Act and beyond the jurisdiction of the tribunal on the ground that a salesman is not a workman within the meaning of that expression in the Act.
(3) In either event the tribunal had disqualified itself from going into and deciding the claim of the contesting respondent as a salesman because the tribunal had declined to take evidence on the question whether a salesman was a workman at all or not and without deciding that question which related to the jurisdiction of the tribunal it could not seize jurisdiction in that behalf.
(4) The termination of the services of the contesting respondent at the end of his period of probation did not give any cause of action to the contesting respondent.
(5) Even if the contesting respondent had been confirmed as a godown-keeper the termination of his service on giving him on a month's notice or salary in lieu thereof could not be impugned except on the ground of mala fides and no such ground was ever taken by the respondent or existed In the case. The impugned termination was, therefore, valid and was not assailable under the Act.
(6) The termination of the service of the contesting respondent on the facts found in this case was not by way of retrenchment and Section 25F of the Act had, therefore, no application to the case.
12. Before dealing with the legal question raised by Sri Pai, I may put at one place some of the salient facts which appear to emerge from the history of the current dispute between the parties. These are:
(1) The contesting respondent was a permanent salesman of the employer duly confirmed as such since July 1953.
(2) Services of the contesting respondent as a salesman do not appear to have been formally terminated at any time. Having been found unsuitable for that job he was tried on probation as a godown-keeper,
(3) Services of the contesting respondent have been terminated on the expiry of his extended period of probation and that also on giving him one month's salary in lieu of notice.
(4) The industrial tribunal has denied to the employer opportunity to prove that the contesting respondent, as salesman, was not a ' workman ' within the meaning of that expression in the Act.
(5) The services of the contesting respondent were not terminated for any misconduct. Nor is it established that the termination of the service of the contesting respondent was mala fide or by way of victimization.
13. One more fact may be added to those enumerated above. Both parties stated before me that there are no model standing orders by which the establishment of the employer is governed. It is further agreed that the employer has a commercial establishment at Delhi and that the terms of service and conditions of work of the contesting respondent are governed by the Delhi Shops and Establishments Act, 7 of 1954 (hereinafter called the Delhi Act), as the contesting respondent is an ' employee ' within the meaning ascribed to that word in Section 2(7) of the Delhi Act.
14. Stage is now set for dealing with the various contentions raised before me by the learned Counsel. Dealing with the ground (1) first, it is noticed:
(a) that the burden of the grievances and claim of the contesting respondent before the industrial tribunal as disclosed in his claim statement related to the termination of his service in the end of 1962 which was as a godown-keeper on extended probation;
(b) that the tribunal found that the transfer of the contesting respondent from his position as a salesman to the post of godown-keeper was not with the consent of the contesting respondent and was neither voluntary nor justified; and
(c) that no dispute about the legality or otherwise of the transfer of the contesting respondent from the post of a salesman to that of godown-keeper was ever referred for adjudication to the industrial tribunal. Nor was the disputed question of the circumstances in which the contesting respondent was appointed as a godown-keeper on probation referred to the tribunal.
15. It may be borne in mind that in its written statement before the tribunal the employer had definitely taken up a plea about the contesting respondent being not a ' workman ' within the meaning of the Act in his capacity as a salesman and to the effect that any dispute relating to his capacity as a salesman was outside the scope of the Act, the reference and the jurisdiction of the tribunal. In his rejoinder filed by the contesting respondent in reply to the employer's written statement the above allegations had been controverted and it had been stated that a salesman performing clerical, manual and technical work was a workman within the meaning of the Act. In spite of abovementioned pleadings of the parties, the industrial tribunal not only did not put the dispute involved in those pleas into issue, but declined to try those matters when he did not allow the employer to pub questions relating to those pleas and recorded the note in that behalf on 15 July 1965, which has already been reproduced by me. In this situation, it appears to me that the industrial tribunal had no jurisdiction to give findings about the rights of the contesting respondent as a salesman without first putting into issue, trying and deciding the question whether considering the duties and responsibilities of the contesting respondent in that capacity he was a ' workman ' within the meaning of the Act or not.
16. It is not possible to definitely decide the second question raised by Sri Pal as the tribunal has not recorded any finding about a salesman in the commercial establishment of the employer being a ' workman ' or not. In the absence of such a finding it is neither possible nor proper to state whether such a question would have been within the jurisdiction of the tribunal to try or not.
17. The third point argued by the learned Counsel for the petitioner has already been dealt with by me and decided in favour of the petitioner while disposing of the first one.
18. This brings me to the main contest between the parties in this writ petition which is covered by points 4 to 6 raised by Sri Pai all of which points I will deal with together. Since it is agreed between the parties that the conditions of service of the contesting respondent are determined by the Delhi Act, I may first quote Section 30 of that Act which deals with termination of service of an employee thereunder:
(1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month's notice in writing or wages in lieu of such notice:
Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges alleged against him in writing.(2) No employee who has put in three months' continuous service shall terminate his employment unless he has given to his employer a notice of at least one month, in writing; in case he fails to give one month's notice he will be released from his employment on payment of an amount equal to one month's pay.(3) * * *(4) * * *(5) * * *
Bansi Lal's service not having been terminated by way of misconduct and he having been admittedly in service of the employer for more than three months prior to the issue of notice of termination to him all that the contesting respondent was entitled to was one month's notice in writing or wages in lieu of that notice even if he was in the permanent service of the employer. In no case can a probationer be placed on a higher pedestal than a permanent employee, In this view of the matter really no other question appears to arise in this case except the contention of Sri Roy regarding the termination of the service of the contesting respondent amounting to retrenchment within the meaning of Section 25F of the Act. In Assam Oil Company, Ltd. v. its workmen 1960-I L.L.J. 587 at 590-591, it was held by their lordships of the Supreme Court as follows:
If the contract gives the employer the power to terminate the services of his employee after a month's notice or subject to some other condition it would be open to him to take recourse to the said term or condition and terminate the services of his employee, but, when the validity of such termination is challenged in industrial adjudication, it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the contract. If the discharge has been ordered by the employer in bona fide exercise of his power, then the industrial tribunal may not interfere with it; but, the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be entitled to go behind the words and the form and decide whether the discharge is a discharge simpliciter or not. If it appears that the purported exercise of the power to terminate the services of the employee was, in fact, the result of the misconduct alleged against him, then the tribunal will be justified in dealing with the dispute on the basis that despite its appearance to the contrary the order of discharge is in effect an order of dismissal. The exercise of the power in question to be valid must always be bona fide. If the bona fides of the said exercise of power are successfully challenged, then the industrial tribunal would be entitled to interfere with the order in question. It is in this context that the industrial tribunal must consider whether the discharge is mala fide or whether it amounts to victimization or an unfair labour practice, or is so capricious or unreasonable as would lead to the Inference that it has been passed for ulterior motives and not in bona fide exercise of the power conferred by the contract. In some cases the employer may disapprove of the trade union activities of his employee and may purport to discharge his services under the terms of the contract. In such cases, if it appears that the real reason and motive for discharge is the trade union activities of the employee that would be a case where the industrial tribunal can justly held that the discharge is unjustified and has been made mala fide. It may also appear in some cases that though the order of discharge is couched in words which do not impute any misconduct to the employee, in substance, it is based on misconduct of which, according to the employer, the employee has been guilty, and that would make the impugned discharge a punitive dismissal. In a such case fairplay and justice require that the employee should be given a chance to explain the allegation weighing in the mind of the employer and that would necessitate a proper enquiry. Whether or not the termination of services in a given case is the result of the bona fide exercise of the power conferred on the employer by the contract or whether, in substance, it is a punishment for alleged misconduct would always depend upon the facts and circumstances of each case. In this connexion, it is important to remember that just as the employer's right to exercise his option in terms of the contract has to be recognized so is the employee's right to expect security of tenure to be taken into account. These principles have been consistently followed by Industrial tribunals and we think rightly, vide Buckingham and Carnatic Company, Ltd. v. workers of the company 1951-I L.L.J. (Sup.) 1. Therefore, we are not prepared to accede to the argument urged before us by the learned Additional Solicitor-General that whenever the employer purports to terminate the services of his employee by virtue of the power conferred on him by the terms of contract, industrial tribunals cannot question its validity, propriety or legality.
It is admitted in this case that no model standing orders had been issued in respect of the employer's establishment under the Industrial Employment (Standing Orders) Act, 20 of 1946, nor has any contract between the employer and the contesting respondent containing any particular terms or conditions of service been proved. The conditions of service of the contesting respondent relating to the termination of his employment are, therefore, covered by Section 30(1) of the Delhi Act which has already been quoted above. On the record of this case there is nothing to show that the Impugned termination of the services of the contesting respondent had been effected mala fide or otherwise than in bona fide exercise of the power conferred on the employer by Sub-section (1) of Section 30 of the Delhi Act. It is only when the termination is either by way of punishment or mala fide that it can be questioned before the tribunal in a case where it is otherwise and prima facie, within the scope of the model standing orders or the terms of contract between the parties. The finding of the tribunal about the transfer or termination not being technically regular or not being justified does not amount to a finding of mala fides or victimization. Nor has it been alleged that the contesting respondent had ever taken undue part in the trade union activities or offended the employer in any way so as to invite the employer's wrath. In fact, it appears that the employer in this case did everything possible to accommodate and absorb the contesting respondent, but it is indeed unfortunate that the contesting respondent could not give satisfaction to the employer even in the alternative capacity in which he was tried. In Express Newspapers, Ltd. v. Labour Court, Madurai, and Anr. 1964-I L.L.J. 9 (vide supra), it was emphasized that there could be no automatic termination of the service of a probationer on the expiry of the period of his probation and that the termination of a probationer's service on the expiry of the probationary period could not give any cause of action to the employee, but if the services were terminated before the expiry of the period of probation it could be deemed to be by way of punishment. The only exception to the said rule referred to by their lordships of the Supreme Court in Express Newspapers case 1964-I L.L.J. 9 (vide supra), was that of mala fides or victimization. The appropriate Government as well as the tribunal referred and tried this case respectively on the basis that it was a case of termination of service and not of dismissal of the employee. Their lordships of the Supreme Court held in Chartered Bank v. Chartered Bank Employees' Union and Anr. 1960-II L.L.J. 222, that the termination of the services of the concerned employee in that case being not on account of misconduct on his part and the termination being in accordance with the provisions of the relevant standing orders, the industrial tribunal could not interfere with the matter unless it found that though in form the order amounted to termination simpliciter it, in reality, cloaked a dismissal for misconduct. In a case where such a cloak is found, held the Supreme Court, it would be open to the tribunal to set aside the order of termination on finding that the order amounted to a more colourable exercise of the power which purported to have been exercised. The law in this respect has again been very succinctly laid down by the Supreme Court in Bareilly Electricity Supply Company, Ltd. v. Sirajuddin and Anr. 1960-I L.L.J. 556 in the following words at p. 567:
In our opinion, it is very difficult to sustain this award. The appellant asked its officer to retransfer the respondent from the mains to the meter department, and in its pleadings before the tribunal the appellant has urged that the order for re transfer was properly and velidly made. It is difficult to understand why a verbal order should be held to be necessarily invalid and what authority is expected in the person who made the said order. Transferring a cooly from one department to another is a matter of internal arrangement and industrial tribunals should be very careful before they interfere with the orders made in the discharge of the management function in that behalf. The argument that the appellant did not give any reason for this retransfer, though there was hue and cry against it, seems to us to be wholly beside the point. Even the tribunal did not feel inclined to make a definite finding that it was because of the union activities of the respondent that he was re transferred; it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retransfer of the respondent appears to be the sole basis on which the conclusion of mala fides la founded. It is hardly necessary to emphasize that the findings of mala fides can be made by industrial tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made light-heartedly or in a casual manner as has been done by the tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the tribunal has based its decision, we must hold that the order of reinstatement is patently unreasonable and must be set aside.
The ratio of the judgment in Bareilly Electricity Supply Company case 1960-I L.L.J. 556 (vide supra) applies to the instant case. In this case also the tribunal has really directed the reinstatement of the contesting respondent on the finding that his transfer from one post to the other was irregular or not justified. The distinction between a genuine termination of service in accordance with the standing orders on the one hand and a case of colourable exercise on the other was brought out by the Supreme Court in U. B. Dutt & Co. (Private), Ltd. v. their workmen 1982-I L.L.J. 374. Their lordships of the Supreme Court held in that case that the industrial tribunal has the right to enquire in a case of colourable exercise of power into the causes that might have led to the termination of the service of the concerned employee and the tribunal would have jurisdiction to intervene and set aside such termination of the employee only if it is satisfied that the action taken was in fact a colourable exercise of power and was not bona fide. In the present case, the bona fides of the employer were not even questioned before me nor do they appear to have been seriously impugned before the tribunal. That being the case it is obvious that the termination of the service of the contesting respondent, in whatever capacity it may be treated, was bona fide and was in terms of, and in compliance with the conditions laid down in, Sub-section (1) of Section 30 of the Delhi Act and could not consequently be interfered with by the industrial tribunal. In this view of the matter it is unnecessary to deal with the arguments of Sri Roy to the effect that under Rule 13 of the rules framed under the Delhi Act even wilful slowing down is treated as misconduct and that, therefore, the termination of service of Bansi Lal should be treated as for misconduct. Nor does the contention appear to me to be correct as the contesting respondent was never accused of ' wilful' slowing down.
19. It has been lastly contended by Sri Roy that in view of the extended definition of ' retrenchment' contained in Section 2(oo) of the Act, as amended, the termination of the contesting respondent's employment in the circumstances of this case would amount to ' retrenchment' and would entitle him to the benefits of all the consequences that ensue from a case of that type. It was for additional arguments en this point that both sides prayed for an additional hearing after I had originally heard them at length and reserved judgment. An opportunity was allowed to both the sides and they addressed arguments at length on this question at the rehearing.
20. Section 2(oo) of the Act as amended reads 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.
The argument of Sri Roy is that because of the addition of the words for any reason whatsoever in the above-quoted provision the termination of the service of the employee even in terms of model standing orders, a term in the contract or statutory provision would amount to retrenchment even if somebody eke is appointed in the place of the concerned employee or his juniors are retained in service. On facts it is not disputed in the instant case that the post of godown-keeper under the employer in Delhi was not abolished. But in law it appears to me, on a survey of the latest judgment of the Supreme Court, that even the words ' for any reason whatsoever ' in Clause (oo) of Section 2 of the Act relate only to the termination of services of employees who have become surplus to the establishment of the employer concerned and not to all cases of service simpliciter. In Pipraich Sugar Mills, Ltd. v. Pipraich Sugar Mills Mazdoor Union 1957-I L.L.J. 235. It was held that ' retrenchment ' connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged 'as surplusage.' Their lordships further held that though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law not for discharge as such but for discharge on retrenchment, and as retrenchment means in ordinary parlance ' discharge of the surplus,' it cannot include discharge otherwise than as surplus. In Rajasthan State Electricity Board, Jaipur v. Labour Court, Jaipur, and Ors. 1966-I L.L.J. 381; it was held by the Rajasthan High Court in connexion with the expression 'for any reason whatsoever,' as below at p. 387:. What after all is the meaning of the expression ' for any reason whatsoever' When a portion of the staff or labour force is discharged as surplusage in a running or continuing business, the termination of service which follows may be duo to a variety of reasons, e.g., for economy, rationalization in industry, installation of a new labour saving machinery, etc. The legislature in using the expression 'for any reason whatsoever' says in effect:
It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled, then it is retrenchment.In the absence of any compelling words to indicate that the Intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expression altogether from its context to give it such a wide meaning as is contended for by learned Counsel for the respondents. What is being defined is retrenchment, and that is the context of the definition. It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.
In British India Corporation, Ltd. v. Industrial Tribunal, Punjab, and Ors. 1962-I L.L.J. 577 this Court (Grover, J.), held, that provisions contained in the Act, regarding retrenchment apply only to cases of discharge of surplus labour of staff by an employer for any reason whatsoever otherwise than as a punishment and that, therefore, an industrial tribunal would be in error in holding that any standing order providing for termination of service on notice, etc., would be rendered invalid and ineffective by virtue of the provisions regarding retrenchment contained in the Act. In Amritsar Rayan and Silk Mills (Private), Ltd. v. Industrial Tribunal, Punjab, and Ors. 1962-I L.L.J. 563, it was held by K.L. Gosain, J., that where a workman is found guilty of misconduct but the employer taking a lenient view terminates his services by notice under the standing orders instead of dismissing him, the termination of service will not fall within the ambit of the definition of ' retrenchment' in Section 2(oo) of the Act and the provisions of Section 25F of the Act will not, therefore, apply. Considering the law in this respect I hold that in spite of the amended definition of ' retrenchment' as contained in Section 2(oo) of the Act every termination of service of an employee cannot be within the ambit of that expression. The expression ' for any reason whatsoever' relates only to the termination of surplus staff or establishment. In this view of the matter, the termination of the services of the contesting respondent did not amount to retrenchment and no question of his claiming any compensation under Section 25F of the Act can arise. Even otherwise I do not think it is open to the contesting respondent to make any such claim before ma for the first time in those proceedings. If such a claim was available to the contesting respondent he should have raised the question before the industrial tribunal.
21. On the findings recorded by me above, I allow this writ petition and set aside the impugned award of the industrial tribunal. I do not, however, find any ground for quashing or setting aside the reference by the Government as it would have been open to the contesting respondent to prove to the industrial tribunal that the termination of his services was not bona fide or was on account of victimization in which case the tribunal might have been justified to interfere with the same. As the decision in this case has gone against an employee, there will be no order as to costs.