S.N. Deedwania, J.
1. This writ petition is filed by Mewar Textiles Mills Ltd. Bhilwara for quashing the award given by Industrial Tribunal No. 1 Rajasthan, Jaipur in the following circumstances: Petitioner Mewar Textiles Mills Ltd., Bhilwara is having its factory and business at Bhilwara and doing the business of manufacturing yarn and weaving of cloth and its processing. The company has also a dyeing and bleeching department. Non-petitioner No. 3 Sahbudin was a workman of the petitioner and was working in the dyeing and bleeching department. While working in the factory, Sahbudin met with an accident on 9-6-1971. During the course of the treatment, four fingers and the palm of the left hand of Sahbudin was amputed. He lost 50% of his earning capacity. Sahbudin appeared before the petitioner on 1-4 1972 with a medical certificate Ex. 1 declaring him fit with the remark that 'the wound has been completely healed, he may be used for light work after proper training.' It appears that Sahbudin was not given any work. The Secretary of the Mills Mazdoor Sangh, Bhilwara sent a letter to the petitioner that Sahbudin may be employed as a 'jhaduwala.' The non-petitioner No. 2 Mill Mazdoor Sangh, Bhilwara again sent a reminder letter to the petitioner for providing light work to Sahbudin. Yet another letter Ex. 2 on 6-5-1972 was sent to the petitioner by non-petitioner No. 2. Sahbudin was not in a position to carry on the job which he had been doing before the accident. As there was no other job of light nature in the dyeing and bleeching department, the petitioner did not give any employment to Sahbudin. The conciliation proceedings failed and reference was made by the State Government to the Industrial Tribunal in the following terms: ^^-------dks lsok es u j[kuk mfpr ,oa oS/k gS Non-petitioner No. 2 filed a claim on 13-12-1972. It was alleged in the claim that Sahbudin was a permanent workman in dyeing and bleeching department of the petitioner. He met with an accident while working in the washing machine on 9-6-1971 whereby his four fingers & palm of the left hand were crushed and amputed.He remained under treatment from 1-6-1971 to 31-3-1972. Sahbudin was given a fitness certificate with the recommendation for light work. Inspite of various letters and reminders, the petitioner did not allot any work to Sahbudin and also failed to pay him the wages. The copy of the claim petition is annexure 3, The relief claimed was that Sahbudin be considered on duly and full wages should be paid to him for the period till he was provided with the work. In the reply, the petitioner did not dispute that Sahbudin was a permanent workman or he met with an accident. The fitness certificate was also not disputed. The reply is annexure 4. The Industrial Tribunal held that the workman was entitled to full wages as the employment of Sahbudin had not been terminated by the petitioner in accordance with the rules in force It was further held that if on enquiry, Sahbudin is found completely incapable of performing the job, the management could terminate his services under the relevant rule. Thus the reference was answered in the negative. The impugned award is challenged inter alia on the following grounds:
1. The learned Judge acted without jurisdiction in dealing with the question of termination of the employment of Sahbudin as it was not the case of any party to the proceedings that his employment was terminated in contravention of the Standing Order contained in Chapter 16 Rule 22 framed by the petitioner.
2. It was undisputed that Sahbudin was not in position to carry on the work as he had been carrying on before the accident, his contract of service therefore automatically came to an end.
2. The writ petition is opposed by non-petitioners No 2 and 3. I have heard the learned Counsel for the parties and perused the record of the case carefully. It is argued by the learned Counsel for the petitioner that it was an admitted position that Sahbudin was not in a position to carry on the job which he had been doing before the accident. The medical certificate recommends that he may be provided with light work after proper training. It is evident from the claim presented by the Union Ex. 3 and from the affidavit Ex. 6 of Sahbudin and Ex. 7 of Mohan that the efficiency of Sahbudin had been impaired and he was not in a position to discharge the same duties which he was performing before the accident. On the other hand it is argued by the learned Counsel for the non-petitioners that merely because light work was requested for Sahbudin it could not be inferred that he was incapable of performing the same duties as he was discharging before the accident. This question was never put in issue before the Tribunal. Further more the petitioner led no evidence before the Tribunal to prove this fact. I have considered the argument carefully. In the certificate of the doctor, it is not specifically stated that Sahbudin was unfit to perform the duties which he was performing before the accident. I have also perused Ex.6 and 7 but it is nowhere admitted that Sahbudin was not in a position to discharge his duties which he was performing before the accident. It may be stated that no evidence was led before the Tribunal on behalf of the petitioner to prove that Sahbudin was incapable of performing those duties which were assigned to him before the accident. I am, therefore, of the view that the argument advanced by the learned Counsel for the petitioner that the contract of service came to an end as Sahbudin had become incapable of performing those duties which he was performing before the accident. There is no specific order by the petitioner accordance with chapter 16 Rule 22 whereby the services of Sahbudin could have been put to end.
3. Learned Counsel for the petitioner vehemently argued that the contract of service automatically came to an end as has been held in the case of The Workman of the Bangalore Woollen, Cotton & Silk Mills Co. Ltd. v. The Management of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. : AIR1962SC1363 In this case there was a dispute between discharged workmen and Bangalore W.C. & S. Mills Co. A compromise was filed before the Labour Appellate Tribunal and Under Clause 5 of the compromise the Management agreed to give gratuity according to the terms of Ordinance No. 5 of 1953. Soon after the award, a dispute arose between Workmen and the Company as to whether 60 workmen whose services to the Company had come to an end for various reasons were entitled to payment in terms of the award of December 18, 1953. Of these sixty workmen, 37 had been discharged by the company on account of old age and inefficiency but without any official enquiry as to their health. The company therefore, agreed and paid those persons the money in terms of the award. Ten out of the remaining 23 workmen had been discharged on the ground of health after proper medical examination. The question with regard to them was whether they could be said to have been retrenched within the meaning of the definition. In these facts the following observations were made;
Now when a workmen is discharged on the ground that he is medically unfit as happened in the case of the ten workmen with whom alone we are concerned in this appeal, it cannot be said that they had been discharged on he ground that their services were no longer required, on the contrary they were not in a fit condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under tin contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were not required.
The definition makes 'retrenchment' a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had really come to an end itself. That this is the idea involved in the definition of the word 'retrenchment' is also supported by Section 25G of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employ any person he shall give an opportunity to the retrenched workmen to offer themselves for re-employment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re employment, it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If he could not do the work, he could not be offered employment again. It would follow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by he Ordinance.
Evidently therefore, this authority laid down that where the services of a workman are discharged on medical grounds, it could not be said that his services had been terminated on the ground that his services were not required. In that sense it was observed by their lordships of the Supreme Court that if a workmen is discharged on the ground that he was unfit to discharge the service which he had undertaken to render the contract of service came to an and itself. This authority no where laid down that in such a case no order of discharge was necessary. The learned Counsel for the petitioner also relied on the case of Employees in relation to the Bird's Saunda 'D' Colliery P.O. Bhurkunda Dist. Dhanbad v. Their Workmen before the Central Government Industrial Tribunal-cum-Labour Court at Dhanbad reported in the Gazette of India Part 3 Section 3 Sub-Section (2) dated August 24, 1968. I have perused this authority but it is distinguishable on facts in the sense that it was an admitted position that the workman was not in a position to discharge his duties which he was performing before the accident. Moreover I feel that the ratio of Bangalore W.C. & S. Mills Co. Ltd was wrongly applied in this case.
4. However, this is besides the point because on facts the petitioner could not establish that non-petitioner Sahbudin was not in a position to perform or discharge those duties which he were assigned before the accident. The least which the petitioner could do was to pass an order of discharge on the ground of medical unfitness of Sahbudin in accordance with its regulations.
5. The writ petition, therefore, being devoid of any force is dismissed with costs assessed at Rs 200/-.