Krishna Murari Prasad v. State of Bihar — 1982 DIGILAW 16 (PAT)

JUDGMENT : Brishketu Saran Singh, J. As common questions arise in all these cases they have, with the consent of parties, been heard together and this JUDGMENT : will govern them all. C.W.J.C. No. 1500 of 1980 2. For the sake of convenience, I am referring to the facts of this case in which the prayer is to quash annexures 10 and 9 appended to it. Annexure-10 is a communication dated 2nd June, 1980, by the district Manager, Bihar State Food and Civil Supplies Corporation at Chapra, respondent no. 4, dispensing the services of the petitioners with effect from that very date. Annexure 9 is a communication dated 26th April 1980, from the Managing Director of the Bihar State Food and Civil Supplies Corporation, respondent no. 5, stating that as the appointment of the petitioners was without the approval of the head office, their services should be terminated. It may at this very stage be mentioned that although by annexure-10 the services of four persons had been terminated this application is on behalf of the three petitioners and not on behalf of Sipahi Mahto who was a class IV employee of the Bihar State Food and Civil Supplies Corporation, Patna, respondent no. 2 (hereinafter referred to for the sake of convenience as the Corporation). 3. The relevant facts are that the petitioners services were terminated on the 15th of January 1979, and On protest and representation petitioners nos. 1 and 2 were re-employed by an ORDER :dated 20th April 1979 by the district manager of the corporation at Chapra, respondent no. 4. A copy of this ORDER :is annexure 4. Since then according to the petitioners, they were working as lower division clerks and salesman from that date continuously. Petitioner no. 3 was appointed as a steno typist on 24th November 1977, copy of this ORDER :is annexure 5. It may be stated that they have been working on daily wages and, according to them, their service have always been satisfactory. Thereafter, according to the petitioners, the managing director, respondent no. 5, issued the ORDER :, copy of which is annexure 9, On the basis of which the petitioners' services were terminated by respondent no. 3 by annexure-10. It may be stated that they have been working on daily wages and, according to them, their service have always been satisfactory. Thereafter, according to the petitioners, the managing director, respondent no. 5, issued the ORDER :, copy of which is annexure 9, On the basis of which the petitioners' services were terminated by respondent no. 3 by annexure-10. The letter annexure 9 states that instances have been brought to the notice of the corporation that district managers have been appointing class III and class IV employees on daily wages without obtaining the approval of the head office and, therefore, the services of such of those employees who were working without the approval of the head office should be terminated forthwith as this was necessary for the good of the corporation. It was further directed that the services of such persons should be terminated at once. 4. In support of this application, it has been submitted that the termination of the services of the petitioners could not be sustained in view of the provisions of services 25F of the Industrial Disputes Act, 1947. 5. Counter affidavit has been filed on behalf of the respondents in which it has been stated that as the deopt managers had no power to make the appointments, the services of the petitioners were terminated particularly when the approval of the head office had not been obtained. It has, therefore, been submitted on behalf of the respondents that as the petitioners were not appointed in accordance with the rules, they were not entitled to the benefit of section 25F of the Industrial Disputes Act. 6. It is not in dispute that the petitioners were the employees of the Bihar State Food and Civil Supplies Corporation (respondent no. 2) which is an industry within the meaning of the Industrial Disputes Act. Therefore, the primary question which falls for consideration is whether the termination of the services of the petitioners amounted to retrenchment as defined under section 2(oo) of the Industrial Disputes Act, and further whether they were entitled to the benefits of section 25F of the Act. I have already stated that the Corporation is an industry within the meaning of the Industrial Disputes Act and the petitioners have been working in the Corporation. I have already stated that the Corporation is an industry within the meaning of the Industrial Disputes Act and the petitioners have been working in the Corporation. In the case of Surendra Kumar Verma v. The Central Government Industrial Tribunal cum Labour Court, New Delhi (A.I.R. 1981 Supreme Court 422) it has been ruled that welfare statutes must of necessity receive a broad interpretation and where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions. Retrenchment as defined under section 2(oo) of the Industrial Disputes Act means "termination by the employer of the service of a workmen 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 workmen on reaching the age of superannuation if the contract of the employment between the employee 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." It is obvious that the word "retrenchment" has been used in a very wide sense and termination of the service of a workman "for any reason whatsoever otherwise than a punishment inflicted by way of disciplinary action" would be included in retrenchment but would not include the three exceptions mentioned therein. 7. As pointed out by Krishna Iyer, J. in the case of the State Bank of India v. N. Sundra Money (A.I.R. 1976 Supreme Court 1111)" termination... for any reason whatsoever are the key words. Whatsoever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel a part, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. "It has further been pointed out that termination, therefore, embraces not merely the act of termination by the employer but the fact of termination howsoever produced and pre-emptive provision to terminate is struck by the same vice as the post appointment termination. 8. Mr. S.M. Javed for the respondents has submitted that the question of termination did not arise as the petitioners had been appointed in violation of the rules. 8. Mr. S.M. Javed for the respondents has submitted that the question of termination did not arise as the petitioners had been appointed in violation of the rules. The word 'service' as used in section 2(oo) must be given its ordinary meaning which according to the Shorter Oxford Dictionary is "performance of the duties of a servant and or "work done in obedience to and for the benefit of a master" or "a duty or piece of work done for a master or superior". The same dictionary says, servant means one "who is under obligation to work for the benefit of a superior and to obey his commands" or "is one who is under the obligation to render certain services to, and to obey the ORDER :of a person or a body of persons especially in return for wages or salary". Admittedly the petitioners, for daily wages, were working for the Corporation. I have, therefore, no hesitation in concluding that the petitioners were in the service of the Corporation as contemplated under section 2(oo) of the Industrial Disputes Act. It would, therefore, not be relevant to consider in the instant case whether the petitioners had been appointed in accordance with the rules of the Corporation. What has to be seen is whether the termination of the petitioners' services fall within the meaning of termination under section 2(oo). 9. The petitioner's services were not terminated on account of punishment inflicted by way of disciplinary action nor was it a case which would be covered by clauses (a), (b) and (c) of section 2(oo). Therefore it has to be held that the case of the petitioners is covered by 'retrenchment' as defined under section 2(oo) of the Industrial Disputes Act, the key word being "for any reason whatsoever". In this context, it might also be pointed out that in the case of Santosh Gupta v. State Bank of Patiala (A.I.R. 1980 Supreme Court 1219) it was urged that as the petitioner's services had been terminated due to the failure of the workman to pass the test which would have enabled her to be confirmed in the service it was not a case of retrenchment within the meaning of section 2(oo) of the Industrial Disputes Act. This argument was, however, repelled and it was held that it would be retrenchment. 10. This argument was, however, repelled and it was held that it would be retrenchment. 10. It has also not been disputed on behalf of the respondents that the petitioners have been in continuous service of the Corporation for 240 days as provided under section 25B (2) (a) (ii) of the Industrial Disputes Act i.e. for 240 days within a period of 12 calendar months preceding the date with reference to which the calculation has to be made which is 2nd June 1980 when their services were terminated. Hence they were entitled to the benefit of section 25F of the Industrial Disputes Act which reads as follows :- "25-F. Conditions precedent to retrenchment of workmen.-No workmen employed in any industry who has been in continuous service for not less than one year under an 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 specified a date for the retrenchment 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 of such authority as may be specified by the appropriate government by notification in the official Gazette." The petitioners have not been given one month's notice in writing indicating the reasons for retrenchment nor have they been paid, in lieu of such notices wages for the period of the notice. They have also not been paid at the time of retrenchment compensation equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months. Therefore it has to be held that the termination of the services of the petitioners is in violation of section 25F of the Industrial Disputes Act and must be struck down. Therefore it has to be held that the termination of the services of the petitioners is in violation of section 25F of the Industrial Disputes Act and must be struck down. Annexure-9 to the extent that it directs the immediate termination of the services of the petitioners, is accordingly set aside and so also annexure-10 so far as it relates to the petitioners. C.W.J.C. No. 1501 of 1980. 11. Fourteen petitioners in this application are also class IV employees of the Corporation who were first appointed sometime in Mayor June 1978. By ORDER :dated 14th November 1978 their services were terminated but they were again appointed on 10th May 1979 or 17th May 1979. Their services have also been terminated by an ORDER :of the depot manager, Arrah dated 3rd June 1980, copy of which is annexure 12. According to this annexure their services stand terminated from 6thJune 1980. These petitioners were also daily paid watchmen. Although by annexure 12 the services of 19 persons were terminated, only 14 are the petitioners. The stand of the respondents with regard to the termination of the services of the petitioners is the same as in the above case. For the reasons given above, their termination of service has also to be struck down and annexure-12 to that extent is set aside. C.W.J.C. No. 1436 of 1980. 12. This application is on behalf of 17 petitioners out of whom petitioners no. 1 and 3 are third grade employees and the rest are fourth grade employees of the Corporation posted at Hajipur. The petitioners have been in continuous service without any break for more than two years. They have stated that a communication has been sent to the district manager dated 26th April 1980 copy of which is annexure-1. This communication is the same as annexure 9 appended to C.W.J.C. no. 1500 of 1980. Their prayer is that the respondents should be restrained from acting in accordance with annexure-1. As the petitioners have been in service continuously for more than a year their services cannot be terminated in pursuance of annexure-1 except after compliance with the provisions of section 25F of the Industrial Disputes Act and the respondents are restrained from doing so. C.W.J.C. No. 1256 of 1980. 13. As the petitioners have been in service continuously for more than a year their services cannot be terminated in pursuance of annexure-1 except after compliance with the provisions of section 25F of the Industrial Disputes Act and the respondents are restrained from doing so. C.W.J.C. No. 1256 of 1980. 13. The prayer of the eight petitioners in this case is to quash annexure-3, a communication dated 26th April, 1980, which is in the same terms as annexure-9 dated 26th April 1980 appended to C.W.J.C. No. 1500 of 1980. Petitioners Nos. 1 to 3 and 6 were appointed as night watchmen cum palladar of the Corporation on 20th March 1978 and petitioner no. 7 was appointed in the same capacity from 17th May 1979. Petitioners No. 4 and 5 were appointed as salesmen by a communication dated 20th March 1978 and petitioner no. 8 as a fourth grade employee on 17th May 1979. By communications dated 5th May 1980 and 7th May 1980 copy of which are annexures 5 and 5/a their services have been terminated during the pendency of this application. Therefore the further prayer is to quash these annexures as well. As the petitioners are also entitled to the benefit of section 25F of the Industrial Disputes Act, annexures 5 and 5/a have to be quashed as also annexure-2 to the extent that it refers to the immediate termination of petitioners' services. C.W.J.C. No. 1196 of 1980. 14. The prayer in this application is that respondent No. 3 i.e. the District Manager of the Corporation at Muzaffarpur be restrained from acting in pursuance of communication dated 26th April, 1980, copy of which is annexure-5 which is in the same terms as annexure 9 of C.W.J.C. No. 1500 of 1980. The petitioners are class IV employees of the Corporation and were appointed on 13th April 1978 by a letter bearing no. 563 copy of which is annexure-1. The petitioners have been in continuous service for more than a year and are, therefore entitled to the benefit of section 25F of the Industrial Disputes Act. Accordingly the prayer of the petitioners to restrain the respondents from acting in pursuance of annexure 5 has to be granted and the respondents are retrained from terminating the services of the petitioners in pursuance of annexure 5. 15. In the result the writ applications are allowed to the extent indicated above. Accordingly the prayer of the petitioners to restrain the respondents from acting in pursuance of annexure 5 has to be granted and the respondents are retrained from terminating the services of the petitioners in pursuance of annexure 5. 15. In the result the writ applications are allowed to the extent indicated above. But in the circumstances there will be no ORDER :as to costs.