Bayer India Ltd v. Vishan Roy — 1984 DIGILAW 415 (CAL)

Judgment 1. IN this appeal, the appellant Bayer (India) Ltd., has challenged the propriety of the judgment of Amitabha Dutta J, whereby the learned Judge quashed the award of the first Labour Court, West Bengal and made absolute the Rule Nisi issued, on the application of the respondent no. 1, bishan Roy, under Article 226 of the constitution. 2. THE respondent no. 1, Bishan Roy, was employed in the office of the appellant company at Calcutta and was driving a tempo belonging to the company. As the tempo and three other motor cars were disposed of by the company, the respondent no. 1 and three other drivers had no work in Calcutta. They were given the choice of other places in the organisation of the company, where the company had vacancies in the posts of drivers at the material time. The company by its letter dated February 5, 1976 directed the respondent no, 1 to report for duty on or before February 27, 1976 at-Kishanpure, Hanamkonda, District warangal, Andhra Pradesh. In other words, the respondent no. 1 was transferred from Calcutta to the office of the company in' Andhra Pradesh. It is the case of the company that while the three other drivers accepted their transfers, the respondent no. 1 by his letter dated February 21, 1976 took the plea that his services were not transferable, and that he was not in a position to accept the offer of transfer because of various difficulties of himself and his family, He requested "the Regional Administrative manager of the company, to consider his grievances and family difficulties and his past loyal services and to retain him in the service of the company in Calcutta. The company, however, could not accede to the request of the respondent no. 1 and, by its letter dated March 22, 1976, the company terminated the services of the respondent no. 1 with immediate effect, enclosing therein one cheque for the sum of Rs.750.47 being one month's salary in lieu of notice. The respondent no. 1 by his letter dated April 6, 1976 protested against the termination of his service and claimed reinstatement with back wages. It appears that the matter was referred to the Labour commissioner, Government of West Bengal, and a conciliation proceeding was started. The respondent no. 1 by his letter dated April 6, 1976 protested against the termination of his service and claimed reinstatement with back wages. It appears that the matter was referred to the Labour commissioner, Government of West Bengal, and a conciliation proceeding was started. The conciliation proceeding failed and the Government of West Bengal by a notification dated March 17, 1977 issued under section 10 read with section 2a of' the Industrial Disputes Act, 1947 referred to the First Labour Court for the adjudication of the following dispute "whether the termination of service of Sri Bishan Roy is justified? to what relief, if any, is he entitled?" Before the Labour Court, it was contended on behalf of the respondent no. 1, the workman, that the termination of his service was nothing but "retrenchment" within the meaning of section 2 (oo) of the Industrial Disputes act, 1947, hereinafter referred to as the act, and as admittedly no retrenchment compensation as envisaged by section 25f of the Act was paid to him by the company, the order of termination should be set aside and he should be re instated in service with full back wages and other benefits, if any. It was also contended on behalf of the workman that his services were not transferable. The Labour Court by its award dated June 28, 1979 came to the findings that the services of the workman were transferable, and that the termination of nis services for his failure to comply with the order of transfer did not constitute retrenchment within the meaning of section 2 (oo) of the Act in that view of the matter, the Labour Court by its award held that the termination of the service of the workman was justified, and that he was not entitled to any relief. 3. BEING aggrieved by the award of the labour Court the respondent no. 1 filed a writ petition in this Court and obtained the Rule Nisi. As stated already, the learned Judge by his judgment and order quashed the award of the Labour court holding, inter alia, that the termination of the service of the respondent no. 1 was "retrenchment" within the meaning of section 2 (oo) of the Act and that the company not having complied with the provision of section 25f of the Act, such termination of service was illegal. 1 was "retrenchment" within the meaning of section 2 (oo) of the Act and that the company not having complied with the provision of section 25f of the Act, such termination of service was illegal. The learned Judge, further directed the company to treat the respondent no. 1 on the footing that he had been continuously in service. The company was granted liberty by the learned judge to retrench the respondent no. 1 alter complying with the requirements of section 25f of the Act. hence this appeal. 4. THE principal question that is involved' in this appeal is whether the termination of the service of the respondent no. 1 is tantamount to "retrenchment" within the meaning of section 2 (oo) of the Act. Section 2 (oo) provides 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) 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. " Mr. Ginwala, learned Counsel appearing on behalf of the appellant company has placed strong reliance upon a decision in Ramlesh Kumar v. Central government Industrial Tribunal, Bombay 1980 Lab. I.C. 1116. In that case, the Bombay High Court, inter alia, relied upon the decision of the Supreme court in Hariprasad Shivashankar Shukla vs. A.D. Divalkar, A.I.R. 1957 S. C. 121 and held that termination of service simpliciter for loss of confidence of the employer in the employee was not "reinterment'' inasmuch as loss of confluence would not De included in the expression "for any reason whatsoever" in section 2 (oo) of the Act. In Hariprasad' s case, it has been held by a Bench of five judges or the Supreme Court that 'retrenchment as defined in section 2 (oo) and as used in section 25f of the Act has no wider meaning than the ordinary accepted connotation of the work. In Hariprasad' s case, it has been held by a Bench of five judges or the Supreme Court that 'retrenchment as defined in section 2 (oo) and as used in section 25f of the Act has no wider meaning than the ordinary accepted connotation of the work. It means the discharge of surplus labour or staff by the employer for any reason 'whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the service of ail the workmen have been terminated by the employer on real and bona fide closure of his business. It, therefore, follows from Hariprasad' s case that all cases of termination of service for any reason whatsoever will be "retrenchment" within the meaning of the term as defined in section 2 (oo), but in order that the case may be said to be one of retrenchment, two conditions must be fulfilled, namely, (1) the industry must be a going concern and (2) the termination must be on the ground of surplus age. 5. ON the other hand, in a later decision of the Supreme Court in the State bank of India v. Shri N. Sundara Money, 1976 Lab. I.C. 769, Krishna Iyar J who delivered the judgment of the Court observed as follows ' "a break down of Sec 2 (oo) unmistakably expands the semantics of retrenchment. "termination for any reason whatsoever", are the key words. Whatever the reason, every termination spells retrenchment termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. . . . . . . . Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita but area covered by an expansive definition. It means 'to end, conclude, cease'. In Sundara Money's case, the respondent was appointed purely on a temporary basis for a period of nine days and it was stipulated that his service might be terminated without assigning any reason at the discretion of the appellant bank. It was further provided that the employment, unless terminated earlier, is automatically ceased on the expiry of the period, that is, on November 18, 1972 it was Contended on behalf of the respondent that it was a case of retrenchment, and the Supreme Court upheld the said contention with the observation set out above. 6. It was further provided that the employment, unless terminated earlier, is automatically ceased on the expiry of the period, that is, on November 18, 1972 it was Contended on behalf of the respondent that it was a case of retrenchment, and the Supreme Court upheld the said contention with the observation set out above. 6. IT was contended in the later decision of the Supreme Court in Hindustan Steel Limited vs. Labour Court, Orissa, 1976 Lab. I. C. 1797 that there was a conflict between the decision in Hariprasad's case and Sundara Money's case. It was further contended in that case that as the decision in Hariprasad's case was by a larger Bench, Sundara Money's case required further consideration. It was, however, observed by A. C. Gupta j who delivered the judgment of the court "we do not find anything in Hariprasad's case which is inconsistent with what has been held in State Bank of India vs. A. " Sundara Money (A.I.R. 1976 S.C. 111). " It has been held by a Division Bench of this Court in Union of India vs. Piru Kisku, 1977 C. H. N. 303 that so far as Hariprasad's case is concerned, the principles of law laid down therein will apply to the facts and circumstances of that case, namely, that termination of service of all workmen of an industry which itself ceases to exist on a bona fide closure or discontinuance of his business by the employer will not amount to retrenchment within the meaning of the definition of the term as given in section 2 (oo). In view of the decision of the Supreme Court in Sundara Money's case and the subsequent decision in the case of Hindusthan Steel Limited, we are unable to subscribe to the view of the Bom may High Court in Ramlesh Kumar's case (supra) to the effect that the termination of services simpliciter for loss of confidence of the employer in the employee is not retrenchment. The language of section 2 (oo) is very wide and is very clear too. Except in the four cases mentioned in section 2 (oo) including the case of termination of service of a workman as punishment inflicted by way of disciplinary action, termination of the service of a workman, for any reason whatsoever is tantamount to retrenchment. 7. IT is further contended by Mr. Except in the four cases mentioned in section 2 (oo) including the case of termination of service of a workman as punishment inflicted by way of disciplinary action, termination of the service of a workman, for any reason whatsoever is tantamount to retrenchment. 7. IT is further contended by Mr. Ginwala for the appellant company that in the instant case, the order of termination was made as a punishment for misconduct or for breach of discipline of the workman concerned on his failure to comply with the order of transfer the Labour Court has also found that the services of the respondent no. 1 have been dispensed with as he violated the service condition by refusing to comply with the order of transfer, the termination of his 'service was, therefore, tantamount to dismissal. There can be no doubt that if the order of termination was made as a punishment by way of a disciplinary action, it will not be retrenchment within the meaning of section 2 (oo. But the question is whether the termination of the service of the respondent no. 1 was really his dismissal from service as a punishment by way of a disciplinary action. No enquiry was held by the company against the respondent no. 1 for his alleged misconduct or breach of discipline. The respondent no. 1 was not served with any notice to show cause why his services should not be terminated on the ground of his misconduct. There is no indication in the impugned order dated March 22, 1976 that the termination of the services of the respondent no. 1 was made by way of punishment. The impugned order is an order of termination of the service of the respondent no. 1 simplicitor. 8. IN the written statement that was filed by the company in the Labour court, there is no whisper that the service of the respondent no. 1 was terminated by the company by way of punishment. On the contrary, in paragraph 13 of the written statement, it has been stated that the termination of the services of the respondent no. 1 is bona fide and in accordance with the provision of section 15 of the West Bengal Shops and Establishment Act, 1973 and in consonance with the terms of employment as embodied in the letter of appointment dated November 14, 1967. 1 is bona fide and in accordance with the provision of section 15 of the West Bengal Shops and Establishment Act, 1973 and in consonance with the terms of employment as embodied in the letter of appointment dated November 14, 1967. The company also examined before the Labour Court the Regional Administrative Manager (O. P. W. 2. In his examination-in-chief, it has been categorically stated by o. P. W. 2 that the service of the respondent no. 1 was not terminated byway of punishment or his being a surplus hand. In view of the said written statement and the deposition of O. P. W. 2, it is difficult to accept the contention of the company that it terminated the service of the respondent no. 1 by way of punishment. In our opinion, the Labour Court should not have allowed the company, to make out a new case that the order of termination was passed by way of punishment. Such a case was not only not pleaded in the written statement but also not sought to be made out in the oral evidence of the witnesses examined on behalf of the company. On the contrary, as already noticed, O. P. W. 2 categorically stated that the order of termination was not by way of punishment. The finding of the Labour Court that the order of termination was really dismissal of the respondent no. 1 from service is without any evidence whatsoever. 9. IN our opinion, when the services of a workman are dispensed with by an order of termination simplicitor, the workman concerned will be entitled to show that the apparent state is not the real state, and that the termination of his service is really by way of punishment. In such a case, the employer will be precluded from contending that although apparently it is an order of termination simplicities, it is really by way of punishment. In other words, the employer cannot be allowed to blow hot and cold for the purpose of circumventing the provision of section 2 (oo) and, consequently, the provision of section 25p of the Act. In other words, the employer cannot be allowed to blow hot and cold for the purpose of circumventing the provision of section 2 (oo) and, consequently, the provision of section 25p of the Act. It is true that the Labour Court or the Industrial Tribunal has the jurisdiction to lift the veil and see for itself whether the termination of the service of the workman concerned is really by way of punishment or not, but that can be done by the Tribunal or the Labour Court only at the instance of and for the purpose of, granting relief to the workman concerned. The Labour Court or the Tribunal has no jurisdiction in making that investigation or probe at the instance of the employer. We are unable to accept the contention of Mr. Ginwala that the Labour Court was justified in considering whether the termination of the services of the respondent no. 1 was on the ground of misconduct or breach, of discipline and, as such, was not retrenchment. 10. IT is next contended on behalf of the company that the learned Judge was not justified in directing reinstatement of the respondent no. 1 with all back wages. The learned Judge should have sent the matter back to the Labour court with the direction to make an award in the light of his judgment. Normally, that would have been the usual procedure, but in the facts and circumstances of the case, in our opinion, to send, the matter back to the Labour court would be an useless formality meaning' delay to the harassment and hardship of the workman concerned. We are therefore, not at all inclined to interfere with the judgment of the learned Judge on this purely technical ground. In our opinion, the learned Judge is perfectly justified in quashing the award of the Labour Court and directing the reinstatement of the workman with full back wages with liberty to the appellant company to retrench him after complying with the requirements of section 25f of the Act. 11. FOR the reasons aforesaid, the appeal is dismissed. There will, however, be no order as to costs. The workman concerned shall be reinstated by the company within four weeks from date. Appeal dismissed.