Mohamad Hosain v. Labour Court at Varanasi — 1994 DIGILAW 11 (ALL)

JUDGMENT : D.S. Sinha, J. 1. Heard Sri K. P. Agrawal, learned Senior Advocate appearing for the petitioner, and Sri Vinod Swamp, learned counsel representing the contesting respondent No 2, at length and in detail. 2. The award of the Labour Court. U, P. at Varanasi dated 30th November, 1985, rendared in Adjudication Case No. 43 of 1982, referred to it under section 4- K of the U. P. Industrial Disputes Act, 1947, hereinafter called the U. P. Act, is under challenge in this petition under Article 226 of the Constitution of India. The impugned award purports to uphold the termination of the service of the petitioner' to be justified and legal. The petitioner was employed with the contesting respondent no. 2 as a Motor Driver, On a medical examination conducted by the Deputy Chief Medical Officer, Hindalco hospital on 7th May, 1981 the petitioner was declared to be untit for driving a motor vehicle on account of weak eyesight. According to the employer the incapacity of the petitioner to drive a motor vehicle on the ground of above infirmity could straight away lead to the termination of his service but he was given a notice to submit his explanation Upon receipt of the notice the petitioner expressed a desire for another check-up by an Eye Specialist. He was, therefore, instructed to contact one Dr. Deveadra Srivastava of Allahabad Medical College, but failed to report to the said doctor. Upon his failure to report to the said doctor, relying upon the medical report of the Deputy Chief Medical Officer of the Hindalco Hospital dated 9th May, 1981 and the provisions contained in paragraph 7 a) of the certified Standing Orders of the respondent, an order dated 25th September, 1981 discharging the petitioner from service was passed. The discharge of the petitioner led to an industrial dispute which was referred to the labour court for adjudication and culminated into the impugned award 3. Before the labour court, it was pleaded on behalf of the petitioner that the termination of his service was had on the following two counts : (a) that the conclusion of the employer that he was physically unfit to drive a motor-vehicle was wrong; and (b) that the termination of service amounted to retrenchment and the same having been brought about without complying the mandatory provisions of Section 6- N of the U. P. Act was illegal. 4. 4. The pica set up by the petitioner was combated by the employer by asserting that the medical report of the Dy. Chief Medical Officer of Hindalco Hospital being unrebutted, was sufficient to hold that the petitioner was unfit to drive a motor-vehicle: and that termination of the service of the petitioner did not amount to retrenchment obliging compliance of section 6-N of the U. P. Act in as much as it was in accordance with the provisions of paragraph 7 (a) of its certified standing orders. The plea of the contesting respondent with regard to the physical infirmity of the petitioner leading to his incapacity to drive a motor-vehicle was accepted by the labour court. In accepting the plea of physical infirmity of the petitioner, the labour court relied upon the medical report of the Dy. Chief Medical Officer of Hindalco Hospital dated 17th May, 1989 and rejected the two medical certificated dated 5th October, 1981, and 28th February, 1984, testifying the fact that the petitioner was fit to drive a motor- vehicle, on the ground that they were forged and false. 5. The plea of the petitioner with regard to the non-compliance of the provisions of section 6- N of the U. P. Act was rejected by the labour court on the ground that termination of his service was in accordance with the provisions of certified standing orders; of the employer-respondent, and such termination did not require compliance : of section 6-N of the U. P. Act. 6. Sri K. P. Agrawal, learned Senior Advocate appearing for the petitioner, submits that the impugned a yard of the labour court is liable to be set aside on the following grounds : (a) that the finding of the labour1 court with regard to unfitness of the petitioner for driving a motor vehicle is incorrect; and (b) that the labour court committed an error of law apparent on the face of record in holding that it was not necessary for the employer to comply with the mandatory provisions of section 6-N of the U. P. Act. Sri Vinod Swarup, learned counsel appearing for the employer- respondent, counters the submissions made on behalf of the petitioner by submitting that the question with regard to unfitness of the petitioner for driving a motor-vehicle is basically a question of fact and finding thereon by the labour court cannot be interfered fry this Court in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India; and that the termination of the service of the petitioner did not amount to retrenchment attracting the provisions of section 6-N of the U. P. Act as the termination in question was covered by the Industrial Disputes Act, 1947, hereinafter called the Central Act, and according to the definition of expression 'retrenchment' contained therein termination of the service of workman on the ground of physical incapacity and illness does not amount to retrenchment In support of this submssion: Sri Vinod Swarup places reliance upon the decision of the Honourable Supreme Court of India rendered in the case of the Workmen of the; Bangalore Woolen, Cotton and Silk Mills Co. Ltd. v. The Management of the Bangalore, Woolen, Cotton and Silk Mills Co Ltd, AIR 1962 SC 1363 . 7. It cannot be gainsaid that the question as to the fitness of the petitioner to drive a motor-vehicle is fundamentally a question of fact which was to be decided by the labour court on the evidence produced before it. Before the labour court, there was unrebutted evidence in the shape of medical report of the Deputy Chief Medical Officer, Hindalco Hospital dated 7th May, 1981 testifying the fact that the petitioner was not fit for driving a motor vehicle. The labour court could validly base its conclusion on the said medical report, specially when it had found the two medical certificates produced by the petitioner to be false and forged. This court, in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India, would not be justified in reapprasing the evidence, and substituting its own finding for the finding recorded by the labour court. The ground raised by Sri K. P. Agarwal, therefore, fails. 8. This court, in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India, would not be justified in reapprasing the evidence, and substituting its own finding for the finding recorded by the labour court. The ground raised by Sri K. P. Agarwal, therefore, fails. 8. The ground (b) raised on behalf of the petitioner with regard to the non-compliance of the provisions of section 6-N of the U. P. Act, necessarily, involves investigation upon,th question as to whether termination of service of the petitioner on the ground of his unfitness to drive a motor- vehicle arising out of Physical incapacity, brought about in accordance with the provisions of paragraph 7 (a) of the certified Standing Orders of the employer-respondent which are in confirmity with the provisions contained in section 2 (oo) of the Central Act which defines retrenchment, it illegal. The expression 'retrenchment" it defined in the U. P. Act as well as in the Central Act. In U. P. Act, the definition of the expression 'retrenchment' is to be found in section 2 (s) an in Central Act the raid expression has been defined in section 2 (oo), which are extracted below : Section 2 (a) of the U. P. Act. "2 (s) 'Retrenchment* means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include--- (i) voluntary retirement of the workman; or (ii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf :" Section 2 (oo) of the Central Act. "2 (oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatatsoever, 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 (bb) termination of the service of (he workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued Hl-health:" 9. The Central Act defines 'retrenchment' as the termination by (he employer of service of a workman for any reason whatsoever, except punishment by way of disciplinary action; voluntary retirement of the workman; 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; termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; and termination of the service of a workman on the ground of continued ill-health. 10. Thus, the termination of the service of a workman on the ground of continued ill-health, which may lead to [physical incapacity of the workman to discharge his duties, is expressly excluded from the purview of the expression 'retrenchment' contained in the Central Act, and, if the Central Act is applicable in the matter of termination of service of the workman then termination of service on the ground of physical incapacity arising out of continued Ill-health will not amount to retrenchment calling for compliance of the provisions with regard to the payment of retrenchment compensation etc. The U. P. Act defines 'retrenchment' as the termination by the employes of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not Include voluntary retirement of the workman; or retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf. It is to be noticed that In the U. P. Act the termination of the service of a warkman on the ground of continued ill-health is not excluded from the definition of the expression 'retrenchment'. Thus, if the termination of the service of a workman is to be regulated and governed by the U. P. Act the termination of the service on the ground of physical incapacity arising out of continued ill-health will amount to retrenchment obliging the employer to comply with the mandatory requirements of section 6-N of the U. P. Act. 11. In order to find out as to which of the two definitions of 'retrenchment', continued in U P. Act and Central Act. would prevail, it would be apposite to have a look to the historical backdrop >of the provisions of the two Acts defining the expression Retrenchment'. 12. The Central Act, as enacted in the year 1947, did not contain the definition of the expression 'retrenchment' Clause (00) in section 2 of the Central Act, which defines retrenchment was added by the Ordinance No. 5 of 1953, which was later on substituted by the Act No. 43 of 1953, enforced with effect from ?4th October, 1953. Subsequent to the enactment of the Central Act, the U. P. Act was enacted . in that very year, namely. 1947. The U. P. Act also did not contain any provision defining expression 'retrenchment'. It was in the year 1957 when clause (a) defining expression retrenchment' was introduced in section 2 of the U. P. Act by the U. P. Act No. I of 1957. It is pertinent to notice that notwithstanding the fact that the Central Act expressly excluded the termination of the service of a workman on the ground of continued ill-health from the definition of the expression 'retrenchment the State Legislature chose not to exclude the termination of the service of a workman on the ground of continued ill-health from the purview of expression retrenchment'. The non-exclusion of such termination from the expression 'retrenchment' in the U. P. Act is clearly deliberate, as it cannot be said that the State Legislature was not aware of the exclusion thereof in the Central Act. While legislating the definition of the expression 'retrenchment* the State Legislature purported to expand the definition of the expression 'retrenchment' contained in the Central Act so as to bring within the ambit of expression 'retrenchment' the termination of the service of a workman on the ground of continued Ill-health also. It cannot be gainsaid that the State Legislature waa competent to do so. 13. Legislation in respect of 'industrial and labour disputes' is covered by the entry 22 of the concurrent list of schedule VII of the Constitution of India Thus, the State Legislature and Parliament, both, are competent to legislate on matters relating to 'industrial and labour disputes'. It is not in dispute that the U P. Act No I of 1937 whereby the definition of the expression 'retrenchment' was introduced in the U. P. Act was duly made after complying and in conformity witit the provisions of Article 254 of the Constitution of India. The definition of the expression 'retrenchment' in U. P. Act, as amended by U. P. Act I of 1957, shali, therefore, prevail in view of the provisions contained in clause (2) of Article 254 of the constitution of India. In this connection reference may be made to the decision rendered in the case of U. P. Electric Supply Co. Ltd. v. R. K. Shukla, AIR 1970 SC 237 , wherein the Honourable Supreme Court of India had the occasion to consider the question as so whether the provisions as contained in the Central Act or the provisions as contained in that behalf in the U. P. Act would apply in determining the rights and obligations pertaining to the grant of retrenchment compensation to the employees of U.P. Electric Supply Co. Ltd. and the Honourable Supreme Court of India univocally ruled that provisions of the U. P. Act would prevail over the Central Act. 14. Ltd. and the Honourable Supreme Court of India univocally ruled that provisions of the U. P. Act would prevail over the Central Act. 14. Sri Vinod Swarup, learned counsel for the contesting employer- respondent, further submits that even if it is held that the U. P. Act would regulate the matter of termination of service of the petitioner the impugned termination would not fall within the expression retrenchment ' as it has been brought about on the ground of physical incapacity arising out of continued ill-health and such a termination stands excluded from the purview of 'retrenchment' in view of the decision rendered by the Honourable Supreme Court of India in the case of The Workman of the Bangalore woolen, Cotton and Silk Mills Co. Ltd. v. The Management of the Bangalore Woolen, Cotton and Silk Mills Co, Ltd. (supra). The attention of the court is drawn on the following sentence occurring in paragraph 6 of the judgment : "Retrenchment" means the termination of service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action : (See Sec. 2 (oo) of line Principal Act)." The attention of the court is also invited to paragraph .8 of the judgment wherein the workman whose services; were terminated on the ground of physical unfitness or ill-health were not treated to be retrenched workmen. Sri Vinod Swarup argues that in as much as the Honourable Supreme Court of India after extracting and noticing the above mentioned sentence the language whereof is identical to the one used 'in clause (s) of section 2 of the U. P. Act defining expression 'retrenchment', did not treat the workman whose services were terminated on the ground of physical unfitness or ill health to be retrenched workmen it is indicative of the fact that it intended to lay down that where the matter is governed by the U. P. Act termination of the service of a workman on the ground of continued ill- health also has to be excluded from the purview of expression 'retrenchment'. 15. The argument of Sri Vinod Swarup is, indubitably, wenky and fallacious. 15. The argument of Sri Vinod Swarup is, indubitably, wenky and fallacious. It is to be noticed that the sentence relied upon by Sri Vinod Swarup is only a part of clause (oo) of section 2 of the Central Act, and that the other part of the clause which purports to exclude the termination of service of workman on the and of continued ill health from the purview of expression 'retrenchment must have been considered by the Honourable Supreme Court of India while coming to the conclusion that the termination of service of the concerned workmen on the ground of physical unfitness or ill-health did not come within the purview of expression 'retrenchment'. 16. In view of the foregoing discussion, the inexorable conclusion is that the termination of the service of the: petitioner amounts to retrenchment as contemplated by the U. P. Act, and could be brought about only after complying the mandatory provisions of section 6-N of the Act. It is not in dispute that the provisions of section 6-N of the U. P. Act with regard to payment of retrenchment compensation were not complied with before bringing about termination of the services of the petitioner The termination of the service of the petitioner is, therefore, illegal. The impugned award holding the termination justified and legal cannot be sustained and must perish. 17. In the result, the petition succeeds and is allowed. The impugned award dated 30th November, 1985 (Annexure-7 to the petition) is quashed. The petitioner shall be deemed to be continuing in service and entitled to all the benefits relating thereto. 18. There will be no order as to costs. Petition allowed.