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2002 DIGILAW 977 (JHR)

Gokul Rana v. Presiding Officer Labour Court

2002-09-06

VIKRAMADITYA PRASAD

body2002
JUDGMENT Vikramaditya Prasad, J. 1. The petitioner has filed this writ application for quashing the order dated 29.2.2000 passed by the Presiding Officer, Labour Court, Jam-shedpur, Annexure 6, whereby the complaint filed by the petitioner under Section 26(2) of the Bihar Shops and Establishments Act, 1953 (hereinafter as the Act for short) was rejected and also for a declaration that the petitioner has not been legally superannuated on 1.1.1996 and for a further declaration that the petitioner has not attained the age of 60 years as on 1.1.1996 in view of the service records maintained by the respondents, 2. Admittedly, the petitioner was working as a Bearer in the respondent No. 2, Golmuri Club, Jamshedpur, of which the respondent No. 3 Honorary Secretary of the respondent No. 2. This club is an establishment under the Act and this fact has not been controverted by the respondent Nos. 2 and 3 in the counter affidavit that they have filed. This fact has also not been controverted that the petitioner was in employment of the respondents within the meaning of Section 2(b) of the Act. According to the petitioner, he was forcefully removed from the service on 1.1.1996 on the ground that he had attained the age of superannuation. Thereafter the petitioner filed a complaint under Section 26(2) of the Act before the Respondent No. 1. the President Officer, Labour Court, Jamshedpur and challenged the superannuation on the ground that the establishment has no service condition to the effect that an employee would superannuate at a particular age and so many employees have been allowed to continue beyond the age of 65 years or more and the petitioner has been wrongly, illegally and prematurely removed from the service, Annexure 1. Then the respondent Nos. 2 and 3, on notice by the respondent No. 1, denied the allegations and it was asserted by the respondent Nos. 2 and 3 that it was a case of superannuation at the age of 60 years as per the term of employment. They also filed their show cause, Annexure 2 asserting that the age of superannuation in the establishment is 60 years. 3. The petitioner filed rejoinder to the show cause in the Labour Court, asserting that there was no service rule that an employee should superannuate on attaining the age of superannuation, vide Annexure 3. They also filed their show cause, Annexure 2 asserting that the age of superannuation in the establishment is 60 years. 3. The petitioner filed rejoinder to the show cause in the Labour Court, asserting that there was no service rule that an employee should superannuate on attaining the age of superannuation, vide Annexure 3. The matter was examined by the Labour Court and the deposition of the petitioner and the Treasurer of the respondent. No. 2 was recorded, vide Annexure 4 and the Treasurer in para 9 of his deposition stated that in the rule, there is no age of retirement mentioned and the respondents failed to produce the service rule, showing that the employee will superannuate on the date of attaining the age of 60 years. The petitioner has also asserted that he has also not attained the age of 60 years and therefore, he should not have been removed. The petitioner has also produced the Service Card maintained under Section 12(a) of the Rules (Rules made under the Act and in short as the Rules) and the service card showed that the date of appointment of the petitioner was 1st January, 1960, and his age was 25 years on that date, vide Annexure 5. Thereafter, the impugned order was passed and the complaint of the petitioner was dismissed by the respondents. 4. In their counter affidavit, the respondents averred that the award is justified and the petitioner was superannuated at the prescribed age and therefore, he cannot be treated to have been discharged or terminated and therefore, his case is beyond the purview of Section 26 of the Act. It was asserted that the petitioner was given an advance notice through Annexure A with regard to his superannuation at the age of 60 years with effect from 1.1.1996, but despite that the petitioner had not made any grievance. It was also denied that there was no service condition to superannuate an employee at any particular age and it was also denied that many employees were allowed to continue beyond the age of 60 years or the petitioner had prematurely been removed. It was also averred that the petitioner has already been confirmed as permanent employee with effect from 1.1.1986 and in that letter, the age of retirement had been mentioned as 60 years and that has been made Annexure B to the counter affidavit. 5. It was also averred that the petitioner has already been confirmed as permanent employee with effect from 1.1.1986 and in that letter, the age of retirement had been mentioned as 60 years and that has been made Annexure B to the counter affidavit. 5. During the course of argument, the learned counsel appeairing for the petitioner firstly submitted that the learned Labour Court erred in not framing an issue whether or not the establishment had a service rule. On being asked whether or not the rules do provide for a service rule to inform the service conditions of the employees to be made by the establishments. Then the learned counsel appearing for the petitioner took one day adjournment and on the next date, submitted that though there is no such provision in the Act or Rules, yet in absence of any such clear direction, the service of show cause notice etc. before superannuation is required so that the employer does not act arbitrarily and the principles of natural justice are followed. He further ar-gued that in absence of such protection, the superannuation, in fact, in this case, falls within the mischief of the term termination as referred to Section 26 of the Act. Assailing the Annexure 5, he submitted that it (Annexure 5, which is a service card under Rule 12 of the Act) contains signature of the Inspecting Officer and also of the employee and the date of signature is 29.8.1972 and the respondent No. 2 has not denied the correctness of Annexure 5. It was also pointed out that (Annexure 4/1 the depositions of the Treasurer of the Establishment before the Labour Court) he had seen the service card of the petitioner in the year 1995. Learned counsel appearing for the petitioner was of the view that this Ext. 5 may be suspected on these grounds. Learned counsel appearing for the petitioner further iterated that non-framing of the issue (supra) resulted in miscarriage of justice, irreparable loss and injury to the petitioner. 6. Learned counsel appearing for the respondents opposed the aforesaid submissions and defended the Annexures 5 and 6. 7. It is worthwhile to quote Section 26 of the Act :-- "26. Learned counsel appearing for the petitioner further iterated that non-framing of the issue (supra) resulted in miscarriage of justice, irreparable loss and injury to the petitioner. 6. Learned counsel appearing for the respondents opposed the aforesaid submissions and defended the Annexures 5 and 6. 7. It is worthwhile to quote Section 26 of the Act :-- "26. Notice of the dismissal or discharge.--(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months except for a reasonable cause and after giving such employee atleast one months notice or one months wages in lieu of such notice : Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose : Provided further that an employee who has been in continuance employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages or every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make, a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds, namely :-- (i) there was no reasonable cause for dispensing with his service; or (ii) no notice was served on him as required by sub- section (1); or (iii) he has not been guilty or any misconduct as held by the employer; or (iv) no compensation as prescribed in Sub-section (1) as paid to him before dispensing with his service. 8. A plain reading of the Section 26(2) of the Act clearly shows that the Labour Court has jurisdiction if the employee has been dismissed or discharged or whose employment is otherwise terminated. 8. A plain reading of the Section 26(2) of the Act clearly shows that the Labour Court has jurisdiction if the employee has been dismissed or discharged or whose employment is otherwise terminated. Obvious it is that the question of dismissal or discharge arisen only when there is misconduct on the part of an employee Rule 20 (1) lists the misconduct; (2) provides the procedure of discharge in case of misconduct; and Rule 21 clearly provides that any employee aggrieved by an order of dismissal or discharge under Section 26 of the Act may make a complaint. It is to be noted that under Rule 21, the complaint is maintainable only in case of dismissal or discharge and as this rule does not mention "even otherwise termination", no complaint can he lodged for the "otherwise termination of the service" under Section 26. It is amply clear that the petitioner of this case has not been found guilty of any misconduct as listed under Rule 20. Consequently, his case does not fall within the mischief of dismissal or discharge with the obvious consequences that no complaint could have been made under Sub-section (2) of Section 26 of the Act. So if the complaint did not lie and even if the Labour Court entertained the complaint, then the mere entertaining of the complaint by the Labour Court was without jurisdiction and the impugned order in excess of jurisdiction. Therefore, the impugned order is without jurisdiction. Thus, in the aforesaid legal situation, the petitioner cannot derive any benefit out of the quashing of the impugned order. 9. Now the question is whether the notice of superannuation and consequent superannuation which the petitioner terms as otherwise termination remains valid or Hot. The word "termination" has been used in Section 26(2) along with the words "dismissed or discharged" since the dismiss and discharge are the consequences of punitive action. So consequently the phrase "termination" used in that section will also mean a termination of some punitive ground or at least a premature retirement/removal from service. As it is amply clear in this case that there is no misconduct alleged against the petitioner by the establishment, the petitioners case is not covered by Section 26(2) of the Act as the superannuation of the petitioner cannot be termed as otherwise termination. 10. As it is amply clear in this case that there is no misconduct alleged against the petitioner by the establishment, the petitioners case is not covered by Section 26(2) of the Act as the superannuation of the petitioner cannot be termed as otherwise termination. 10. Though it is not very relevant now to examine whether the Labour Court erred in not framing an Issue "whether the establishment had any service Rule or not", but in view of the submission made, it has to be examined. 11. Admittedly, the Act and Rules do not provide that establishments shall/may make a service Rule for regulating service conditions of its employees. If such a Rule would have been framed, then it would have been against the provisions of the Act/Rule. Such an issue can be framed only when there is such a requirement under the provisions of the Act/Rule and is to be examined what were these rules, but if there is no such requirement of law, then if such an issue is allowed to be framed then impliedly it means that every establishment is required to frame such Rules for its establishment, which is not at all the mandate of law. Consequently, this argument has to fail. 12. Annexure 5 is a service card maintained under Rule 12(a). This bears the signature of the employee as well as certain Inspecting Officer and of the employee. In this Service Card, the date of appointment is 1st January, 1960, and the age at the time of appointment of the petitioner is 25 years. So at the time when he was appointed, i.e. on 1st January, 1960, he was of 25 years and therefore on 1st January, 1996, he attained the age of 60 years. Annexure B, which is the confirmation letter issued in the year 1986, in favour of the petitioner, in Clause 6, reads as follows :-- "You will normally retire from the club on attaining the age of 60 years. The Club Committee can decide to extend the services of an employee beyond 60 years if they feel it is in the interest of the Clubs working." So the term of employment was that he had to retire on attaining the age of 60 years. No doubt, the extension was postulate in the term of the letter but it was discretionary with the employer. No doubt, the extension was postulate in the term of the letter but it was discretionary with the employer. If the employer did not exercise its discretion, it cannot be compelled to do it, nor there is prayer like that, The allegation of the petitioner that some employees have been allowed to work upto 65 years or even beyond that has no leg to stand, in view of the fact that the general rule of superannuation in the establishment is 60 years, though that could be extended. So, if certain employees have been given extension benefit, then that cannot create any right in favour of the petitioner to derive it in terms of the contract of employment which was known to the petitioner right from the year 1986 that he had to superannuate on attaining the age of 60 years. "Otherwise termination" and superannuation are two different things, so there has been no violation of natural justice because non-issuing of the show cause notice before his superannuation, particularly when the petitioner has been informed prior to his superannuation through Annexure A. Thus, there is no merit in this writ application, which is accordingly dismissed. However, the petitioner will be paid all his retrial benefit, to which he is entitled, by the establishment.