Binoy Kumar Chatterjee Vs. M/S
Jugantar Ltd. & Ors [1983] INSC 35 (6 April 1983)
PATHAK, R.S.
PATHAK, R.S.
SEN, A.P. (J)
CITATION: 1983 AIR 865 1983 SCR (2) 684 1983
SCC (3) 289
CITATOR INFO :
RF 1987 SC1871 (6)
ACT:
Industrial law-Fresh appointment after
attaining superannuation and payment of all dues-Whether termination of
appointment after the expiry of the contract will attract the provisions of
Section 25 'F' of the Industrial Disputes Act-Whether such a termination is
"retrenchment" within the meaning of Section 2 (00) of the Act.
HEADNOTE:
The petitioner who joined the respondent
Company as Sub Editor rose to the position of Assistant Editor in 1976. On
completing the age of sixty years he was served with a notice of retirement
dated November 6, 1976 informing him that he stood retired with effect from
December 1, 1976. He was paid and he willingly received his dues on account of
gratuity and Provident Fund following such retirement.
Thereafter, he was offered fresh employment
as an Assistant Editor for a period of twelve months under a contract. He
accepted the employment on that basis. On the expiry of the period of twelve
months, he raised a dispute alleging that his services had been wrongly
terminated with effect from December 1, 1976 and that he was entitled to
continue in service.
The Labour Court held (1) that he had
actually retired from service with effect from December 1, 1976, on reaching
the age of superannuation and had received his gratuity and Provident Fund;
(ii) that he entered into a fresh agreement with full knowledge of its contents
and consequences and took up fresh employment with the employer for a period of
twelve months only and (iii) therefore his case not being one of retrenchment,
he is not entitled to the claim for reinstatement. Hence the petition for
Special Leave to appeal against the Award. Dismissing the petition, the Court ^
HELD 1 : 1. The subsequent service of the
petitioner arose on a fresh contract and cannot be regarded as a continuation
of the original service.[687 F] 1 : 2 The respondent employer is a Newspaper
establishment, and Section 14 of the Working Journalist (Conditions of Service
and Miscellaneous Provisions) Act, 1955 provides that the provisions of the Industrial
Employment (Standing Order's) Act, 1946, as in force for the time being will
apply to every newspaper establishment. The Bengal Industrial Employment
(Standing Orders) Rules 1946 were amended by the State Government by a
Notification dated October 14, 1946 and Rule 2 A directed that matters relating
to superannuation would be additional included in the Schedule to the
Industrial Employment (Standing Order) Act 1946. In the result the standing
order 685 drawn up and applied by the respondent providing for retirement on
reaching the age of superannuation fell within the scope of its powers. The
relevant standing order provided that a Working Journalist would retire at the
age of 60 years. On attaining that age, the petitioner's services ceased, and
nothing more was required. In fact in acceptance of that position he drew his
gratuity and Provident Fund dues. [687 D-G] 2 : 1. The age of superannuation
marks the end point of the workman's services. If he is employed at least
thereafter for a term, such employment cannot be regarded as employment
contemplated within the definition of the expression "retrenchment"
in Section 2 (00) of the Industrial Disputes Act. [689 A-B] 2 : 2. Section 25
'F' applies where a workman is retrenched and therefore the fresh employment of
the petitioner not falling within the definition of "retrenchment"
his case cannot be governed by Section 25 'F'. [688 A-B] State Bank of India v.
Sri N. Sundera Mony [1976] 3 S.C.R. 160 : Hindustan Steel Ltd. v. The Presiding
Officer, Labour Court. Orissa & Ors. [1977] 1 S.C.R. 586 : Delhi Cloth
& General Mills Ltd. v. Shambunath Mokherjee and others [1978] 1 S.C.R. 591
; Surendra Kumar Verma & Ors. v. Central Govt. Industrial-cum-Labour Court,
New Delhi & ANR. [1980] 4 S.C.R. 443, distinguished.
CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) No. 7299 of 1981.
From the Judgment and Order dated the 27th
April, 1981 of the Court of Second Labour West Bengal in Case No. VIII-
C-3/1979.
M.K. Ramamurthy, Santosh Chatterjee and M.C.
Dhingra for the petitioner.
A.K. Sen, N.R. Choudhary, D.N. Mukherjee and
Santosh Mukherjee, for the respondents.
The Order of the Court was delivered by
PATHAK, J. The petitioner, Shri Binoy Kumar Chatterjee prays for special leave
to appeal under Art. 136 of the Constitution against the award dated April 27,
1981 of the Second Labour Court, West Bengal.
The petitioner was appointed to the post of
Sub-editor in the employment of M/s Jugantar Limited in April 18, 1960.
In the following month he was transferred to
Delhi as a Special Correspondent. In August, 1976 he was transferred to
Calcutta as an 686 Assistant Editor. Om completing 60 years of age he was
served with a notice of retirement dated November 6, 1976 informing him that he
stood retired with affect from December 1, 1976. He was paid and he willingly
received, his dues on account of gratuity and Provident Fund following such
retirement. Thereafter, it seems that he was offered fresh employment as an
Assistant Editor for a period of twelve months under a contract. He accepted
the employment on that basis. On the expiry of the period of twelve months he
raised a dispute alleging that his service had been wrongly terminated with
effect from December 1, 1976 and that he was entitled to continue in service.
The Government of West Bengal referred the
dispute to the Second Labour Court under Section 10 of the Industrial Disputes
Act, 1947 for adjudication on the issue whether the termination of the service
of the petitioner was justified, and to what relief, was he entitled. The
Labour Court considered the preliminary objection of the employer that there
was no industrial dispute because the service of the petitioner had come to an
end automatically on the expiry of the period of contract. The objection, although
described as a preliminary objection, involved the very question which the
Labour Court was called upon to decide in the reference.
Before the Labour Court the case of the
employer was that the services of the petition stood terminated automatically
with effect from December 1, 1976 on attaining the age of superannuation, that
is to say the age of 60 years.
Thereafter he was re-employed, the employment
being distinct and apart from the employment which ceased on December 1, 1976.
The fresh employment, according to the employer, was governed by the express
condition that it would enure for a period of twelve months only. The case of
the workman, however, was that the further employment given to him after
December 1, 1976 was in reality a continuation of the previous employment and
therefore the termination should be taken to be effective from December 1,
1977, and should be regarded as retrenchment. The Labour Court repelled the
contention of the workman and held that he had actually retired from service with
effect from December 1, 1976, on reaching the age of superannuation and had
received his gratuity and Provident Fund. The Labour Court found that the
workman had entered into a fresh agreement with the employer under which he was
given employment for twelve months, that the contract was duly signed by the
petitioner with full knowledge of its contents and consequences and was binding
on him, and that on the 687 expiry of the stipulate twelve months the
petitioner had automatically ceased to be in service. Accordingly, the Labour
Court refused the relief of reinstatement claimed by the petitioner and
observed that the case could not be treated as one of retrenchment.
Two contentions have been raised before us by
learned counsel for the petitioner. Learned counsel urges that there was no
binding provision fixing the age of superannuation, and that the provision in
the Standing Orders observed by the employer was not sanctioned by any entry in
the Schedule to the Industrial Employment (Standing Orders) Act, 1946. It is
contended that consequently the petitioner must be deemed to have continued in
service throughout, and the cesser of his service with effect from December 1,
1977 must be regarded as a unilateral termination of service by the employer.
We find no substance in the contention. The respondent employer is a newspaper
establishment, and Section 14 of the Working Journalists (Conditions of Service
and Miscellaneous Provisions) Act, 1955 provides that the provisions of the Industrial
Employment (Standing Orders) Act, 1946, as in force for the time being, will
apply to every newspaper establishment. The Bengal Industrial Employment
(Standing Orders) Rules, 1946 were amended by the State Government by a
notification dated October 14, 1946, and Rule 2A directed that matters relating
to superannuation would be additional matters included in the Schedule to the Industrial
Employment (Standing Orders) Act, 1946, In the result the Standing Order drawn
up and applied by the respondent providing for retirement on reaching the age
of superannuation fell within the scope of its powers. The relevant Standing
Order provided that a working journalist would retire at the age of 60 years.
There can be no dispute that on attaining that age the petitioner's services
ceased, and nothing more was required. In fact, in acceptance of that position
he drew his gratuity and provident fund dues.
His subsequent service arose on a fresh
contract, and we are clearly of the view that it, cannot be regarded as a
continuation of the original service.
The other contention of learned counsel for
the petitioner is that the petitioner's service on the expiry of twelve months,
on December 1, 1977, did not come to an end in law, because the conditions of
Section 25 of the Industrial Disputes Act, 1947 had not been complied with by
the respondent employer. Section 25F provides that no workman employed in any
industry who has been in continuous service for not less than one year under
the employer shall be retrenched by the employer until the workman has been 688
given the requisite notice in writing and has been paid at the time of
retrenchment, compensation at the specified rate and also that notice in the
prescribed manner is served on the appropriate Government or authority. Section
25F applies where a workman is retrenched. The petitioner contends that even
though he was employed under a fresh contract after December 1, 1976 he was in
continuous service thereafter for not less than one year and must be regarded
therefore as having been retrenched on December 1, 1977. Our attention is drawn
to the definition of the expression "retrenchment" in Section 2(00)
of the Industrial Disputes Act. It reads :
2(00):-"retrenchment" means the
termination by the employer of the service of a workman form 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 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 ;" It is urged that in view of the law
laid down by this Court in State Bank of India v. Shri N. Sundara Money,(1)
Hindustan Steel Limited v. The Presiding Officer Labour Court Orissa and
Ors.,(2) Delhi Cloth & General Mills Ltd.
v. Shambhu Nath Mukherjee & Ors.(3) and
Surendra Kumar Verma & Others v. Central Govt. Industrial
Tribunal-Cum-Labour Court, New Delhi and Anr.,(4) the words "termination
by the employer of the service of a workman for any reason whatsoever" in
the definition of the expression "retrenchment" covers every kind of
termination of service except that expressly excluded by the definition. In our
judgment none of those cases can be construed as authority governing the
present case. In all those cases the question arose on a termination of the
workman's services at a point of time when the age of superannuation had not
yet been reached. The 689 age of superannuation marks the end point of the
workman's service. If he is employed afresh thereafter for a term, such
employment cannot be regarded as employment contemplated within the definition
of the expression "retrenchment". We are of the view that the
termination of the petitioner's service on the expiry of the period of his
contract on December 1, 1977 does not fall with in the expression
"retrenchment" in Section 2(00) of the Industrial Disputes Act.
The Special Leave Petition is dismissed.
S.R. Petition dismissed.
Back
