PETITIONER:
MANAGEMENT OF KARNATAKA STATE ROAD TRANSPORT CORPORATION,BAN
Vs.
RESPONDENT:
M. BORAIAH & ORS.
DATE OF JUDGMENT01/11/1983
BENCH:
MISRA RANGNATH
SEN, AMARENDRA NATH (J)
CITATION:
1983 AIR 1320 1984 SCR (1) 783
1984 SCC (1) 244 1983 SCALE (2)652
ACT
Industrial Disputes Act 1947, Ss. 2 (oo) & 25F "Retrenchment"--What is--Termination of services of employee during probation-Whether "retrenchment".
HEADNOTE
The appellant-Corporation terminated the employment of some of its employee-respondents who were probationers on the ground of unsatisfactory service, some during the period of their probation and others during the extended period of probation.
The Labour Court, to which the dispute was referred, held that s. 25F of the Industrial Disputes Act had no application, and that for this reason the discharge was invalid.
Dismissing the employer’s writ petition a Single Judge held that the orders of discharge amounted to retrenchment as defined in S.2 (oo) of the Act and were bad for noncompliance of s.25F. A Division Bench of the High Court upheld this decision.
In the appeal to this court it was contended on behalf of the appellant that the services of the respondents had been terminated on the ground of their unsuitability and it was not a case of disbanding surplus labour force and, therefore, such termination did not amount to retrenchment.
Dismissing the appeal, ^
HELD: 1. Once the conclusion is reached that retrenchment as defined in s. 2 (oo) of the Industrial Disputes Act covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. [794 E]
In the instant case the requirements of s. 25F had not been complied with.[794 F] 784
2. The stage has come when the views indicated in State Bank of India v. N. Sundara Money [1976] 3 SCR 160 has been "absorbed into the consensus" and there is no scope for putting the clock back or for an anti-clockwise operation. [794 D]
Hariprasad Shivshanker Shukla v. A.D. Divikar, 1957 S.C.R. 121; Hindustan Steel Ltd. v. The Presiding Officer, Labour Court; Orissa & Ors. [1977] 1 S.C.R. 586; Santosh Gupta v. State Bank of Patiala, [1980] 3 S.C.R. 884; Indian Hume Pipe co. Ltd. v. The Workmen, [1960] 2 S.C.R. 32; Mohan Lal v. Management of M/s. Bharat Electronics Ltd. [1981] 3 S.C.R. 518; Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal--cum--Labour Court, New Delhi and Anr.[1981] 1 S.C.R. 789; L. Robert D’ Souza v. The Executive Engineer, Southern Railway & Anr. [1982] 3 S.C.R. 251 referred to.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3085 of 1981 and 3628-3649 of 1982.
From the judgment and Order dated the 6th July, 1981 and 5th August, 1982 of the High Court of Karnataka at Bangalore in Writ Appeal Nos. 724/81 and 1324/80, 1470, 1788, 1894/81, 55, 94, 368/82, 475/81, 1133/82, 21310/80, 22158, 21822/80, 10531, 10612/82, 1086, 1778/80, 12332, 12890/78, 19550/79, 11089/82, 11228 & 19410/82.
N. K. Sharma, Ms. Depika Saxena and Vineet Kumar for the appellants.
R. K. Garg, D. K. Garg, P. R. Ramasesh and Ms. R. Bagai for the respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. The employer-Karnataka State Road Transport Corporation--created under a State Act entitled the Transport Corporation Act of 1950 (’Corporation Act’ for short) is in appeal by special leave and the common decision of a Division Bench of the High Court which held that termination of employees while on probation on ground of unsuitability amounted to retrenchment and for noncompliance with the provisions of s. 25F of the Industrial Disputes Act, 1947 (’Disputes Act’ for short), the termination is bad, is challenged.
As per Rule 7 made under s. 45 of the Corporation Act, direct recruits are to be on probation for two years and such probation can be extended. The employer terminated the employment 785 of some of the employees during the initial period of probation and of some others during the extended period on the ground of unsatisfactory service. Thereupon an industrial dispute was raised questioning the legality of their termination and the State Government referred the dispute to the Labour Court for adjudication under s. 10 of the Disputes Act. The Labour Court held, overruling the stand of the employer that s. 25F of the Disputes Act had no application, to the effect that the discharge was invalid. The employer Corporation came before the High Court challenging the Award. A learned single Judge dismissed the writ petition holding that the order of discharge amounted to retrenchment as defined in s. 2(oo) of the Disputes Act and those orders were bad for noncompliance of s. 25F. The employer Corporation challenged the decision of the single Judge before a Division Bench and the Division Bench by the impugned judgment upheld the decision of the learned single Judge.
Admittedly the employees were probationers at the time of discharge from service. There is no dispute that as a condition precedent to discharge the requirements of s. 25F of the Disputes Act had not been complied with. If the discharge of the employees would amount to retrenchment, appellant’s counsel does not dispute that the order of discharge would be bad for non-compliance of s. 25F of the Disputes Act. The only question for consideration in these appeals, therefore, is whether the discharge of the employees from service amounted to retrenchment.
It is the stand of the employer Corporation that the employees were probationers and the order of discharge in every case was on account of unsatisfactory service. Since the order of discharge has been grounded upon unsatisfactory service during the period of probation, it has been argued that such termination of service is not retrenchment.
Section 2(oo) of the Disputes Act defines retrenchment to mean: "’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) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation 786 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."
A Constitution Bench of this Court in Hariprasad Shivshanker Shukla v. A.D. Divikar, examined the true meaning of the expression ’retrenchment’ and posed the following question:
"The question however, before us is-does this
definition merely give effect to the ordinary, accepted
notion of retrenchment in an existing or running
industry by embodying the notion in apt and readily
intelligible words or does it go so far beyond the
accepted notion of retrenchment as to include the
termination of services of all workmen in an industry
when the industry itself ceases to exist on a bona fide
closure or discontinuance of his business by the
employer." It went on to say:
"There is no doubt that when the Act itself
provides a dictionary for the words used we must look
into that dictionary first for an interpretation for
the words used in the statue. We are not concerned with
any presumed intention of the legislature; our task is
to get at the intention as expressed in the statute.
Therefore, we propose first to examine the language of
the definition and see if the ordinary, accepted notion
of retrenchment fits in, squarely and fairly, with the
language used. What is the ordinary, accepted notion of
retrenchment in an industry.
Let us now see how far that meaning fits in with the
language used. We have referred earlier to the four
essential requirements of the definition, and the
question is, does the ordinary meaning of retrenchment
fulfil those requirements ! In our opinion it does.
When a portion of the staff or labour force is
discharged as surplusage in a continuing business,
there are (a) termination of the service of a workman;
(b) by the employer; (c) for 787
any reason whatsoever; and (d) otherwise than as a
punishment inflicted by way of disciplinary action." The Constitution Bench further said:
"The legislature is using the expression ’for any
reason whatsoever’ says in effect : It does not matter
why you are discharging the surplus; if the other
requirements of the definition are fulfilled, then it
is retrenchment." In the absence of any compelling
words to indicate that the intention was even to
include a bona fide closure of the whole business, it
would, we think, be divorcing the expression altogether
from its context to give it such a wide meaning as is
contended for by learned counsel for the respondents.
What is being defined is retrenchment, and that is the
context of the definition; It is true that an
artificial definition may include a meaning different
from or in excess of the ordinary acceptation of the
word which is the subject of definition; but there
must then be compelling words to show that such a
meaning different from or in excess of the ordinary
meaning is intended. Where, within the framework of the
ordinary acceptation of the word every single
requirement of the definition clause is fulfilled, it
would be wrong to take the definition as destroying the
essential meaning of the word defined." After referring to certain decisions the Constitution Bench concluded by saying:
"For the reasons given above, we hold, contrary to
the view expressed by the Bombay High Court, that
retrenchment as defined in s. 2(oo) and as used in s.
25F has no wider meaning than the ordinary, accepted
connotation of the word; 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,"
The ratio of this decision has been pressed into service by the appellant Corporation for its stand that in the instant case the services have been terminated on the ground of unsuitability and it was not a case of disbanding surplus labour force and, therefore, did 788 not amount to retrenchment. On the other hand, counsel for the employees have contended that the consensus of judicial opinion in later decisions of this Court is against the appellant’s stand. The first decision is the case of State Bank of India v. N. Sundara Money. A Bench of three learned Judges of this Court referred to the definition in section 2(oo) of the Disputes Act and observed :
"To protect the weak against the strong this
policy of comprehensive definition has been
effectuated. Termination embraces not merely the act of
termination by the employer, but the fact of
termination howsoever produced."
Then came the decision in Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa & Ors, when a three Judge Bench of this Court again examined the true meaning of the definition of the expression ’retrenchment’. On this occasion reference was made to the Constitution Bench decision and as would appear from page 589 of the Report, counsel had submitted that the three Judge decision of this Court in Sundara Money’s case (supra) was in apparent conflict with the Constitution Bench decision and required reconsideration. This submission of counsel was considered and facts of the Constitution Bench case were analysed and Gupta, J, who spoke for the Court, stated:
"On the facts of the case before us, giving full
effect to the words ’for any reason whatsoever, would
be consistent with the scope and purpose of section 25F
of the Industrial Disputes Act, and not contrary to the
scheme of the Act. We do not find anything in
Hariprasad’s case which is inconsistent with what has
been held in State Bank of India v. N. Sundara Money
(supra)."
The same question came up for consideration before a two Judge Bench of this Court in Santosh Gupta v. State Bank of Patiala. The facts of the case were more or less the same as in the present dispute. Employment there had been terminated upon failure of the workman to pass the test which would have enabled her to be confirmed in service and it was contended on behalf of the 789 management that termination of service was not due to discharge of surplus labour force and, therefore, it did not amount to retrenchment. The Division Bench referred to the Constitution Bench decision and observed:
"If the definition of ’retrenchment’ is looked at
unaided and unhampered by precedent, one is at once
struck by the remarkably wide language employed and
particularly by the use of the words "termination for
any reason whatsoever". The definition expressly
excludes termination of service as a ’punishment
inflicted by way of disciplinary action’. The
definition does not include, so it expressly says,
voluntary retrenchment of the workman or retrenchment
of the workman on reaching the age of superannuation or
termination of the service of the workman on the ground
of continuous ill-health. Voluntary retrenchment of a
workman or retrenchment of the workman on reaching the
age of superannuation can hardly be described as
termination by the employer of the service of a
workman. Yet, the Legislature took special care to
mention that they were not included within the meaning
of ’termination by the employer of the service of a
workman for any reason whatsoever’. This, in our
opinion, emphasizes the broad interpretation to be
given to the expression ’retrenchment’. In our view if
due weight is given to the words ’the termination by
the employer of the service of a workman ’for any
reason whatsoever’ are understood to mean what they
plainly say, it is difficult to escape the conclusion
that the expression ’retrenchment’ must include every
termination of the service of a workman by an act of
the employer. The underlying assumption, of course, is
that the undertaking is running as an undertaking and
the employer continues as an employer but where either
on account of transfer of the undertaking or on account
of the closure of the undertaking the basic assumption
disappears, there can be no question of ’retrenchment,
within the meaning of the definition contained in s.
2(oo). This came to be realised as a result of the
decision of this Court in Hariprasad Shivshanker Shukla
v. A. D. Divikar (supra). The Parliament then stepped
in and introduced 25F and 25FFF by providing that
compensation shall be payable to workmen in case of
transfer of 790
undertaking or closure of undertaking as if the workmen
had been retrenched. We may rightly say that the
termination of the service of a workman on the transfer
or closure of an undertaking was treated by Parliament
as ’deemed retrenchment’. The effect was that every
case of termination of service by act of employer even
if such termination involved was a consequence of
transfer or closure of the undertaking was to be
treated as ’retrenchment’ for the purposes of notice,
compensation etc. Whatever doubts might have existed
before Parliament enacted 25FF and 25FFF about the
width of 25F there cannot now be any doubt that the
expression ’termination’ of service for any reason
whatsoever now covers every kind of termination of
service except those not expressly included in s. 25F
or not expressly provided for by other provisions of
the Act such as ss. 25FF and 25FFF." The learned Judges drew support from what had been observed in Indian Hume Pipe Co. Ltd. v. The Workmen, "The object of retrenchment compensation is to give protection to the retrenched employee and his family to enable them to tide over the hard period of unemployment," and observed:
"Once the object of 25F, 25FF and 25FFF is
understood and the true nature of the compensation
which those provisions provide is realised, it is
difficult to make any distinction between termination
of service for one reason and termination of service
for another." Chinnappa Reddy, J. thereafter referred to the Constitution Bench decision and said:
"It is true that there are some observations
which, if not properly understood with reference to the
question at issue, seemingly support the submission of
Dr. Anand Prakash that "termination of service for any
reason whatsoever" means no more and no less than
discharge of a labour force which is a surplusage. The
misunderstanding of the observations and the resulting
confusion stem from not appreciating (1) the lead
question which 791
was posed and answered by the learned judges and (2)
that the reference to ’discharge on account of
surplusage’ was illustrative and not exhaustive and by
way of contrast with discharge on account of transfer
or closure of business.’ It was further observed:
"The ratio of Shukla’s case in fact has already
been explained, in Hindustan Steel Ltd. v. The
Presiding Officer, Labour Court Orissa & Ors. The
decisions in Hindustan Steel Ltd. v. The Presiding
Officer, Labour Court, Orissa & Ors. and State Bank of
India v. N. Sundara Money have, in our view, properly
explained Shukla’s case and have laid down the correct
law."
The same question arose for consideration before another two Judge Bench in Mohan Lal v. Management of M/s. Bharat Electronics Ltd. Desai, J. spoke for the Court thus:
"Niceties and semantics apart, termination by the
employer of the service of a workman for any reason
whatsoever would constitute retrenchment except in
cases excepted in the section itself. The excepted or
excluded cases are where termination is by way of
punishment inflicted 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, and termination of the service of a workman on
the ground of continued ill-health. It is not the case
of the respondent that termination in the instant case
was a punishment inflicted by way of disciplinary
action. If such a position were adopted, the
termination would be ab initio void for violation of
principle of natural justice or for not following the
procedure prescribed for imposing punishment. It is not
even suggested that this was a case of voluntary
retirement or retirement on reaching the age of
superannuation or absence on account of continued ill-
health. The case does not fall under any of the
excepted categories. 792
There is thus termination of service for a reason other
than the excepted category. It would’ indisputably be
retrenchment within the meaning of the word as defined
in the Act. It is not necessary to dilate on the point
nor to refer to the earlier decisions of this Court in
view of the later two pronouncements of this Court to
both of which one of us was a party. A passing
reference to the earliest judgment which was the sheet
anchor till the later pronouncements may not be out of
place. In Hariprasad Shivshanker Shukla v. A. D.
Divikar, after referring to Pipraich Sugar Mills Ltd.
v. Pipraich Sugar Mills Mazdoor Union, a Constitution
Bench of this Court quoted with approval the following
passage from the aforementioned case:
’But retrenchment connotes in its ordinary
acceptation that the business itself is being continued
but that a portion of the staff or the labour force is
discharged as surplusage and the termination of
services of all the workmen as a result of the closure
of the business cannot therefore be properly described
as retrenchment.’
"This observation was made in the context of the
closure of an undertaking and being conscious of this
position, the question of the correct interpretation of
the definition of the expression ’retrenchment’ in s.
2(oo) of the Act was left open. Reverting to that
question, the view was re-affirmed but let it be
remembered that the two appeals which were heard
together in Shukla’s case were cases of
closure,............"
In the majority judgment in Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr., the ratio of the latter case has been followed. A Bench of two learned Judges in the case of L. Robert D’Souza v. The Executive Engineer, Southern Railway & Anr., re-examined the entire position. Desai, J. who again spoke for the Court indicated: 793
"At the outset it must at once be pointed out that
the construction put by the Full Bench of the Kerala
High Court on the expression ’retrenchment’ in s. 2(oo)
of the Act that it means only the discharge of surplus
labour or staff by the employer for any reason
whatsoever is no more good law and in fact the decision
of the full Bench of Kerala High Court in L. Robert
D’Souza v. Executive Engineer, Southern Railway & Anr.,
[(1970) 1 LLJ 2111] has been specifically overruled by
this Court in Santosh Gupta v. State Bank of Patiala.
This Court has consistently held in State Bank of India
v. N. Sundara Money, Hindustan Steel Ltd. v. Presiding
Officer, Labour Court, and Delhi Cloth & General Mills
Ltd. v. Shambhu Nath Mukherjee, [(1971) 1 SCR 591] that
the expression ’termination of service for any reason
whatsoever’ now covers every kind of termination of
service except those not expressly included in s. 25F
or not expressly provided for by other provisions of
the Act such as ss. 25FF and 25FFF. It was attempted to
urge that in view of the decision of this Court in
Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills
Mazdoor Union, the ratio of which was re-affirmed by a
Constitution Bench of this Court in Hariprasad
Shivshanker Shukla v. A. D. Divikar, all the later
decisions run counter to the Constitution Bench and
must be treated per in curium. This contention need not
detain us because first in Hindustan Steel Ltd. case’
than in Santosh Gupta’s case, (supra) and lastly in
Mohan Lal v. Bharat Electronics Ltd., it was in terms
held that the decision in Sundara Money’s case was not
at all inconsistent with the decision of the
Constitution Bench in Hariprasad Shukla’s case and not
only required no reconsideration but the decision in
Sundara Money’s case was approved in the aforementioned
three cases. ’This position is further buttressed by
the decision in Delhi Cloth & General Mills Ltd. case
wherein striking off the name of a workman from the
roll was held to be retrenchment."
In the series of cases that have come later the Constitution Bench decision has been examined and the ratio indicated therein has been confined to its own facts. The view indicated by this Court in that case obviously did not meet with the approval of Parliament and, 794 therefore, the law has been subsequently amended as already indicated. Lord Devlin once observed:
"I am not one of those who believe that the only
function of law is to preserve the status quo. Rather,
I should say that law is the gate-keeper of the status
quo. There is always a host of new ideas galloping
around the outskirts of society’s thought. All of them
seek admission but each must first win its spurs; the
law at first resists, but will submit to a conqueror
and become his servant. In a changing society the law
acts a valve. New policies must gather strength before
they can force an entry; when they are admitted and
absorbed into the consensus, the legal system should
expand to hold them, as also it should contract to
squeeze out old policies which have lost the consensus
they once obtained." We are inclined to hold that the stage has come when the view indicated in Money’s case (supra) has been "absorbed into the consensus" and there is no scope for putting the clock back or for an anti-clockwise operation.
Once the conclusion is reached that retrenchment as defined in s.2(oo) of the Disputes Act covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. Admittedly the requirements of s. 25F of the Disputes Act had not been complied with in these cases. Counsel for the appellant did not very appropriately dispute before us that the necessary consequence of non-compliance of s. 25F of the Disputes Act in a case where it applied made the order of termination void. The High Court, in our opinion, has, therefore, rightly come to the conclusion that in these cases the order of retrenchment was bad and consequently it upheld the Award of the Labour Court which set aside those orders and gave appropriate relief. These appeals are dismissed. There would be one set of costs. Consolidated hearing fee is assessed at Rs. 5,000. N.V.K. Appeal dismissed. 795