C.W.P. No.12988 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.12988 of 1999 Date of Decision:24.09.2009 Ranbir Singh .....Petitioner Versus The Presiding Officer, Labour Court-II, Faridabad and another ...Respondents 2. C.W.P. No.12989 of 1999 R.T. Gavgotra .....Petitioner Versus The Presiding Officer, Labour Court-II, Faridabad and another ...Respondents Present: Mr. D.S. Nalwa, Advocate for the petitioner. Mr. M.L. Sarin, Sr. Advocate with Mr. Nitin Sarin, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. In both the writ petitions, the principal issue to be resolved as regards whether the termination was the result of unlawful retrenchment as contended by the workmen or it was a case of retirement as contended by the management. They are, therefore, taken up and disposed of together with the consent of counsel appearing for both sides. C.W.P. No.12988 of 1999 -2- 2. To the workman's claim that he had been unlawfully terminated from service on his attaining the age of 55 years on 20.11.1995, the management took up a stand that the workman had actually retired on 20.11.1995 and had also collected the terminal benefits namely the gratuity as well as the retirement allowances of Rs.20,000/- payable under the Company's Retirement Benefit Scheme. The management also denied the status of the claimant as a workman. 3. On the issue whether the claimant was a workman, the Labour Court examined the contention in the light of what was stated by the management that he was working as an Accounts Officer and his duties were mainly reporting and checking up accounts on behalf of the management. The Labour Court held that he was doing work in a supervisory capacity as Accounts Officer by relying on the decision of the Hon'ble Supreme Court in S.K. Maini Vs. Carona Sahu Company Limited 1994 SCC (L&S) 776, Vimal Kumar Jain Vs. Labour Court, Kanpur and another 1987 SCC (L&S) 283 that held that doing supervisory work will not obtain to him a status as a workman. It also referred to a decision in Gouri Charan Kanungo Vs. Presiding Officer, Industrial Tribunal, Orissa and another 1997 LIC 1154 as clinching the issue that he was not a workman. Learned counsel appearing for the workman would contend that it is not merely a designation that is given to a person, which would decide the issue and an Accountant or Accounts Officer, who is found to be not a workman in one establishment could seem to be a workman if there was evidence that supported such a plea. According to him, the reference to decisions themselves would not be helpful and it has to be C.W.P. No.12988 of 1999 -3- examined from the point of view of what the job profile was. The learned counsel would state that the workman's specific contention in the claim statement that he was doing the job of an assistant, doing clerical works, preparing challans, verification and checking of bills had not been in any place denied by the management. The nature of alleged supervisory functions themselves have not been set forth anywhere in the written statement of the management nor was it attempted to be proved in evidence. I agree with the contention raised on behalf of the petitioner that on the basis of clear evidence given of the nature of activities as purely clerical, the finding that he belonged to supervisory code was not correct and that he was only a workman within the definition of Section 2 (s) of the Industrial Disputes Act. 4. On the issue whether the workman had been unlawfully terminated from service, it would require to be seen under what circumstances his services came to be terminated. There is no dispute that the workman did not work beyond 20.11.1995 and on the same date, he had collected no due certificates from all the departments and received a clearance certificate in order to be eligible to obtain the monetary benefits of accumulated earned leave, salary and other benefits to the tune of Rs.22,108.25. He had also collected Rs.66,950/- as gratuity on 23.11.1995 and on the same day, he had also received Rs.20,000/- under the Company's Retirement Benefit Scheme. In all these receipts, there is a definite reference to the fact that he had been retired and relieved from duty and that he was receiving the terminal benefits. The workman had not at any point of time contended that he was being unlawfully terminated or that he had C.W.P. No.12988 of 1999 -4- grievance about receiving the money. He raised a dispute for the first time in April 1996 when he issued the notice stating that he had been wrongfully retired from service and that he was entitled to continue till the age of 58 years. He made a specific reference to a circular which reads as follows:- "As per prevailing practice, all employees (upto Grade 12) on attaining the age of 55 years are retired from the Company and they are given one year contract if they are medically fit and otherwise found suitable. But the request of the Union it has been agreed by the management that henceforth the employees will be given extension of one year every time till they attain the age of 58 years if the employees are considered fit on perusal of their previous employment records, conduct and depending upon the medical fitness. However, they will be compulsorily retired after attaining the age of 58 years. The policy will come into effect from 01.07.1989." 5. According to him, he was entitled to be retained in service till he reached the age of 58 years unless he had found to be medically unfit or was otherwise found unsuitable. Learned counsel would also refer to an alleged communication said to have been made on 10.11.1995 under which he had sought for an extension by one year and that there was an endorsement by the management that it was not possible to extend his service. 6. Learned counsel appearing for the management would point out that this letter itself was an afterthought and it had not been C.W.P. No.12988 of 1999 -5- mentioned anwhere in the demand notice or in the claim statement. His contention was that the circular on which the workman relied on admitted no doubt that the age of retirement was 55 years and an extension for one year on contract at a time was agreed upon till the time when an employee reached the age of 58 years. This is again on condition of medical fitness and suitability for continuation. The circular itself did not make the retirement age as 58 years for, if that were to be so, the provision for extension was unnecessary. According to him, the issue raised in the reference whether the termination alleged to have been made on 20.11.1995 was justified or not included also a need for an adjudication whether the termination resulted by retrenchment or retirement. The workman was entitled to complain only if there was a retrenchment and if it was a voluntary retirement, the workman would have no relief before the Labour Court. 7. Learned counsel appearing for the workman would contend that the Labour Court did not have a power to traverse beyond the reference and when the workman had raised a dispute that he had been unlawfully terminated, the management cannot contend for a position that he had been retired and not terminated. Learned counsel appearing for the workman would refer to the provision under Section 10(4) of the Industries Disputes Act, which reads as follows:- "Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this Section or in a subsequent order, the appropriate Government has specified the points of dispute for C.W.P. No.12988 of 1999 -6- adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto." 8. According to him, the sub-section contained a mandate that a Labour Court should confine its adjudication only on the point referred to it. In my view, the submission made by the counsel for the workman takes a very narrow view of what the said sub-section contains. If a workman contends that his termination was bad, the correctness of such a contention would include every defence by the opposite party that would disentitle the workman of a relief. The defence could, therefore, range between either the justification for termination or that it was not termination in the eye of law. In this case, when the management was contending that there was no termination, it did not assume a situation that the workman was, therefore, entitled to continue in service. The management was contending that the workman had voluntarily retired and adduced in proof of such a state, the documentary evidence where the workman had received various sums of money on the admitted status as having been retired. The illegality of the termination would have made possible a claim by the workman to reinstatement and could also show that a mandate under Section 25-F of the Industrial Disputes Act had been violated. On the other hand, if the termination was the result of retirement, the question of applicability of Section 25-F of the Industrial Disputes Act would not arise; answering the reference in favour of the workman would also not be possible. 9. Learned counsel for the petitioner would state that it was C.W.P. No.12988 of 1999 -7- not the contention of the management that the workman had been medically unfit or not suitable for continuation in service. I have no difficulty in accepting the contention that the management did not contend for such a position. Still if the workman had not opted to either seek for an extension or if the management had not granted the extension that itself should have been the point of dispute. No one could prevent a person from retiring if the retirement age was 55 years but it was possible for the workman to obtain an extension. It could be either a case of the workman failing to opt for an extension or the management failing to grant an extension. If the matters have stood there and the point of difference had been made the subject of adjudication, it should have been possible for rendering the adjudication in favour of the workman. However, the matter did not stop there. On the other hand, the workman opted to recieve the terminal benefits. It was nobody's case that he was compelled to receive the amounts or that he received the terminal benefits under any protest. If he had treated himself as having been retired and received the compensation, it was impermissible for the workman to contend that such retirement did not take effect as such and that it was to be treated as an unlawful termination. I reject such a contention to be unjustified and untenable. The Labour Court was, under the circumtances, perfectly justified in denying to the workman any relief. I see no reason to interfere with the award passed by the Labour Court. 10. In the other case in C.W.P. No.12989 of 1999 except the fact that the claimant who was seeking for relief, was designated as C.W.P. No.12988 of 1999 -8- Superintendent, and it was contended before the Labour Court that he was not a workman, all other facts remain the same. This was also another case where the person had recieved the termination benefits assuming hismelf to have reached the age of superannuation and when no extension was either offered by the management or sought by the workman. The result in the above writ petition canot be different except that the Labour Court had, on a finding that the claimant was not a workman, observed that he was at liberty to approach a competent Civil Court to work out any relief, if he was so advised. I do not propose to make any comments on whether the petitioner would have any relief before a Civil Court. I propose to make no intervention with the order passed by the Labour Court and confirm the award in its entirety. 11. Both the writ petitions under the circumtances stand dismissed. There shall be no direction as to costs. (K. KANNAN) JUDGE September 24, 2009 Pankaj*