1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.678 OF 2006 FROM WRIT PETITION NO.1002 OF 2003 The Great Eastern Shipping Company Ltd. ...Appellant. Vs. 1.Shri.B.A.D Silva & ors. ...Respondents. --- Mr.S.K.Talsania, Sr.Adv. i/b. Sanjay Udeshi & Co., for Appellant. Mr.Mihir Desai, for Respondents. --- CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ. DATED: 21st April, 2010 P.C.: 1. By this appeal, the appellant challenges the order dated 21.4.2006 passed in Writ Petition no.1002 of 2003 by the learned Single Judge of this Court. That petition was filed by the Respondent nos. 1 & 2 2 challenging the order passed by the Tribunal dated 29.7.2002. A reference was made of the dispute filed by 23 Purser officers and 18 Radio officers employed by the Great Eastern Shipping Company Ltd., challenging their retrenchment by letter dated 15.12.2000. Challenge to the retrenchment by these officers was on several grounds. One of the ground was that the retrenchment has been brought about in breach of the requirements of the agreement between Maritime Union of India and Indian National Ship Owners Association in as much as the Union has not been consulted before effecting the retrenchment. The Tribunal decided the dispute by its Award dated 29.7.2002. The Tribunal held that the retrenchment was valid. Though the retrenchment of 23 purser officers and 18 radio officers was under challenge before the Tribunal, Writ Petition no.1002 of 2003 was filed in this Court by only two Purser officers. The learned Single Judge has decided only one point in that petition viz.  whether the retrenchment of the officers brought about without consulting the Union, as required by the provisions of Clause 116 of 3 the Agreement is valid or invalid . The learned Single Judge held that the provisions of Clause 116 of the Agreement apply, though the officers who were retrenched were above the age of 35 years and that as the retrenchment was brought out without consulting the Union, it was bad-in-law. 2. The petitioner-employer has challenged the order of the learned Single Judge in this appeal. In this appeal, we are concerned with the provisions of MUI  INSA Agreement valid for the period 1998-2000. The learned Counsel appearing for the appellant submitted that as admittedly all the officers who were retrenched, were above the age of 35 years, the provisions of clause 116 which requiring consultation with the Union before bringing about the retrenchment, is not applicable. He submits that the learned Single Judge has totally misinterpreted the provisions of Clause 116. The learned Counsel submits that the learned Single Judge should have read the provisions of Clause 112 and 116 together. According to the learned Counsel, if the officers are 4 above the age of 35 years, retrenchment is under clause 112 and not under clause 116 and there is no requirement of consultation. The learned Counsel appearing for original petitioners and Respondent nos. 1 and 2 on the other hand submits that the learned Single Judge has correctly read the provisions of Clause 116. According to the learned Counsel, clause 116 is in two parts. The first part applies to the officers who are under the age of 35 years, but second part applies to all the officers whether they are above 35 years or below 35 years. The learned Counsel, therefore, submits that there is no room to interfere with the order passed by the learned Single Judge. 3. In order to appreciate the rival submissions, it is necessary to consider the provisions of clause 112 and clause 116. They read as under:- Retrenchment Benefits (Effective from 1.4.1998) 112.For Certified Navigating and 5 Engineer Officers: If the Company retrenches the services of an Officer who has completed 35 years of age and has with the Company minimum of 7 years of continuous service, he shall be entitled to receive Retrenchment Compensation from the Company as follows: (a) for Certified Navigating and Engineering officers. (i) Under the age of 55 years: @ One month Basic wages per year of completed service with the company, subject to minimum of Rs.1,50,000/-. (ii) Officers of 55 years of age or above: @ 15 days Basic Wages per year of prospective service with the Company, subject to the minimum of Rs.50,000/- or @ one months Basic Wages per year of completed service with the Company, subject to a maximum of Rs.2,50,000/-, whichever is higher. 6 (b) for all other Categories of officers: (i) Officers under the age of 55 years: @ one and half months of Basic Wages per year of completed service with the Company and @ one months basic wages per year of prospective service subject to a minimum of Rs.2,00,000/- (ii)Officers of 55 years of age or above: @ one and half months of Basic Wages per year of prospective service, subject to a minimum of Rs.50,000/- RETRAINING OF RADIO OFFICERS AND PURSERS 116. Radio Officers and Purser Officers under the age of 35 years will be given facilities for retraining. If such Officers refuse the offer of retraining, retrenchment/redundancy compensation will not be payable. There will be no retrenchment. However, if any retrenchment is required, same to be done in consultation with MUI. The Radio Officers and the Pursers who do not meet 7 the qualifying standards set by the D.G. Of Shipping will also be eligible for the retrenchment compensation as per the provisions of the Clause 112B. Perusal of clause 112 quoted above shows that it deals with the subject of benefits that are to be given to the officers of the Company who are retrenched after they complete the age of 35 years. The power of the employer to retrench the employees who are above the age of 35 years is implicit in clause 112. Perusal of clause 116 shows that its heading is Retraining of Radio Officers and Pursers . The first distinction between clause 116 and clause 112 is that clause 112 deals with large class of the officers, where as Clause 116 deals with only Radio officers and Purser officers. Clause 116 lays down that the Radio officers and the Purser officers who are under the age of 35 years will be given facility of retraining. It further lays down that if such officers, thereby meaning the officers who are under the age of 35 years, refuse the offer of retraining, retrenchment/redundancy compensation 8 will not be payable. It further lays down that there will be no retrenchment. In other words, it lays down that in so far as those officers who are under the age of 35 years who refuse to go for retraining, they are not to be retrenched merely because they refuse to go for retraining. However, if they are required to be retrenched then retrenchment should be brought about in consultation with the Union. Then the Rule provides that in the event of such retrenchment how the compensation is to be calculated and lays down that the compensation should be calculated as per clause 112B. Perusal of Clause 112B shows that, according to that clause, retrenchment compensation is payable to the officers who are retrenched and who are below the age of 55 years. In our opinion, this further indicates that clause 116 applies only to those officers who are below the age of 35 years, because the Radio officers or Purser officers who are retrenched under Clause 116 will be the officers below the age of 35 years and therefore, would be the officers under the age of 55 years for the purposes of Clause 112B. So far as 9 those officers who are above the age of 35 years, there is no provision to be found in Clause 116. The provision for their retrenchment is to be found in clause 112 which deals with retrenchment of officers who have completed age of 35 years. If the interpretation placed by the learned Single Judge on clause 116 is accepted, then the words Officer who has completed 35 years of age found in clause 112 become meaningless. In our opinion, clause 112 and 116 are in one scheme. Clause 116 deals with the officers who are under the age of 35 years, and therefore, protection is given to them that in case of their retrenchment, the employer will have to consult the Union. But that protection is not given, in the case of those officers who are above the age of 35 years. In our opinion, therefore, the learned Single Judge was not justified in holding that though the petitioners-officers are above the age of 35 years when they are retrenchment was brought about still Clause 116 of the Agreement applies. In our opinion, the learned Single Judge really had no reason to set aside a detailed order passed by the 10 Tribunal. 4. In the result, the appeal succeeds and is allowed. The order passed by the learned Single Judge is set aside. 5. We have been informed that an amount has been deposited in this Court by the appellant under the interim order passed by this Court. The appellant shall be permitted to withdraw that amount with accruals, if any. In view of the aforesaid order, Notice of Motion no.4150 of 2007 does not survive for consideration, it is disposed of. (D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.)