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PETITIONER: BINOY KUMAR CHATTERJEE

       Vs.

RESPONDENT: M/S JUGANTAR LTD. AND OTHERS

DATE OF JUDGMENT06/04/1983

BENCH: PATHAK, R.S. BENCH: 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,

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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 can  not 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.

JUDGMENT:      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

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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

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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

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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. 690