RAGHAVACHARI Vs. MADRAS PRINTERS AND LITHOGRAPHERS ASSN

JUDGEMENT

(1.) THE appellant was employed as a stenographer in the madras Printers'and Lithographers'Association, Techniprint Buildings, Guindy, Madras-32. In or about the beginning of 1968, to wit, 13th January, 1968 , the appellant complained of cardiac trouble and wrote to his employer stating that he was advised by his medical attendant to continue treatment for his trouble with complete rest for at least two months. He also compassionately referred to his past conduct that though he had completed his eight years of service in the Association, he did not take any leave except when it was absolutely necessary. He, therefore, sought for leave for two months from 13th of January, 1968. In their communication dated 1st of march, 1968, the employer wrote as follows : "during the meeting of the Executive Committee held on 23-2-1968, your letters regarding the bad condition of your health was considered and the Committee sympathised with you and was unanimously of opinion that as the Association had to depend on the stenographer only for the administration of the Secretary's Office it was necessary to engage immediately a person competent to carry on the official work, and so to terminate your services on payment of 1 month's salary in lieu of notice and 1 month's salary as ex gratia payment in full and final settlement. THE Committee also took notice of the fact that leave pay has been made in cash every year. Thus all unavailed leave has been paid in cash. It was also felt that since January 14 you should be taken to be on leave on loss of pay since you have been paid in cash for all leave due to you. Herewith enclosed is a cheque for Rs. 400 being one month's notice pay and one month's ex gratia payment mentioned above. I shall thank you to acknowledge receipt of the cheque. In his anxiety to just vindicate his rights, the appellant sought a remedy under the Tamil Nadu Shops and Establishments Act, 1947, and filed an appeal against the above order of termination of service, misunderstanding it as an order of dismissal. THE Appellate Authority under the tamil Nadu Shops and Establishments Act, 1947, dealing with the appeal under S. 41 held that the termination was for a just cause. No question arose in those proceedings as to the benefit to which the appellant would otherwise be entitled under the other industrial laws. After the termination of the proceedings under the Tamil Nadu Shops and Establishments Act, 1947, the appellant, who served the respondent loyally for several years, applied for a reference under S. 2a of the Industrial Disputes Act, 1947, by raising an industrial dispute about the manner and methodology by which his services were terminated by the respondent. On a refusal by the State Government to refer the matter under S. 10 of the Industrial Disputes Act to the Labour Court, no other choice was available to the appellant except to avail himself of the equitable remedy provided for under the Industrial Disputes Act itself by filing a petition to the appropriate Tribunal for the computation of the benefits which he would otherwise be entitled to if the retrenchment of his service was not in accordance with law. So he filed an application under S. 33c (2) stating that he would be entitled to certain benefits as provided for under S. 25f (b) of the industrial Disputes Act. He, however, sought for salary being paid to him during the period of his non-employment. It came up before K. N. Mudaliyar, J. , by means of a writ petition which was dismissed mainly on the ground that as the order of termination of service was held to be proper under S. 41 (3) of the tamil Nadu Shops and Establishments Act and that as there was no finding that the retrenchment was because of surplus labour or staff in the Association, he could not have recourse to S. 33c (2) of the Industrial Disputes Act. THE learned judge also was of the view that the appellant could not be said, in the circumstances, to have been retrenched, within the meaning of the Industrial disputes Act. It is as against the said order, the present appeal has been filed.

(2.) WE are unable to agree with the learned Judge. "retrenchment" is defined in S. 2 (oo) of the Act itself. It means the" * termination by the employer of the service of a workman for any reason whatsoever. . . . . . . . but does not include. . . . . . . termination of the service of a workman on the ground of continued ill-health ". This is not a case where the appellant could be said to be a workman who was suffering from continued illness and in consequence his services were terminated on the ground of continued ill health. It is not the case of the learned counsel for the respondent before us either. Therefore, the only question is whether the sine qua non for retrenchment is the presence of surplus labour. This concept has been exploded long ago and the industrial Disputes Act itself has been amended in 1953 so as to define "retrenchment" as meaning the termination by the employer of the services of a workman for any reason whatsoever. Therefore, the reason for termination of the services does not enter into the judicial verdict in considering whether the workman is entitled to any benefit under S. 25f (b) of the Industrial Disputes Act. That section reads :" * No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until - (b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen day's average pay for every completed year of continuous service or any part thereof in excess of six months. " No doubt, as we said already, the imprudent appellant approached the statutory Tribunal functioning under the Tamil Nadu Shops and establishments Act, 1947, which was not the forum at all for approach. Nevertheless, we are of the view that the view expressed by the appellate authority under S. 41 of the Tamil Nadu Shops and Establishments Act cannot negative a claim or benefit which is assured under the Parliamentary legislation, namely, the Industrial Disputes Act, provided the necessary ingredients on which such a claim could be based are satisfied. Firstly, there must be a retrenchment - the retrenchment may be for any reason, and, secondly, the workman was not paid, at the time of retrenchment, compensation as specified in S. 25f (b) of the Industrial Disputes Act. Learned counsel for the appellant says that the appellant's letter to the employer in January, 1968, made it clear that he took no leave excepting for necessary reasons and that he sought for two months'leave on the ground of cardiac trouble supported by a medical certificate. The Association in its executive committee meeting held a few weeks thereafter terminated his services on the ground that a stenographer cannot be spared, that even if he was sick, he could not be continued after the leave period in service and, therefore, by their communication of 1st March, 1968, they referred to the executive committee's meeting held on 23rd February, 1968, and informed the appellant that they have terminated his services on payment of one month's salary in lieu of notice. The question, therefore, is whether the view of the learned Judge that the exhaustion of the remedy under the Tamil Nadu Shops and Establishments Act is bar to the maintenance of an application under S. 33c (2) of the Industrial Disputes Act and to the claim of benefits which a workman or a person whose services have been terminated would be entitled to normally under S. 25f (b) of the Industrial Disputes Act. WE have already referred to the ingredients of S. 25f (b) read with S. 2 (oo) which would entitle a person whose services have been terminated to prefer a claim for computation of his benefits in lieu of the termination of his services. No doubt, the learned counsel for the respondent rightly points out that the appellant wanted salary from the respondent and not compensation, but this claim of "salary" in the circumstances, ought to be understood in a liberal way and it has to be held that a statutory entitlement cannot be denied to a person on the only ground that there has been a misdescription as to the nature of the relief which he would be otherwise entitled to in law. WE find that the appellant is entitled to compensation under S. 25f (b) of the Industrial disputes Act and that the petition under S. 33c (2) of that Act is maintainable.