HOSPITAL MAZDOOR SABHA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE petitioners Nos. 2 and 8 were employed in the J.J. Group of Hospitals as Ward -servants and their services were terminated, in the case of petitioner No. 2 from November 1, 1954, and in the case of petitioner No. 3 from December 1, 1954. The petitioners have filed this petition challenging the order passed terminating their services and contending that their services were wrongly terminated.

(2.) IT appears that a notice was served upon the two petitioners and in that notice it was stated that as certain people had been retrenched from the Civil Supplies Department and as room had to be made for them, the services of the two petitioners were being dispensed with and in their place two others from the Civil Supplies Department were employed. The contention put forward by the petitioners is that in law this is a case of retrenchment and the retrenchment is bad because the conditions precedent laid down in the Act before which a valid retrenchment could be made had not been complied with. 'Retrenchment.' has been defined in Section 2(oo) of the Industrial Disputes Act, 1947, as a termination by the employer of the services of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action. Then follow three categories which would not constitute a retrenchment. Admittedly the ease does not fall in any of these categories. Admittedly, the service of the petitioners has not been terminated as a punishment inflicted by way of disciplinary action, and as we pointed out in K.N. Joglekar v. Barsi Light Railway : (1955)ILLJ371Bom the definition given by the Legislature to the word 'retrenchment' is of the widest import, and whatever the reason for the termination may be, it would constitute retrenchment as defined by the Industrial Disputes Act, 1947. Therefore, there can be no doubt that although the reason that actuated the Government for terminating the services of petitioners Nos. 2 and 3 may be the most laudable of reasons, even though the Government may be wanting to replace the services of petitioners Nos. 2 and 3 by the services of people who had been retrenched from some other department and who had been longer in Government service, as far as the industrial law is concerned, the termination of the services of petitioners Nos. 2 and 3 would constitute retrenchment for the purpose of the Industrial Disputes Act.

(3.) ANOTHER interesting point was also urged before the learned Judge and that was that even assuming this was a valid retrenchment, under Section 25(H) the employees had the right to be re -employed in preference over other persons, and therefore the employment of persons from the Civil Supplies Department offended against the provisions of Section 25(H) and the petitioners were entitled to be re -employed. The view taken by the learned Judge is that Section 25(H) has no application because the retrenchment and the new appointment should be deemed to be simultaneous acts and the section only applies when there is an interval of time between the retrenchment and the re -employment. Mr. Gokhale has drawn our attention to the serious consequence that may result from accepting this construction of Section 25(H). He has pointed out that if this was the true view of the law, then an employer can always get round thesalutary provisions of Section 25(H) if he did not like an employee all that he had to do would be to give him a notice and say that he wanted to employ someone else in his place, in which case he would be under no obligation to comply with the provisions of Section 25(H) and he also pointed out that the true effect of Section 25(H) was that so long as an employee was willing to serve a particular job, he had a prior claim to that job over anybody else. This contention raises a very interesting question but in view of the fact that we have decided in favour of the petitioners with regard to Section 25(F), it is unnecessary to decide this question on this appeal.