SAWATRAM RAMPRASAD MILLS COMPANY LTD Vs. KUNDANMAL

JUDGEMENT

(1.) This is an appeal against the order of Sri J. N. Khare, Presiding Officer, District Industrial Court, Akola. It appears that the respondent was a clerk in the appellant mills from 20 July 1938 for 7 1/2 years. The respondent was retired on completing 55 years of age with effect from 12 January 1956 by the appellant's notice, dated 11 January 1956. The respondent was paid the amount of gratuity and one month's notice pay. Several issues arose out of the application, viz., whether the retirement of the respondent under the Mangalmurti award was proper or not and whether he was entitled to continue in service and claim reinstatement. On this issue, the lower Court found against the respondent. He filed an appeal but the same has been dismissed. There was one more issue raised by the respondent in his application which was as follows :

(2.) It has been urged by Sri Mudholkar that as the appeal by the respondent has been dismissed, this appeal must be heard on the basis that the findings of the lower Court against the respondent regarding his services being rightfully terminated are true. He has submitted that the application was, therefore, of a person who has been rightfully retired at the date of application before the lower Court. That at the time he was not an employee and therefore had no right to raise an industrial dispute. In other words, his submission is that an ex-employee cannot file an application. In support, Sri Mudholkar has relied upon the decision of the Bombay High Court at Nagpur in Special Civil Application No. 211 of 1957 [Corporation of city of Nagpur v. Majumdar [1958 - I L.L.J. 761] where in observed :

(3.) The word "employee" as defined under S. 2(10) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, is as follows : "employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee dismissed, discharged or removed on account of any industrial dispute. The definition is similar to the definition of workman under the Industrial Disputes Act (Central) which is as follows : Section 2(s) - 'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation any such person who has been dismissed, discharged, or retrenched in connexion with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person. * * *" It has now been held by a series of decisions of High Courts and the Supreme Court that the additional words "and includes an employee dismissed, discharged or removed on account of any industrial dispute" were inserted ex abundanti cautela and the legislature did not intend to exclude from the definition those who ceased to be in service. In Central Provinces Transport Service, Ltd., Nagpur v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27] Sri Umrigar, counsel for the appellant, argued before the Supreme Court that when the respondent was dismissed on 28 June 1950, his employment came to an end, and that he could not thereafter be termed an employee, as that word is ordinarily understood, that it could have been the intention of the legislature to include in the definition of an employee even those who had ceased to be in service, as otherwise there was no need for the further provision in S. 2(10) that discharged employees would in certain cases be employees; and that in any event the inclusive portion of the definition would, on the principle expressio unius est exclusio alterus, operate to exclude all ex-employees, other than those mentioned therein. Their lordships of the Supreme Court negatived this contention observing that :