B M GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this Rule the petitioner challenges the legality and validity of the award dated 4th June 1976 passed by the learned 4th Industrial Tribunal, West Bengal in Case No. VIII-243/60, G. 0. No. 3223-I. R. dated 2nd of July, 1976 (Messrs. East india Commercial Co. Pvt. Ltd. Vs. B. M. Gupta ). The petitioner's case is that the petitioner was a clerk of M/s. East India Commercial Co. Pvt. Ltd. and he had been rendering his services as clerk to the said company for long 22 years and sometime in the afternoon of 29th December, 1967 the wholetime director-incharge of the company told the petitioner that the company intended to close down its Export Department to which the petitioner was then attached and as such his service was no longer required by the company and the company for the said alleged reason terminated the service of the petitioner illegally and wrongfully without giving the petitioner any notice as required in law and without playing the petitioner retrenchment compensation to which the petitioner - was entitled under section 25 F of the Industrial Disputes Act. On the basis of the dispute arising out of this termination, the State Government made a reference under section 10 read with Section 2a of the Industrial Disputes Act, 1947 to the aforesaid Tribunal for adjudication of the following issue :-

(2.) IT was contended by the company before the said Industrial Tribunal that: the reference was bad in law and the Tribunal had no jurisdiction to entertain and adjudicate upon such reference as there was no industrial dispute within the meaning of the industrial Disputes Act. It was also contended that the petitioner Shri B. M. Gupta was not workman within the meaning of section 2 (s) of the said Industrial disputes Act hereinafter referred to as the act) as he worked in administrative and managerial capacity and that Sri Gupta's service had been terminated by virtue of an agreement with Shri H. P. Lohia, director-in-charge of the company on 29th of December, 1967 by which Sri gupta had agreed to receive 50% of his salary for a period of six months as extraction and also to have a good character certificate. The company also contended that as a matter of fact the company paid such ex-gratia amount for five months and also granted a certificate to shri Gupta on 4th of January, 1968 and after termination of his service Shri gupta served another firm viz. M/s achhruram Sohanlal for about two months and Shri Gupta had never made any demand for reinstatement or for back wages. The preliminary objection of the company that there was no industrial dispute raised by the employee and as such the reference was incompetent, was answered against the company by the learned Industrial Tribunal and it appears that against the adjudication made in respect of the preliminary issue, la writ application was moved before this court. But the Rule issued at the instance of the company was ultimately discharged on the finding that the dispute was validly raised within the meaning of the Act and as such the reference was quite competent.

(3.) THE learned Tribunal also came to the finding that there was no termination on the basis of the all aged agreement between the parties and the retrenchment in the instant case was invalid and unlawful, and ordinarily Shri Gupta would have been entitled to reinstatement with full back wages. But the learned Tribunal after considering the advanced age of Shri Gupta and his incapacity to write normally and also having regard to the fact that the employer could have dispensed with the services of Shri Gupta in accordance with the provisions of the standing orders, if any, or by virtue of any stipulation or in compliance with the provisions of section 25 F of the Act at any time subsequent to the retrenchment in question, directed that instead of reinstatement with full back wages as claimed by shri Gupta, the said Shri Gupta would be entitled to one month's notice pay together with the legal retrenchment compensation, less any amount that might have been received by him already from the. employer. For the aforesaid reason, the Tribunal directed that Shri Gupta would get one month's notice or one month's pay in lieu thereof and 12 months' pay as retrenchment compensation as the employer had not complied with the pre-conditions of section 25 F of the Act minus any amount which Shri B. M. Gupta Had received from the employer Being aggrieved by the aforesaid adjudication and/or award passed by the learned Industrial tribunal, the petitioner moved the Constitutional Writ Jurisdiction of this Court whereupon the instant Rule was issued.