Judgment:
Sreedharan, J.
1. Stranger to O. P. 2882/1990, who is affected by the decision therein, is the appellant. He challenges the decision of the learned Single Judge allowing the said Original Petition.
2. Material facts necessary for the disposal of this writ appeal are as follows.- Watchmen in Cochin Port Trust were engaged by various Steamer Watchmen Contractors. With a view to get equitable allocation of work to the watchmen, Cochin Steamer Watchmen's Employment Regulation Scheme, 1983 was introduced by virtue of a conciliation settlement entered into between the representatives of trade unions of watchmen and employers. As per that settlement dated March 18, 1983, the retirement age of watchmen was fixed at 58 years. As a concession to those who have attained the age of 58 years, it was agreed upon to allow them to continue to work for further period of three more years from the date of commencement of the scheme. 32 watchmen were brought within the purview of this scheme. The 32 watchmen thus retained were to be in employment till May 15, 1987, i.e. three years from May 16, 1984, the date on which the pool came into existence. Governing Body of the Cochin Steamer Watchmen Scheme issued notices on February 17, 1987 and May 13, 1987 informing them that they are due to retire on May 15, 1987. The 32 watchmen, who were thus superannuated with effect from May 15, 1987, submitted representations before the Assistant Labour Commissioner (Central) claiming benefits under the Industrial Disputes Act. Government of India referred the dispute for adjudication to the first respondent, Industrial Tribunal, Alleppey, where it was entertained as I.D. 62/1989, Second respondent passed an award in the following terms:-
' After the formation of scheme, there was no change in the nature of their work. The change effected was in the assignment of work to them, on an equitable basis. Instead of several contractors, an association of them wore the mantle of the employer. The only radical change which was effected after the formation of the scheme was the fixing of retirement age at 58 years. But as a favour to these workmen, despite their attaining of 58 years on the date of formation of scheme or later, they were allowed to work till July 15, 1987 (the correct date is May 15, 1987), But at the time of termination of their service, they were given only a consolidated sum as compensation instead of calculating the retrenchment compensation as provided under the I.D. Act. That is illegal. There is no clause in any of the conciliation settlements that these workmen are precluded from raising any demand for compensation in terms of Section 25F of the I.D. Act Hence the workmen concerned are entitled to get compensation taking into account the total service they had rendered both under the individual watchmen contractors and the governing body of the scheme. But I will make it clear that the Cochin Steamer Association will not be liable for the payment of compensation for the period prior to 1983 and that is in view of the specific provision in the conciliation settlement dated March 18, 1983. The liability for the period prior to the scheme will vest on the individual watchmen contractors. Since those individual contractors are not before me in this dispute, I cannot fix up the extent of that liability in these proceedings. Since the status of the workmen is admitted and the service rendered by them prior to 1983 is also admitted, the proper course for the workmen herein is to file application before the competent Labour Court by invoking Section 33C(2) of the Industrial Disputes Act. They are entitled to claim retrenchment compensation and other benefits from the individual compensation and other benefits from the individual contractors who were their one time employers with reference to the length of service they had rendered under each of them.'
3. The Chairman, Governing Body of the Cochin Steamer Watchmen Scheme, challenged the above award in O.P.2882/1990 in so far as the Governing Body was made liable for compensation under the Industrial Disputes Act in relation to the watchmen who were superannuated with effect from May 15, 1987. In other words, in O.P.2882/1990 the petitioner challenged the award directing it to pay retrenchment compensation to the 32 workmen for the period from May 16, 1984 to May 15, 1987. Industrial Steamer Watchmen Contractors, who were made liable to pay retrencment compensation to the 32 workmen, who were alleged to have been retrenched on May 15, 1984 as per the award, challenged the same by filing O.P.4698/1990. While disposing that Original Petition the learned Single Judge set aside the direction given in the award making the individual contractors liable, holding:-
'The declaration that petitioners in O.P. 4698/90 would be liable to pay retrenchment compensation cannot be sustained. For one thing, they continued in service till the date of superannuation and therefore there was no question of retrenchment as far as former employers were concerned. For another thing, they were not parties and the tribunal could not have made a declaration adverse to them. Yet for third thing, the observation that Section 33C(2) could be invoked runs contra to settled law, for, Section 33C(2) could be invoked only when there is an existing right adjudicated upon, or indisputable. Virtually the Tribunal permitted unascertained workmen to enforce claims against unascertained employers. No one knew - certainly not the Tribunal -which workmen, was employed by which employer'.
The decision in O.P.4698/1990 has become final, since no appeal has been filed against the same.
4. In this appeal the short question that arises for consideration is whether the appellant and similarly situated 16 other employees are entitled to get 'retrenchment compensation' from the Governing Body of Cochin Steamer Watchmen Scheme on account of the termination of their services with effect from May 15, 1987.
5. It is common case that as a result of a conciliation settlement entered into between the representatives of trade unions of watchmen and the employers on March 18, 1983, Cochin Steamer Watchmen's Employment Regulation Scheme, 1983 was adopted. It has been specifically stipulated in the scheme that the retirement age of watchmen should be 58 years. On the date of the coming into force of the scheme, there were watchmen who had completed the age of 58 years. As a concession, it was agreed upon to allow them to continue work for further period of three years from the date of commencement of the scheme. Consequently, those who had crossed the age of 58 years as on May 16, 1984 were allowed to continue in the employment till May 15, 1987. On May 15, 1987 they were to go out of service. This is clear from the following observations made by the Tribunal in para. 12 of the award :-
'In the scheme, retrenchment age of the watchmen was fixed at 58 years. However, those watchmen who had already crossed the age of 58 years were allowed to continue till July 15, 1987 (the correct date is May 15, 1987) as per Ext.M1(b) settlement. Thus about 32 watchmen were allowed to work for three years and they were to be retired on May 15, 1987'.
The 32 watchmen, who were given employment for three years, as stated earlier, had crossed the age of superannuation on the date of the coming into force of the scheme. So actually they would not have been allowed to continue in service. As a concession, they were allowed to continue in service for a further period of three years. This can only be taken as a re-employment of a superannuated employee. That re-employment was for a fixed term of three years. On the expiry of that fixed term of three years they arc sent out of employment. Under no provision of the Industrial Disputes Act can the termination of these 32 employees be termed as retrenchment. In this view of the matter, the Tribunal was clearly in error in directing the Governing Body of the Cochin Steamer Watchmen Scheme to pay compensation in terms of Section 25F of the Industrial Disputes Act for the service rendered subsequent to March 18, 1983, the date of the conciliation settlement, till May 15, 1987.
6. Termination of the employment of a workman can amount to retrenchment only in case where the workman's service can be continued. If his services cannot be continued as a result of his having attained the age of superannuation, the termination of his services can never amount to retrenchment. The age of superannuation marks the end of the workman's services. If a workman is re-employed afresh after he attains the age of superannuation for a specific term, such an employment cannot be regarded as an employment contemplated within the definition of the expression 'retrenchment' (vide Binoy Kumar v. Jugantar Ltd. (1983-II-LLJ-8). In the instant case, the age of superannuation was fixed, as per a conciliation settlement, at 58 years. The appellant and similarly situated persons had completed the age of 58 years when the scheme came into force. But as a concession, they were re-employed for a period of three years. On the expiry of the said three years, they were sent out of service. The termination of their services on the expiry of the said period of three years on May 15, 1987 can by no stretch of imagination be termed as retrenchment as defined in Section 2(oo) of the Industrial Disputes Act. Consequently they are not entitled to any retrenchment compensation either.
7. In view of what has been stated above, we find no substance in this appeal. It is accordingly dismissed.