Jamna Prasad and 32 ors. Vs. Rajasthan State Road Transport Corporation and anr. - Court Judgment

S.S. Byas, J.

1. The facts are not in dispute. The grievance and the grounds on which the grievance is based are common in all these 33 identical writ petitions. They were, therefore, heard together and are disposed of by a single order.

2. As per averments in the writ petitions, the petitioners were appointed as Drivers to drive the Roadways buses in the region of Ajmer, Jaipur and Bharatpur of the respondent Rajasthan State Road Transport Corporation They had put long service as-Drivers in the Corporation. Some of them are more than 50 years in age. None of them is below 40 years in age. They were satisfactorily discharging their duties. Some where in 1987, it was found that they did not possess the normal eye-sight required for driving a heavy motor vehicle. A Medical Board was consequently constituted and the petitioners were directed to appear before the Medical Board for getting their eye-sight tested The Board found them totally unfit for driving the heavy motor vehicles. The Corporation thereafter issued notices to the petitioners to show cause as to why their services should not be terminated on the grounds on their being found unfit for driving the buses. The petitioners submitted their explanations in which they made a prayer for conducting the second test of their eye-sight. It was also stated by them that in case they are found unfit for driving the heavy motor vehicles, they should be given the other job in the workshop etc. The respondents after taking into consideration the submission of the petitioners were of the view that since the Patitioners eye sight was not of the standard required to drive a heavy motor vehicle, they should no more be retained in service. Their services were cones-quenty terminated. We may quote Annexure 6 as the specimen impugned order (D.B. Civil Writ Petition No. 1732/88 Data Ram v. RSRTC others) by which the, services of the petitioners were terminated; The termination is challenged on the grounds viz.:

(1) The termination amounts to retrenchment and the retrenchment was made without following the mandates of Section 25F of the Industrial Disputes Act, 1947 (here in after to be referred to as 'the Act', and

(2) An agreement took place between the respondents and the Drivers' Union (AITUC) on 21-2-1979 It was provided there-in that if a Driver is found unfit for driving the bus, such a Driver will be, posted as a helper. The Corporation issued a, circular Schedule-A on 10-3-1980 in pursuance to this agreement. If the petitioners are found unfit to drive the Buses, they should be given the job of the helper and

3. The reliefs claimed, are that the termination of the services of the petitioners be quashed and in alternative, directions be issued to the respondents to offer the job of the helper to the petitioners

4. In the return filed by the respondents, all these facts were admitted except that relating to the agreement alleged to have been made between the AITUC and the respondents on 21-2-1979. As regards circular Schedule A, it was stated that though it was issued earlier, it was lateron withdrawn. The petitions are opposed eh the grounds that the termination of the service of workman on account of continued ill-health does not amount to retrenchment as per definition given in Sec. 8(oo) of the Act. The petitioners' services were terminated on account of their continued ill-health as they had developed defective eye-sight.

5. We have head the learned Counsel for the parties at length.

6. The first question which arises for consideration is whether the termination of the petitioner's services amounts to 'retrenchment'. It was contended on behalf-of the petitioners that every termination of the service of a workman by the employer for-any reason what-so-ever amounts to 'retrenchment'. It was on the other hand combated, by Mr. Gupta-learned oounsel for the RSRTC that ordinarily the termination of service of a workman by the employer amounts to 'retrenchment' but it has a few exceptions. One of these exceptions is that the termination of the service of a workman on the ground of his continued ill-health does not amount to retrenchment. Reliance in support of the contention was placed on some judicial pronouncements to which we shall make a reference at the appropriate stage.

7. It would be useful to read the definition of 'retrenchment' as given in clause (oo) of S. 2 of the Act. It reads as under:

(oo) 'retrenchment means the termination' by the employer of the service of a workman for any reason what so ever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:

(a) Voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the Contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health,

8. A plain reading of the definition of 'retrenchment' makes it amply clear that every termination of service amounts to 'retrenchment' if the termination is not on account of any punishment inflicted by way of disciplinary action and the termination does not fall within clause (a) to (c). If the termination falls within the ambit of any of the four excepted clauses (a) to (c), such a termination does not amount to retrenchment. In simple words every termination of service amounts to retrenchment except in excluded cases. One of these excluded cases is that when the termination of the service of a workman is made on the ground of continued ill-health. If the termination has been made on account of the physical incapacity of the workman to discharge his duty, such a termination does not amount to retrenchment. We may notice the judicial pronouncements made on the point.

9. In Burrakur Coal Company Ltd. v. Azimuddin Ashraff and Anr. (1960 (II) LLJ 434) a Division Bench of the Patna High Court discussed the definition of 'retrenchment' at length as given in the Act and held that where a workman is discharged from service on account of incapacity to work, it is not a case of retrenchment to attract the provisions of S. 25P of the Act.

10. In Workmen of the Bangalore Woolen, Cotton and Silk Mills Co. Ltd. v. Its Management (1962 (I) LLJ 213), their Lordships of the Supreme Court after reading the definition of retrenchment as given in the Act observed:

The definition 'retrenchment' in Section 2 of the. Act means termination of service. A service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workman. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word 'retrenchment' is also supported by S. 25G of the Act which provides that where any workmen are retrenched; and the employer proposes to take in this employ any person, he shall give an opportunity to the retrenched workmen to offer themselves for preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If be could not do the work he could not be offered employment again. It would follow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.

11. In Faitch and Plywood Mazdoor Sangh v. Star Wood Works, Chairman (1984 Lab. IC 1975), learned Single Judge observed:

Contract srevice requires certain physical requirement and workman. If a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he bad undertaken under the contract of render. A being engaged in gross-cutting section where he had to deal with gross-cutting machine, he will not be able to do same work in same manner or as efficiently as before due to loss of fingers. The Labour Court correctly held that his case would, come under Section 2.

12. It is thus manifest that if the workman becomes incapaciated to discharge the functions for which he is engaged on account of his ill-health and his services are terminated on that ground, such a termination does not amount to retrenchment as defined in the Act. The workman is employed to discharge a particular job and if on account of any physical infirmity he is unable to render that job, the employer is not expected to retain him in service. The reason for the termination of the service of such a workman is that be cannot render the services required of him and which under the terms of employment he is bound to discharge. The discharge of such a workman on account of his ill health has been kept away and beyond the purview of retrenchment. It was to achieve this object that sub clause (c) was inserted in clause (oo) of S. 2 of the Act. The position according to us is, therefore, that the termination of the service of a workman oa the ground of his continued ill-health does not amount to retrenchment.

13. In the instant cases, the petitioners are Drivers, who were employed to drive the RSRTC buses on the nationalised routes. The job of driving a bus requires a clear eye-sight. All the petitioners were subjected to medical examinations the test their eye-sights, and the medical tests revaled that they had defective eye-sights and were thus unable to safely drive the buses. We may point out that it will be extremely dangerous and hazardous to permit the petitioners with defective eye-sights to drive the buses. The petitioners cannot be allowed to play havoc with the lives of the passengers. It would be not out of place to mention here that the RSRTC issued notices to the petitioners and heard them before their services were terminated on account of their defective eye-sights. As such the principles of natural justice of hearing was faithfully followed by the RSRTC. The RSRTC cannot be expected to allow the petitioners of defective eye-sights to drive the buses. Since the petitioners had developed defective eye-sights, it amounted to their continued ill health. On account of their continued ill-health arising from defective eye-sights, the terminations of their service does not amount to retrenchment.

14. As regards the second contention, it was argued by the learned Counsel, for the petitioners that an agreement took place between the Drivers (petitioners) Union (RITUC) and the respondents on 21-2-1979. It was provided therein that if a driver is found unfit for driving the bus, such a driver will be absorved and posted at least as helper. It was argued that Annexure-4 was issued on 10-3-1980 by RSRTC (filed in D.S. Civil Writ Petition No. 637/88 Abdul Razak v. RSRTC as a follow up action of that settlement. The petitioner should, therefore, be retained in service of the RSRTC at least as helpers. Reliance in support of the contention was placed on the judgments rendered in Gopal Ram v. RSRTC in DB Civil Writ Petition No. 1812/88 and the connected Writ Petitions decided on July 11, 1988 and Mahavir Singh v. RSRTC and Ors. D.B. Civil Writ Petition No. 414/88 decided on 20-5-1988 It was on the other hand contended by Mr. Gupta learned Counsel for the Corporation that no settlement was ever made between the parties on 21-2-1979. Annexure-4 was of course issued by the Corporation but it was lateron withdrawn by the subsequent order Annexure-R/1 dated 12-10-1987. As such Annexure-4 dated 10-4-1980 has no legal standing since it stands withdrawn. Mr. Gupta frankly conceded that the Corporation was directed by this Court in the judgments quoted above to absorb some of the drivers on the post of helpers, flow ever, it was made on humanitarian grounds. The judgments do not lay down any law on the point.

15. The settlement pleaded by the petitioners has not been produced by either party for our perusal. The respondents denied its existence. Of course, there is a reference on some agreement in Annexure-4. How ever, in the absence of the settlement, we are unable to say as to what were the terms of it. Things cannot be left to assumptions and presumptions. Admittedly against order Annexure-4 dated 10-3-1980 was subsequently withdrawn by the Corporation. Annexure-4 is thus not a living document and it renders no help to the petitioners' cases.

16. In the two judgments which were produced before us, the learned Judges of the Division Bench kept the question open as to whether order Annexure-4 dated 10-3-1980 even now remains in force or not. The learned Judges directed the Corporation to absorb the petitioners (Drivers) on the post of helpers or equivalent post on the humanitarian grounds. The settlement was also not before the learned Judges of the Division Bench.

17. Here there are nearly 30 Drivers in these petitions. It will create a big financial load on the Corporation if the same directions for appointing or absorbing the petitioners as helpers are issued. Additional posts of helpers will have to be created for absorbing the petitioners. It will cast unnecessary financial burden on the Corporation without any fault on their part. We may, therefore, add that if the petitioners approach the RSRTC for absorbing them as helpers, their cases should be sympathetically considered if the posts are available and they are otherwise fit in all respect.

18. In the result, we dismiss the writ petitions. It is, how ever, added that in case, the petitioners approach-the RSRTC for absorbing them as helpers, their cases for absorption may be sympathetically considered if they are otherwise fit and eligible.

Costs will be on the parties.