Termination of service due to ill-health is not "retrenchment" within the meaning of S. 2(OO) of the Industrial Disputes Act, 1947, as amended by Ordinance No. 5 of 1958.

Judgment

SARKAR, J. : The appellants are the workmen of the Bangalore Woollen, Cotton & Silk Mills Co., Ltd. and this Company is the respondent in his appeal.

2. In or about 1951, certain disputes had cropped up between the parties which had been referred to an Industrial Tribunal for adjudication under the Industrial Disputes Act, 1947, hereafter called the principal Act. One of the disputes so referred concerned "payment of bonus at the rate of one month s pay for every year to all workers with long service but discharged as being no longer required. On December 4, 1952, the Tribunal made its award deciding this question against the workmen and holding at the demand was not justified in view of the amenities provided by the management. The workmen went up in appeal against this decision to the Labour Appellate Tribunal. While the appeal was pending there, Ordinance No. 5 of 1958 was promulgated by the President and by this Ordinance the Industrial Disputes Act, 1947 was amended by the addition of certain sections to it providing for compensation for lay-off and retrenchment. This Ordinance came into force on October 24, 1953. Thereafter the parties settled the appeal pending before the Labour Appellate Tribunal and filed a joint memorandum of compromise. The Labour Appellate Tribunal on December 18, 1958, passed orders disposing of the appeal in terms of the aforesaid compromise. Clause 5 of the memorandum which was incorporated in the award of the Labour Appellate Tribunal was in these terms :-

"The management agree "to give Gratuity according to the terms of Ordinance No. 5 of 1958 (Central) as from 1-1-1958."

Five days later the aforesaid Ordinance was repealed and replaced by Act XLIII of 1958.

3. Soon after this award a dispute arose between the workmen and the Company as to whether sixty workmen whose services with the Company had come to end for various reasons were entitled to payment in terms of the award of December 18, 1953 Of these sixty workmen thirty-seven had been discharged by the Company on account of old age and inefficiency but without any official enquiry as to their health. The Company agreed to and did pay these persons certain moneys under the award of December 18, 1958. The dispute concerning them therefore no longer survived. That left twenty-three persons. Of these twenty-three one had been dismissed for misconduct, another had been discharged before January 1, 1953, four had resigned, seven had died and the remaining ten had been discharged on grounds of health after proper medical examination. The workmen contended that these twenty-three persons were all entitled to payment under the aforesaid award. The Company however refused to accede to this contention.

4. In these circumstances on August 1, 1957, the Government of Mysore referred the following disputes for adjudication under the Industrial Disputes Act -

(1) Whether gratuity is payable under Cl. 5 of the decision of the Labour Appellate Tribunal dated the 18th December, 1953. . . .. . according to the provisions of Ordinance No. 5 of 1953, or according to the provisions of Act 43 of 1953 ?

(2) Who, if any, among the persons shown in Annexure A will be entitled to gratuity,

(a) if Ordinance No. 5 of 1953 applies?

(b) if Act 43 of 1953 applies ?

(3) To what amount would each be entitled if any ?

The disputes so referred concerned the twenty-three persons earlier mentioned and named in Annexure A to the order of reference.

5. The Tribunal made an award on this reference on March 6, 1958 by which in substance it held that the workmen were not entitled to any gratuity under the terms of the Ordinance but they were entitled to gratuity under the gratuity scheme in force in the, Company s works, but at the rate specified in the Ordinance. The present appeal is by the workmen against this award. It is not in dispute that excepting in the case of the person dismissed for misconduct, in all other cases the Company had paid gratuity under the scheme prevailin