JUDGMENT
M.L. Bhat, J.
1. The Award dated May 24, 1983 in Adjudication case No. 45 of 1982, passed by the respondent No. 2 in favour of the respondent No. 3 is prayed to be quashed by the petitioner. A direction is sought against the respondent No. 1 not to implement the said Award.
2. The petitioner’s case is that the respondent No. 3 was employed by the petitioner on contract basis after he had been superannuated in his personal employment. He was given the job of Typist/Stenographer. The respondent No. 3 was initially appointed for a period of three months on probation on August 8, 1979. Thereafter he was given employment on March 27, 1980 after being confirmed. On March 5, 1981 he was asked by a notice that his employment could not be continued after April 14, 1981. The respondent No. 3 raised an industrial dispute that his services had been terminated illegally. He sought conciliation proceedings. The State Government referred the matter for adjudication of the dispute raised by the respondent No. 3 under Section 4-K of the U.P. Industrial Disputes Act. The order of: reference was made on September 25, 1982. The matter accordingly was referred to the Labour Court IV, Kanpur for adjudication.
3. The petitioner as also the respondent No. 3 filed their written statements before the Labour Court. The case of the petitioner was that the respondent No. 3 had neither been dismissed nor removed nor retrenched within the meaning of Section 2 (z) of the U.P. Industrial Disputes Act (hereinafter referred to as ‘the Act’). It was further averred by the petitioner before the Labour Court that the question of termination of services of the respondent No. 3 did not arise, as he had already crossed the age of superannuation, as prescribed under the Gratuity Act, 1972. His services could be terminated by giving him one month’s notice. The petitioner contended before the Labour Court that the respondent No. 3 for reasons of his health could not discharge his work efficiently and he would remain absent periodically. Thus his services were not required by the petitioner. The Labour Court after consideration of the matter is said to have held that the termination of services of the respondent No. 3 was illegal and the Labour Court directed reinstatement of the petitioner with continuity of service and granted him certain benefits.
4. The petitioner’s contention is that no Industrial Dispute could arise between the petitioner and the respondent No. 3 after the respondent No. 3 had reached the age of superannuation. The respondent No. 3 was employed afresh and the employment of the respondent No. 3 was contractual. His remedy was to claim damages but he could not raise an Industrial Dispute in the matter which related to contract of personal service. He could not be reinstated because he had already reached the age of superannuation.
5. In his counter affidavit the respondent No. 3 has stated that his salary was being paid from the funds of different firms on the basis of their respective pay-sheets. He has denied that there was contract of personal services. The notice of termination dated March 5, 1981 is said to have been issued by a person, who was neither appointing authority nor had any power to terminate the services of the respondent No. 3. The conciliation proceedings had failed because the petitioner did not co-operate with the Conciliation Officer. The respondent submitted that the petitioner could not raise any dispute with regard to crossing of age of superannuation by the respondent No. 3. The respondent No. 3 has stated that he is about 65 years of age on the day when the affidavit was sworn i.e. December 1, 1983. The respondent No. 3 has placed on record a copy of the appointment letter and the letter of confirmation of his service as also a copy of the impugned notice.
6. In his rejoinder-affidavit the petitioner has stated that the respondent No. 3 was a superannuated employee. If he was employed after superannuation, that was the matter outside the Industrial adjudication and is purely a contract of personal service. The respondent No. 3 had a remedy of claiming damages if the same was sustainable. It is denied that Mr. Sinha was appointed in place of the respondent No. 3 as is asserted by the respondent No. 3. The averments made in the writ petition are reiterated and reasserted.
7. Ms. Bharti Sapru, appearing for the petitioner, has submitted that the respondent No. 3 was not retrenched. He was a superannuated employee and was not a workman within the meaning of Section 2(z) of the Act. It is contended that for the purpose of any proceedings under the Act in relation to an Industrial dispute a workman must have been dismissed, charged or retrenched in connection with or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute. The respondent No. 3 was neither retrenched nor dismissed nor discharged employee. He was engaged after he had attained superannuation age and his services would be deemed to be on personal contract, which contract could be terminated by giving one month’s notice. If the respondent No. 3 felt aggrieved he could claim damages, but he could not be reinstated because he had already reached the age of superannuation. My attention was drawn to the contents of para 12 of the counter-affidavit filed by the respondent No. 3. It is stated by the respondent No. 3 that as on December 1, 1983 he was 65 years of age, which would mean that in March, 1981 he was about 62 years of age. The superannuation age of an employee under the Payment of Gratuity Act was 58 years then, therefore after attaining the age of 58 years, he could not claim himself to be a workman of the petitioner. Reliance is placed on Section 2 (s) of the Act, which defines ‘retrenchment’ as under:
“2 (s). ‘Retrenchment’ means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-
(i) voluntary retirement of the workman; or
(ii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.”
8. The respondent No. 2 is said to have fallen in great error by ordering reinstatement of the respondent No. 3, who had reached the age of superannuation after completion of 58 years of age which, on calculation, he is said to have completed in 1978. His employment in 1979 was purely on personal contract basis and he could not claim a status of workman with the petitioner.
9. Reliance was placed on the provisions of the Payment of Gratuity Act of 1972 also. Section 2 (r) of the Act has given the meaning to “Superannuation”. It means:
(i) the attainment by the employee of such age as is fixed in the contract or conditions of service as the age on the attainment of which the employee shall vacate the employment; and
(ii) in any other case, attainment by the employee of the age of fifty eight years.”
10. By virtue of the meaning assigned to superannuation the age of superannuation of an employee where no age is fixed in the contract will be 58 years. So after attaining the age of 58 years no employee is entitled, as a matter of right, to be in the employment in any establishment. However, Section 2 (r) was amended in 1984. Superannuation of an employee at the age of 58 years was deleted. That amendment was prospective. Therefore, anybody, who had reached the age of 58 years before that amendment came into force, could be superannuated.
11. The respondent No. 3 was on his own admission more than 58 years of age when he was taken in employment. It was a contract of personal service and notice was issued to him. He was more than 62 years of age. When the award was announced he had already crossed 65 years of age as per his own showing. Therefore, he could not seek direction from the Labour Court for reinstatement on the post after he had already reached the age of superannuation.
12. From the facts of the case it appears that the age of superannuation of the respondent No. 3 was 58 years. He had reached that age before he was taken in employment by the petitioner in 1979. Therefore the direction made by the respondent No. 2 for reinstatement of the respondent No. 3 after the age of superannuation is not in accordance with law. The age of superannuation is prescribed in the Payment of Gratuity Act of 1972. After the amendment of 1984 in the Payment of Gratuity Act the bar of 58 years as age of superannuation is deleted but that was the age, which is to be considered the age of superannuation of the respondent No. 3 also. It is gathered from the material on record that after he had been superannuated he was employed by the petitioner. At that age he would not be considered to be a workman. He could also not be retrenched, dismissed or discharged because he was not a workman as defined in the Act. His services could be utilised by the petitioner but the respondent No. 3 could not raise industrial dispute if his services are discontinued after some time. If he had suffered any loss, his remedy was to claim damages under the ordinary law of the land but he could not raise a labour dispute on the ground that he was a retrenched employee and seek reinstatement from the Labour Court. He was not a retrenched employee within the meaning of the Act.
13. Assuming that the services of the respondent No. 3 were wrongfully terminated, that could not be termed as retrenchment of the respondent No. 3 which could fall within the ambit of Industrial Dispute. The respondent No. 3 in such a case could claim damages for the loss which he suffered for wrongful termination of service. If at all the notice dated March 5, 1981 would amount to wrongful termination of the services of the respondent No. 3, he was entitled to damages only and he could not claim back wages and reinstatement with continuity. He had already reached the age of superannuation, so he was not entitled to claim continuity in service. I am fortified by an authority of the Supreme Court, Dipak Kumar Biswas v. Director of Public Instruction and Ors. (1987-I-LLJ-516).
14. The respondent No. 3 was appointed with the petitioner’s concern on temporary basis and his services were to be governed by the rules and regulations applicable to the members of temporary staff, as temporary employee he was confirmed on March 27, 1980. For the purposes of payment of wages and salary he was given some benefits which the other workers of the petitioner’s concern were getting. The notice dated March 5, 1981 issued to him by the petitioner says that the services of the respondent No. 3 are no longer required and he was given one month’s notice that his services will be deemed to have been terminated on April 4, 1981. During the period of notice, he was permitted to attend the office also. This arrangement was made by the petitioner after the respondent No. 3 had superannuated from his previous employment. After superannuation, on attaining the age of 58 years, he could not claim continuity of service till eternity when the age of superannuation had already been reached by him.
15. For the reasons stated above I am of the opinion that the impugned award dated May 24, 1983 is invalid and bad in law and is liable to be quashed. Accordingly the writ petition succeeds and is allowed. The impugned Award dated May 24, 1983 is quashed and a mandamus is issued to the respondent No. 1 not to give effect to the impugned Award dated May 24, 1983. This will not prevent the respondent No. 3 to claim damages, if so advised, and if he is permitted under law to claim the same from the petitioner.