B.L. Hansaria, C.J. - (1.) THERE was a strike in the Orient Paper Mills between 8th December, 1982 and 28th November, 1983. The Mill then employed about 6,000 persons and the strike for about 11 months was thus definitely a big affair. Due to conciliation, however, the strike same to an end and one of the terms of memorandum of settlement dated 28 -11 -1983 was that there would be no victimisation on account of the strike. After the settlement had been entered into between the parties, it was found that the management had superannuated 51 employees between the period from February, 1983 to July, 1983. This superannuation was on the workmen reaching the age of 50 years and was itself based on a tripartite settlement reached between the parties on 14 -1 -1982 which stated inter alia that ... The Union agrees that the workers who are physically and/or mentally unfit may be superannuated by the Company after 50 (fifty) years of age and in that case, preference in employment will be given to one on of such worker who is retired prematurely.... Of the 51 workmen so superannuated, 13 settled their matters with the management and so the Union took the cause of the remaining 38 workmen. A discussion for this purpose was held on 2 -12 -1983. Thereafter the management issued letters is at Annexures 3 and 4 dated 8 -3 -1984 asking the workmen in question to report for a medical check up before the qualified medical practitioner The Union did not relish this action of the management and instead insisted that the concerned workmen must be taken back in service first whereafter only the question of their superannuation on the ground of physical/mental unfitness could he gone into for which purpose, if necessary, they may be medically examined. The management did not accept the stand of the Union which led the Union to approach this Court in March, 1984 itself by filing this writ petition under Article 226 of the Constitution praying, inter alia, for quashing of Annexures 3 and 4 and for enforcing the settlement arrived at, inter alia, on 28 -11 -1983, one of whose term as already noted, was that there would, be no victimisation on account, of the strike. The stand of the Union is that the superannuation of the 38 workmen was a case of victimisation on account of the strike.
(2.) THE contention of the Union that the present was a case of victimisation has been denied by the management. According to it, the concerned workmen were superannuated because of their inability in performing their duties inasmuch as some of them were unable to move by themselves and others had lost their eye sight and some were suffering from incurable diseases while some were still mentally imbalanced. The reasons leading to superannuation of the concerned workmen nave been summarised in Annexure C/2 enclosed with the further Affidavit' filed on 20 -6 -1990. It is, however, the admitted position that no medical examination bad been undertaken before superannuating the concerned workmen on their reaching the age of 50 years as against the normal retirement age of 58 years. The management has also taken a point that the present writ petition seeking to enforce a contractual right is not maintainable as it is directed against a Company which is neither a Government Company nor a statutory body nor an instrumentality of the State. It has been strenuously contended by Mr. Palit appearing for the Petitioner -Union that the present was a case of victimisation on account of the strike inasmuch as the workmen had been superannuated without any medical examination whatsoever. To .bring home this aspect of the matter, we have been referred to Secretary, M/s. Spencer and Co. v. Additional Commissioner for Workmen's Compensation,, 1982 2 L. L J. 36, wherein even examination by an opthalmologist was not regarded as sufficient to superannuate the workman in question on the ground of his physical disability. Reliance has also been placed by the learned Counsel on Nanki Satnami and 12 Ors. v. South -Eastern Coal Fields Ltd., (O.J.C. No. 1841 of 1986 and the connected cases disposed of on 3 -2 -1989) wherein superannuation of an employee on the basis of his physical appearance alone was held to be untenable in law, through the examination was by some doctors.
(3.) FACED with this situation, it is submitted by Mr. Gobind Das that no material has been placed in the petition by the Union to make out a case of victimisation. Learned Counsel states that though in the settlement which was arrived at between the parties on 28 -11 -1983 something was said in paragraph 5 of the agreement about the taking back of some 300 workmen who had been dismissed during the strike period executing those workmen against whom criminal charges were under investigation or under trial, nothing was said about the taking back of the 38 workmen in question, which would go to show that superannuation of these workmen was not regarded as connected with the strike even by the Union by the time the agreement was arrived at between the parties to call off the strike. As to this, Mr. Palit contends that as about 6,000 workmen were involved 'in the strike which had continued for about 11 months and as no notice of superannuation was given, the Union was not in know that these workmen had been superannuated during the course of the strike and it is because of this that nothing specific was stated in, the agreement except saying that there would be no victimisation on account of the strike. There appears to be sufficient force in this submission of Mr. Palit.;