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. Somewhere 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 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 petitioners 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 consequently terminated. We may quote Annexure-6 as the specimen impugned order (D. B. Civil Writ Petition No. 1732/88 Data Ram Vs. R. S. R. T. C.) 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 S. 25-F of the Industrial Disputes Act, 1947 (hereinafter to be referred to as 'the Act'), and 2. An agreement took place between the respondents and the Drivers' Union (A1tuc) on 21. 2. 1979. It was provided therein 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 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. 3. 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 on 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. 2 (00) of the Act. The petitioners' services were terminated on account of their continued ill-health as they had developed defective eye-sight. ". . . . . We have heard the learned counsel for the parties at length. The first question which arises for consideration is whether the termination of the petitioners' 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 whatsoever amounts to 'retrenchment'. It was on, the other hand combated by Mr. Gupta-learned counsel 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 pronouncement to which we shall, make a reference at the appropriate stage. It would be useful to read the definition of 'retrenchment 'as given in clause (00) of S. 2 of the Act. It reads as under: - " (00) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, 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. "
(3.) 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 pronouncement made on the point. In Burrakur Coal Company Ltd. Vs. Azimuddin Ashraff (1), 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. 25-F of the Act. In Workmen of the Bangalore Woolen, Cotton and Silk Mills Co. Ltd. Vs. Its Management (2), their Lordships of the Supreme Court after reading the definition of retrenchment as given in the Act observed : - "the definition 'retrenchment' in S. 2 (00) 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 not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workmen. 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 taken in his employ and 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 he could not do the work he could hot 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. " ;