A DUNLOP L."miA LINI'IED

'OIEIR WORKMEN

March 10, 1972

1-41

u- , [C. A. V AlDIALlNOAM AND G. K. Mrrna, J1.]

Industrial Dlsput~Retlre!"ent age-flfllwstriaJ Tribunal-Jurisdlai to (iz retlrenunf age-Worlcmi111 II bound by agreent b7 Unlo { h'0 1r" hf is M, l a member. n o w IC

In. 1955 the appelant Company framed and brought into fon:o Staodil!a Orders unde.t wh1ch a sta.l! efD:P!e was to mire at the ap of ss.

C 1be Compaoy tn 1.956, entered mto an a~Veemett with its workmen represented by the union, of wbic; b all the workmen of the company re

members. The ament, among other thing,, fixed the retirement agca.t" 55. Notwithstanding this agreement the Compiny iswed a Circular in 1960 to the effect that the manaa:ement will not ~Uuirc any employeeto retire before attaining the age of 58 years. In 1961, tho Oompany entered into an nt wiltt one of the three uniOilS of the workmen dina the (:Ofldllions of Mpioyment. Tbo aereement provided that D an employee shall' relire at the of 58. Otl the expiry of this a~ mtAt a. fClllh aaeeme11t waseGioeled into. with tho.same unioo In 1966. 0t1 one of~ WOI'kmenauaining.SS.years the Coy passed an order retirina the workman. An iAdu&uilll dispute "'r.U raised and it wu referred to Tribunal for adjlldieatioo.

Tho Tribunal recorded. tho tlndi.oga tlw wb£n the kman joillrJ! the

E lf!n'ice of' the Coolpany in 1944 tbc:re were no SbndiD& Orders, ,__or . ard' th r etirement chat tbou&h the wot .. n•ll reauJauons rea tng e age 0 rtbe Co.., did not sjvt. dl'ej; l to - bound by tho 19S6 agreement ·!kJd . the agrtemaJt; that thedie 11111 of• retirement of. 55. yean as :;:;:; . tolll with a Union of wbich 1961 and. 1966. aa:rcaneota were en be was not bound by the workmaa was not a rru::f!lbtr and. ision of this ():)urt in Guut the a~U"tement: and that in Vt~ o!- the doc S.CIL 348 the workman Keen, William.r Ltd• v, P •. 1: 5_ttrltt !19.~1 1 tho age of 60. yean. 011 F waa entitled &o bQ in eerwoe till hla attanuna 0 tho workman ill~ these fiadini!O' the Tribun&l bcld tho ._ord~ ;::: :nd contin\10 in stSVttC' and dcdara<l thllt bo. was enlltled t& "" re:tDS till he attained the ae (If 60 years. .L. (') the trlbunaf 't was contended ...,.t I 6 bould In the appeal by speclill lellve I d by the agreement of l9S s

bavin.t hekl.that tho workmao was =d to redre at the age of S~~

lv.ye held th&l. the. workman was tbe StandiPI ()nlers .

G as provided tbetein or. at.· any. rJ.Ie. '-$ the ()lCnpanfs order redrln~ in !9S5 and In this vi~ it.shoulth d ~al should have held tbebad7o~ the workman at S8 le2al: (il) e . especiall.Y as be e th of 1961 and 1966. bind.ina M !me~~ and (iii) in aoe=u: the various OlheT bcneflts c:oo directioo to tho companY tribunal had no Jurisdic:tioo. ave a f 60 rut' . the \l(orkman till be attained tho aao 0 "b •• b-~ 10 ~.CQIII!rmed "al Ttl \IOU au ' B HELD • That the Award oC the InduStn and the apPul diJmi~ . f the companY In l{:j

(l) ThoU&h the workman entered the rr::; rb; tho coD'IPIDY In ' he Is bound by the StaJ!dina ~

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"742

SUPREME COURT REPORTS [1972] 3 S.C.ll.

in as much as he was a workman and employed at the time when the Standing Orders were certified. [748 Hl

Agra Electricity Supply Co. Ltd. v. Sri Alladin and others, [1970] 1 S.C.R. 808; Guest Keen Williams Private Ltd. v. P. I. Sterling and others, ''[19601 1 S.C.R. 348; Workmen of Kettlewell Bullen &: Co. v. Ketrlewell

Bullen &: Co, Ltd., [i964] 2 L.L.J. 146 and Salent Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employed Union,. [19661 2 S.C.R. 498, referred to.

The 1956 agreement was a valid agreement and as rightly held by the Tribunal it was bindin~ on the concerned workman. ·

But, the Tribunal's finding that the agreement of 1956 had not been

iven effect to is justified.

From the 1960 circular and other circum- . stances it is clear that the management decided not to retire any employee before attaining the age of 58 years though the age of retirment was 55 years under the Standing Orlers framed in 1955 and under the agreement of 1956. [749 EJ

(ii) The agreements of 1961 and 1966 will bind only such of the staff employees as were members of the Union which was party to the

agreement. Tile concerned workman was not a member of. the Union . wnich was a party to the agreement. 1berefore, the Tribunal was justified in holding that he was not bound by the agreements of 1961 and 1966.

And, the mere fact that an employee gets the benefit of higher wages

fixed under the agreement cannot be considered tD operate as a bar to his disputing the right of the manat to retire hilt! at the age _9f 58 years; it is only when the clause relating to the a~ of retirement is sought to be enforced that he can raise a controversy, [7S 1 H1

(iii) The Tribunai is justifted in considering the question of the proper retirement age of the workman. The decisions of this Court prima facie support the view of the Tribunal that the workman was entitled to cootinue till he attained the age of 60 years. [752 E]

This Court had emphasised that industrial adJudication in India beina based on industryi-Cum-region basis, industrial tribunals have jurisdiction to make nece~Sary chanaea in a Uniform Scheme so that it might accord wih the prevailin1 conditions in the repon where the employees were G working, as the changes found necessary by the tribunal were to ensure fair conditions of service. 1752 H]

Further the trend in West Bengal region is to fix the aae of retirement at 60 years for the clerical and subordinate staff. [753 D] ·

CIVIL APPELLATE JUIUSDICTION: Civil Appeal No. 1490 of 1968 ..

DUNLOP INDIA V. WORKMEN (Valdialingam, J.) 743

Appeal by special Leave from the Award dated the 29th Feb ruary, 1968 of the Fifth Industrial Tribunal, West Bengal, Calcutta in Case No. 334 of 1967.

G. B. Pai and D. N. Gupta, for the appellant.

B D. L. Sen Gupta, Janardan Sharma a.nd S. K. Nandy, for the . respondents.

The Judgment of the Court was delivered by

Vaidialingam, J. This appeal, by special leave, is directed against the award dated February 29, 1968 of the Fifth Industrial

Tribmal, West Bengal, in Case No. 334 of 1967, settin~ aside the order dated August 2, 1966 passed by the appellant directing the retirement of the concerned workma, n on his attaining the age of 58 years.

The appellant is a Joint Stock Company incorporated under the Companies Act, 1956. It carries on business throughout India as manufacturers a)tld dealers of tyres, tubes for motors, trucks and tractors etc~ The workman concerned, Hari Nath Bhattacharjee, was appointed in 1944. At that time there were no rules regarding the age of superannuation. On April 26, 1955, the Company framed and brought into force under s. 7 of the Industrial Employment (Standing Orders) Act, 1946, standing ordersrelating to its staff employees. Under clause 28 of the Standing Orders a staff employee as to retire on the first January next. following -e year

which he attains 55 years of age. But it was also provided that if a staff employee desires to remain in service of the Company after the date when he should have been oormally retired, the Managing Director had the power to extend the employee's service year by year provided the work was found to be satisfactory and the employee was certified by the Chief Medical Officer as of good health. ·

In 19 56 an agreement. was entered into between the appellant and its workmen represented by the Dunlop Rubber Factory Labour G Union. Clause 14 of the agreement fixed the age of retirement of a staff employee as the 1st of January next following the year in which he has attained 55 years of age.

Notwithnding this agreement under which the age of retirement. of a staff ployee was 55 years, the appellant issued a Circular on April 20, 1960

to the effect that the management will ; not ask any employee to.

etire before attaining the age of 58 years .. In this CircU:I~~ after B terring to the uniform age of retirent in .\Yes~ Bengal of e:t; t.·

oyees in Government and Commercial Establishments. as .the age

SS years, it is stated that the Industrial Tribunals throUghout the

744 .

SVPREM£ COUI.T llEPOit.TS

{1972] 3 S.C.R.

country have fix.ed the age of retirement varying from 55 years to A ,, 60 year&.

On June 29, 1961, an agreement was entered into between the appellant and the Dunlop R.ubbec Factory Labour Union regarding the terms of engagement a, n.d conditions of employment of staff employees.

The aemen.t deals with various matters. a Clause 14 of this agreement provided that the staff employees shall retire at the end of the month in which they attai~ the age of 58 years. This clause also provides for a staff employee retiring when he is declared unfit on medical groUiDd. Clause 27 provided that the agree~ was to take effect from 1st Jnuary, 1961 and was to remain in force for five years from that date.

In view ot the C expiry ol the above agreement, the appellant and the same Union entered into a fresh agreemen( on December 6, 1966. regarding the terms of engagement and conditions of employment for staff employees. This agreement also deals with various matters. Clause 6; dealing with retirement, provided that the staff employees shall retire at the end of the month in which they attai!l the age of 58 years.

Clause 32 provided that the agreemetn't was to have effect D from 1st January, 1966 and was to remain in force for five years from that date.

On August 2, 1966 the Company informed the concerned workman that as per the Company's Regulations, he was due to retire on February 28, 1967 as he will be attai; tiing the age of 58 years E on February 15, 1967. The workman replied on September 7, 1966 stating that he was not bound to retire on completion ot 58 years as he had entered the service.of the Company long before the Standing Orders fixing the age of retirement at the age of 55 years were framed.

According to the workman, he was entitled to continue in service till he completed 60 yeais of age. In this reply p he had also referred to the minutes of the meetings of the Works Committee held on February 29, March 30 and May 4, 1956, wherein fixtig of age of retirement at 55 years was disputed.

He . had also referred to certain other matters in his reply.

The appellant sent a further communication on Novemr 4, 9 1966 reiterating its stand that the workman was to retire as mentioned ian the letter dated August 2, 1966. The appellant further stated thai thO\lgh the age of retirement was fixed as 55 years in tbe Standing Orders dated April 26, 1955, the age was raised to ~8 years in the agreements with the recognised Union and that the.

si4 tc; n:n$ had been accepted by the employees of the appellant K inchi.ctW.a th~. worn concmed. The appellant sent a fur

Co.ro.WcatlQl\. dated. ; f'bnw.y 25~. 1967 .~ the .woran Sting that he was bound by the age of retirementfixed m theagH, ements

DUNLOP INDIA V, WORKMEN (Vaidia/'ingam, J.) 745

A da.tecl Joo.e 2g, 1%1 aDd December 6, 1966. It was further ment.Wnea in this letter that an the employees were umiformly retired from servke. on attailing the age of 5 s: yt1sin: acc0rdance with the sa, id agJieements.

The appellant further stated that the workman had enje~ all the benefits conferred. qn him underthe two

agreemellt3 and 'hence he was bound by the retirement age fixed .B therein.

As cOnciliation proceedings faile~ the GovellJlment of West Bengal referred to the Industrial Tribunal concerned for adjudication the (iJuestion :

"whether the retirement of Shri H. N. Bhattacharyya c is justified: ?

T@ what relief, if any, is he entitled?"

~ appellt relied on the agreements dated June 29, 1961 and December 6, 1966 in support of its stand that the order. regard~

ing the retirement of the workman was justified. In fact the Company raised a plea that 1he concerned workman was bound by the agreeme, nt of 1956 entered into between the appellant and the Dunlop Rubber Factory Labour Union fixing the age of retirement of its employees at 55 years on, the ground that the workman was a member of the said Uniqn. On thiS basis it was

pleaded by the appellant that the concerned workman has really got a higher age of superannuation by virtue of the later two agreements.

The Union qii the other hand pleaded that as there were no Standing Orders regarding the age of retirement when the workman joined service in 1944, he was entitled to connue in service till he attained the age of 60 years in view of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P.J. Sterling and others(!).

The Union further pleaded that the agreement of 1956 had not been given effect to by the appellant as will.be seen from its Circular dated April 20, 1966. The Union also contended that the workman was not. bound by the agreemqnts either of June 29, 1961 or of December 6, 1966 as the Union, which wa's a party to those agreements did not represent all the employees of the apllant including the concei)Ded workman. The Union fet. raised a point that at. the time of the appointment of e wQrkinan~ an assurance had been given by Mr. Edward, Employment Officer ortJie Company, that the. workman can continue in service so long as be was found to be phySically fit

. . . ne~ Tribunal has recorded the following findingS : ·t the f:iine . . :!::!c:e~7~~.j=~:R:!r~;:;:=:~ (I) u960) 1 s.c.l. 348. · . .

.746

SUPREME COURT REPORTS

[19721 3 S.C.R.

age of retirement.

The plea of the Union regarding the assurance stated to have n given by Mr. Edward was rejected.

At the time when the agreements of 196t and 1966 were entered 4nto, there were three Unions, namely, Dunlop Rubber Factory Labour Union, Dunlop Workmen's Ujn.ion and Dunlop Workers' Association; but the agreements were entered into only with one union, namely, Dunlop Rubber Factory Labour Union. The concerned . a workman as well as several other employees were' not the members of this union.

On the other hand, the workman was an active member of the Dunlop Workers' Union, which was not a party to either of the agreemelnts, and therefore, the workman was . not bound by those agreements. In 1966 there was only one Union, namely, Dunlop Rubber Factory Labour Union, representing alj the employees of the Company, and therefore the workman was l), ound by the agreement of 1956.

But the Company did not give effect to the age of retiremnt of 55 years as provided in cl. 14 of

the agreement of 1956.

In view of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others(!), the concerned workman was entitled to be in service till his attaining the age of 60 years.

The Company's plea that as th~ workman had enjoyed the benefits conferred on all employees utnder the agreements of 1961 and 1966, he was also bound by the age of retirement provided therein, was rejected on the ground that the workman c<tn raise a dispute or a controversy about the age of retirement only when the provision regarding the age of superannuation was sought to be enforced.

On these findings the Tribunal held that the order dated August 2, 1966 pa, ssed by the appellant is illegal and it also declared the right of the concerned workman to be reinstated with all benefits 8!tid that he is entiled to continue in service till he attains the age of 60 years.

Mr. G. B. Pai, learned counsel for the appellant, raised three contentions : ( 1 ) The Tribunal, having held that the concenned workman. was bound by the agreement of 1956, should have held that the workman was bound to retire at the age of 55 years as provided by cl. 14 therein or at any rate as per clause 28 of the Standing Orders framed in 1955. In this view, it should have further held that the Company's asking the workman to retire. on completion ol. 58 years was legal; (2) The Tribunal committed an error in holding that the agreements dated June 29, 1961 and December 6, 1966 fixing the age of retiremc:mt at 58 years were not binding on the concerned workman.

On th~ other hand. it should have held that those agreements were binding Qn the . concerned workman especially as he had enjoyed the various other benefits conferred by them; and ( 3) In any event the Tribunal had no jurisdiction to give a direciion to the Company to continue.the

concemed:workman in.service till he attained the age of 6Q .. years. ·

(1) [1960]1 S.C.R. 348.

DUNLOP INDIA v. WORKMEN (Vaidialingam, J.) 74.7

Mr. D. L: Sen Gupta, learned counsel for the Union, pointed out that the findings of the Tribunal that the agrement of 1956 was. binding on the concerned workman was itself erroneous.

He referred us to certain materials on record, which, according to him, will establish that protests had been regardijlg the binding nature of the agreement.

In the alternative he contended that the age. of B retirement of 55 years asprovided in cl. 28 of the Standing Orders framed in 1955 or in cl. 14 of the agreement of 1956, has ;'fever

tn given effect to by the appellant as the circular dated April 20, 1960 will show as also the various dates on which the workmen were retired.

The agreements of 1961 and 1966 were rightly held to be not binding <¥1 the concerned workman, as the concerned c workman was not a member of the union which was a party to those agreements. Mr. Sen Gupta further pointed out that when once the action of the appellnt in retiring the concerned workman on his attaining 58 years was being challenged, the Tribunal had to consider till what date the, workman was entitled to continue in service.

Unless a finding is recorded by the Tribunal on the latter D aspect, it will not be possible to consider otherwise the validity of the order that was being challenged.

Therefore,. he pointed out that the Tribunal was justified n holding that the workman was entitled to continue in service till 60 years and it is on that basis that it held that the termination of the services of the workman on ·.his attaining 58 years was illegal.

E We have already referred to the fact that the Tritjqnal hs disbelieved the case set up by the workman regarding the assurance stated to have been given at the time of his appointment by the Employment Officer, Mr. Edward.

At the time when the wC?rkman entered the service of the appellant in 1944, admittedly there were no rules regulatiMs or agreements regarding the age of F superannuation. In the absence of any such rules, regulations or agreements regarding the age of superannuation, it was the case of the workman, that he was .entitled to continue in service so long as he was physically and mentally fit.

The Tribunal relying on the decision of this Court in Guest, Keen Williams, Private Lta.

v. P. J. Sterling and others(l) and Workmen of Kettlewell Bullen & Co., Ltd. v. Kettlewell Bullen & Co. Ltd.(2) has held that the G Standing Orders which are rules fixing the age of retirement, framed by a Company, would have no application to its prior employees unless it is shown that such employees accepted the new rules as part of their conditions of service.

These decisions have further laid down that in the absence of any such indication that the enrployees have accepted the new rules as part of their condi- H .-tions of serVice, thy are entitled to be in sece till they attain th~ age_ . of 60 years.

In . support of h~ 1st conten-·

(I) [1960]1 S.C.R. 348.

(2) [1964)2 L.LJ. 146.

748 SUPREME COURT REPoRTS

tion Mr. Pai pointed out that the above two decisions relied A on by the Tribunal have been explained by this Court in a recent decision in Agra Electricity Supply Co. Ltd. v. Sri Alladin and others(l).

Oil. the basis of the said decision, he contended that the Standing Orders framed in 1955 providing •n cl, 28 the . age of retirement of an employee as 55 years, is binding on the appellant, though the Standing Orders were framd long after he 8 had tmtered service.

The counsel further re-enforCed this argu- .ment relying on the agreement of 19S6 and the finding of the Tribunal that the said agreement was binding on the concelJled workman.

Mt. Pai urged that the agreement of 1956, which is .binding on the concerned workm~, clearly establishes that the employees represented by the Union including the concerned work- C . man have accepted the uule regarding the age of retirement as part

of. their conditions of service. In short, according to Mr. Pai when the concerned workman is entitled to continue in service only till the age of 55 years, he has really been given a benefit by being allowed to continue till he attained the a~ of SS years.

Nonnally the ab\Ove contention of _Mr. Pai will have considern ; able force.

The decision _in Guest, Keen, Williams Privaie Ltd. v.P. I. Sterling and others(2) as to why the age of retiiemeni of 60 years was fixed to employees who have been in s-emce be'oie the Standing Orders :fixitig the age of retirement were tranied, has :been explained in Salem Erode Electricity Diibutibn Company .Ltd. v. Salem Erode Electricity l)istribution Co. Ltd, Emp(pyees' -Union(a). In fact, both the decisionS in Giitst, Keen, Wiiliams, E Private Lttf. v. 'P: /. Sferli11g arad pthers(~) and' Workmen of Kettlewell Bullen & Co. Ltd. v. Kttlewell BaUtli & Co~ Ltd.(") have

been explained in Agra El~Ctri'cit)'J Supply Co. Lid. v. St'f .4)/itdin -and others('). In the latest' deciSion, after a review of the provi~

sions of the Indfrial Empl9yment' ( Sdipg Otdel'S) Act, 1946, it has been held that' when: the standlng <!JrdtJ:s art' certified and F , oome into operation, they become binding on the employer and all the workmen presently employed as also those emoyed thereafter in the establishment conducted by that employer~ It liasbeen'turther -htsld that. it canno~ possibly be that such Standing Ottiel'S would bindonly those who are. employed after they coin~· into force and not. those who ate employed previously, btit are still in employment ,. when they come into force. .u ApPlying the: principles laid down.in A.g¥a .Elecf.ridiy SupplJ Co . . Ltd; v. Sri Alladin andothers-(1)., it is clear that though .. tqe oonC4fltlCdworkmaii, in tho case befpre u&, eritered-rt, iiee _ot the

at-in. 1944; be will be-bollBd-by .the:Stiuidiiig.Orders framed by. t}w::appd}am-11·1955 after following.-the provisio~ of e rete- . 11 vaM' statute io:asnmcb-as--ho was &:workmeri pte8<$tly employed

t tho time when-~ Standing Orders were certifiec1

<t> [l970J 1 s.c.R. aos. <2> [1960] 1 s.c.a. 348.

(3) 11~1 2 S.C.R. 498.

(4) [19641 2 L.L.J. 146.

DUNLOP INDIA v. WORKMEN (Vaidialingam, J.) 749

Though Mr. Sen Gupta haS been able to draw our attention tO certain protests made by the workm~ regarding the agreement of 1956, .in our opinion,· the finding of the Tribunal that the concerned workman was bpund by the said agreement has to be accepted~

There is no cQntroversy that in 1956 there was only one union,. namely, Dunlop Rubber Factory Labour Union. There is further no controversy that the said union repr-..sented all the employeeS of the Company. The agreement was entered •nto by the appellant with the said Union. If so, it follows_ that was a valid agreement and as rightly held by the Tribunal it was binding on the

conce11Iled workman.

Clause 14 of the said agreement clearly specifies that a staff enrployee shou4J retire on the 1st of January, next following the year in which he has/attained 55 years of age.

By this agreement it must be held that the employees have accepted the retiring age already provided in the Standing Ordrs framed in 1955 as part of their ronditions of service. It the 1956 agreement holds the field, there is no scape from the conclusion that the concerned workman was entitled to be in service only till he attained the age of 55 years, and Mr. Pai is well founded .in his ctention that the retirement of the workman long after he attained the age of 55 years is justified.

It must be noted that the Tribunal has found that the ament of 1956 has not been givtm effect to by the appellant. niis finding is attacked by Mr. Pai. Even here, in our opinion, the finding-of

the Tribrunal is justified. That the retirement age provided under

cl. 14 of the agreement of 1956 was not acted UPQn by the appellant Company is clear from the allowing circumstances : The appellant issued a circular on April 20, 1960 to the effect .that the management will not ask any employee to retire before atta.inmg the age of 58 years. In the said circul~ it is stated that the question of fixing the retiring age of employees, both in public and private sectors, has received considerable attentiQQ .and publicity and that in West Bengal thOugh the retiring age is almost unifO!lnly ' 55 years, in Government service, the Industrial Tribunals throgh out the country have awarded ages of retirement varying from . ss

to 60. From this circular it is clear that the management have decided not to retire any employee before attaining the age of 58 G years, .though the age of retirement was 55 years as per clause. 28 of the Standing Orders framed in 1955 and clause 14 of the agreement of 1956.

 It is also pertinent to note that in Bomooyarea,:disputes:were raised by the employees of the appellant regardmg !f1e_ age of B retirement for clerical and guboi'dmate .staff to ]:)e ratSed .m.. ~5 to 60 years. The Industrial. T{ibunaL raised th~ age of rewent ·

to 60 years; ?The appellant. had-challen~ .· .d~i9rl--~ me Industrial Tribunal oofore this Court. This CQ~~ ltl. lts 'd~ISlO~

2-L106 SupCI/72 '

SUPREME COURT. REPORTS [1972] 3 s.c.R.

in The Dunlop Rubber Co. (India) Ltd. v. Workmen andothers(l),

rendered on October 16, 1959, upheld the order of the Tribunal and dismissed the Company's appeal. Following this judgment the appellant had issued the circular, referred to above, on April 20,

1960. The appellant entered into an agreement with the Dunlop Rubber Factory Labour Union Qn June 29, 1961 fixing the age of retirement at 58 years.

The same has been reiterated in the second agreement between the same parties on December 6, 1966. ..,

Even on December 6, 1962 there is an inter office letter issued by the appellam.t stating that those staff employees who are over 52 or will attain the age of 52 on 1st January, 1963, will continue

to work until the age of 60 years and all others will retire at 58. c Admittedly, as on January 1, 1963, the concerned workman was over 52 years and as such bly , virtue of this letter he was titled to continue in service till the age of 60 years.

All these circum~ stances clearly indicate that the appellant has departed from the original age of retirement fixed at 55 by the 1956 agreement.

The 'appellant had very strongly relied on Ex. I, as co, ntaining D the list of employees (Staff, Operatives & Special Appointments) superannuated from 1956 to August 1, 1967. According to the appellant the particulars furnished in this list will establish that the age of retirement of 55 years fixed by the 1956 agreement has bn given effect to and the staff has been retired on their attaining the age of 55 years as per clause 14.

We have already referred to the fact that cl. 14 of the 1956 agreement provides that staff employees are to retire on the 1st of January, next following the year n which they have attained 55 years of age.

We have gne through the particulars .mentioned therein. A perusal of the details mentioned in columns 5 and 6 relating to date of birth a!Od date of retirement relating to the years 1956 to 1959 clearly shows that except a few officers, all the others have retired long after having completed 55 years of service.

To take an instance: serial No. 8, Gopi Nath Seal, who was born on April 8, 1894 retired on Al}ril 1, 1956, i.e., at about the age of 62 years.

Similarly, serial No. 1'2, Dasurathi Bose, who was born on May 22, 1.891 retired only on April1, 1956, i.e., wh~ he was about 65 years. We do not want to multiply instances because there are persons who have retired at the. age of 59 and long after attainingthe age of 58. the list furnished by the appella.nt itself to establish that the 1956 agreement was given effect to re2arding the age of superannuation does not support the appellant.

Mr. Pai pointed out that the asPeCt referred to. by us in Ex. I has not bleen put to the Comoany's witness in which case an exPla~ nation would have been offered.

When the facts and particulars

DUNLOP INDIA V, WORKMEN (Vaidialingam, J.) 751 .

A in Ex. I are quite clear and when the appellant itself relied on 1 that document to establish that the members of the staff were It superannuated at the age of 55 years, it was its duty to offer satis- ·.: factory expla111ation, ii one such was avaitable, to show why very many officers mentioned therein were continued in service loner after attainingthe age of 55 years. o

From what is stated above, the contettion of Mr. Pai that the Tribooal's finding that the agreement of 1956 has not been acted upon, is erroneous, cannot be accepted. H so, it follows that the first contention of Mr. Pai will have to be re.iected.

Coming to the second contention of Mr. Pai, the agreement of 1966, it cMl be safely left out ot acco\mt as it came into effect only

m December 6, 1966 long after the notice dated August 2, 1966 • tssued by the appellant to the concerned workman. Coming to the agreement of June 29, 1961 that was one entered into between the appellant and the Dunlop Rubber Factory Labour Union. At the time when this agreement was entered into, there is no controversy, D that there were three labour unions, namely, Dunlop Rubber Factory Labour Qnion, Lunlop Workers' Union and Dunlop Workers Association. It is not disputed by the appellant that the concerned workman was a member of the Dunlop Workers' Union, which was not a party to any such agreement with the appellant. If the age of retirement at 58 had been fixed in the Standing Orders of the E Comany after following the procedure ndicated in the relevant statute, as the appellant originally did in 1955, then the position may be different.

On the other hand, what the appellant did was to enter into llin agreement with the Dunlop Rubber Factory Labour Union, which represented only one section of the staff employees. When that is so, such an agreement will bind only such of the staff employees who were members of the Dunlop Rubber Factory . 11' Labour Union, which was a party to the agreement. The concerned workman who was not a member of the said union was justified in contending that he was lll.Ot bound by the agreements of 1961 and 1966 and the Tribuna] was also justified in upholding that contention.

Mr. Pai then urged at the agreeme-nts of 1961 and 1966 conferred very many benefits on the employees and those benefits have als been availed of by the concerned workman. Therefore, he urged that the workman was bound by the provisions contained in those agreements relating to the age of retirement. The mere fact that an employee gets the benefit of higher wages fixed under the agreement, in our opinion, caltlllot be considered to operate as a bar to his disputing the right of the management to retire him at the age of 58 years.

It is only when the clause relating to the ae of retirement is sought to be enforced that he can raise a contro-.

versy.

The other provisions regarding gratuity and other retirement benefits will accrue to the workman only on his retirement and therefore it cannot be said that the concerned workman had taken the benefit of those provisions before he was due to retire.

Therefore, we are not impressed with this contention of Mr. Pai.

The second contention is also to be rejected. .

The last contention of Mr. Pai need not detain us very long.

When the order of the management directing the workman to retire! on his attaining the age of 58 years was being challenged as illegaJ,

the Tribunal had necessarily to consider what is the p, roper retirement age for the concemed workman.

It is onl:Y when a finding is given that the concerned workman i~ entitled to continue bejrond 58 years that the Tribunal can hold the order of the Company directing his retirement at 58 years as illegal.

So the Tribunal was justified in going into that aspect.

The Tribunal has relied on the decisions of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others(!) and W e?rkmen of Kettlewell- Bullen & Co. Ltd. v. Kettlewell Bullen & Co. Ltd. (2) for holding that the concerned workman who had joined service at a time when there were no rules, regulations, agreements or Standing Orders regar~ ing the age of superannuation, was entitled to continue in service till he attained the age of 60 years. J'h()Se decisions prima facie

upport the view of the Tribunal that the concerned workman, in the present case, is entitled to cntinue in service till he attained

the age of 60 years.

We have already referred to the fact that the & said decisions have n explained by this Court in Agra Electricity Supply Co. Ltd. v. Sri Alladin and others(!).

However, the finding of the Tribunal that the concertDed workman was entitledto continue in service till.he attained the age of . 60 years can be supported on other grounds. We already referred to the decision of this Court in The Dunlop Rubber Co. (India) Ltd. v. Workmen and others(4 ) relating to the age of retirement

being .60' years in respect of the appellant's staff employed in Bombay region.

Though that decision related to the empl()yees of the appellant in Bombay region; it should be mted that this Court rejected the contention of the Company that it being an all

 India concern it should have uniform conditions of service thr.ough~ out the couJltry for its employees. It was further emphasised_by this Court that industrial adjudication in India being :bqed on industry-cum-region basis, the Industrial Tribunals hive jc tion to make necessary changes in a unifoni:t scheme so that it migb~ accord. witp. e prevailing c<>n, ditions in the region where ·· the employees were working. as the cha111.gea found necessary bjy. the Tribunal .were to ensure fair conditio:QS of se~. .

 . Q

(1) [1960] I S.C.R. 348.

(2) [1964] 2 L.I..1. 146.

(3) [19?0J 1 S.C.R. 808.

(4) [1%0] 2 S.C•R. 51.

DUNLOP INDIA V. WORKMEN (Valdialingam, J.) 753

We have also referred to the inter office letter dated December 6, 1962 which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.

Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff.

Mr. Sen Gupta also referred us to certain decision$ in other regions to show that the trend is t~ fix the age of rtirement for staff members at 60 years.

But it is not necessary for us to refer to those decisions cited either by Mr. Pai or by Mr. Sen Gupta.

We will only refer to the decision of this Court in M/s British Paints (India) Ltd. v. IJs Workmen( 1), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that lhe uniform age was fixed for the. factory workmen also j, nl that case because of the particular nature I

of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 ' years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entit1ed to continue in service till 60 years is justified.

The result is that the Award ot the Industrial Trib:unal is confirmed and this appeal dismissed with costs.·

K.B.N.

Appeal. dismissed.

[1970] 1 S.C.R. 808

India

West Bengal

DUNLOP INDIA

Valdialingam

G. B. Pai

D. N. Gupta

B D. L. Sen Gupta

Janardan Sharma

S. K. Nandy

Vaidialingam

Hari Nath Bhattacharjee

April 26, 1955

s. 7

clause 28

Dunlop Rubber Factory Labour G Union

Clause 14

April 20, 1960

June 29, 1961

Dunlop R.ubbec Factory Labour Union

Clause 14

Clause 27

1st Jnuary, 1961

December 6, 1966

Clause 6

Clause 32

1st January, 1966

August 2, 1966

February 15, 1967

September 7, 1966

February 29, March 30 and May 4, 1956

Novemr 4, 9 1966

H. N. Bhattacharyya

Dunlop Rubber Factory Labour Union

April 20, 1966

Edward

Dunlop Workmen's Ujn.ion

Dunlop Workers' Association

Dunlop Workers' Union

cl. 14

G. B. Pai

cl. 14

clause 28

D. L: Sen Gupta

cl. 28

cl. 14

Sen Gupta

Pai

Clause 14

cl. 14

clause. 28

clause 14

December 6, 1962

January 1, 1963

clause 14

cl. 14

Gopi Nath Seal

Dasurathi Bose

Dunlop Rubber Factory Labour Qnion

Lunlop Workers' Union

Dunlop Workers Association

Dunlop Rubber Factory

Bombay


UNITED PROVINCES ELECTRIC. SUPPLY CO. LTD., A

ALLAHABAD

T. N. CHATTERJEE March 13, 1972

[S. M. S1KRI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.]

Industrial Employmen~ (Standing Orders) A.ct, 1946, s. 4 and $chedule items 8, 9 and 'UC and U.P. Industrial Employment (Standing Orders) Rules, 1946-Model S/llnding Orders, para 13-A.pp/icability of Standing Order re : age of retirement to emp/oYees 1'n service before the C certifying of Stmding Orders--Framing .of Standing Order regarding retirement before amendment, of Schf!dule--Certifying Officer, J' could -certify the standirig order a.s• fair or reasonable before ame men~ of s. 4-High Court der:iding question and remanding-When operates as res judicata. ·

In accordance with the provisions of the . Industrial Employmnt D (Standing Orders) Act, 1946, and the U.P. Industrial Employment-(Sianding Orders) Rules, 1946, the appellant submitted draft standing orders. defining the conditions. Qf employment of its employees and they W'!re certified by (he Certifying Offirer in 1951. Clause 32 of the Standing Orders provided that an employee who bs served 30 years or who has reached the age of 55 years will be retired, but, exemption from t):iis may be granted by the company in special case. In 1959, notices were served on the respondent-workmen that they were retired byreason of their bav

:E . ing attained the age of superannuation ..s per cl.· 32. The workmen contended that the clause was not binding or enfor"'iable as far as tbev were concerned, because, they bad entered the 9'rvice of the appellant prior to the crtification of the Standing Orders '3Dd there was no condition that they would be liable to retirement after attaining any prescribed age or any fixed period of service, and that they were entitled to continue in service as long as they were physically fit.

TOO industrial dispute was referred to the Industrial Tnbu!l'.li and the Tribunal held in favoulr of F the appellant. The respondents filed a writ petition in the High Court.

They also applied in 1960, under s. 10(2) of the Industrial Employment (Standing Orders) Act, 1946, for amendment and modification of cl. 32 claiming fixation of retirement age at 60. The Certifying Offil:er modi tied the clause and fixed the age of retirement <1t 58, but the appellate authority refixed it at 55. ·

The High Cour~ in the writ petition, on the basis, of the decision of G this Court in Guest Keen WU/iams Pvt. Ltd., [1%0) 1 S.C.R. 348 bd<I that Cl. 32 was not applicable to the employees and directed the Tribunal to rehear the case.

The Tribunal thereafter held that the respondent workmen were wrongfully and unjustifiably retired.

In appeal to this Court,

HELD : (1) It was not intended by the Legislature that .dill'eblnt H sets of conditiol)s should apply to employees depending on whether a workman was employed before the Standink Ord~ were cer!ified or after, as t!:iat would defeat the object of the legislation. "The obi:<\t an<!

U.P. E, J.ECTRIC co. v. T. N. CHATTERJEE (Grover, J.) !755

sheme of the Act is that the employers must define precisely too cond111ons of employment of '111 the employees and have tlx:m certified by the Certifyi":g Officer.

The right given to be workmen to e<press their views, to raise ObJect1ons, to appeal to the appellate authority and to ask for modification of the Standing Orders under s. 10 of the Act, show that every possible safeguard has teen provided in the interests of the workmen.

Moreover, the individual items in the Schedule to the Act show that there cannot be different conditions for different employees depending upon the point of time when , they came to be employed, f<lr that would result in a great deal of hesrt burning between the employees inter se. [762 R-H; 763 A-DJ

Salem Erode El<etriclty Distrlburion Co. Ltd. v. Its Workers; [1966] 2 S.C.R. 498, and Agra Elecl'ric Supply Co. Ltd., v. Sri Al/adin 4c Ors. [1970] I S.C.R. 808, followed. •

(2) The decision in Guest Keen Williams Pvt. Ltd. that the Industrial Tribunal had to consider not only the propriety, reasonableness and fairness of a Standing Order but that it had also to deal with the question as to whether a particular Standing Order could be made applicable to employees who had already been employed without any limit as to age of retirement Was delivered under the unamended s. 4 of the Act, under which the Certifying Officer or the appellate authority could not go into the reasonableness or fairness of the Standing Orders. But after the amendment of the section in 1956, the Certifying Officer and the appellate authority are bound to examine the question of fairness of the standing orders, and therefore, there o:m be no justificaioil now for not giving effect to the p<inciple of uniforniity of conditions of servic,; which is clearly contemplated by the provisions of the Act. [763 D-F]

(3) But d. 32 of th Standing Ord!rs as certified in 1951 _,)as not valid and could not be binding on~ respondents, because, there was then no item in the Schedule to the ct covering cases of superannuation or retirement, with respect to w "ch Standing Orders col, lld be made. [766 E-F, G-.li]

Item 8 and 9 of the Schedule deal with the termination of employment and _notice thereof, and suspension or dismial for miscpnduct. The language of item 8 shows that it does not cover the case of 1 superannuation \\'hich does not depend on any notice and which covers an e\-ent whih is automatic and which must be given effect to without aliy volition on the part of the employer or workmen. If tennination is to be read in a widC:-sense as meaning 'employment coming to an end' there Was no necessity to have item 3, because,• dismissal would then be covered by termination. From paragraph 13 of the Model Standing Orders contained in the Schedule to the Rules it is apparent that item 8 is confined to termination of employment by notice in writing and does not refer to superannuation or retirement. It was only in 1959 that item 11 (C) wa• introduced in the Schedule enabling the framing of Standing Orders in relation to the age of retirement and superannuation. [765 F-H; 766 A-CJ

Saro; Kumar v. Orissa State Electricity B()ard, A.I.R. 1970 Orissa, 126, approved.

Management of the 'Hindu' v. Secretary Hindu O{fici! 4c National Press Employees Union, A.LR. 1961 Mad. 107, disapproved.

(4) No assistance can be derived by the rise of the woi'd 'retire!llent' in para, 16 of the Model Standing Orders, because, it may well refer to

1·56

SUPREME COURT REPORTS

[197,2] 3 S, C, R,

retirement under the terms of the contract of employment entered into between the employer and the employees, [765 A-B, El

(5) Sine>,, before !he amendment of s, 4 the Certifying Officer and the app, llate auhority were debarred from adjudicating upon the fairness or reasonableness of the Standing Order., the Certifying Officer at, that time, could not certify any Standing Order on the ground that it was reasonable or fair, Therefo're, in 1951, when the Standing Orders were certified, cl, 32 could not have been framed becau"" there was no irem in the Schedule relating to superannuation and the Certifying Offic'r could not certify it on the ground it was fair and reasonable because he hail no power to do so, [766 D-F]

(6)• The Certifying Officer, however, when he modified cl, 32 and fixed the retirement age at 58 (after s, 4 was amended) could have validly certified such clause as modified , by him, This Court could also give an appropriate difection with regard to fixing the age of superannuation.

In the circumstances of this case the age of superannuation should be 58 years, Therefore, the concerned workman should be deemed to have cbntinued in service of the appellant till they had attained the age of 58 yearn, [767 A-C, G-HJ

( 7) The order of the High Court in the writ petition did not finally terminal•' the proceedings t all, The proceedings were terminated only by the award of the Industrial Tribunal after remand, Therefore, the order of the High Court following Guest Keen William's case did not debar a fresh consideration of too question by virtue of the rule or principle of res ; udicata, [768 A-B, E-FJ

Satyadhyan Ghosal v, Smt, Deorajan Devi, ~1960], 3 S, C, R, 590, followed,

Management, of N. Railwll)I o-operative Society v, Industrial Tribunal, [,1967] 2 S, C, R, 476, explained,

CIVIL APPELLATE JURISDICTION : Civil Appeal No, 1734 of 1967. ,

Appeal by Special Leave from the Award dated the May 19, 1967 of the Industrial Tribunal (I) at Allahabad in Adjudication . Case No. 15 of 1960. s, V. Gupte, D. N. Mukherjee and Gautam Banerjee, for the appellant.

G. C. Bhattacharya and M. V, Goswami, for respolldpnts Nos. 1 and 3 to 8.

0. P. Rana, for respondent No. 9.

The Judgment of the Court was delivered by

Grover, J, This is an appeal by special leave from an award of the Industrial Tribunal, Allahabad, dated May 19, 1967.

The material facts may be stated.

The appellant, which is a limited liability company and which later on went ill!to voluntary !iquidatio)l, was carrying on the business or undertaking of generation, di&tribution and supply of electricity. One of such undertakings was 1the Electric Supply Undertaking at Allahabad in the State of Uttar Pradesh. Its affairs and business were being looked after and managed by Martin Bum & Co. lJtd., Calcuttlt.

Some of the appellant's workmen in Allahabad and its surrounding area were members of Biili Mazdoor Sangh-a trade union registered under the Indian Trade Union Act, J 926. The U.P.

State Electricity Board compulsorily acquired and took over the assets of the appellanot's aforesaid undertaking or business with effect from 16/17th September 1964.

In accordance with otpe provisions of the Industrial Employment (Standing Orders) Act 1946, hereinafter called the 'Aot' and the U.P. Industrial Employment (Standing Orders) Rules 1946 the appellant submitted draft Standing Orders defining the conditions of employment of its employees. On July 14, 1951 these D Orders' were certified by the Certifying Officer. Clause 32 of the - Standing Orders was in the following terms :- ·

"32. RETIREMENT-An employee who has served 30 years or who has reached tile age of 55 will be retired, but exemption to thls may be granted by the Company in.special cases".

The workmen through the Bijli Mazdoor Sangh preferred an appeal under s. 6 of the Act from the order of the Certifying Officer to the State Industrial Tribunal which was the appellate jjuthority under the Act. Thait appeal, however, was dismissed.

The Agra Electric Supply Co. Ltd., Agra and Benaras Electric Light & Power Co. Ltd., Varanasi, which is the appellant in the connected appeal (C.A. i64/6&) also got certified Standing Orders in similar terms. These electric undertakings were also under the management of Martin Bum & Co. Ltd. On July 16, 1959 notices were served on seven workme11 with effect from September 1, 1959 on the ground that they had attained 'the age of superannuation or completed 30 years of service and they were retired by reason of their having attained the age of superannuation. Out of these workmen one of them Haider Ali died .during the pendency of proceedings. The other six employees have been impleaded as respond.ents Nos. 1 to 6 m the present appeal.

According to the appellant these respondents accepted all the accumulations due to them in respeot of Provident Fund contributions made by the appellant in respeot of .them and by themselves and were also paid gratuities credited to them in 1their res-

SUPREME COURT REPORTS [1972] 2 S.C.ll.

pective Provident Fund aqcounts for their services prior to their A becoming members of the Provident Fund.

By an order dated February 22, 1960 made under s. 4-K of the U.P. Industrial Disputes Act 1946 the Government of U.P. ref.erred to the Industrial Tribunal (I) at Allahabad for adjudication ari industrial dispute alleged to exist between the appel- B !ant and its workmen on the following issues :

"Wheither the employers have wrongfully and/ or unjustifiably retired their workmen, mentioned in the Annexure, with effect from 1st August, 1959 ? If so, to what relief are the workmen entitled ?" c Respo11dents I to 6 and Haider Ali (since deceased) were the workmen mentioned in the Annexure. The case of the workmen before the Industrial Tribunal was that they had entered service of the appellant prior to the certification of the Standing Orders. At the time of their appointment there was no condition

hat they would be liable to retirement after attaining any pres- D cribed age or after putting in any fixed period of service.

A practice was in vogue that the workmen would continue in service till he was physically fit.

Accordingly clause 32 of the certified Standin_g Orders was neither bindin_g nor enforce.able.

The Industrial Tribunal made an award on May 2, 1960 finding, inter- alia, (a) the employers were within their rights in retiring the E workmen concerned.

(b) The act of the emPJoyers in compulsorily retiring the concerned workmen from service could not be characterised as wrongful, illegal or un.iustified and ( c) the workmen were entitled to no relief.

On June 14, 1960 the Biili Mazdoor Sangh moved an appli- F cation under s. 10 (2) of the Act for amendment and modification of clause 32 claiming fixation of retirement age at 60 years.

On September 20, 1960 the Union also filed a writ petition in the Allahabad High Court for quashing the award. On April 22. 1961 the Certifying Officer modified clause 32 and fixed the age of retirement at 58 years. On September 10, 1961 ithe appellate authority refixed the age of retirement at 55 years.

Similarly G appeals were filed by the Agra Electric Co. and the Banaras Electric Light and Power Co. Lid. in which similar orders were · made. On July 12, 1966 the High Court recorded an order quashing the award. It was held that Standing Order 32 was not applicable to the employees who had entered service before the certification of the Standing Orders. The Industrial Tribunal H was directed to rehear the case and after giving an opportunity to the parties of being heard give an award in accordance with law. Finally the award against which the appeal has been brought

was given on May 19, 1967. It was held in the award that al! the seven workmen had been wrongfully and uJijustifiably retired and that they should be deemed to have continued in service till Sep tember 16, 1964 from which date they would be taken to have been retrenched. The appellant having been taken over by the U.P. Staite Electricity Board, it was directed that-the employers should pay full wages from the' period August 1, 1959 to Septem ber 16, 1964 and retrenchment compensation within s. 25-F read with s, 25-FF and s. 25 J of the Industrial Disputes Act, 194 7.

While deciding the writ petition the High Court relied on three decisions of this Court for holding that where there is no aj!,'e of superannuation prescribed for the employees of a concem a provision in the Standing Orders certified subsequent to the d!ite of employment regarding compulsory retirement will not be applicable to them. The first decision is in Guest Keen, Williams Private Ltd. v. P. 1. Sterling & Others('). In that case after the enlorcement of the Act the industrial concem submitted its draft Standing Orders for cevtification to the Certifying Officer.

That Officer certified the Standing Orders after giving the trade union of workmen an opportunity to be heard and ; ifter consider ing their objections. The Standing Orders relating to_ retirement provided that the workmen shall retire from the service of tlie company on reaching the age of 55 years. The company gave notice to forty-seven of its workmen who were over the age of 55 years retiring them and a dispute was raised about their retirement which was ferred to the Tribunal for adjudication. It was ulti mate1y held by. the Labour Appellate Tribunal that those workmen who were in employmellt. prior to !he date of certification of the Standing Orders would not be governed by it and their retirement was illegal.

This Court examined the scheme of the Act including tb.e relevant provisions. Notice was taken, in particu Jar, of the fact that when the Standing Orders were submitted to the Certifving Officer all that he could do was to. satisfy himself that they made provision.for other matters set out in the schedule to the Act and that they were; otherwise in conformity with its provisions. Under s. 4, as it was originally enacto.., d the Certifying Officer could not adjudicate upon the fairness or reasonable

nes of the provisions of the Standing Orders. This section was subsequell'tly amended-in 1956 and the effect of the amendment was that the Certifying Officer was enabled to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. It was pointed out by the couit that the scope for enquiry before the Certifying Offi'cer prior to the amendment of s. 4 was extremely limited. The only way in which the employees could claim modification of the Standing Orders J21ior to the amendment of s. 4 was by raising an industrial dispute in that

(I) [1960] l S.C.R. 348.

780 SUPREME COURT llEPO!lTS

behalf. Subsequent to the amendment the employees could raise the same displl'le before 1the Certifying Officer and in a proper case they cauld apply for its modification under s. 10(2) of the Act. It was observed that the Standing Orders certified under the Acit became part of the terms of the employment by operation of s. 7 but if an industrial dispute arose in respect of such Orders and

it was referred to the Tribunal by the appropriate Government B , the Tribunal had the jurisdiction to deal with rt on , the merits. It was, therefore,· held that the Tribunal had to consider not only the propriety, reasonableness and fairnes of the rule but it had also to deal with the question as to whether the said rule could and should be made applicable to employees who had already been employed without any limit as to age of retirement. The decision in J]ljs case was fo!lo\\ed in Workmen of Kettlewell Bullen & Co .. Ltd. v. Kettlewell Bullen & Co. Ltd. ( '). The next case in which a similar q11.estion &rose in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co.

Ltd. Empleyees Union('). It was claimed by the company which was the employer there that the urgent need for increased production and supply of electrical energy could be met if the existing rules embooi.ed in two of its certified Standing Orders relating to holidays and leave were suitably amended. The amendments proposed sought to introduce different rules relating to holidays and leave for employees wh<>. were appointed before a specified date and those who joined service after that date. Both the Certifying Officer and the appellate authority disallowed the amendments.

The company appealed to this Court and th~ scheme of the AcJ_was examined once again. It was emphasised that after the amendment of s. 4 of the Act made in 1956 jurisdiotion had been conferred on the Certifying Officer as well as

the appellate authority to adjudicate upon the fairness or reasonableness of lhe provisions of the Standing Orders. Thus the p jurisdiction had been widened.

Moreover under s. 10(2) as originally enacted it 'was only the employer who could make an application to the Certifying Officer to have the Standing Orders modified. By the amendment made in 1956 even workmen were enabled to exercise that right. Addressing itself to the . questiqn whether it was permissible for an industrial establishment to have two sets of Standing Orders to goveni the relevant terms and G conditions of its employees it was laid down after an examination of !he scheme of the relevant provisions of the Act in the light of the matters specified in the Schedule that there was no scope for having separate Standing Orders in respect of any one of them, It was said :- ........ the conclusion appears to be irresistible that H !be object of the Act is to certify Standing Orders in

(I) [1964] 2 L.L.J. 146. (2)

respect o.f all the matters covered by the schedule and having regard to these maMers Standing Orders so certified would be uniform and would apply to all workmen alike who are employed in any industrial establishment".

It was considered that Guest Keen Williams Pvt. Ltd.(') could afford no assistance because that matter came to this Court from an industrial dispute which was the subject matter of industrial adjudication and all that this Cclllrt did was to fixe the age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Orders. That course was adopted in the special and unusual circumstances of that case.

In the next decision Agra Electric Supply Co, Ltd. v. Sri Alladin & Ors.( 2 ) one of the main questions was whether three workmen who had been employed long before 1951 when the company's St; mding Orders were certified could be retired undet Standing Order which prescribed the age of superannuation as 5 5 years.

This Court took a view which seemingly runs counter -to Guest Keen Williams Pvt. Ltd.(1). lt was held that the Standing Orders when certified would be binding on the employers as well as all the workmen who were in ernployment at the time the Standing Orders came into force and those employed thereafter as uniform conditions of service.

The process of reasoning which prevailed was ( 1 ) the Act is a beneficient piece of legislation, its object being to require employers in industrial establishments to define with sufficient precision the condtions of employment of workmen employed therein and to make them known to such workmen. ( 2) Before .the passing of the Act there F. was nothing in law to prevent an employer having diffnferent condtracts of employment with workmen which led to co usion an made possible discriminatory treatment. This was also clearly incompatible with the principles of collective bargaining. (3) Section 3 of the Act was enacted to do away with such diversity and. bargaining with each individual workman. ( 4) Section 4 indicates that particulars of workmen in the employment on the date of the submission of the draft Standing Orders or certification and not of those only who could be employed in future after certification were" to be given. ( 5) Sections 4 and 5 show that draft orders are certifiable if they provide for all matters set out in the schedule and are otherwi11e in conformity with the Act and

H if they are adjudicated as fair and reasonble by the Certifying Officer or the appellate authoriiy. The Certifying Officer has also to forward a copy .of the draft Standing Orders to the Union

(!) (1960] I S.C.R. 348.

(2) [1970] I S.C.R. 808.

or to the workmen in the prescribed manner and bas to decide . A whether or not any modification or addition should be made after bearing the Union or the workmen concerned. Sections 6, 7, 9 and 10 contain provisions for appeal by aggrieved person> as also for sending of authenticated copies by Jtbe Certifying Officer to the parties where no appeal is filed and further the employer bas to post !he Standing Orders as finally certified it1. the manner B prescribe<!.

The employer or the workmen can even apply for modification after expiry of six months from the date on which the Standing Orders or the last !modification thereof comes into operation. (7) The schedule sets out the matters which the Standing Orders must provide for. c For the reasons given above this Court held that the Act was meant to enable Standing Orders to be made to bind not only those who were employed subsequent to their certification bu1 also those who were already in employment. If any other result were to follow there would be different conditions of employmen1 for different ~.Jsses of workmen which would render the conditions of their service as indefini'te and diversified as before the D enactment of the Act. Support was derived from the decision in Salem Erode Electricity Distribution case(') in which departure was made from the view previously taken in the case of 'Guest Keen Williams Pt. Ltd.(')

It has been. urged before us on behalf of the respondents that the decision in Guest Keen Williams Pvt. Ltd.(2) still holds the E field and the point which was decided there and which arises in the present case did not come up for consideration in Salem Erode Electricity Distribution Co. Ltd. (1). In our opinion the principle applied in the latter case is fully supported by the scheme of the Act and was rightly extended and applied in Agra Electric Supply Co. Ltd. (3 ). We concur with the view expressed therein that it F was not intended by 'the legislature that different sets of conditions should apply to employees depending on whether a workman was employed before the Standing Orders were -certified or after, which would defeat the very object of the legislation. In the preamble it .is tated in categorical terms "whereas it is expedient to require employers in industrial establishments to define with G sufficient precision the conditions of employment under them and

to make the said conditions known to workmen employed by them". Not only the object but the scheme of the Act is such that the employers must define preCisely Jtbe conditions of employment of all the employees and have the same certified by the Certifying Officer against whose orders an appeal lies to the H appellate authority.

The right given to workmen to express their

(2) (1960] I S.C.R. 348.

(3) (1970] I S.C.R. 808.

A View and tQ. raise objections is of great significance. They can even ask for modification of the Standing Orders in accordance with s. 10 qf the Act. Every possible safeguard has been provided for keeping the workmen informpd about their conditions of service SQ ithat they can take whatever steps they desire or ar~

ad~ to !ake in: their interest before the Certifying Officer •Or B othe appellate authority. It is also very difficult to conceive tak

ing each individual item in the schedule how there can be diffe

rent conditions for different employees depending upon the point of time when they came to be employed; for instance item 3 relates to shift working.

It is possible to sugget that for the same kind of work employees who were in employment before the

Standing Orders were certified would have different hours of C shift from the other employees who were employed subsequently.

In -Ole very nature of things a great deal of irritation and annoy

ance between employees inter se would result if any such discrimination is made in any of the items in the schedule. It has been rightly pointed out in Agra Electric Supply Co. Ltd. that this would only lead to' industrial unrest and not industrial peae, D the latter being the principal object of legislation.

It must be remembered that in Guest Keen Williams Pvt. Ltd. the Certifying Officer could not gci into the reasonableness or fairness of the Standing Orders according to s. 4 of the Act as it stood at the material time. The law was changed only in 1956.

Perhaps that was one of the main reasons which prompted the E court in takine; the view it did. But after the amendment of the law in 1956 the Certifying Officer and the appellate authority are

dutv bound to examine the question of fairness of ithe Standing Orders and there can be no justification now not to give effect to the principk of uniformity of conditions of service which is clearly .contemplated by the provisions of the Act.

F The next question for determination is whether clause 32 of the Standing Orders relating to age of retirement could be certi fied in July 1951. On behalf of the respondents it has been pointed out that there is no item in the schedule which covers the case of retirement or superannuation. Items 8 and 9 are in G these terms :-

"8. Termination of employment and the notice thereof to be given by employer and workmen,

9. Suspension or dismissal for misconduct, and acts or omissions which con:stitute misconduct."

The model Standing Orders framed by the Central Government H and by !he Government of the \State of Uttar Pradesh did not contain any clause relating to retirement or superannuation. It was for the first time that on November 17, 1959 item 11-C

SIJPREME COURT REPORTS

[1SJ72] 3 S.C.R

relating to superannuation and retirement was introduced by the A State of U.P. in exercise of the.rule-making powers conferred by s. 15 of the Act. In other States the item relating to age of retirement or superannuation was introduced either by legislation or by the exercise of rule making power. In 1the State of Bombay s. 19 of the Industrial Employment (Standing Order~) (Bombay Amendment) Act 1957 provided for insertion of item 10-A in B the Schedule which was "age for retirement or superannuation".

According to counsel for 1he respondents there was no item until the introduction of item 11-C in Nove!llber 1959 in the schedule under which any Standing Orders could be framed and got certified relating to the age of retirement and superannuation. It has been maintained that items 8 and 9 cannot possibly include retire- C ment and superannuation and therefore till item 11 C was added in the schedule so far as the State of U.P. was collcemed in November 1959 no Standing Orders could be legally or validly framed and certified providing for age of retirement and superannuation. In Saroj Kumar Ghosh v. Orissa State Electricity Board (1) the Orissa High Court considered this question a some length and expressed the view that where a Standing Order .has D been certified by the Certifying Officer coll'taining a clause relating to superannuation not coveted. by the schedule of the Act nor by . ~- the model Standing Orders such certificationcannot be valid under s. 4 of the Act. The clause ltenitlnation of employment' in item 8 of the schedule cannot be equated with the word "superannuation". According to the Orissa High Court, superannua E tion is an event which comes more or less in an automatic process. An age is fixed on the reaching of which the holder of office has no option but to go out of office. There is no volition involved in that act. The employer and the employee have notice of the matter long before the event is to occur and the event is such that it cannot be arrested by either one of them if the rule is to be followed. On the other hand tetmination is a positive act F by which one party even against the desire of the other can bring about the end of employment. The judgment of the learned single judge in Management of the "HINDU'', Madras v. Secretary Hindu Office & National Press Employees Union and t111other(') was dissented from.

In that case the expression "tennination of employment" in item 8 was considered to be wide G enough to include retirement of an employee at the age of superannuation. The learned Madras Judge sought support from para 16 of t\le model Standing Orders which is as follows :-

"Every permanent workman shall be entitled to a service certificate at the time of his dismissal discharge H or retirement from service".

(I) A.l.R. 1970 Orissa 126.

(2) A.l.R. 1961 Mad. 107.

U.P. El.ECTRIC co. v. T. N. CHATTERJI (Grover, J.) 765

In the model Standing Orc!ers there was no clause providing for superannuation or re1irement on attaining a cettain age.

In our judgment much assistance or help cannot be derived from para 16 of 1he model Standing Orders as contained in schedule I to the Industrial Employment (Standing Orders) Central Rules 1946.

Retirem.nt which is .J)lentioned there may be ur.der tl; e , terms of contract of employment entered into between the employer and the employees. Section 2 ( oo) of the Industrial Disputes Act 194 7 throws a certain amount of light on the matter. It is reproduced below:-

"Retrenchment" means !he termination by the employer Qf the service of a workman for any reason whatsoever, oth-; rwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of llhe workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and llhe workman conc.emed contains a stipulation in that behalf;"

It shows, firstly, that termination of service of a workman is distinct from retirement on. reaching the age of' superannuation; E secondly, retirement can take place on reachin.1 the age of superannuation uncler the terms of the contract of employment entered into between the employer and the workman. Therefore, the word "retirement" in para 16 cannot te regarded as conclusive of the question whether termination of employment includes retirement and superannuation. In the schedule to llhe Act i.em F 8 covers termination of employment and the notice to be iven either by the employer or the workman and i'lem 9 relates to suspension or dismissal for misconduct etc. ' Item 8 by virtue of the

language employed does not al)pear to cover the case of superannuation which does not depend on any notice and which covers an evel!t which is automatic and which must be gh'!n effect to without any volition on the part of the employer or the workmen G as pointed out in the Orissa judgment. If termination is to be read in a wide sense as meaning employment coming to an end there was a necessity to have i~; m 9 because dismissal would then be covered by termination. In the context in which the word "termination" is used in item 8 it cannot mean each and everv. form of termination or c".s<ation of employment.

From u para 13 of the Model S'andin~ Orders contain•; d in schedule I

to the Indutrial Emolovment (Standing Orders) Central Rules 1946, it is aooarent that item 8 is confined to termination of em plovment bv notice in writing and does not contain any mentien 3-Ll06I S"P Cl/72

186 SUPREMll COURT REPORTS (1972] 3 S.C.ll.

of superannuation or re.irement. It Was perhaps this difficulty wn1c11 prouwieo me :State of U.P. to introouce item 11-C in exerc1; e oi tne ru1e maKing powers conterred by s. l:i ot tho Act

ana tne bomoay legmaiu; e to make similar amendmen. by 1eg1slat10n. 1t would 1011ow that unless an employer can inc1u.Je a clause reiatmg to 'the age of retirement and superannuation and the Cer.ifymg Officer Cdn cerri•Y it even thou?, h no >Uh itom appears in the schedule to the Act clause 32 as certified in 1 \I~ l, ir1 the pre>·nt cae. cou.d not be regarded to be valid.

The Madras High Court in the case of Managemenl of the 'Hindu', Mauras\•) maae some oo>ervations to the ertect that thee was

no bar to the Standin11; Orders making a provision for m1tters other than those specifically mntioned in the schedule so long us c the Certifying Officer certifies mem on .he ground that 'they a. e fair and reasonable.

The Orissa High Com t, however, in Sarojkumar Ghosh's(') case did not subscribe to thi> view.

Learned counsel for the appellant, apart from rolying on ·•he Madras decision, has not addressed any arguments on 1h:-hlrger and wider question as to whether even in the absenoo of any item in the schedule Standing Orders can be framed on certain matlcrs D which may be re11; arded as fair and reasonable and which may oo so certified by the Cer.ifying Officer. It is, however, unnecessary to decide this point in the present case because clau~ 32 of the Standing Ordi s on which the appellant has relied was certifi.:d in July 1951 when according to the express language of s. 4 of 'ihe Act the Cenitylnit Officer or the appellate all'thority was de- E

barr~ from adJudicatine uoon the fairness or reasonableness of the provisions of any Standing Orders. It is difficult to understand how •he Certifyin~ Offi:er at that Point of ime and before the amendment of s. 4 in 1956 could have possiblv certified ony

S•anding Order which did not relate to any item in the schedule on the eround that it was fair or reasonable. IncJeed the lunC'io11 of the Certifying Officer, before the amendment of 1956, was very limi ed as is clear from s. 3(2) of the Act which says :

"Provision shall be made in such draft for every

matt.r set out in the <chedule which may be aool; c"ble to the indmtrial establishment and where model Standing_ Orders have been prescribed, shall be, so far is prac- G. ticable, in conformity wi.h such model".

We must, therefore, hold that clause 32 of the Standing Orders as certifod in July 1951 was not valid and cannot be binding on the resoond.nts. However, after i'em 11-C was intrncluced in the schedu'e so far as the State of U.P. was concerned an item was added provic1ing for the age of retirement and supernnua- H tion.

The Certifying Officer, whe.n he modified clause 32 and

(I) AIR 1961 Mad. 107.

(2) AIR 1970 Orrissa 126.

U.J>. ELECTRIC co. v. T. M. CHATTBRJI (Grover, I.) 161

fixed the re.iring age.at 58 on April 22, 1961 coµJdhave validly

certiried such clause as modified by him. The necessary comequence will be that the respondents could not have been re.ired on the JI.round of suprannuation in July 1959 and they could be validly reti~ only on or after Ap1il 22, 1961 in accordance with clause 32 as modified by lhe Certifying Officer. In other words, hose out of the present respondent' who had attained the Bl!; e of 58 years on April 22, 1961, could be regarded as hJving been validly retired having reached the age of superannuation on that da, e under fhat c\ause.

In view of the previous decisions of this Court and in particular that o( Guest Keen Wl/liamv Pvt. Ltd.(') it has n, t been dist puled , hat in the industrial dispute which was referred it was optln

to the Industrial 'tribunal or the Labour Court to dete, mm~ me age of re.irement or superannuation notwifhstanding that clause 32 of the. Sta11dinl!; Orders as certilied in 1961 had been legally and validly certified. Indeed in Guest Keen Williams _Pvt. Ltd. ( 1) it was not disputed that even this Court could give an appropriate direction which might be considered reasonable with regard to fixin.e; the aee of superannuation. As sta.ed before, according 10

clause 32 of <the Standing Orders, as certified in April 1961, the age of superannuation wall. jixed at 58.

The appellant filed an appears that in the case of Agra Electric Supply.Co.(') also a appears that in the care of Agra Electric Supply' Co.(') also a similar Standinl!; Order had been certified and on appeal th~ age of retirement was reduced from 58 to 55 years by the appellate authority.

This Court in fhat case held the Standing Order fixing the age at 55 ~ars applicable not only to 1hose employees who were emP.lo.ved subsequently. but also to all workmen who were in employment at the time when the Standing Orders became legally applicable. It does not appear in tha1 case that anv such argument was raised fhat th•! matter should be remitted eithr to the Indusrial Tiibunal or the Labour Court to fix the age of superannuation or that this Court itself might do so as was fhe course followed in the case of Guert Keen Williams Pvt. Ltd.( 1) in which the age was fixed at 60 years with regard to those employees who had raised the disoute on th.~ ground that the s anding Orders could not go''m them as thev hd been employed before the Standing Orders became aoplicable.

After considering the entire material and keeoinq in mind 'the fact that according to the appellate authority even the aee of retirement t 55 was fair and reasonable we are of the vi•!w that 'the ae of superannu1tion of the respondets, in the present case. should be 58 vears.

In other words. it will be the same as was fixed by the Certifying Officer bv modifying clause 32 on April 22, 1961.

(') [1960] t S.C.R. 348. <2> [1970J 1 s.c.R. 808

Lastly we must c!eal with the contention raised on behalf of A the respondents tha• the order of the Allahabad High Court made on Ju1y 12, 1966 quashing the award after following the decision of tms Court in Guest Keen Williams Pvt. Ltd.(1) should be deem ed to oe linal and should debar any fresh consideration or decision of that point by virtue of the rule or principle of res-judicata. It is noteworthy that the order of fr,~ Allahabad High Court was not R final against which the matder could have been taken in appeal either to a divis10n bench of the High Court or to this Court.

Reliance has been placed on a decision of. this Court in Management of Northern Railway Cooperative Society Ltd. v. Industrial Tribunal Rajasthan, Jaipur and Another('), where reference had been mac!·~ bv the State Government to the Industrial Tribunal on c the RailwayWorkers' Union having raised an industrial dispute againfll the Management of the Northern Railway Cooperative Society Lid. The society filed a writ petition on •the ground that the dispute having been rai&d by the Railway Workers' Union and not by th~ Society's own employees the reference to the Tri bunal was not competent. The High Court diSmissed ihe peti lion. Th{lreafter the Tribunal heard •the matter and gave its deci I> sion in favour of the workman concerned. The society appealed to this Court by special leave. It was held that the order of the

Hih Court was not interlocutory but was a final order in regard to tb.e proceedings under Art. 226. The appropriate remedy for the appellant in that case was to appeal against the High Court's order and that not having been done the appellant's plea rclatin2 E to the compe~ncy of the reference was barred by res judicaa as the same had been raised before the High Court and had been rejected. The present case is clearly distinguishable inasmuch as the order made by the High Court was not final and a remand hud

been direced presumably under Art. 227 of the Constitution.

That order in fact did not finally terminate any proceedings at all. y The proceedin11s were terminated only by the award against which the present anneal has been brought by special leave. Wt; are unable to see liow tb~ decision in the aforesaid case can afford any assistance to the respondents before us. Indeed the case which is :nore apposite in Satya(ihyan Ghnsa/ & Ors. v. Smt. Deoraiin Debi & Another(3 ). There an order of remand had been made by the

Hiizh Court while exercisin2 Powers under s. 115 of the Code of G Civil Procedure.

I•t was observed, af'er referring to the various deci<ions of the Privy Council, that the order of remand was in1erlocutorv and did not nurnort to disno<e of the case. A nrtv

is not bound to appeal aizainst e''ry in'ter!ocutorv order which is a step in the procedure that leads up to a final decision or award.

(') [1960) 1 S.C.R. 348.

(') (1960) 3 S.C.R 590.

('J {1967] 2 S.C.R. 476.

U.P. ELECTRIC co. v. T. N .. CHATTERJI (Grover, J.) 769

The followin_g observations from this case may be reproduced with advanta_g.e :-

"In1erlocutory judgments which have the force of a decree must be distin_guished from other interlocutory

iudgmnts which are a step towards the decision of the dispute be•ween parties by way of a decree or a final order"

We are unable, therefore, 10 accede to th.~ contention that the rule of res-judicara could be invoked by the respondent in the present case.

In the result the appeal is allowd and the order of the Industrial Tribunal is hereby set aside. Ac:ordin_g to our decision 'lhe workmen concerned could not have been retired on the ground of supi:rannuation in accordance with clause 32 of the Standing

OrcJ.rs till It was certified after necessary modifica1ion on April 22, 1961. Even otherwise it has been held by us that rthe prope~ age of retirement in 1he case of those employees. who joined service prior to April 22, 1961 should be 58 years.

The award, therefore, will be that the concerned workmen should be deemed to have co!lij, uued in service of !\le appellarit.till they had a• ained the age of 58 years. It is declared that they shall be entilled to be paid full wages and all other dues to which they are entit!d under \he terms of ildr employmen't till they attained the age of 58 years.

As regards any payments received by the workmen pursuant to the award or after the notice of termination those shall also be adjusted accordingly and the appellant undertakes not to claim refund_ of any amounts which have already ben received by them in excess of the amounts du.~. No order as to costs.

V.P.S.

Appeal allowed.

UNITED PROVINCES ELECTRIC. SUPPLY CO. LTD., ALLAHABAD

T. N. CHATTERJEE

March 13, 1972

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ.

s. 4

s. 4

Clause 32

s. 10(2)

cl. 32

Cl. 32

s. 10

[1966] 2 S.C.R. 498

Guest Keen Williams Pvt. Ltd.

s. 4

Keen William

CIVIL APPELLATE JURISDICTION

V. Gupte

D. N. Mukherjee

Gautam Banerjee

G. C. Bhattacharya

M. V, Goswami

P. Rana

Grover

Allahabad

Uttar Pradesh

Martin Bum & Co. lJtd

Calcuttlt

U.P.

State Electricity Board

16/17th September 1964

July 14, 1951

Clause 32

Bijli Mazdoor Sangh

s. 6

Agra Electric Supply Co. Ltd.

Varanasi

Martin Bum & Co. Ltd.

July 16, 1959

Haider Ali

s. 4

Industrial Disputes Act 1946

Government of U.P.

1st August, 1959

clause 32

May 2, 1960

June 14, 1960

s. 10

clause 32

September 20, 1960

Allahabad High Court

April 22. 1961

clause 32

September 10, 1961

Agra Electric Co.

July 12, 1966

May 19, 1967

Sep tember 16, 1964

U.P. Staite Electricity Board

August 1, 1959

ber 16, 1964

s. 25

s. 25

Industrial Disputes Act

s. 4

s. 4

s. 4

s. 10(2)

s. 7

s. 4

s. 10(2)

Keen Williams Pvt. Ltd.(1

Section 3

Section 4

Sections 4 and 5

Sections 6, 7, 9 and 10

Salem Erode Electricity Distribution

Guest Keen Williams Pt. Ltd.

Guest Keen Williams Pvt. Ltd.(2

s. 10

Keen Williams Pvt. Ltd.

s. 4

clause 32

Central Government

17, 1959

s. 15

s. 19

State of U.P.

Orissa High Court

s. 4

Madras Judge

Central Rules 1946

Section 2

Industrial Disputes Act

Central Rules 1946

clause 32

Madras High Court

Sarojkumar Ghosh

Madras

s. 4

s. 4

s. 3(2)

clause 32

clause 32

clause 32

clause 32

clause 32

Agra Electric Supply.Co.

Agra Electric Supply' Co.

Guert Keen Williams Pvt. Ltd.

clause 32

April 22, 1961

Keen Williams Pvt. Ltd.(1)

Art. 226

Art. 227

s. 115

[1960) 1 S.C.R. 348

(1960) 3 S.C.R 590

1967] 2 S.C.R. 476

clause 32