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PETITIONER: AVERY INDIA LIMITED

       Vs.

RESPONDENT: THE SECOND INDUSTRIAL TRIBUNAL, WEST BENGAL

DATE OF JUDGMENT05/05/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN REDDY, P. JAGANMOHAN

CITATION:  1972 AIR 1626            1973 SCR  (1) 668  1972 SCC  (3) 585  CITATOR INFO :  R          1973 SC2650  (6)

ACT: Labour  Law-Standing  Orders  fixing age  of  retirement  of workmen at 55 years-Workmen employed before introduction  of standing  orders  whether covered by age  of  retirement  so fixed-Industrial  Employment  (Standing Orders)  Act  20  of 1946.

HEADNOTE: The second respondent was employed by the appellant  company in  the  year 1946 in its Service Department.  At  the  time there  was no rule prescribing the age of retirement of  the workmen  of  the company.  In November  1951  the  appellant introduced  standing  orders  under the  provisions  of  the Industrial  Employment (Standing Orders) Act 20 of 1946,  by which the age if superannuation of the workmen was fixed  at 55.  On November 27, 1961 the appellant issued a  notice  to the  second  respondent  informing him that he  was  due  to retire  on August 31, 1962 as he would be attaining the  age of  55  in that date.  On August 11, 1962 the Union  of  the employees  of the appellant submitted a charter  of  demands one  of which was that the age of retirement of the  workmen should be raised from 55 to 58 years.  The second respondent asked  the appellant to postpone a final decision as to  his retirement  because of the industrial dispute raised by  the Union.  The appellant however retired the second  respondent in  September  1, 1962.  In January 1963 the  Government  of West  Bengal referred the dispute between the appellant  and its workmen to the Industrial Tribunul.  The Tribunal by its award  dated April 27, 1964 held that the retirement of  the second  respondent at the age of 55 was unjustified  as  the second  respondent  was not bound by the provisions  of  the standing orders fixing the age of retirement at 55 as he was employed  before the said orders were passed.  The  Tribunal also  held "that the age of etirement of all  categories  of workmen  should  be raised from 55 to 58 and  that  standing orders  would  stand modified accordingly".   The  appellant company filed a writ petition in the High Court  challenging the  validity  of  the award in o far  as  it  directed  the reinstatement  of the second respondent.  A single Judge  of the High Court following the decision of this Court in Guest

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Keen Williams held that the provision as regards the age  of retirement in the standing orders would not bind the  second respondent.   He further held that as the second  respondent had  already  attained  the age of 58  years  there  was  no question of his reinstatement but that he should be paid the salary  for the period between the date when he was made  to retire and the date when he actually attained the age of 58. The  Division  Bench upheld the order of the  single  Judge. The company appealed to this Court. Allowing the appeal, HELD:     (i) The view of the High Court that the  provision in the standing     orders  regarding retirement  age  could not hind the workmen who were employed in the  establishment prior to the coming into force of the standing orders  could not stand in the light of the decisions of this Court.  [671 G] Agra  Electric  Supply Co.  Ltd. v. Shri Allcdin,  [1970]  1 S.C.R..  308, Salem Erode Electricity  Distribution  Company Ltd.  v.  Sakm  Erode  Electricity  Distribution  Co.   Ltd. Employees’ Union, [1966] 2 S.C.R. 498 and  669 United Provinces Electric Supply Co. Ltd.  Allahabad v. T.N. Chatterjee,  (’.A.  No. 1734 of 1967 decided  on  13-3-1972, referred to. (ii)  It was clear from the award that the Tribunal did  not order  the  reinstatement of the second  respondent  on  the ground  that he was entitled to the benefit of the  enhanced retirement age conferred on all categories of workmen in the establishment  by the award.  The only ground on  which  the Tribunal  ordered  the  reinstatement was  that  the  second respondent  was employed in the concern prior to the  coming into  force  of  the  standing  orders  and  therefore,  the provision   in  the  standing  order,  fixing  the  age   of retirement at 55 years did not bind him in the light of  the decision  of this Court in Guest Keen Williams.  The  second respondent  did  not  support the award in  respect  of  his reinstatement  in the counter-affidavit filed by him in  the High  Court in answer to the writ petition of the  appellant on  the  ground that he was entitled to the benefit  of  the retirement  age as fixed by the award and, for that  reason, the  directions  for  his reinstatement  was  in  any  event justified.   He could not be allowed to raise this new  plea in this Court. [673 H-674C] Guest, Keen Williams Private Ltd. v. P.J. Sterling, [1960] 1 S.C.R. 348, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION.: Civil Appeal  No.  1462  of 1968. Appeal from the- judgment and order dated November 28,  1967 of the Calcutta High Court in appeal from Original Order No. 201 of 1966. M.C.  Sefalvad, G. L. Mukhoty and D. N. Gupta, for  the  ap- pellant. P. K. Chatterjee ,for respondents Nos. 2 and 3. The Judgment of the Court was delivered by Mathew,  J. The appellant, a company incorporated under  the Comapanies Act, filed a writ petition before the High  Court of  Calcutta praying for the issue of a writ or an order  in the  nature of certiorari quashing the award passed  by  the Second Industrial Tribunal, West Bengal, Calcutta, directing the reinstatement of Ganapati Sontra, the second respondent, in the service of- the appellant.  A learned _judge of  that

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Court  dismissed the writ petition.  The appellant filed  an appeal  before a Division Bench of that Court.   The  appeal was  also dismissed.  This appeal is preferred  against  the order  of the Division Bench by certificate granted  by  the High Court under Article 133(1)(c) of the Constitution. The  second respondent was employed by the appellant in  the year  1946  as a clerk in its Service  Department.   At  the time, there was no rule prescribing the age of retirement of the  workmen  of  the  company.   In  November,  1951,   the appellant introduced standing orders under the provisions of the Industrial 670 Employment  Standing  Orders) Act, 1946 (Central Act  20  of 1946 was amended by the Act 36 of 1956.  The Standing Orders fixed  at 55.  On September 17, 1956, the Central Act 20  of 1946 was amended by the Act 36 of 1956.  The Standing orders in the appellant company were modified on May 30, 1961,  but the  provision regarding the age of superannuation  remained unchanged.   On  November 27, 1961, the appellant  issued  a notice  to the second respondent informing him that  he  was due  to retire on August 31, 1962 as he would  be  attaining the age of 55 on that date. On  August  11,  1962, respondent No. 3, the  Union  of  the employees of the appellant, submitted a charter of  demands. One of the demands was to raise the age of retirement of the workmen in the establishment from 55. to 60.  On August  18, 1962,  respondent No. 3 wrote to the appellant to  keep  the retirement of second respondent in abeyance till a  decision is  arrived  at on the charter of demands.   On  August  30, 1962,  the  second  respondent wrote  to  the  appellant  to postpone taking a final decision on the matter as a  dispute had  already  been raised about the retirement  age  of  the workmen  in the establishment.  By his letter  dated  August 31,  1962,  the Secretary of the appellant  company  replied that as long as the retirement age as provided in the stand- ing orders was not altered, he had to be guided by the  same but  that,  if  at  a later date,  the  retirement  age  was altered, the same will be adhered to.  The second respondent was made to retire on September 1, 1962. The  Government of West Bengal, by its order  dated  January 29,  1963, made a reference to the first respondent  of  the industrial  dispute  between the appellant and  its  workmen represented  by the third respondent.  The  second  question referred, which alone is material for our purpose was :               Is the superannuation of Shri Ganapati  Santra               justified  ?   What  relief,  if  any,  is  he               entitled  to  ?  What should  be  the  age  of               retirement of the workmen in the factory ? The appellant contended before the Tribunal on the basis  of the standing orders that the age of retirement was 55  years and that the action of the appellant in retiring the  second respondent  at the age of 55 was proper.  The Union, on  the other  hand,  contended that, as the second  respondent  was appointed   in  1946  when  there  was  no  age  fixed   for superannuation, he was not bound by the provision as regards the age of superannuation in the standing orders of 1952  or the modified standing orders of 1961. The Industrial Tribunal, by its award dated April 27, 1,964, held that the retirement of the second respondent at the age of 55  671 was  unjustified as the second respondent was not  bound  by the  provision  in the standing orders of 1952  or  of  1961 fixing the age of retirement at 55 as he was employed in the concern  in 1546, and directed reinstatement of  the  second

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respondent.   The  Tribunal  also  held  "that  the  age  of retirement  of  all categories of workmen should  be  raised from 55 to 58 and that standing orders would stand  modified accordingly." The  appellant company challenged the validity of the  award in  so  far  as it directed the  reinstatement  of  the  2nd respondent, in the writ petition and contended that the view of  the Tribunal that the 2nd respondent was not  bounds  by the  provision  of the standing orders relating  to  age  of retirement  was erroneous as the standing orders would  bind all  the  workmen  in the establishment  whether  they  were employed  before or after the framing and  certification  of the  standing  orders.  A single judge of  the  High  Court, following the decision of this Court in Guest Keen  Williams Private  Ltd. v. P. J. Sterling and others(1) held that  the provision  as regards the age of retirement in the  standing orders would not bind the 2nd respondent as he was  employed prior  to the coming into force of the standing  orders  and dismissed  the writ petition.  He further held that  as  the second respondent had already attained the age of 58  years, there  was  no question of his reinstatement  but  that  the appellant  should pay the 2nd respondent the salary for  the period between the date when he was actually made to  retire and  the date when he attained the age of 58.  It  was  this order  that  was challenged by the appellant in  the  appeal before  the division bench.  The Division Bench agreed  with the  view  of  the learned single judge  and  dismissed  the appeal. The only question which should normally arise in this appeal is whether the view of the High Court, that the provision in the  standing orders regarding the age of retirement of  the workmen  of the appellant company would not govern  the  2nd respondent  who was employed prior to the coming into  force of  the standing orders, can be sustained.  The view of  the High  Court  that  the  provision  in  the  standing  orders regarding  retirement age cannot bind the workmen  who  were employed in the establishment prior to the coming into force of  the  standing orders cannot stand in the  light  of  the decisions of this Court in Agra Electric Supply Co.  Ltd. v. Shri  Alladin  and  others (2)  ,  Salem  Erode  Electricity Disribution   Company  Ltd.  v.  Salem   Erode   Electricity Distribution Co.  Ltd.  Employees’ Union (3)  and the United Provinces  Electric  Supply  Co. Ltd., Allahabad  v.  T.  N. Chatterjee and others(4) (1)  [1960] 1 S.C.R. 348.  (3)     [1966] 2 S.C.R. 498. (2) [1970] 1 S.C.R. 308.  (4) Civil Appeal No. 1734 of 1967, decided on 13-3-1972 672 But counsel for the second respondent contended that even if the High Court had applied the correct law as enunciated  by this Court in the above mentioned cases, that would not have enabled the High Court to quash that part of the award which directed  the reinstatement of the 2nd respondent,  for,  it would  have been open to the 2nd respondent to  support  the award on the ground that since the retirement age of all the workmen  in the employment of the appellant had been  raised to 58 years by the award, the 2nd respondent could not  have been made to retire by the appellant before he attained  the age of 58.  In other words, counsel argued that even if  the High  Court  applied  the correct law as laid  down  in  the rulings cited above, it could not have quashed that part  of the award, for, the age of superannuation of all the workmen in  the employment of the appellant was raised to 58 by  the award and that although the 2nd respondent was not a workman when  he  was a party to the dispute under s. 18(3)  of  the

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Industrial Disputes Act, 1947, hereinafter called the "Act". Counsel submitted that the 3rd respondent, the Union, was  a party to the dispute which means that all the workmen in the establishment were parties to the dispute as regards the age of retirement, and the award, in so far as it raised the age of  retirement  to  58,  would bind  all  persons  who  were employed  in the establishment to which the dispute  related on the date of the dispute.               Section 18(3) of the Act provides               "18(3)-A  settlement arrived at in the  course               of conciliation proceedings under this Act  or               an  arbitration  award  in  a  case  where   a               notification has been issued under sub-section               (3A)  of section 10A of an award of  a  Labour               Court, Tribunal or National Tribunal which has               become enforceable shall be binding on--               (a)   all parties to the industrial dispute;               (b)   all other parties summoned to appear  in               the  proceedings  as parties to  the  dispute,               unless  the Board, arbitrator,  Labour  Court,               Tribunal or National Tribunal, as the case may               be,  records  the opinion that  they  were  so               summoned without proper case;               (c)   where a party referred to in clause  (a)               or  clause  (b)  is an  employer,  his  heirs,               successors  or  assigns  in  respect  of   the               establishment to which the dispute relates:                (d)  where a party referred to in clause  (a)               or  clause  (b)  is composed  of  workman  all               persons who are employed in the establishment,               or  part of the establishment as the case  may               be, to which the dispute relates                673               on  the date of the dispute and  all  per-sons               who  subsequently  become  employed  in   that               establishment or part." On  the  other  hand,  it was contended  on  behalf  of  the appellant,  that the only question referred to the  Tribunal so far as the 2nd respondent was concerned, was whether  his superannuation  at the age of 55 was justified and the  only case  put  forward  by the Union  before  the  Tribunal  was whether the provision in the standing orders fixing the  age of retirement as 55 would bind We as he was employed  before the standing orders came into force in the concern.  And  as that  was  the only question raised and  considered  by  the Tribunal  and the High Court, it is not open to this  Court, in this appeal, to enlarge the scope of the controversy  and go  into,  the  question whether the  2nd  respondent  could sustain  the  award on any other ground not decided  in  his favour  by the Tribunal or the High Court.  It  was  further contended on behalf of the appellant that since no date  was specified  in  the award for its coming into  operation,  it came  into operation when it became enforceable as  provided in section 17A(1) by virtue of section 17A(4) of the Act and since  the 2nd respondent had retired on September 1,  1962, long  before  the award became operative,  even  though  the award  raised the retirement age of all the workmen  in  the concern to 58, the 2nd respondent cannot get the benefit  of the  enhanced  age  of  retirement.   In  other  words,  the argument  was that the award had no retrospective  operation and  since the award conferred the benefit of  the  enhanced age  of retirement only on the workers in the  establishment on the date the award came into operation and since the  2nd respondent  was  made  to  retire  in  accordance  with  the retirement  age as specified in the standing orders  of  the

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company and had ceased to be a workman on the date when  the award  became operative, the award did not confer  upon  the 2nd  respondent  any  benefit  in  respect  of  his  age  of retirement. We  do  not  think it necessary to  decide  the  interesting question  that  in view of the fact that  the  award  became operative  only in 1964 whether the 2nd respondent, who  was made  to retire in 1962 in accordance with the provision  in the  standing orders then in force, was entitled to get  the benefit  of  the retirement age fixed by the award,  on  the ground  that the award was binding on him and the  appellant by Virtue of section 18(3) of the Act. It  is clear from the award that the Tribunal did not  order the  reinstatement of the 2nd respondent on the ground  that he  was entitled to the benefit of the  enhanced  retirement age   conferred  on  all  categories  of  workers   in   the establishment  by the award. (The only ground on  which  the Tribunal   ordered  the  reinstatement  was  that  the   2nd respondent was employed in the concern 674 prior  to the coming into force of the standing orders  and, there_ fore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the  light of the decision of this Court in Guest Keen Williams Private Ltd.  v. P. J. Sterling and others(1).  The  2nd  respondent did not support the award in respect of his reinstatement in the  counter-affidavit  filed by him in the  High  Court  in answer  to the writ petition of the appellant on the  ground that he was entitled to the benefit of the retirement age as fixed  by the award and, for that reason, the direction  for his  reinstatement was in any event justified.  He  will  be allowing the 2nd respondent to take a new plea in this Court if  we  are  to  say that the  order  of  reinstatement  was justified  on  some ground other than the one on  which  the award was based.) As we find that the decision of the High Court was wrong, we set  aside that decision and allow the appeal.  We  make  no order as to costs. G.C.                               Appeal allowed. (1) [1960] 1 S.C. R. 348. 675