http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: U.P. STATE ELECTRICITY BOARD AND ANOTHER

       Vs.

RESPONDENT: THE LABOUR COURT (I) U.P., KANPUR AND OTHERS

DATE OF JUDGMENT06/10/1983

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR 1450            1984 SCR  (1) 282  1984 SCC  (1) 147        1983 SCALE  (2)1042

ACT:      Industrial  Employment  (Standing  Orders)  Act,  1946- Workmen employed  by a  company-No age  of retirement fixed- Company   nationalised-Workmen    opted   to   serve-Service regulations framed and notified-Assurance by management that old service  conditions would  apply to  company  employees- Whether valid-Workeman, whether bound by new regulations.

HEADNOTE:      The respondent-workman  entered service  as a coolie in 1945  under   the  Kanpur   Electricity  Supply  Corporation Limited. When  the time  the company  had no rules as to the age of  retirement for  its employees and therefore his date of birth  was not  entered in  the service  card.  When  the Corporation was  nationalised the  new  management,  without asking him  as to  his date  of birth,  showed his age as 20 years 9  months. From  the village records it was found that he was  born on 24.6.1924. Meanwhile, the new management got the Standing  Orders certified  without making any provision for the  age  of  retirement.  When  the  Electricity  Board constituted under  the Electricity  (Supply) Act, 1948, took over the  management of  the Administration  in 1949  it was made clear  that conditions  of service of workmen would not be adversely affected. But on 31st January, 1979 the workman was retired from service on the ground that he had completed 58 years  of age. The workman complained that he was retired in contravention  of his  conditions of service according to which there was no age of retirement.      The labour  court held  that  even  after  framing  the regulations under  section 79C  of the  Electricity (Supply) Act, 1948,  fixing the age of retirement at 58 and notifying them  under   section  13B   of  the  Industrial  Employment (Standing orders)  Act, 1946,  the new  management  made  it clear to  the employee  that old  service conditions  of the employees would  continue to  operate  and  that  a  similar assurance was  given to  the respondent  in writing that the new regulations  would not  apply to  him. In  this view the respondent’s retirement was held to be invalid.      Allowing the appeal.      HELD: The  workman is  bound by  the regulations fixing the age  of retirement at 58 and therefore his retirement on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

attaining the age of superannuation was correct. [287 C]      The Industrial  Employment (Standing  Orders) Act, 1946 is a  special law  in regard  to matters  enumerated in  the schedule. The regulations made by the Electricity Board with respect to any of those matters are of no effect unless 283 they are either notified by the Government under section 13B or certified  by the  Certifying Officer  under section 5 of the Standing  Orders Act. In regard to matters in respect of which regulations  made by  the Board have not been notified by the  Governor or  in respect  of which no regulations had been made  by the  Board,  the  Standing  Orders  Act  would continue  to   apply.  Since,   in  the  instant  case,  the regulations framed  by the  Board with  regard to the age of retirement under  section 79C  have  been  notified  by  the Government under section 13B of the Standing Orders Act, the respondent is  bound by those regulations and his retirement on attaining the age of 58 years was correct.                                           [286 F-H; 287 A-B]      U.P. State Electricity Board and others v. Hari Shanker Jain and others, [1979]1 S.C.R. 355, applied.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  3549 (NL) of 1982.      Appeal by Special leave against the Award passed by the Labour  Court  (I)  Kanpur  dated  16th  December,  1980  in Adjudication Case No. 8 of 1980.      S. Markandeya for the Appellants.      Hari Swarup,  Manoj Swarup and Ms. Lalita Kohli for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN,  J.   This  appeal  by  special  leave  is directed against  the award  of the  Labour Court, Kanpur in Adjudication Case  No. 8 of 1980 holding that the retirement of  the   second  respondent  Jag  Dutt  from  31.3.1979  is unjustifiable and  directing  his  reinstatement  with  back wages with a right to work so long as he is physically fit.      The second  respondent entered  service as  a coolie on 11.4.1945  under   the  then   Kanpur   Electricity   Supply Corporation Limited.  No date  of birth was mentioned in his service  card  and  there  was  no  age  of  retirement  for employees  in   that   concern.   That   establishment   was nationalised  on   15.9.1947  and  thereafter  it  became  a department of  the Government  of  Uttar  Pradesh.  The  new management Kanpur  Electricity Supply  Administration filled up the  second respondent’s age as 20 years 9 months without asking him  for any certificate regarding his date of birth. His date  of birth  is 24.6.1924 and an entry about his date of birth  has been made in the Police Station, Chawani Basti at the  instance of  the Chowkidar  of that village. The new management got  its standing orders certified without making any provision 284 for age  of retirement.  The State  Government made it clear that the workmen to whom the Industrial Employment (Standing Orders) Act, 1946 applied would not be governed by the Civil Service (Classification,  Control  and  Appeal)  Rules.  The Electricity Board constituted under the Electricity (Supply) Act, 1948  took over  the workmen  of the  erstwhile  Kanpur Electricity Supply  Administration from  1.4.1949 making  it clear that  their service  conditions will  not be adversely affected. That  position regarding the service conditions of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

the employees  was reiterated  in Government Order No. 3679- E/71-21-PB dated  1.4.1971 and  the Electricity Department’s Chief  Engineer’s   letter  dated   2.3.1972.  The   initial condition was that the second respondent should work so long as he  was  physically  fit  to  work  without  any  age  of retirement.   However,   the   Kanpur   Electricity   Supply Administration retired  the second respondent from 31.3.1979 on  the   ground  that  he  has  completed  58  years.  This retirement is  invalid for two reasons, namely that his date of birth is 24.6.1924 and that there is no age of retirement so far  as employees  like the  second  respondent  who  had joined  service   under  the   Kanpur   Electricity   Supply Corporation Limited  are concerned.  The new  management had allowed 19  named workmen  to retire when they were 60 to 75 years old.  The second  respondent has thus been retired not only before  he completed  58 years, his date of birth being 24.6.1924 but  also in  contravention of  his conditions  of service, according  to which  there is no age of retirement. This was  the second  respondent’s case  before  the  Labour Court.      The defence of the appellant-management was that though when  the   Electricity  Board   was  constituted   and  the management of  the Kanpur  Electricity Supply Administration was taken  over in  1948 no age of retirement was prescribed for the  employees the  Electricity Board framed regulations under  s.79C   of  the   Electricity  (Supply)   Act,   1948 subsequently prescribing  the age  of retirement as 58 years and 60  years and  the  second  respondent  was  retired  on 31.3.1979 under those regulations. It is open in law for the Electricity Board  to frame  regulations prescribing the age of retirement  of its  employees even  where initially there was no  age of retirement, as has been held by the Allahabad High  Court   and  this   Court.  The   second  respondent’s retirement is valid and cannot be set aside.      The Labour  Court  found  that  the  second  respondent joined service  as a  cooly  under  the  Kanpur  Electricity Supply Corporation  Limited on  11.5.1945 and  he became the State  Government’s   employee  on   16.9.1947   when   that establishment was taken over by 285 Kanpur Electricity  Supply Administration  and the employees of that  Administration became  the employees  of the  State Electricity Board  when it  took over that Undertaking after that Board  was constituted on 1.4.1959. It was not disputed that  by   the  Regulations  framed  under  s.  79C  of  the Electricity (Supply)  Act, 1948,  age of retirement fixed at 58 or  60 years  and that those Regulations were notified on 28.5.1972  under   s.  138B  of  the  Industrial  Employment (Standing Orders) Act, 1946. But the Labour Court found that even after  the publication  of those  Regulations  the  new management made  it clear  to the  employees by Government’s Order No.  3679-E/71-23-PB dated  1.7.1979 that  even  after absorption of  the employees their old conditions of service would continue  in the same way and that a similar assurance had been  given to  the second  respondent by  the documents marked as  Ex.B-9 to  B-15 that  the Regulations  would  not apply to  him and he could work so long as he was physically fit without  any age  of retirement. In this view the Labour Court held  that the  second  respondent’s  retirement  from 31.3.1979 inspite  of the  fact that he is physically fit is invalid  in  law  and  it  accordingly  allowed  the  second respondent’s claim as mentioned above.      The Labour Court has not recorded any finding regarding the second  respondent’s actual date of birth. In this Court no argument  was advanced  by the  learned counsel on either

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

side on  that question.  The only  point argued  before this Court  by   Mr.  S.  Markendeya,  learned  counsel  for  the appellants and  Mr.  Hari  Swarup,  learned  Senior  counsel appearing for  the second  respondent was  as to the binding nature of  the Regulations  framed by  the Electricity Board under s.79C of the Electricity (Supply) Act, 1948 fixing age of retirement  as 58  years in  regard to  workmen like  the second respondent  who  were  originally  employees  of  the Kanpur Electricity  Supply  Corporation  Limited.  By  Order dated 3.10.1978  of the  General Manager  of the  U.P. State Electricity Board  in the  department of  Kanpur Electricity Supply Administration  eleven employees including the second respondent  were   retired   on   attaining   the   age   of superannuation with  effect from 31.3.1979 on the basis that according to  the Board’s  records they  were completing  58 years on  that date.  There is no dispute that the Board has framed Regulations  under s.79C  of the Electricity (Supply) Act, 1948 fixing the age of retirement of employees like the second respondent  at 58 years and that the Regulations have been notified  under  s.13B  of  the  Industrial  Employment (Standing Orders) Act, 1946. Mr. Hari Swarup admitted before us that  the Regulations  have statutory  force. The  Member Secretary of 286 the U.P. State Electricity Board had informed the government employees whose  Services had  been lent  to  the  Board  on deputation  that   their  salary,   allowances   and   other conditions of  service shall be governed by Regulations made by the  Board under  s.79C of  the Electricity (Supply) Act, 1948 from  time to  time. It is not disputed that the second respondent had  thereafter exercised  his option to serve in the U.P.  State Electricity Board. The second respondent is, therefore, bound  by the  Regulation by  which  the  age  of retirement has been fixed in regard to employees like him at 58 years.  A similar  question arose before a Division Bench of the  Allahabad High  Court in  Bhai Lal  and  another  v. Superintending Engineer, Allahabad where it has been held as follows:           "Once the  regulations framed under s.79(c) of the      Electricity (Supply)  Act, 1948  have been  notified by      the State  Government under  s.13-B of  the  Industrial      Employment (Standing  Orders) Act,  the standing orders      framed by  the erstwhile  licencee to  the extent  they      concerned the  subject dealt  with by  the  regulations      became ineffective  and inoperative and that in respect      of such  matter, the  right of  the  parties  would  be      governed only  by the  regulation so  notified. In  the      circumstances even  if it  be a  fact that the standing      orders framed  by the  erstwhile licencee  contained  a      clause specifying  an age  higher then 58 years, as age      of superannuation for its employees, the employee would      none-the-less, as  provided in the notified regulation,      be superannuated at the age of 58 years."      A similar  question arose  before this  Court  in  U.P. State Electricity  Board and others v. Hari Shanker Jain and others to  which two  of us  were parties. There it has been held that  the Industrial  Employment (Standing Orders) Act, 1946 is a special law in regard to the matters enumerated in the schedule  and the  regulations made  by the  Electricity Board with  respect to any of those matters are of no effect unless  such   regulations  are   either  notified   by  the Government  under  s.13B  or  certified  by  the  Certifying Officer under  s. 5  of the  Industrial Employment (Standing Orders) Act,  1946. In regard to matters in respect of which regulations made  by the Board have not been notified by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

Governor or  in respect  of which  no regulations  have been made by the Board, the Industrial Employment (Standing 287 Orders) Act  shall continue  to  apply.  In  that  case  the regulation made  by the  Board with  regard to  the  age  of superannuation had  been duly notified by the Government and it  has   been  held   that  the   regulation   had   effect notwithstanding the fact that it was a matter which could be the  subject   matter  of  standing  orders  the  Industrial Employment  (Standing   Orders)  Act,   1946  and  that  the respondents in  that appeal  had been  properly retired when they attained  the age  of 58 years. In view of the admitted fact that the regulations framed by the Board under s.79C of the Electricity (Supply) Act, 1948 have been notified by the Government  under   s.  13B  of  the  Industrial  Employment (Standing  Orders)   Act,  1946  we  hold  that  the  second respondent is bound by those regulations in which the age of retirement has bean admittedly fixed at 58 years and that he has no  reason to  complain against  his retirement  on that basis with  effect from 31.3.1979. The appeal is accordingly allowed and  the order  of the appellant retiring the second respondent with  effect from  31.3.1979 is  upheld.  It  is, however, made  clear that the second respondent shall not be liable to  refund any amount paid to him under orders of the Court pending  these proceedings  and that he is entitled to draw the  sum of  Rs. 2,000  which has  been directed  to be deposited towards his costs in this appeal. P.B.R.                                       Appeal allowed. 288