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PETITIONER: DUNLOP INDIA LIMITED

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT10/03/1972

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. MITTER, G.K.

CITATION:  1972 AIR 2326            1972 SCR  (3) 741  1972 SCC  (3) 616

ACT:        Industrial    Dispute--Retirement     age--Industrial Tribunal--Jurisdiction  to  fix retirement  age--Workman  if bound by agreement by Union of which he is not a member.

HEADNOTE: In 1955 the appellant Company framed and brought into  force Standing  Orders under which a staff employee was to  retire at the age of 55. The  Company  in 1956, entered  into  an agreement  with  its workmen, represented by the  union,  of which  all  the  workmen of the company  were  members.  The agreement,  among other things, fixed the retirement age  at 55.  Notwithstanding  this agreement the  Company  issued  a Circular in 1960 to the effect that the management will  not require  any employee to retire before attaining the age  of 58  years.  In 1961, the Company entered into  an  agreement with  one of the three unions of the workmen  regarding  the conditions  of  employment. The agreement provided  that  an employee  shall  retire at the age of 58. On the  expiry  of this  agreement a fresh agreement was entered into with  the same union in 1966.On one of the workmen attaining 58  years the  Company  passed  an  order  retiring  the  workman.  An industrial  dispute  was raised and it was referred  to  the Tribunal for adjudication. The  Tribunal  recorded the findings that when  the  workman joined  the  service of the Company in 1944  there  were  no Standing  Orders, rules or regulations regarding the age  of retirement;  that though the workman was bound by  the  1956 agreement  the  Company did not give effect to  the  age  of retirement  of 55 years as provided in the  agreement;  that the 1961 and 1966 agreements were entered into with a  Union of which the workman was not a member and, therefore, he was not bound by the agreement; and that in view of the decision of this Court in Guest Keen, William Ltd. v. P. J.  Sterling [1960]  1  S.C.R.  348 the workman was  entitled  to  be  in service  till  his attaining the age of 60 years.  On  these findings  the Tribunal held the order retiring  the  workman illegal  and declared that he was entitled to be  reinstated and  continue  in  service till he attained the  age  of  60 years. In the appeal by special leave it was contended that (i) the tribunal  having  held  that the workman was  bound  by  the

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agreement  of  1956 should have held that  the  workman  was bound  to retire at the age of 55 years as provided  therein or at any rate as per the Standing Orders framed in 1955 and in  this  view  it  should have  held  the  Company’s  order retiring  the workman at 58 legal; (ii) the tribunal  should have  held  the agreement of 1961 and 1966  binding  on  the workman,  especially  as he had enjoyed  the  various  other benefits  conferred  by  them; and (iii) in  any  event  the tribunal  had  no jurisdiction to give a  direction  to  the company to continue the workman till he attained the age  of 60 years. HELD  : That the Award of the Industrial Tribunal had to  be confirmed and the appeal dismissed. (i) Though the workman entered the service of the company in 1944,he  is  bound  by the Standing  Orders  framed  by  the company in 1955 742 as  much as he was a workman and employed at the  time  when the standing Orders were certified. [748 H] Agra Electricity Supply Co. Ltd. v. Sri Alladin and  others, [1970] 1 .C.R. 808; Guest Keen Willams Private Ltd. v. P. J. Sterling  and  others,  [1960]  1  S.C.R.  348;  Workmen  of Kettlewell  Bullen  & Co. v. Kettlewell ullen  &  Co.  Ltd., [1964] 2 L.L.J. 146 and Salem Erode Electricity Distribution Company  Ltd.  v. Salem Erode Electricity  Distribution  Co. Ltd.  Employees" Union, [1966] 2 S.C.R. 498, referred to. The 1956 agreement was a valid agreement and as rightly held by Tribunal it was binding on the concerned workman. But,  the Tribunal’s finding that the agreement of 1956  had not  been n effect to is justified.  From the 1960  circular and  other  circumstances it is clear  that  the  management decided not to retire, any employee attaining the age of  58 years  though  the  age of retirement was  years  under  the Standing  Orders framed in 1955 and under the  agreement  of 1956. [749 E] The  Dunlop Rubber Co. (India) Ltd. v. Workmen  and  Others, [1960] S.C.R. 51, referred to. (ii)The  agreements of 1961 and 1966 will bind only such  of the  employees as were members of the Union which was  party to the. The concerned workman was not a member of the  Union was  a party to the agreement.  Therefore, the Tribunal  was justified 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 to operate as a bar to disputing the right of the management to retire him at the age of 58 years; it is  only when the clause relating to the age of retirement is  sought to be enforced that he can raise a controversy. [751 H] (iii) The Tribunal is justified 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 continue till be  attained the age of 60 years. [752 E] Guest  Keen  Williams  Private Ltd. v. P.  J.  Sterling  and Others, [1960] 1 S.C.R. 348, Workmen of Kettlewell Bullen  & Co. Ltd. v. Kettle well Bullen & Co. Ltd.,. [1964] 2  L.L.J. 146 and Agra Electricity Supply Co.  Ltd. v. Sri Alladih and others, [1970] 1 S.C.R. 808, referred to. This  Court had emphasised that industrial  adjudication  in India  being based on industry-cum-region basis,  industrial tribunals have jurisdiction to make     a"   changes  in   a Uniform  Scheme so that it might accord with the  prevailing conditions  in the region where the employees were  working, as  the  changes  found necessary by the  tribunal  were  to ensure fair conditions of service. [752 H]

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Further  the trend in West Bengal region is the fix the  age of retirement at 60 years for the clerical and  subordinate staff. [753 D] The  Dunlop Rubber Co. (India) Ltd. v. Workmen  and  others, [1960] 2 S.C.R. 51, M/v, British Paints (India) Ltd. v. Its Workmen, [1966] 2 S.C.R. 523, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1490  of 1968. 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. D. Pai and D. N. Gupta, for the appellant. D.  L. Sen Gupta, Janardan Sharma and S. K. Nandy,  far  the respondents. The Judgment of the Court was delivered by Vaidiyalingam, J. This appeal, by special leave, is directed against  the  award  dated February 29, 1968  of  the  Fifth Industrial  Tribunal, West Bengal, in Case No. 334 of  1967, setting  aside the order dated August 2, 1966 passed by  the appellant directing the retirement of the concerned  workman on his attaining the age of 5 8 years. The  appellant is a Joint Stock Company  incorporated  under the Companies Act, 1956.  It carries on business  throughout India  as  manufacturers  and 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 orders relating to its staff  employees.  Under clause 28 of the Standing Orders  a staff  employee  as  to retire on  the  first  January  next following the year in 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 normally 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  a&  of good health. In 1956 an agreement was entered into between the, appellant and  its  workmen represented by the Dunlop  Rubber  Factory Labour  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. Notwithstanding  this  agreement  under  which  the  age  of retirement  of a staff employee was 55 years, the  appellant issued  a Circular on April 20, 1960 to the effect that  the management  will  not  ask any  employee  to  retire  before attaining  the,  age of 58 years.  In this  Circular,  after referring   to the uniform age of retirement in West  Bengal of  employees in Government and Commercial Establishment  as the  age  of  55 years, it is  stated  that  the  Industrial Tribunals throughout the 744 country  have  fixed the age of retirement varying  from  55 years to 60 years. On June 29, 1961, an agreement was entered into between  the appellant  and  the  Dunlop  Rubber  Factory  Labour   Union regarding   the  terms  of  engagement  and  conditions   of

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employment  of  staff employees.  The agreement  deals  with various matters.  Clause 14 of this agreement provided  that the staff employees shall retire at the end of the month  in which  they  attain the age of 58 years.  This  clause  also provides  for a staff employee retiring when he is  declared unfit  on  medical  ground.  Clause  27  provided  that  the agreement was to take effect from 1st January, 1961 and  was to  remain in force for five years from that date.  In  view of the expiry of the above agreement, the appellant and  the same  Union entered, into a fresh agreement 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 attain the age of 58 years.   Clause 32  provided that the agreement was to have effect 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 attaining the age of  58 years  on  February  15,  1967.   The  workman  replied   on September 7, 1966 stating that he was not bound to retire on completion of 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  years  of age.  In this  reply  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  fixing  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  November  4, 1966 reiterating its stand that the workman was to retire as mentioned in the letter dated August 2, 1966.  The appellant further  stated that though the age of retirement was  fixed as 55 years in the Standing Orders dated April 26, 1955, the age  was  raised  to 58 years in  the  agreements  with  the recognised  Union and that the said terms bad been  accepted by  the  employees of the appellant  including  the  workman concerned, The appellant sent a further communication  dated February  25, 1967 to the workman stating that he was  bound by the age of retirement fixed in the agreements 745 dated  June 29, 1961 and December 6, 1966.  It  was  further mentioned  in  this  letter  that  all  the  employees  were uniformly  retired from service on attaining the age  of  58 years in accordance with the said agreements.  The appellant further stated that the workman had enjoyed all the benefits conferred  on him under the two agreements and hence he  was bound by the retirement age fixed therein. As  conciliation proceedings failed, the Government of  West Bengal  referred  to the Industrial Tribunal  concerned  for adjudication the question :               "Whether   the  retirement  of  Shri   H.   N.               Bhattacharyya is justified ? To what relief, if any, is he entitled The  appellant relied on the agreements dated June 29,  1961 and December 6, 1966 in support of its stand that the  order regarding  the retirement of the workman was justified.   In fact  the Company raised a plea that the  concerned  workman was bound by the agreement of 1956 entered into between  the appellant and the Dunlop Rubber Factory Labour Union  fixing the  age of retirement of its employees at 5 5 years on  the

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ground that the workman was a member of the said Union.   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 on 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  continue 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 (1).  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 agreements either of June 29, 1961  or of December 6, 1966 as the Union, which was a party to those agreements  did  not  represent all the  employees  of  the, appellant  including  the  concerned  workman.   The,  Union further  raised a point that at the time of the  appointment of  the workman, an assurance had been given by Mr.  Edward, Employment  Officer  of the Company, that  the  workman  can continue in service so long as he was found to be physically fit. The  Tribunal has recorded the following findings : At  the, time  when the concerned workman joined the services of  the appellant,   there  were  no  Standing  Orders,   Rules   or Regulations regarding the (1) [1960] 1 S.C.R. 348. 746 age  of  retirement.  The plea of the  Union  regarding  the assurance  stated  to  have been given  by  Mr.  Edward  was rejected.  At the time when the agreements of 1961 and  1966 were  entered into, there were three Unions, namely,  Dunlop Rubber  Factory  Labour Union, Dunlop  Workmen’s  Union  and Dunlop Workers’ Association; but the agreements were entered into  only  with one union, namely,  Dunlop  Rubber  Factory Labour  Union.   The con 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 agreements,  and  therefore, the workman was  not  bound  by those agreements.  In 1966 there was only one Union, namely, Dunlop  Rubber  Factory Labour Union, representing  all  the employees  of  the Company, and therefore  the  workman  was bound  by  the agreement of 1956.  But the Company  did  not give effect to the age of retirement 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(1), the concerned workman was  entitled to  be  in service till his attaining the age of  60  years. The  Company’s  plea  that as the workman  had  enjoyed  the benefits conferred on all employees under 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  can 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 passed by  the appellant is illegal and it also declared the  right of the concerned workman to be reinstated with all  benefits mind  that  he is entitled to continue in  service  till  he attains the age of years. Mr.  G.  B. Pai, learned counsel for the  appellant,  raised three  contentions : (1) The Tribunal, having held that  the concerned workman was bound by the agreement of 1956, should have held that the workman was bound to retire at the age of

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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 of 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 retirement at 58 years were not binding on  the concerned  workman.  On the other hand, it should have  held that those agreements were binding on the, concerned workman especially  as  he had enjoyed the  various  other  benefits conferred  by them; and (3) In any even the Tribunal had  no jurisdiction to,give a direction to the Company to  continue the concerned workman in service till-he attained the age of 60 years. (1) [1960] 1 S.C.R. 348 747 Mr. D. L. Sen Gupta, learned counsel for the Union, pointed out that the findings of the Tribunal that the agreement  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 regarding the binding nature of the agreement.  In  the alternative  he contended that the age of retirement  of  55 years as provided in cl. 28 of the Standing Orders framed in 1955  or in cl. 14 of the agreement of 1956, has never  been 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  ware rightly held to be not binding on the concerned, workman, as the  concerned 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  appellant  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 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 ’An  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. We  have already referred to the fact that the Tribunal  has disbelieved  the  care set up by the workman  regarding  the assurance  stated  to  have been given at the  time  of  his appoi ntment by the Employment Officer, Mr. Edward.  At  the time  when the workman entered the service of the  appellant in  1944,  admittedly  there were no  rules  regulations  or agreements  regarding the age of   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 felying  on  the  decision  of this  Court  in  Guest,  Keen Williams,  Private Ltd. v. P. I. Sterling and others(1)  and Workmen  of  Kettlewell Bullen   & Co., Ltd.  v.  Kettlewell Bullen & Co. Ltd.(2) has held that the 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 employees have accepted the new rules as  part  of their  conditions  of service, they are entitled  to  be  in

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service till they attain the age of 60 years.  In support of his 1st conten- (1) [1960] 1 S.C.R. 348. (2) [1964] 2 L.L.J. 146. 748 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(1). On the basis of the, said decision,  he contended that the Standing Orders  framed  in 1955  providing  in  cl.  28 the age  of  retirement  of  an employee  as 5 5 years, is binding on the appellant,  though the  Standing Orders were framed long after he  had  entered service.   The  counsel further  re-enforced  this  argument relying  on  the agreement of 1956 and the  finding  of  the Tribunal  that  the  said  agreement  was  binding  on   the concerned  an.  Mr. Pai urged that the  agreement  of  1956, which  is ing on the concerned workman, clearly  establishes that  the represented by the Union including  the  concerned workhave  accepted the rule regarding the age of  retirement as part their conditions of service.  In short, according to Mr.  Pai when concerned workman is entitled to  continue  in service only till age of 55 years, he has really been  given a benefit by being allowed to continue till he attained  the age of 58 years. Normally the above contention of Mr. Pai will have consider- force.   The  decision  in  Guest,  Keen,  Williams  Private Ltd.  .P. J. Sterling and others (2 ) as to why the  age  of retirement of years was fixed to employees who have been  in service before Standing Orders fixing the age of  retirement were  framed,  has en explained in Salem  Erode  Electricity Distribution   Company  td.  v.  Salem   Erode   Electricity Distribution  Co. Ltd.  Employees’ nion(3).  In  fact,  both the  decisions in Guest, Keen, Williams, vate Ltd. v. P.  J. Sterling  and others(1) and Workmen of Kettle Bullen  &  Co. Ltd.  v. Kettlewell Bullen & Co. Ltd.(2) have een  explained in  Agra  Electricity  Supply Co. Ltd.  v.  Sri  Alladin  nd o’hers(1).   In the latest decision, after a review  of  the proviions  of  the Industrial Employment  (Standing  Orders) Act,  1946, has been held that when the Standing Orders  are certified and ome into operation, they become binding on the employer  and  all workmen presently employed as  also  hose employed  thereafter  the establishment  conducted  by  that employer.  It has been further held that it cannot  possibly be  that such Standing Orders would bin only those  who  are employed  after  they  come into force  and  those  who  are employed previously, but are still in employment n they come into force. Applying the principles laid down in Agra Electricity Supply Co.   Ltd.  v. Sri Alladin and others(1), it is  clear  that though the concerned workman, in the case before us, entered service  of  the  ellant in 1944, he will be  bound  by  the Standing Orders framed appellant in 1955 after following the provisions  of the relestatute inasmuch as he was a  workman presently  employed the time when the Standing  Orders  were certified. (1) [1970] 1 S.C.R. 808. (3) [1966] 2 S.C.R. 498. (2) [1960] 1 S.C.R. 348. (4) [1964] 2 L.L.J. 146. 749 Though Mr. Sen Gupta has been able to draw our attention  to certain protests made by the workman regarding the agreement of 195 6, in our opinion, the, finding of the Tribunal  that the concerned workman was bound by the said agreement has to

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be accepted.  There is no controversy that in 1956 there was only one union, namely, Dunlop Rubber Factory Labour  Union. There  is  further  no  controversy  that  the  said   union represented all  the  employees  of  the  Company.    The agreement  was entered into 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 concerned workman.  Clause 14 of the said agreement clearly  specifies that  a staff employee should 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  Orders framed in 1955 as part of their  conditions of service.  If 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 contention 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 agreement  of  1956  has not been given  effect  to  by  the appellant.  This finding is attacked by Mr. Pai.  Even here, in  our opinion, the finding of the Tribunal  is  justified. That  the  retirement  age  provided under  cl.  14  of  the agreement  of  1956  was not acted  upon  by  the  appellant Company  is  clear from the following  circumstances  :  The appellant issued a circular on April 20, 1960 to the  effect that  themanagement  will  not ask any  employee  to  retire before,  attaining  the  age  of  58  years.   In  the  said circular,  it  is  stated that the question  of  fixing  the retiring  age  of  employees, both  in  public  and  private sectors,  has received considerable attention and  publicity and  that in West Bengal though the retiring age  is  almost uniformly  55 years, in Government service, the,  Industrial Tribunals  throughout  the  country  have  awarded  ages  of retir ement varying from 55 to 60.  From this circular it is clear  that  the management have decided not to  retire  any employee  before attaining the age of 58 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  agree- ment of 1956. It  is also pertinent to note that in Bombay area,  disputes were raised by the employees of the appellant regarding  the age  of retirement for clerical and subordinate staff to  be raised from 55 to 60 years.  The Industrial Tribunal  raised the  age  of  retirement to 60 years.   The,  appellant  had challenged  the decision-,of the Industrial Tribunal  before this Court.  This Court in.its decision 2-L106 SupCI/72 750 in  The  Dunlop  Rubber  Co. (India)  Ltd.  v.  Workmen  and others(1), 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  June  29, 1961  fixing  the  age  of retirement at 58 years.  The game 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 appellant 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 5 8. Admittedly, as on January  1,

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1963,  the concerned workman was over 52 years and as  such by  virtue,of  this letter he was entitled  to  continue  in service  till the age of 60 years.  All these  circumstances 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.  1,  as containing  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 been 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 in which they  have attained  55  years  of  age.   We  have  gone  through  the particulars  mentioned  therein.  A perusal of  the  details mentioned  in columns 5 and 6 relating to date of birth  and 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  April  1, 1956, i.e., at about the age of 62 years.  Similarly, serial No. 12, Dasurathi Bose, who was born on May 22, 1891 retired only on April 1, 1956, i.e., when he was about 65 years.  We do  not  want  to  multiply  instances,  because  there  are perso ns  who have retired at the age of 59 and  long  after attaining  the  age  of  58.   The  list  furnished  by  the appellant  itself to establish that the 1956  agreement  was given effect to regarding 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 been put to the Company’s witness in which case an explanation  would  have been offered.  When the  facts  and particulars (1)  [1960] 2 S.C.R.51. 751 in  Ex.   1 are quite clear and when  the  appellant  itself relied on that document to establish that the members of the staff were superannuated at the age of 55 years, it was  its duty  to  offer satisfactory explanation, if  one  such  was avail-able, to show why very many officers mentioned therein were continued in service long after attaining the age of 55 years. From  what is stated above, the contention of Mr.  Pai  that the  Tribunal’s finding that the agreement of 1956  has  not been  acted upon, is erroneous, cannot be accepted.  If  so, it follows that the first contention of Mr. Pai will have to be rejected. Coming to the second contention of Mr. Pai, the agreement of 1966,  it can be safely left out of account as it came  into effect only on December 6, 1966 long after the notice  dated August  2,  1966 issued 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, that there were three labour  unions, namely, Dunlop Rubber Factory Labour  Union, 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

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of retirement at 58 had been fixed in the Standing Orders of the  Company after following the procedure indicated 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 au 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  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 not bound by the agreements of  1961 and  1966 and the Tribunal was also justified  in  upholding that contention. Mr.  Pai  then urged that the agreements 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,  cannot  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 age of retirement is sought to be enforced that he can raise a contro- 752 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  illegal,  the Tribunal  had  necessarily  to consider what is the proper retirement age for the concerned workman.   It  is  only when a fin-ding is  given  that  the concerned  workman is entitled to continue beyond  58  years that  the  \Tribunal  can  hold the  order  of  the  Company directing  his retirement at 5 8 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(1) and  Workmen of Kettlewell Bullen & Co.  Ltd. v.  Kettlewell Bullen  &  Cc,.   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  regarding the  age  of  superannuation, was entitled  to  continue  in service  till  he  attained  the age  of  60  years.   Those decisions prima facie support the view of the Tribunal  that the  concerned workman, in the present case, is entitled  to centinue  in, service till he attained the age of 60  years. We  have  already  referred  to  tile  fact  that  the  said decisions  have  been  explained  by  this  Court  in   Agra Electricity Supply Co. Ltd. v. Sri Alladin and others(3). However,  the  finding of the Tribunal  that  the  concerned workman was entitled to 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(1) relating to the  age  of  retirement being 60 years in  respect  of  the appellant’s  staff employed in Bombay region.   Though  that

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decision  related  to  the employees of  the appellant  in Bombay  region, it should be noted that this Court  rejected the  contention  of the Company that it being an  all  India concern  it  should  have  uniform  conditions  of   service throughout  the country for its employees.  It  was  further emphasised  by  this Court that industrial  adjudication  in India   being  based  on  industry-cum-region   basis,   the Industrial  Tribunals  have jurisdiction to  make  necessary changes in a uniform scheme so that it might accord with the prevailing  conditions  ’in the region where  the  employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service. (1)  [1960] I S.C.R. 348. (3)  [1970] 1 S.C.R. 808. (2)  [1964] 2 L.L.J. 146. (4)  [1960] 2 S.C.R. 51. 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 decisions in other  regions  to show  that  the trend is to fix the age  of  retirement  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. Its  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 the uniform  age was fixed for the factory workmen also in that case  because of the particular nature 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,  entitled to continue in service till 60 years is justified. The  result is that the Award of the Industrial Tribunal  is confirmed and this appeal dismissed with costs. K.B.N.                        Appeal dismissed. (1) [1966] 2. S.C.R. 523. 754