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PETITIONER: G.   M. TALANG AND OTHERS

       Vs.

RESPONDENT: SHAW WALLACE AND CO.  AND ANR

DATE OF JUDGMENT: 24/03/1964

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.

CITATION:  1964 AIR 1886            1964 SCR  (7) 422  CITATOR INFO :  RF         1967 SC 948  (34)  E          1984 SC 356  (2,4,8,9)  R          1987 SC  51  (6)

ACT: Industrial Dispute-Age of Retirement-Trend in Bombay Region- Conclusion  in earlier decision recorded by  Supreme  Court- Enquiry   as   to  accuracy   thereof-Industrial   Tribunal- Propriety.

HEADNOTE: Shortly after the extension of the age of retirement from 55 to 58 subject to the employee passing a medical  examination at  55 in the respondent-company’s Head Office at  Calcutta, their workmen at Bombay branch raised an industrial  dispute claiming the extension of their age of retirement from 55 to 60.   The dispute was referred to the  Industrial  Tribunal. The  company  resisted  the  claim  but  was  agreeable   to introduce similar provisions as introduced at Calcutta.  The difficulty   in  accepting  the  company’s  case   was   the conclusion  recorded  by the Supreme Court  in  its  earlier decisions that the trend in Bombay region was to fix the age at  60.   So the Tribunal considered it to be  its  duty  to enquire whether the conclusion recorded by the Supreme Court was accurate and ultimately persuaded itself to hold that no such  trend was established in fact, and directed  that  the age of retirement should be 58. Held:     (i)   After  careful  consideration  of  all   the materials placed on this   record,  there  was  nothing   to justify any doubt about the   correctness  of what was  said on the earlier occasion by this Court.  The approach adopted by  the Tribunal in dealing with this aspect of the  problem is not very commendable and its present conclusion that what was said by itself on an earlier occasion and was  confirmed by  this Court in appeal, was in fact inaccurate, is on  the whole unsound. What  the  Tribunal has failed to notice is  that  instances which  may  justify  a  revision  of  the  judicial  opinion expressed  on an earlier occasion about a  particular  trend must  be strong and unambiguous and they must speak for  the period both before and more particularly after the  previous

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finding had been recorded in the matter. (ii) The  information furnished by the several documents  on this  record clearly show a consistent trend in  the  Bombay region to fix the retirement age of clerical and subordinate staff at 60. Imperial  Chemical Industries (India) Private Ltd. v.  Their Workmen,  [1961] 2 S.C.R. 349 and Dunlop Rubber Co. Ltd.  v. Workmen [1960] 2 S.C.R. 51, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 513 of  1963. Appeal  by special leave from the Award dated December  1961 of  the Maharashtra Industrial Tribunal in Reference  (I.T.) No. 48 of 1961. S.   V.  Gupte, Additional Solicitor-General, C. L.  Dudhia, K.   T. Sule, Atiqur Rahman and K. L. Hathi, for the  appel- lants. 425 M.   C.  Setalvad,  N. V. Phadke, J. B.  Dadachanji,  O.  C. Mathur and Ravinder Narain, for the respondent No. 1. March 24, 1964.  The Judgment of the Court was delivered by DAS  GUPTA,  J.--This  appeal arises out  of  an  industrial -dispute  as  regards  the age  of  retirement.   The  first respondent, Shaw Wallace & Co., was incorporated in January, 1946 as a Private Limited Company to take over the  business of the partnership firm of the Shaw Wallace & Co., which had been ,doing business in India for about 60 years.  In  July. 1947 the Private Limited Company was converted into a Public Limited  Company.   The  Head Office of the  Company  is  at Calcutta.  It has Branches in Bombay, Delhi and Via  Madras. The general practice of the Company both at the Head  Office and  the Branch Offices appears to have been to  retire  its employees  at  the  age of 55 though in  certain  cases  the Company in its discretion permitted an employee to  continue beyond  that  age.   In September,  1959  an  agreement  was entered  into  between  the Company  and  its  employees  at Calcutta  under which the age of retirement was extended  to 58  years  subject  to  the  employees  passing  a   medical examination on reaching the age ,of 55.  Shortly after  this the Company’s employees at Bombay raised a dispute regarding their  retirement age.  They claimed that no workman  should be retired from service before he bad completed 60 years  of age.  This dispute was ultimately referred to the Industrial Tribunal,  Maharashtra.   Before the  Tribunal  the  Company resisted  the  workmen’s  claim but submitted  that  it  was agreeable  to introduce for its Bombay employees  provisions similar to those which had been introduced by agreement  for the  Calcutta employees-retirement at the age of 58  subject to  the employee passing a medical examination  on  reaching the age of 55. The Tribunal has directed that the age of retirement  should be  58  but the Company may in its discretion and  with  the express  or  implied  consent  of  the  employee   concerned continue  an  employee  after he attains that  age.   It  is against this decision that the present appeal has been filed by the workmen. As has already been noticed there is no dispute that the age of  compulsory  retirement  should not remain  at  55.   The dispute is whether it should be fixed at 58 or at 60.  It is interesting  to refer in this connection to the  information that  has been collected by the Pay Commission (1957-59)  as regards  the pensionable ages prescribed under  the  Pension Insurance Schemes for employees generally or for industrial

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426 employees  and under social assistance or universal  schemes in  forty-eight  countries in 1954.  According to  this  the pensionable  age is 70 in two countries; 67 in another  two; 65 in twenty-four, 60 in seventeen, 55 in two and 50 in one. Thus out of 48 countries for which information was available it  was found that in 45 countries the pensionable  age  was fixed  at 60 or more.  As the Pay Commission Report  pointed out: - -               "This is particularly remarkable,  considering               that   the   countries   differ   widely    in               demographic  constitution, levels of  economic               development,    and   climatic   and    social               condition;   and   it  indicates   a   virtual               unanimity of competent opinion that  balancing               the  various  factors-physiological,  economic               and  social  -that are  relevant,  the  normal               working life should continue up to the age  of               60, and may well go on up to 65 years. It is undoubtedly more useful, however, and indeed essential for our present purpose to examine the trends in this matter in our own country and specially in the region in which  the present dispute has arisen.  In the delicate task of adjust- ing needs of the employees to the interests of the employers and what is even more important to the general interests  of the  country  at large, industrial adjudication has  to  pay special   attention  to  the  prevailing  practice  in   the industrial  region concerned.  If in any  particular  region employees have been successful in their claim for fixing the age of retirement at 60 this very success is bound to  raise in  others in the region similar expectations.   Refusal  of similar  relief to them is likely to create discontent.   It is the endeavour of industrial adjudication to prevent this. That  is why on questions of age of retirement and hours  of work  and other similar matters industrial tribunals  attach much  weight  to  what has been  done  in  other  industrial concerns  in  the neighbourhood in  recent  timeswhether  by agreement or by adjudication. In support of their demand for fixing the age of  retirement at  60  the workmen tried to show that in  recent  years  at least  the tendency in comparable concerns in Bombay  region has  been to fix the retirement age at 60.  The Chart  which is marked Ex.  U-5 mentions 50 concerns in which the age  of retirement  is  60.  In several of these this age  had  been fixed  as  far back as 1950 while in the rest  the  age  was fixed  in later years, that is, between 1952 and 1961.   The workmen  claim that these showed clearly a tendency  in  the Bombay  region  to fix the age of retirement  in  comparable concerns  at  60. Special emphasis was naturally  placed  on some decisions of this Court which contained  pronouncements as  regards  the  existence of such a  trend.   In  Imperial Chemical Industries 427 (India)  Private Ltd., v. The Workmen(1) where the  Tribunal had  raised  the age of retirement from 55 to  58  and  both parties  appealed,  this Court pointed out that one  of  the documents  on  the record "would conclusively show  that  in Bombay  the age of retirement is almost invariably fixed  at 60 and not at 55".  In an earlier decision of this Court  in Dunzlop  Rubber  Co. Ltd., v. Workmen(2) it had  been  urged that the employer was an All India concern and that changing the terms and conditions of service in regard to the age  of retirement  in one place might unsettle the  uniformity  and might  have  serious repercussions in other  branches.   The Court   pointed  out  that  though  this  was   a   relevant

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consideration  its effect had to be judged in the  light  of other  material and relevant circumstances, and that one  of the  important  material considerations in  this  connection would  be  that the age of retirement can be  and  often  is determined  on  industry-cum-region basis.  The  Court  then took into account the fact that the Tribunal had found  that in  all  the awards in recent times in various  concerns  in Bombay  region the trend had been to fix the age of  retire- ment at 60 years.  It was mainly in view of this finding  of the  Tribunal that this Court refused to disturb  the  award fixing  the age of retirement at 60 years.  It is  important to  notice  that the correctness of the  Tribunal’s  finding that in all the awards in recent times in the Bombay  region the  trend had been to fix the retirement age at  60  years, was not challenged before this Court In the present case an attempt appears to have been made  on behalf  of  the respondent Company to show that it  was  not correct  to say that the trend in Bombay region had been  to fix  the age of retirement at 60.  Reliance was  placed  for this purpose on the Chart Ex.  Cl.  It appears that the res- pondent  company wrote to the Bombay Chamber of Commerce  to ascertain  from  its member-concerns as regards the  age  of retirement  observed  by them and the  information  received from some of them was incorporated in this Chart.  The work- men  objected  to  this being received in  evidence  on  the ground that the original letters had not been brought on the record.  It is not however seriously disputed that the Chart correctly  reproduces the information as regards the age  of retirement  given by the various concerns named  there.   We think  therefore that the objection was rightly rejected  by the Tribunal.  This Chart shows the age of retirement for 75 concerns.   In  most of the cases the age of  retirement  is shown as 55 and in a few at 58.  At first sight therefore it appears to afford impressive (1) [1961] 2 S.C.R. 349. (2) [1960] 2 S.C.R. 51. 428 testimony  against the workmen’s case that the recent  trend in Bombay has been to fix the age of retirement at 60.   But on a closer examination it is clear that this document is of little  assistance for finding out the recent trend.   There is  no  indication  at all as to how long  ago  the  age  of retirement in these concerns was fixed at 55 or at 58.   The Statement  filed by the workmen to explain this Chart  shows that  in  two  of  these cases’  viz.,  Ingerzoll  Band  and Northern  Assurance  Co., the demand for fixing the  age  of retirement  at 60 years is under negotiation.   Exhibit  U-6 also  shows  that in 25 of these concerns the  clerical  and subordinate  staff  were not organised  into  trade  unions. There is thus good ground for thinking that the. reason  why these  concerns have kept the age of retirement at 55 or  58 are special to them and do not show any recent trend in  the matter.   In spite of these infirmities this  document,  Ex. Cl, appears to have impressed the Tribunal.  The main diffi- culty  in accepting the Company’s case on this point,  viz., the  pronouncements of this Court, however,  remained.   So, the Tribunal considered it to be its duty to enquire whether the conclusion recorded by this Court in some of its earlier decisions as to the relevant trend in the Bombay region  was accurate.   Having embarked an this enquiry,  the  Tribunal, appears  to  have taken considerable pains to  perform  this duty and it has ultimately persuaded itself to hold that  no such trend is established in fact.  We ought to add in  this connection,  that  the approach adopted by the  Tribunal  in dealing  with  this  aspect  of  the  problem  is  not  very commendable,  and that its present conclusion that what  was

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said  by itself on an earlier occasion and was confirmed  by this  Court  in appeal, was in fact inaccurate,  is  on  the whole unsound. If  this Court had erred in making those  pronouncements  we would be the first to admit such mistakes and to correct the error.   After  careful consideration of all  the  materials placed  on this record, we have, however, found  nothing  to justify any doubt about the correctness of what was said  on the  earlier  occasion.   On the contrary,  the  awards  and agreements on the question of age of retirement about  which information  is furnished by the several documents  on  this record clearly show a consistent trend in the Bombay  region to fix the retirement age of clerical and subordinate  staff at 60.  The very few departures from this practice which the Tribunal   has  mentioned  are,  in  our   opinion,   wholly insufficient  to  indicate any slowing down of  this  trend. What  the  Tribunal has failed to notice is  that  instances which  may  justify  a  revision  of  the  judicial  opinion expressed  on an earlier occasion about a  particular  trend must  be strong and unambiguous and they must speak for  the period both before and more particularly after the  previous finding had been recorded in the matter. 429 Notice has also to be taken in this connection of the Report of  the Norms Committee in which the following  opinion  was expressed:-               "After taking into consideration the views  of               the   earlier   Committees   and   Commissions               including  those of the Second Pay  Commission               the   report  of  which  has   been   released               recently, we feel that the retirement age  for               workmen  in all industries should be fixed  at               60.  Accordingly, the norm for retirement  age               is fixed at 60". This  considered  opinion  of  a  Committee  on  which  both employers and employees were represented emphasised the fact that in the Bombay region at least there is a general agree- ment that the age of retirement should be fixed at 60.   The Tribunal has referred to these observations, but has brushed them aside in a way for which we find no justification. On  a  consideration  of all  the  facts  and  circumstances disclosed  by  the  oral and documentary  evidence  on  this record,  we  have  come to the conclusion that  the  age  of retirement of the appellant-workmen should be fixed at 60. Accordingly,  we allow the appeal with costs, and  in  modi- fication  of the award made by the Tribunal direct that  the age of retirement for the workmen of the respondent be fixed at 60. Appeal allowed. 430