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PETITIONER: IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE LIMITED

       Vs.

RESPONDENT: THE WORKMEN(AND CONNECTED APPEAL)

DATE OF JUDGMENT: 14/11/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N.

CITATION:  1961 AIR 1175            1961 SCR  (2) 349  CITATOR INFO :  RF         1964 SC1886  (5)  R          1981 SC1829  (100)  E          1984 SC 356  (2,4,6,11,14,16)

ACT: Industrial  Dispute--Award, if can deprive workmen  of  pre- existing  benefits--Age  of   retirement--Fixation--Relevant considerations--Failure  of  Tribunal to  consider  evidence adduced by parties--Duty of Supreme Court.

HEADNOTE: The  workmen of the Imperial Chemical Industries  at  Bombay claimed,  firstly, twice the employee’s normal rate  of  pay for the work done on Sundays and holidays and secondly  that all  employees  of  the company shall  not  compulsorily  be retired  by  the company before they attain the age  of  60. The company disputed the demands on the grounds that it  had paid  Sunday  and  holiday work allowance  in  terms  of  an earlier  award, and as no change of circumstances had  taken place  since  the  making of the award a  revision  was  not justified ; as for the age of retirement as it bad fixed the retirement age at 55 for all its employees throughout India, any  revision would have repercussion in other  branches  of the company. The  tribunal  partly allowed the claim of the  workmen  and directed  the  company to give the employees  concerned  for work done on Sundays and holidays half a day’s total  salary and  dearness  allowance;  and  for the  work  done  by  the employees on 350 festival holiday, a day’s salary and dearness allowance, but the  employees  would  not  be  entitled  to  a  substituted holiday. The Tribunal in making the distinction between work done  on Sundays on the one hand and festival holidays on the  other, in effect, placed the workmen in worse position than  before the award with respect to the work done on festival holidays and  deprived the workmen of their right to  a  compensatory weekly  off or a substituted holiday, and also of a part  of the  benefits  to which they were entitled  under  the  pre- existing arrangement.

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Further  the Tribunal without taking into consideration  the recent trend in Bombay with regard to the age of  retirement and an important document produced by the workmen in support thereof, which conclusively showed that in Bombay the age of retirement was almost invariably fixed at 60 and not at  55, fixed the age of retirement at 58 years. Held, that the Tribunal in making an award could not deprive the  workmen of the benefits to which they were entitled  to under the pre-existing arrangement and place them in a worse position than before the award when the company did not want any change in its favour.  In the instant case the allowance in  respect  of the work done by the employees  on  festival holidays  would  continue  to  be  in  accordance  with  the practice prevailing before the present dispute arose. Held, further, that in fixing the age of retirement no  hard and  fast  rule  can  be laid down.   The  decision  on  the question  always  depends  on a  proper  assessment  of  the relevant factors and may conceivably vary from case to case. In  industrial adjudication it is generally recognised  that where  an  employer  adopts a fair  and  reasonable  pension scheme  that would play an important part in fixing the  age of  retirement  at  a comparatively  earlier  stage.   If  a retired  employee  can  legitimately  look  forward  to  the prospect  of earning a pension then the  hardship  resulting from early compulsory retirement is considerably mitigated : that  is  why  cases where there is a  fair  and  reasonable scheme  of pension in vogue would not be comparable or  even relevant in dealing with the age of retirement in a  concern where there is no such pension scheme. The recent trend in the Bombay area clearly appears to be to fix the age of retirement at 60.  The material facts in  the instant case being very similar to the facts in the case  of the  Dunlop Rubber Co. (India) Ltd. v. Workmen, the  age  of retirement of workmen concerned should be raised to 60  from 55. Held,  also, that the Supreme Court generally does not  like to  interfere  with  the decision of a Tribunal,  if  it  is satisfied that the Tribunal has reached its conclusion after considering the relevant evidence adduced before it; but  if in  reaching its conclusion the Tribunal loses sight  of  an important  document and fails to take into account  evidence adduced  before  it, it becomes necessary  for  the  Supreme Court to consider whether 351 it  should  interfere with the discretion exercised  by  the Tribunal or not. The Dunlop Rubber Co. (India) Ltd. v. Workmen & Ors.  [1960] 2 S.C.R. 51 relied on. Guest, Keen, Williams Private Ltd. v. P. J. Sterling & Ors., [1960] 1 S.C.R. 348 referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION.  Civil Appeals Nos.  471  and 472  of 1960. Appeals  by  Special  Leave from the Award  dated  the  22nd December,  1959,  of  the Industrial  Tribunal,  Bombay,  in Reference (I.T. No. 163. of 1959). M.   C. Setalvad, Attorney-General for India, S. N.  Andley, J.  B. Dadachanji, Rameshwar Nath and P. L. Vohra,  for  the Appellant (In C.A. No. 471 and Respondent No. 1 in C. A. No. 1 of 1960). C.   L.  Dudhia and K. L. Hathi, for the Respondents (In  C. A. No. 571 of 60 and Appellants in C. A. No. 472 of 60).

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1960.  November 14.  The Judgment of the Court was delivered by GAJENDRAGADKAR  J.-These  two cross  appeals  are(  directed against  the decision of the Industrial Tribunal in  respect of two of the demands referred to it for adjudication.  Five industrial  demands were made against the Imperial  Chemical Industries (India) Private Limited, Bombay (hereafter called the company), by its workmen (hereafter called the workmen), and  they were referred for industrial adjudication  by  the Government  of  Bombay  under s.  10(1)  of  the  Industrial Disputes  Act,  1947  (XIV of  1947).   These  demands  were considered  by the Industrial Tribunal in the light  of  the evidence  adduced  before it by the respective  parties  and decided  on  the merits.  Two of the demands which  are  the subject  matter of the present appeals were demands  Nos.  3 and 5. By demand No. 3 the workmen claimed that for the work done on Sundays and holidays observed by the company  cleri- cal  as  well  as  service staff shall  be  paid  twice  the employee’s  normal rate of pay consisting of  basic  salary, dearness allowance and other allowances if 352 any.   Demand  No.  5  made by  the  workmen  was  that  all employees  of the company shall not be compulsorily  retired by  the company before they attain the age of 60  except  in case  of  voluntary retirement by the  employees  concerned. The company is an All India concern and has its branches  at several  places  in  India.  At  its-  Bombay  office  1,400 employees  are  engaged by the company ; out  of  these  800 employees are concerned with the present dispute; 600 out of them belong to the clerical cadre whereas the remaining  200 belong to the cadre of the subordinate staff. The two demands set out above were disputed by the  company. In  regard to demand No. 3 the company stated that  it  paid Sunday  or  holiday work allowance in terms  of  an  earlier award  known  as  the Naik Award, and since  no  change,  of circumstances  had taken place since the making of the  said award  a revision in the matter of the said payment was  not justified.     The   company   further  claimed   that   the allowance paid  by it to its employees was reasonable,  fair and  adequate.   In  regard  to demand  No.  5  the  company pleaded that since 1950 the company had fixed the retirement age  at 55 for all its employees throughout India, and  that any revision made in that behalf so far as the employees  in the  present  dispute  are  concerned  would  have   serious repercussions in the other branches of the company.  It  was also  urged that the age of retirement fixed by the  company was fair and reasonable.  The company drew attention to  the fact  that  it  pays  a  generous  Provident  Fund  of   10% contribution  from either side which does not exist in  many others concerns in Bombay. In  regard to demand No. 3 the Tribunal has  partly  allowed the  claim  of the workmen and has directed the  company  to give  to the employees concerned, for work done  on  Sundays and  holidays,  half of a day’s total  salary  and  dearness allowance  (calculated  by dividing the total of  the  basic wage, special allowance and dearness allowance for the month by  30).   In regard to the work done by  the  employees  on festival  holidays the Tribunal has purported to order  that the allowance in that behalf should be a day’s salary and                             353 dearness  allowance calculated as above, but employees  will not  be entitled to a substituted holiday.  It is this  part of  the  award that is challenged by the workmen,  in  their appeal. In  regard to demand No. 5 the Tribunal has taken  the  view

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that  a  case  had  been made out by  the  workmen  for  the revision  of the age of retirement fixed by the company  and it has held that it would be reasonable to fix the said  age of  retirement  at  58 instead of  55.   This  direction  is challenged  by the company in its appeal as well as  by  the workmen  in  their  appeal.  The company  contends  that  no change  should  have  been made in the  age  of  retirement, whereas the workmen urge that the retirement age should have been  fixed at 60 instead of 58.  Thus Civil Appeal No.  471 of  1960  filed by the company is concerned  only  with  the fixation of the age of retirement, whereas Civil Appeal  No. 472 of 1960 which has been filed by the workmen is concerned with  the age of retirement as well as the direction  issued by the Tribunal in regard to the payment of allowance to the workmen for work done on festival holidays. In regard to the direction issued by the Tribunal in respect of  work  done on festival holidays it is obvious  that  the impugned direction is due to an oversight.  We have  already pointed  out that whereas the workmen wanted a  revision  of the  practice  prevailing  in  regard  to  the  payment   of allowances for work done on Sundays and holidays the company wanted  the status quo to continue.  The payment  which  the company  was  making  in respect of the  said  work  was  in accordance  with  the Naik Award, and the company  case  was that  there  was  no justification  for  changing  the  said practice.  It is thus obvious that the company did not  want any  change  in  its  favour and to  the  detriment  of  the workmen.   It  was apparently not realised by  the  Tribunal that in making a distinction between work done on Sundays on the  one  hand  and work done on festival  holidays  on  the other, and in making two different directions in respect  of the  said  two categories of work, the Tribunal’s  order  in regard 45 354 to  the  latter category of work would have  the  effect  of placing the workmen in a worse position after the award than before.   The  relevant direction deprives  the  workmen  of their  right to a compensatory weekly off or  a  substituted holiday,  and the inevitable consequence of  this  direction would be ultimately to deprive the workmen of a part of  the benefits  to which they are entitled under the  pre-existing arrangement.   This  position  cannot be and  has  not  been seriously disputed. Therefore we must uphold the plea raised by  Mr. Dudhia on behalf of the workmen and direct  that  in respect  of  work  done on festival  holidays  the  practice prevailing before the present dispute arose should continue. Then,  as  regards  the  age  of  retirement,  the   learned Attorney-General, for the company, has strenuously contended that  the  Tribunal  was in error in  changing  the  age  of retirement  from 55 to 58.  He argues that in  dealing  with this  question  two important facts must be borne  in  mind. The  company  is an All India concern, and it  is  of  great importance   that  the  terms  and  conditions  of   service prevailing  in the several branches of the company all  over the country should be stabilised and made uniform as far  as is reasonably possible, and in the matter of retirement  the company  has  achieved  uniformity  by  fixing  the  age  of retirement at 55 since 1950.  This arrangement should not be disturbed  because  it  would inevitably upset  the  age  of retirement,  in all other branches.  He has also  relied  on the  fact that the general terms and conditions  of  service provided  by the company to its employees are very  liberal, and  he  has made special reference to  the  Provident  Fund which  the  company  has  started for  the  benefit  of  its

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employees.  Even otherwise, so the argument runs, it  cannot be said that it is unreasonable to fix the age of retirement at 55.  In support of these contentions he has relied on the decision of this Court in The Dunlop Rubber Co. (India) Ltd. v. Workmen (1). On  the other hand Mr. Dudhia contends that the decision  of this  Court  in  the case of the Dunlop Company  (1)  is  in favour of the demand made by the (1) [1960] 2 S.C.R. 51. 355 workmen and the Tribunal was in error in not fixing the  age of  retirement  at 60 applying the principles laid  down  by this Court in the case of the Dunlop Company (1).   Besides, he  points  out  that in dealing with the  question  on  the merits the Tribunal has unfortunately failed to consider one important  document  filed by the workmen along  with  their statement  of  the,  claim (Ex.  B).   This  document  would conclusively  show that in Bombay the age of  retirement  is almost invariably fixed at 60 and not at 55. The question about the age of retirement has been considered by  this Court in the case of Guest, Keen, Williams  Private Ltd.  v. P. J. Sterling (2).  In that case  certain  general considerations which may be relevant in determining the  age of  retirement  have  been dismissed.  In the  case  of  the Dunlop  Company (1) the same considerations  were  repeated, and  it was held that the decision of the Tribunal by  which the  age  of  retirement  was fixed  at  60  should  not  be interfered   with.    In  the  latter  case  some   of   the considerations  on  which the learned  Attorney-General  has relied were present.  The employer was an All India  concern and  the argument that changing the terms and conditions  of service  in  regard to the age of retirement  in  one  place might unsettle the uniformity and has serious  repercussions in  other branches was urged and considered by  this  Court. It  was  there  pointed out that  though  the  consideration relied  upon by the employer was relevant and  material  its effect  had to be judged in the light of other material  and relevant  circumstances,  and it was added 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.  It was from this  point  of view  that  the  Court took into account the  fact  that  in Bombay  for  some  time past there has  been  a  progressive tendency  to  fix  the  age of  retirement  at  60,  and  if consistently  with the said tendency the Tribunal fixed  the retirement  age at 60 in the case of the Dunlop Company  (1) this  Court saw no reason to take a different view.  In  our opinion, in so (1) [1960] 2 S.C.R 51 (2) [1960] 1 S.C.R 348. 356 far as the considerations on which the company relies in the present  appeal were common to the considerations  urged  in the  case  of  the Dunlop Company (1) the  decision  in  the latter  case  is more in favour of the workmen than  of  the company. It is true that in matters of this kind this Court generally does  not  like  to  interfere with  the  decisions  of  the Tribunal  if it is satisfied that the Tribunal  has  reached its  conclusions  after considering  the  relevant  evidence adduced before it.  There is no doubt that in fixing the age of  retirement no hard and fast rule can be laid down.   The decision  on  the question would always depend on  a  proper assessment of the relevant factors and may conceivably  vary from  case to case; but in the present case it seems  to  us

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that Mr. Dudhia is right in contending that in reaching  its conclusion  the  Tribunal  has  somehow  lost  sight  of  an important  document  filed by the workmen along  with  their claim.   This  document  (Ex.   B)  shows  that  out  of  13 industrial  concerns-there set out, in regard to 10 the  age of retirement has been fixed at 60 either by an award or  by agreement, and that in regard to the remaining 3 there is no age  of  retirement.   The  record  shows  that  the   facts mentioned  in  this statement were not disputed  before  the Tribunal.  Indeed in most of the cases reference is made  to an award, and it was presumably realised by the company that the  awards in those respective cases had in fact fixed  the age  of retirement at 60.  This document has not  been  con- sidered at all by the Tribunal in dealing with the  question about the age of retirement, and that gives strength to  the argument  of Mr. Dudhia that this Court ought to  reconsider the merits of the dispute for itself. It  appears  that  the company filed a list  (Ex.   C-1)  in support  of  its case that the age of  retirement  had  been fixed at 55 in 14 industrial concerns; and in reply to  this list  the  workmen filed their own explanation  (Ex.   U-1). This  explanation  shows  that  in  some  of  the  cases  an industrial  dispute  was actually  pending  adjudication  or demands  had been made by the employees to raise the age  of retirement.  In (1) [1960] 2 S.C.R. 51. 357 regard  to 4 Oil Companies specified by the company  in  its list  (Ex.  C-1) it appears that all of them have a  pension scheme,   and   that  undoubtedly   makes   a   sub-stantial difference.   It  is  generally  recognised  in   industrial adjudication  that  where  an employer  adopts  a  fair  and reasonable pension scheme that would play an important  part in  fixing the age of retirement at a comparatively  earlier stage.  If a retired employee can legitimately look  forward to  the  prospect  of earning a pension  then  the  hardship resulting  from early compulsory retirement is  considerably mitigated;  that  is  why cases where there is  a  fair  and reasonable   scheme  of  pension  in  vogue  would  not   be comparable  or  even  relevant in dealing with  the  age  of retirement  in  a  concern where there is  no  such  pension scheme.   In regard to Godrej and Boyce there was a  dispute between  the parties as to the real age of retirement  fixed by the employer; similarly there was a dispute about the age of  retirement in Brooke Bond (India) Private Limited.   The learned Tribunal considered the evidence supplied by the two documents Ex.  C-1 and Ex.  U-1 and held that having  regard to   all  the  relevant  circumstances  it  would   not   be unreasonable  to fix the retiring age at 58 in  the  present case.   It  is true that in dealing with this  question  the Tribunal  has commenced its discussion with the  observation that  in a number of concerns the retirement age is 60,  and that  there  had been for sometime a trend to  increase  the retirement age from 55 to upwards; but the tone and trend of the  discussion  leave no room for doubt that  the  Tribunal failed  to  take into account the evidence supplied  by  the workmen  in  their document Ex.  B filed  along  with  their claim.   This  evidence strongly suggests almost  a  uniform tendency  in Bombay to fix the age of retirement at  60  and not  55.  If the Tribunal had considered this  evidence  and given reasons why it did not justify the workmen’s claim for fixing  the  age  of retirement at 60  it  would  have  been another  matter.   Since the award does not  refer  to  this document and gives no reasons why the trend disclosed by the document  should not be adopted in the present case  it  has

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become  necessary for this Court to consider  that  question for itself The learned Attorney- General contends that the 358 industrial  concerns to which the said document Ex.  ,refers are  not  comparable to the company, and  so  no  importance should  be  attached  to the trend  disclosed  by  the  said document.   We are not impressed by this argument.  One  has merely  to look at the industrial concerns specified in  the list  filed  by  the company to realise  that  if  the  said concerns are comparable in the present proceedings there  is no  reason  why the concerns specified in Ex.  B  should  be rejected  as  not comparable.  Besides, in the case  of  the Dunlop Company (1), as in the present case, the dispute  was and is between clerical and the subordinate staff and  their employer,  so  that  some of the  conditions  which  may  be relevant in fixing the age of retirement of factory  workers may not necessarily apply.  As this Court pointed out in the case  of  the  Dunlop Company (1) the recent  trend  in  the Bombay  area  clearly  appears  to be  to  fix  the  age  of retirement  at 60.  That being so we see no reason  why  the age  of  retirement  of the workmen in  the  present  appeal should not be similarly fixed.  As we have already observed, if  the Tribunal had considered the uniform trend  disclosed by  Ex.  B and had stated its reasons for not giving  effect to  that trend it would have been another matter;  we  would then  have considered whether we should interfere  with  the discretion  exercised by the Tribunal or not.  The  Tribunal however  does not appear to have considered  this  evidence. On  the whole we are satisfied that Mr. Dudhia is  right  in contending  that  the material facts in this case  are  very similar to the facts in the case of the Dunlop Company  (1). That  being so, we think that the age of retirement  in  the case  of the workmen concerned in the present appeal  should be raised to 60 from 55. The  result  is Civil Appeal No. 471 of 1960  filed  by  the company fails and is dismissed, whereas Civil Appeal No. 472 of 1960 filed by the workmen is allowed, and the  directions of the award under appeal are modified.  The workmen will be entitled to their costs from the company. Appeal No. 471 dismissed.  Appeal No. 472 allowed. 359