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PETITIONER: UNITED PROVINCES ELECTRIC SUPPLY CO.  LTD. ALLAHABAD

       Vs.

RESPONDENT: T. N. CHATTERJEE

DATE OF JUDGMENT13/03/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SIKRI, S.M. (CJ) RAY, A.N. PALEKAR, D.G. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1201            1972 SCR  (3) 754  1972 SCC  (2)  54  CITATOR INFO :  F          1972 SC1626  (8)  F          1973 SC2650  (6)

ACT: Industrial Employment (Standing Orders) Act, 1946, s. 4  and Schedule  items 8, 9 and 11C and U.P. Industrial  Employment (Standing  Orders) Rules, 1946--Model Standing Orders,  para 13--Applicability of Standing Order, re : age of  retirement to  employees in service before the certifying  of  Standing Orders--Framing  of  Standing  Order  regarding   retirement before amendment, of Schedule--Certifying Officer, if  could certify  the  standing order as fair  or  reasonable  before amendment   of  s.  4--High  Court  deciding  question   and remanding--When operates as res judicata.

HEADNOTE: In  accordance  with  the  provisions of  the   Industrial Employment  (standing  Orders)  Act,  1946,  and  the   U.P. Industrial  Employment  (Standing Orders) Rules,  1946,  the appellant substituted draft standing defining the conditions of  employment  of  its employees and  they  were  certified bythe Certifying Officer in 1951. Clause 32 of the  Standing Orders provided that an employee who has served 30 years  or who  has reached the age of 55 years will be  retired,  but, exemption from this may be granted by the company in special case.   In  1959,  notices were served  on  the  respondent- workmen  that  they were retired by reason of  their  having attained  the  age  of superannuation as per  cl.  32.   The workmen  contended  that  the  clause  was  not  binding  or enforceable as far as they were concerned, because, they had entered   the  service  of  the  appellant  prior   to   the certification  of  the  Standing Orders and  there  was  no condition  that  they would be liable  to  retirement  after attaining any prescribed age or any fixed period of service, and  that they were entitled to continue in service as  long as  they were physically. fit.  The industrial  dispute  was referred to the Industrial Tribunal and the Tribunal held in favour  of  the  appellant.  The respondents  filed  a  writ petition in the High Court They also applied in 1960,  under

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s’ 10(2) of the Industrial Employment (Standing Orders) Act, 1946,  for  amendment and motification of  cl.  32  claiming fixation  of retirement age at 60.  The  Certifying  Officer modified  the clause and fixed the age of retirement at  58, but the appellate authority refixed it at 55. The  High Court, in the writ petition, on the basis  of  the decision  or this Court in Guest Keen Williams  Pvt.   Ltd., [1960]  1 S.C.R. 348 her that Cl. 32 was not  applicable  to the employees and directed the Tribunal to rehear the  case. The  Tribunal thereafter held that the  respondent.  workmen were wrongfully and unjustifiably retired. In appeal to this Court, HELD  :  (1)  It was not intended by  the  Legislature  that different  sets  of  conditions should  apply  to  employees depending  on  whether  workman  was  employed  before   the Standing  Orders  were  certified by after,  as  that  would defeat the object of the legislation.  The objection and  755 scheme  of  the  Act  is  that  the  employers  must  define precisely the conditions of employment of all the  employees and  have  them certified by the  Certifying  Officer.   The right  given to be workmen to express their views, to  raise objections, to appeal to the appellate authority and to  ask for  modification of the Standing Orders under s. 10 of  the Act, show that every possible safeguard has provided in  the interests of the workmen.  Moreover, the individual items in the Schedule to the Act show that there cannot be  different conditions for different employees depending upon the  point of time when they came to be employed, for that would result in a great deal of heart burning between the employees inter se. [762 F-H; 763 A-D] Salem  Erode  Electricity  Distribution  Co.  Ltd.  v.   Its Workers;  [1966] 2 S.C.R. 498, and Agra Electric Supply  Co. Ltd., v. Sri Alladin & Ors. [1970] 1 S.C.R. 808, followed. (2) The decision in Guest Keen Williams Pvt.  Ltd. that  the Industrial Tribunal had to consider not only the  propriety, reasonableness and fairness of a Standing Order but that  it had  also  to  deal  with  the  question  as  to  whether  a particular  Standing  Order  could  be  made  applicable  to employees who had already been employed without any limit as to age of retirement was delivered under the unamended s.  4 of  the  Act,  under which the  Certifying  Officer  or  the appellate authority could not go into the reasonableness  or fairness of the Standing Orders.  But after the amendment of the  section  in  1956,  the  Certifying  Officer  and   the appellate  authority  are bound to examine the  question  of fairness of the standing orders, and therefore, there can be no justification now for not giving effect to the  principle of  uniformity  of conditions of service  which  is  clearly contemplated by the provisions of the Act. [763 D-F] (3)  But cl. 32 of the Standing Orders as certified in  1951 was  not valid and could not be binding on the  respondents, because, there was then ’no item in the Schedule to the  Act covering  cases  of superannuation or  retiretirement,  with respect to which Standing Orders could be made. [766 E-F, G- H] Item  8 and 9 of the Schedule deal with the termination  of employment  and notice thereof, and suspension or  dismissal for  misconduct.  The language of item 8 shows that it  does not cover the case of superannuation, which does not  depend on )any notice and which covers an event which is  automatic and  which must be given effect to without any  volition  on the  Part of the employer or workmen.  If termination is  to be read in a wide sense as meaning ’employment coming to  an end’  there  was  no  necessity to  have  item  3,  because,

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dismissal  would then be covered by termination.   From  the paragraph  13 of the Model Standing Orders contained in  the Schedule to Rules it is apparent that item 8 is confined  to termination of employment by notice in writing and ’does not refer  to superannuation or retirement.  It was only in  959 that item 11(C) was introduced in the Schedule enabling  the framing  of  Standing  Orders  in relation  to  the  age  of retirement and superannuation. [765 F-H; 766 A-C] Saroj  Kumar v. Orissa State Electricity Board, A.I.R.  1970 Orissa, 126, approved. Management  of  the  Windu’  v.  Secretary  Hindu  Office  & National  Press  Employees  Union,  A.I.R.  1961  Mad.  107, disapproved. (4)  No  assistance can be derived by the use  of  the  word ’retirement’  in  para,  16 of the  Model  Standing  Orders, because, it may well refer to 756 retirement  under  the terms of the contract  of  employment entered into between the employer and the employees. [765 A- B, E] (5)  Since  before  the amendment of  s.  4  the  Certifying Officer  and  the  appellate  auhority  were  debarred  from adjudicating  upon,  the fairness or reasonableness  of  the Standing Orders, the Certifying Officer at that time,  could not  certify  any Standing Order on the ground that  it  was reasonable  or fair.  Therefore, in 1951, when the  Standing Orders  were  certified, cl. 32 could not have  been  framed because  there  was  no item in  the  Schedule  relating  to superannuation and the Certifying Officer could not  certify it  on the ground it was fair and reasonable because he  bad no power to do so. [766 D-F] (6) The Certifying Officer, however, when be modified cl. 32 and fixed the retirement age at 58 (after s. 4 was  amended) could have validly certified such clause as modified by him. This  Court  could also give an appropriate  direction  with regard  to  fixing  the age of superan-,  nuation.   In  the circumstances of this case the age of superannuation  should be  58  years.  Therefore, the concerned workman  should  be deemed  to have continued in service of the  appellant  till they had attained the age of 58 years. [767 A-C, G-H] (7) The order of the High Court in the writ petition did not finally  termingte the proceedings at all.  The  proceedings were terminated only by the award of the Industrial Tribunal after  remand.   Therefore,  the order  of  the  High  Court following  Guest Keen William’s case did not debar  a  fresh consideration  of  the  question by virtue of  the  rule  or principle of res judicata. [768 A-B, E-F] Satyadhyan  Ghosal v. Smt.  Deorajan Devi, [1960]  3  S.C.R. 590, followed. Management, of N. Railway Co-operative Society v. Industrial Tribunal, [1967] 2 S.C.R. 476, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1734 of 1967. Appeal  by  Special Leave from the Award dated the  May  19, 1967  of  the  Industrial  Tribunal  (1)  at  Allahabad   in Adjudication Case No. 15 of 1960. S.  V. Gupte, D. N. Mukherjee and Gautam Banerjee,  for  the appellant. G. C. Bhattacharyaand M. V. Goswami, for respondents Nos.  1 and 3 to 8. O. P. Rana, for respondent No. 9. The Judgment of the Court was delivered by

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Grover, J. This is an appeal by special leave from an  award of the Industrial Tribunal, Allahabad, dated May- 19, 1967. 757 The material facts May be stated, The appellant, which is  a limited  liability  company  and which later  on  went  into voluntary  liquidation,  was  carrying on  the  business  or undertaking  of  generation,  distribution  and  supply   of electricity.   One  of such undertakings  was  the  Electric Supply  Undertaking  at  Allahabad in  the  State  of  Uttar Pradesh.  Its affairs and business were being% looked  after and  managed by Martin Bum & Co. I-Ad., Calcutta.   Some  of the  appellant’s  workmen in Allahabad and  its  surrounding area  were  members  of Bijli Mazdoor  Sangh-a  trade  union registered under the Indian Trade Union Act, 1926.  The U.P. State Electricity Board compulsorily acquired and took  over the  assets  of  the appellant’s  aforesaid  undertaking  or business with effect from 16/17th September 1964. In  accordance  with  the provisions  of  the  Industrial, Employment  (Standing Orders) Act 1946,  hereinafter  called the  ’Act  and  the  U.P.  Industrial  Employment  (Standing Orders)  Rules 1946 the appellant submitted  draft  Standing Orders   defining  the  conditions  of  employment  of   its employees.  On July 14, 1951 these Orders’were certified  by the  Certifying Officer.  Clause 32 of the  Standing  Orders was in the following terms :-               "32.  RETIREMENT-An employee who has served 30               years or who has reached the age of 55 will be               retired, but exemption to this may be  granted               by the Company in-special cases". The  workmen  through the Bijli Mazdoor Sangh  preferred  an appeal  under  s.  6  of the Act  from  the  order  of  (the Certifying  Officer to the State Industrial  Tribunal  which was  the. appellate authority under the Act.   That  appeal, however,, was dismissed.  The Agra Electric Supply Co. Ltd., Agra and Benaras Electric Light & Power Co. Ltd.,  Varanasi, which is the appellant in the connected appeal (C.A. 164/68) also got certified Standing Orders in similar terms.   These electric  undertakings,  were also under the  management  of Martin Burn & Co. Ltd.  On July 16, 1959 notices were served on  seven worlen with effect from September 1, 1959  on  the ground  that they had attained the age of superannuation  or completed  30  years  of service and they  were  retired  by reason  of their having attained the age of  superannuation. Out of these workmen one of them Haider Ali died during  the pendency of proceedings.  The other six employees have  been impleaded as respondents Nos. 1 to 6 in the present appeal. According  to the appellant these, respondents accepted  all the  accumulations due to them in respect of Provident  Fund contributions  made by the appellant in respect of them  and by themselves and were also paid gratuities credited to them in their res- 758 pective Provident Fund accounts for their services prior  to their becoming members of the Provident Fund. By an order dated February 22, 1960 made under s. 4-K of the U.P.  Industrial  Disputes Act 1946 the Government  of  U.P. referred  to  the Industrial Tribunal (1) at  Allahabad  for adjudication an industrial dispute alleged to exist  between the appellant and its workmen on the following issues :               "Whether the employers have wrongfully arid/or               unjustifiably retired their workmen, mentioned               in the Annexure, with effect from 1st  August,               1959  ? If so, to what relief are the  workmen               entitled ?" Respondents 1 to 6 and Haidcr Ali (since deceased) were  the

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workmen mentioned in the Annexute.  The case of the  workmen before  the  Industrial Tribunal was that they  had  entered service  of the appellant prior to the certification of  the Standing Orders.  At the time of their appointment there was no  condition that they would be liable to retirement  after attaining  any prescribed age or after putting in any  fixed period of service.  A practice was in vogue that the workmen would  continue  in  service till  he  was  physically  fit. Accordingly  clause 32 of the certified Standing Orders  was neither  binding nor enforceable.  The  Industrial  Tribunal made  an award on May 2, 1960 finding, interalia,  (a)  the- employers were within their rights in retiring, the  workmen concerned.  (b)  The act of the  employers  in  compulsorily retiring  the concerned workmen,-from service could  not  be characterised  as wrongful, illegal or unjustified  and  (c) the workmen were entitled to no relief. On  June  14, 1960 the Bijli Mazdoor Sangh moved  an  appli- cation under s. 10(2) of the Act for amendment and modifica- tion of clause 32 claiming fixation of retirement age at  60 years.   On September 20, 1960 the Union also filed  a  writ petition in the Allahabad High Court for quashing the award. On April 22, 1961 the Certifying Officer modified clause  32 and fixed the ago, of retirement at 58 years.  On  September 10,  1961  the  appellate  authority  refixed  the  age   of retirement at 55 years.  Similarly appeals were filed by the Agra  Electric Co. and the Banaras Electric Light and  Power Co.  Ltd.  in which similar orders were made.  On  July  12, 1966  the, High Court recorded an order quashing the  award. It was held that Standing Order 32 was not applicable to the employees  Who had entered service before the  certification of  the  Standing  Orders. The  Industrial  Tribunal   was directed to reheat the case and after giving an  opportunity to-the  parties of being heard give an award  in  accordance with  law.  Finally the award against which the appeal  has- been brought  759 was  given on May 19, 1967.  It was held in the  award  that all the seven workmen had been wrongfully and  unjustifiably retired and that they should be deemed to have continued  in service  till September 16, 1964 from which date they  would be taken to Wave been retrenched.  The appellant having been taken  over  by the U.P. State Electricity  Board, it  was directed  that the employers should pay full wages from  the period August 1, 1959 to September 16, 1964 and retrenchment compensation  within s. 25-F read with s. 25-FF and s.  25-J of the Industrial Disputes Act, 1947. While  deciding the writ petition the High Court  relied  on three  decisions of this Court for holding that where  there is no age of superannuation prescribed for the employees  of a  concern  a  provision in the  Standing  Orders  certified subsequent  to the date of employment  regarding  compulsory retirement  will  not  be applicable  to  them.   The  first decision  is in Guest Keen, Williams Private Ltd. v.  P.  J. Sterling & Others(1).  In that case after the enforcement of the Act the industrial concern submitted its draft  Standing Orders  for certification to the Certifying  Officer.   That Officer certified the Standing Orders after giving the trade union  of  workmen  an opportunity to  be  heard  and  after considering their objections.  The Standing Orders  relating to  retirement provided that the workmen shall  retire  from the service of the company on reaching the age of 55  years. The  company gave notice to forty-seven of its  workmen  who were  over the age of 55 years retiring them and  a  dispute was raised about their retirement which was referred to  the Tribunal  for  adjudication It was ultimately held,  by  the

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Labour  Appellate  Tribunal that those workmen who  were  in employment  prior  to  the  date  of  certification  of  the Standing  Orders  would  not be governed  by  it  and  their retirement  was illegal.  This Court examined the scheme  of the  Act  including  the relevant  provisions.   Notice  wag taken,  in  particular, of the fact that when  the  standing Orders were submitted to the Certifving Officer all that  he could do was to satisfy himself that they made provision for other  matters set out in the schedule to the Act  and  that they  were  otherwise  in conformity  With  its  provisions. Under  s.  4,  as it was orignally  enacted  the  Certifying Officer   could   not  adjudicate  upon  the   fairness   or reasonableness  of  the provisions of the  Standing  Orders. This section was subsequently amended-in 1956 and the effect of the amendment was that the Certifying Officer was enabled to  adjudicate  upon the fairness or reasonableness  of  the provisions  of the Standing Orders.  It was pointed  out  by the  court that the scope for enquiry before the  Certifying Officer  prior  to  the  amendment of  s.  4  was  extremely limited.   The only way in which the employees  could  claim modification  of the standing Orders prior to the  amendment of s. 4 was by raising an industrial dispute in that (1) [1960] 1 S.C.R. 348. 760 behalf.   Subsequent  to the amendment the  employees  could raise the same dispute before the Certifying Officer and  in a proper case they could apply for its modification under S. 10(2) of the Act.  It was observed that the Standing  Orders certified  under  the Act became part of the  terms  of  the employment by operation of S. 7 but if an industrial dispute arose  in respect of such Orders and it was referred to  the Tribunal by the appropriate Government the Tribunal had  the jurisdiction  to  deal  with  it on  the  merits.   It  was, therefore, held that the Tribunal had to consider not  only the  propriety, reasonableness and fairness of the rule  but it had also to deal with the question as to whether the said rule  could and should be made applicable to  employees  who had  already  been employed without any limit as to  age  of retirement.   The  decision  in this case  was  followed  in Workmen of Kettlewell Bullen & Co. Ltd. v. Kettlewell Bullen &  Co.  Ltd.(1). The next case in which a  similar  question arose  in Salem Erode Electricity Distribution Co.  Ltd.  v. Salem  Erode  Electricity Distribution Co.  Ltd.   Employees Union(2).   It  was  claimed by the company  which  was  the employer there that the urgent need for increased production and supply of electrical energy could be met if the existing rules  embodied  in  two of its  certified  Standing  Orders relating  to holidays and leave were suitably amended.   The amendments  proposed  sought to  introduce  different  rules relating  to  holidays  and leave  for  employees  who  were appointed  before  a  specified date and  those  who  joined service  after that date.  Both the Certifying  Officer  and the  appellate  authority disallowed  the  amendments.   The company  appealed, to this Court and the scheme of  the  Act was  examined once again.  It was emphasised that after  the amendment  of s. 4 of the Act made in 1956 jurisdiction  had been  conferred  on the Certifying Officer as  well  as  the appellate  authority  to  adjudicate upon  the  fairness  or easonableness  of  the provisions of  the  Standing  Orders. Thus  the jurisdiction had been widened.. Moreover under  s. 10(2)  as  originally enacted it was only the  employer  who could  make  an application to the Certifying Officer  to  I have the Standing Orders modified.  By the amendment made in 1956  even  workmen  were enabled to  exercise  that  right. Addressing itself to the question whether it was permissible

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for an industrial establishment to have two sets of Standing Orders  to govern the relevant terms and conditions  of  its employees  it  was  laid down after an  examination  of  the scheme of the relevant provisions of the Act in the light of the  matters  specified in the Schedule that  there  was  no scope  for having separate Standing Orders\ in  respect  of any one of them, It was said "........   the conclusion appears to be  irresistible  that the object of the Act is to certify Standing Orders in (1) [1964] 2 L.L.J. 146. (2) [1966] 2 S.C.R. 498.  761               respect  of  all the matters  covered  by  the               schedule  and having regard to  these  matters               Standing Orders so certified would be  uniform               and  would apply to all Workmen alike who  are               employed in any industrial establishment". It  was  considered that Guest Keen Williams  Pvt.   Ltd.(1) could  afford no asistance because that matter came to  this Court  from  an  industrial dispute which  was  the  subject matter  of industrial adjudication and all that  this  Court did  was to fixed the age of superannuation for workmen  who had been employed prior to the date of the certification  of the  relevant Standing Orders.  That course was  adopted  in the special and unusual circumstances of that case. In  the next decision Agra Electric Supply Co. Ltd.  v.  Sri Alladin  &  Ors.(2) one of the main  questions  was  whether three  workmen who had been employed long before  1951  when the  cornpany’s  Standing  Orders were  certified  could  be retired  under  Standing Orderwhich prescribed  the  age  of superannuation  as  55 years.  ThisCourt took a  view  which seemingly runs counter to Guest KeenWilliams Pvt.   Ltd.(1). It was held that the Standing Orders when certified would be binding on the employers as well as all the workmen who were in  employment  at the time the Standing  Orders  came  into force and those employed thereafter as uniform conditions of service.   The process of reasoning which prevailed was  (1) the  Act is a beneficient piece of legislation,  its  object being  to require employers in industrial establishments  to define with sufficient precision the condtions of employment of  workmen employed therein and to make them known to  such workman.  (2)  Before  the passing, of  the  Act  there  was nothing in law to prevent an employer having different  con- tracts of employment with workmen which led to confusion and made  possible  discriminatory  treatment.   This  was  also clearly  incompatible  with  the  principles  of  collective bargaining. (3) Section 3 of the Act was enacted to do  away with  such  diversity and bargaining  with  each  individual workman. (4) Section 4 indicates that particulars of workmen in the employment on the date of the submission of the draft Standing  Orders or certification and not of those only  who could  be employed in future after certification were to  be given.  (5)  Sections  4 and 5 show that  draft  orders  are certifiable if they provide for all matters set out in  the schedule and are otherwise in conformity with the Act and if they   are  adjudicated  as  fair  and  reasonable  by   the Certifying   Officer  or  the  appellate   authority.    The Certifying  Officer has also to forward a copy of the  draft Standing Orders to the Union (1) [1960] 1 S.C.R. 348. (2) [1970] 1 S. C.R. 808. 762 or to the workmen in the prescribed manner and has to decide whether  or not any modification or addition should be  made after   hearing  the,  Union  or  the,  workmen   concerned.

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Sections  6,  7, 9 and 10 contain provisions for  appeal  by aggrieved  persons  as  also for  sending  of  authenticated copies  by  the Certifying Officer to the parties  where  no appeal  is  filed and further the employer has to  post  the Standing   Orders  as  finally  certified  in   the   manner prescribed.  The employer or the workmen can even apply  for modification  after  expiry of six months from the  date  on which  the Standing Orders or the last modification  thereof comes  into  operation.  (7) The  schedule,  sets  out-  the matters which the Standing Orders must provide for. For the reasons given above this Court held that the Act was meant to enable Standing Orders to be made to bind not  only those  who were employed subsequent to  their  certification but also those who were already in employment.  If any other result were to follow there would be different conditions of employment  for  different classes of  workmen  which  would render  the  conditions of their service as  indefinite  and diversified as befoe the ,enactment of the Act.  Support was derived  from  the  decision  in  Salem  Erode   Electricity Distribution  case(1) in which departure was made  from  the view  previously taken in the case of Guest  Keen  William,s Pvt.  Ltd.(2) It  has  been urged before us on behalf of  the  respondents that  the  decision in Guest Keen Williams  Pvt.   Ltd.  (2) still holds the field and the point which was decided  there and  which  arises in the present case did not come  up  for consideration  in Salem Erode Electricity  Distribution  Co. Ltd.(1). In our opinion the principle applied in the  latter case  is  fully supported by the scheme of the Act  and  was rightly  extended  and applied’in Agra Electric  Supply  Co. Ltd. (3).  We concur with the view expressed therein that it was  not intended by the legislature that different sets  of conditions should apply to employees depending on whether  a workman  was  employed  before  the  Standing  Orders   were certified  or after, which would defeat the very  object  of the legislation.  In the preamble  it is stated in categorical terms "whereas  it  is expedient to require employers in industrial  establishments to  define  with  sufficient  precision  the  conditions  of employment under them and to make the said conditions  known to  workmen employed by them".  Not only the object but  the scheme  of  the Act is such that the employers  must  define precisely the ponditions of employment of all the  employees and  have  the  same certified  by  the  Certifying  Officer against  whose  orders  an  appeal  lies  to  the  appellate authority.  The, right given to workmen to express their (1) [1966] 2 S.C.R. 498. (3) [1970] 1 S.C.R. 808. (2) [1960] 1 S.C.R. 348.  763 view and to raise objections is of great significance.  They can  even  ask for modification of the  Standing  Orders  in accordance with s. 10 of the Act.  Every possible  safeguard has  been  provided for keeping the workmen  informed  about their  conditions of service so that they can take  whatever steps  they desire or are advised to take in their  interest before  the Certifying Officer or the  appellate  authority. It   is  also  very  difficult  to  conceive,  taking   each individual  item in the schedule how there can be  different conditions for different employees depending upon the  point of  time when they came to be employed; for instance item  3 relates  to shift working.  It is possible to  suggest  that for  the same kind of work employees who were in  employment before  the  Standing  Orders  were  certified  would   have different  hours of shift from the other employees who  were

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employed subsequently.  In the very nature of things a great deal of irritation and annoyance between employees inter  se would  result if any such discrimination is made in  any  of the items in the schedule.  It has been rightly pointed  out in  Agra Electric Supply Co. Ltd. that this would only  lead to  industrial unrest and not industrial peace,  the  latter being the principal object of legislation. It must be remembered that in Guest Keen Williams Pvt.  Ltd. the Certifying Officer could not go into the  reasonableness or fairness of the Standing Orders according to s. 4 of  the Act  as it stood at the material time.  The law was  changed only  in  1956.  Perhaps that was one of  the  main  reasons which  prompted  the court in taking the view it  did.   But after  the  amendment  of the law  in  1956  the  Certifying Officer  and  the  appellate authority  are  duty  bound  to examine the question of fairness of the Standing Orders  and there can be no justification now not to give, effect to the principle  of uniformity of conditions of service  which  is clearly conte mplated by the provisions of the, Act. The next question for determination is whether clause 32  of the  Standing Orders relating to age of retirement could  be certifled in July 1951.  On behalf of the respondents it has been pointed out that there is no item in the schedule which covers  the case of retirement or superannuation.   Items  8 and 9 are in these terms               "8.  Termination of employment and the  notice               thereof to be given by employer and workmen,               9. Suspension or dismissal for misconduct, and               acts    or    omissions    which    constitute               misconduct." The  model Standing Orders framed by the Central  Government and by the Government of the State of Uttar Pradesh did  not contain any clause relating to retirement or superannuation. It was for the first time that on November 17,1959 item 11-C 764 relating to superannuation and retirement was introduced  by the  State  of U.P. in exercise of  the  rule-making  powers conferred  by  S. 15 of the Act.  In other States  the  item relating   to  age  of  retirement  or  superannuation   was introduced either by legislation or by the exercise of  rule making  power.   In  the  State  of  Bombay  s.  19  of  the Industrial  Employment (Standing Orders) (Bombay  Amendment) Act 1957 provided for insertion of item 10-A in the  Schdule which was "age for retirement or superannuation".  According to  counsel for the respondents there was no item until  the introduction  of item 11-C in November 1959 in the  schedule under  which  any Standing Orders could be  framed  and  got certified   relating   to   the  age   of   retirement   and superannuation.   It has been maintained that items 8 and  9 cannot  possibly include retirement and  superannuation  and therefore till item 11-C was added in the schedule so far as the State of U.P. was concerned in November 1959 no Standing Orders  could  be legally or validly  framed  and  certified providing  for  age of retirement  and  superannuation.   In Saroj  Kumar Ghosh v. Orissa State Electricity Board(1)  the Orissa High Court considered this question a some length and expressed  the  view that where a Standing  Order  has  been certified  by  the Certifying Officer  containing  a  clause relating  to superannuation not covered by the  schedule  of the Act norr by the model Standing Orders such certification cannot  be  valid  under  S.  4  of  the  Act.   The  clause ’termination of employment’ in item 8 of the schedule cannot be equated with the word "superannuation".  According to the Orissa  High Court, superannuation is an event  which  comes more  or less in an automatic process.  An age is  fixed  on

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the reaching of which the holder of office has no option but to go out of office.  There is no volition involved in  that act.   The  employer  and the employee have  notice  of  the matter  long before the event is to occur and the  event  is such that it cannot be arrested by either one of them if the rule is to be followed.  On the other hand termination is  a positive  act by which one party even against the desire  of the  other  can  bring about the  end  of  employment.   The judgment  of the learned single. judge in Management of  the "HINDU",  Madras v. Secretary Hindu Office & National  Press Employees Union and another(2) was dissented from.  In  that case  the expression "termination of employment" in  item  8 was considered to be wide enough to include retirement of an employee  at the age of superannuation.  The learned  Madras Judge  sought  support from para 16 of  the  model  Standing Orders which is as follows               "Every permanent workman shall be entitled  to               a  service  certificate  at the  time  of  his               dismissal   discharge’  or   retirement   from               service"., (1) A.I.R. 1970 Orissa 126. (2) A.I.R. 1961 Mad. 107. 765 In  the model Standing Orders there was no clause  providing for superannuation or retirement on attaining a certain age. In  our judgment much assistance or help cannot  be  derived from  para 16 of the model Standing Orders as  contained  in schedule  1 to the Industrial Employment  (Standing  Orders) Central Rules 1946.  Retirement which is mentioned there may be  under the terms of contract of employment  entered  into between  the employer and the employees.  Section  2(oo)  of (the Industrial Disputes Act 1947 throws a certain amount of light on the matter.  It is reproduced below :,-               "Retrenchment"  means the termination  by  the               employer  of the service of a workman for  any               reason   whatsoever,  otherwise  than   as   a               punishment  inflicted by way  of  disciplinary               action, but does not include-               (a) voluntary retirement of the workman; or               (b) retirement of the workman on reaching  the               age  of,  superannuation if  the  contract  of               employment   between  the  employer  and   the               workman  concerned contains a  stipulation  in               that behalf;" It shows, firstly, that termination ’of service of a workman is   distinct  from  retirement  on  reaching  the  age   of superannuation; secondly, retirement can take place on resch & the age of superannuation under the terms of the  contract of  employment  entered into between the  employer  and  the workman.  Therefore, the word "retirement" in para 16 cannot be   regarded   as  conclusive  of  the   question   whether termination   of:   employment   includes   retirement   and superannuation.   In the schedule to the Act item  8  covers termination of employment and the notice to be given  either by  the employer or the workman and item 9 relates  to  sus- pension  or dismissal for misconduct etc.  Item 8 by  virtue of  the language employed does not appear to cover the  case of  superannution  which does not depend on any  notice  and which  covers an event which is automatic and which must  be given  effect  to without any volition on the  part  of  the employer  or  the  workmen  as pointed  out  in  the  Orissa judgment.   If termination is to be read in a wide sense  as meaning employment coming to an end there was a necessity to have  item  9  because dismissal would then  be  covered  by termination.    In   the   context   in   which   the   word

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",termination"  is  used in item 8 it cannot mean  each  and every form of termination or cessation of employment.   From para 13 of the Model Slanding Orders contained in schedule 1 to  the  Industrial Emtployment  (Standing  Orders)  Central Rules  1946,  it  is apparent that item  8  is  confined  to termination of employment by notice in writing and does  not contain any mention L1061 Sup.  CI/72 766 of  superannuation  or  retirement.   It  was  perhaps  this difficulty  which  prompted the state or U.P.  to  introduce item 11-C in exercise of the rule making powers conferred by s. 15 of the Act and the bombay legislature to make  similar amendment  by  legislation. it would follow that  unless  an employer  can  include  a  clause relating  to  the  age  of retirement and superannuation and the Certifying Officer can certify it even though no such item appears in the  schedule to  ,the Act clause 32 as certified in 1951, in the  present case,  could not be regarded to be valid.  The  Madras  High Court  in the case of Management of the  ’Hindu’,  Madras(1) made  some observations to the effect that there was no  bar to the Standing Orders making a provision for matters  other than those specifically mentioned in the schedule so long as ,the  Certifying  Officer certifies them on he  ground  that they  are  fair  and reasonable.   The  Orissa  High  Court, however, in Sarojkumar Ghosh’s(2) case did not subscribe  to this  view.  Learned counsel for the appellant,  apart  from relying  on  the  Madras decision,  has  not  addressed  any arguments  on  the larger and wider question as  to  whether even  in  the absence of any item in the  schedule  Standing Orders  can  be  framed  on certain  matters  which  may  be regarded  as  fair  and  reasonable  and  which  may  be  so certified  by  the  Certifying  Officer.  it  is,   however, unnecessary to decide this point in the present case because clause 32 of the Standing Orders on which the appellant  has relied  was  certified in July 1951 when  according  to  the express  language of s. 4 of the Act the Certifying  Officer or  the appellate authority was debareed  from  adjudicating upon  the fairness or, reasonableness of the  provisions  of any Standing Orders.  It is difficult to understand how  the Certifying  Officer  at that point of time  and  before  the amendment of s. 4 in 1956 could have possibly certified  ;my Standing  Order  which  did not relate to any  item  in  the schedule on the ground that it was fair or reasonable Indeed the function of the Certifying Officer, before the amendment of  1956, was very limited as is clear from s. 3 (2) of  the Act which says :               "Provision  shall  be made in such  draft  for               every  matter set out in this  schedule  which               may   be   applicable   to   the    industrial               establishment  and were model Standing  Orders               have  been  prescribed, shall be,  so  far  is               practicable, in conformity with such model". We  must,  therefore, hold that, clause 32 of  the  Standing Orders as certified in July 1951 was not valid and cannot be binding  on the respondents.  However, after item  11-C  was introduced  in the schedule so far as the State of U.P.  was concerned  an  item  was  added providing  for  the  age  of retirement and superannuation.  The Certifying Officer, when lie modified clause 32 and (1) AIR 1961 Mad. 107. (2) AIR 1970 Orrissa 126. 767 fixed  the,:retiring age at 58 on April 22, 1961 could  have validly  certified  such  clause as modified  by  him.   The necessary consequence will be that the respondents could not

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have  been relied ’on the ground of superannuation  in  July 1959  and  they could be validly retired only  on  or  after April 22, 1961 in accordance ,with clause 32 as modified  by the  Certifying Officer.  In other words, those out  of  the present  respondent who had attained the age of 58 years  on April  22,  1961, could be regarded as having  been  validly retired  having  reached the age of superannuation  on  that date under that clause. In  view  of  the previous decisions of this  Court  and  in particulaw that of Guest Keen Williams Pvt.  Ltd.(1) it  has not  been disputed that in the industrial dispute which  was referred  it  was open’ ’to the Industrial Tribunal  or  the Labour   Court  to  determine  the  age  of  retirement   or superannuation   notwithstanding  that  clause  32  of   the Standing  Orders as certified in 1961 had been legally  ,And validly  certified  indeed  in  Guest  keen  Williams   Pvt. Ltd.(1)  It was not disputed that even this.   Court  could give  an  appropriate direction which might  ’be  considered reasonable  with  regard to ’the age of  superannuartion  as stated  before  according  to clause  32  of  ’the  Standing Orders,   as   certified   in  April  1961,   the   age   of superannuation  was  fixed at 58.  The appellant  ’filed  an appears that in the cage of Agra Electric Supply Co.(2) also a  appears that in the case of Agra Electric  supply  Co.(4) also  a  similar Standing order had been  certified  and  on appeal  the  age of -retirement was reduced from  58  to  55 years by the appellate ’authority.  This Court in that  case held  the  Standing  Order  fixing  the  age  at  55   years applicable  not  only to those employees who  were  employed subsequently but also to all workmen who were in  employment at  the  time  when  the  ’Standing  Orders  became  legally applicable.   It does not appear in that case that any  such argument  was  raised  that the matter  should  be  remitted either to the Industrial Tribunal or the Labour Court to fix the age of superannuation or that this Court itself might do so  as  was the course followed in the case  of  Guest  keen Williams  Pvt.   Ltd.(1) in which the age was  fixed  at  60 years  with  regard to those employees who  had  raised  the dispute  on  the ground that the Sanding  Orders  could  not govern  them as they had been employed before  the  Standing Orders  became  applicable.  After  considering  the  entire material and keeping in mind the fact that according to  the appellate  authority  even the age of retirement at  55  was fair  and  reasonable  we are of the view that  the  age  of superannuation  of  the respondents, in  the  present  case, should be 58 years.  In other words. it will be the same  as was  fixed by the Certifying Officer by modifying clause  32 on April 22, 1961. (1) [1960] 1 S.C.R. 348. (2) [1970] 1 S.C.R. 808 768 Lastly we must deal with the contention raised on behalf  of the  respondents that the order of the Allahabad High  Court made on July 12, 1966 quashing the award after following the decision of this Court in Guest Keen Williams Pvt.   Ltd.(1) should  be  deemed to be final and should  debar  any  fresh consideration  or  decision of that point by virtue  of  the rule  or principle of res-judicata.  It is  noteworthy  that the order of the Allahabad High Court was not final  against which the matter could have, been taken in appeal either  to a  division  bench  of  the High Court  or  to  this  Court. Reliance  has  been placed on a decision of  this  Court  in Management  of Northern Railway Cooperative Society Ltd.  v. Industrial Tribunal Rajasthan, Jaipur and Another(2),  where reference  had  been  made by the State  Government  to  the

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Industrial  Tribunal  on the Railway Workers’  Union  having raised  an industrial dispute against the Management of  the Northern Railway Cooperative Society Ltd.  The society filed a  writ petition on the ground that the dispute having  been raised  by  the  Railway  Workers’  Union  and  not  by  the Society’s  own employees the reference to the  Tribunal  was not  competent.   The  High Court  dismissed  the  petition. thereafter the Tribunal heard the matter and gave its  deci- sion  in  favour  of the  workman  concerned.   The  society appealed  to this Court by special leave.  It was held  that the order of the High Court was not interlocutory but was  a final  order  in regard to the proceedings under  Art.  226. The appropriate remedy for the appellant in that case was to appeal  against the High Court’s order and that  not  having been done the appellant’s plea relating to the competency of the  reference  was barred by res judicata as the  same  had been  raised  before the High Court and had  been  rejected. The present case is clearly distinguishable inasmuch as  the order made by the High Court was not final and a remand  had been directed presumably under Art. 227 of the Constitution. That order in fact did not finally terminate any proceedings at  all.  The proceedings were terminated only by the  award against which the present appeal has been brought by special leave.   We  are  unable  to see how  the  decision  in  the aforesaid case can afford any assistance to the  respondents before  us.   Indeed  the case which  is  more  apposite  in Satyadhyan Ghosal & Ors. v. Smt.  Deorajin Debi & Another  ( 3  )  . There an order of remand had been made by  the  High Court  while exercising powers under S. 115 of the  Code  of Civil  Procedure.  It was observed, after referring  to  the various  decisions of the Privy Council, that the  order  of remand  was interlocutory and did not pumort to  dispose  of the  case.   A party is not bound to  appeal  against  every interlocutory  order which is a step in the  procedure  that leads up to a final decision or award. (1)  [1960] 1 S.C.R. 348. (3)  (1960) 3 S.C.R 590. (2)  [1967] 2 S.C.R. 476. 769 The following observations from this case may be  reproduced with advantage               "Interlocutory judgments which have the  force               of  a decree must be distinguished from  other               interlocutory  judgments  which  are  a   step               towards  the decision of the  dispute  between               parties by way of a decree or a final order". We are unable, therefore, to accede to the contention  that the rule of res-judicata could be invoked by the, respondent in the present case. In  the  result the appeal is allowed and the order  of  the Industrial  Tribunal is hereby set aside.  According to  our decision  the workmen concerned could not have been  retired on the ground of superannuation in accordance with clause 32 of the Standing Orders till it was certified after necessary modification on April 22, 1961.  Even otherwise it has  been held by us that the proper age of retirement in ,he case of those  employees who joined service prior to April 22,  1961 should be 58 years.  The award, therefore, will be that  the concerned  workmen  should be deemed to  have  continued  in service  of the appellant till they had at attained the  age of 58 years.  It is declared that they shall be entitled  to be  paid  full wages and all other dues to  which  they  are entitled  under  ,the terms of their  employment  till  they attained  the  age  of 58 years.  As  regards  any  payments received  by the workmen pursuant to the award or after  the

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notice   of  termination  those  shall  also   be   adjusted accordingly and the appellant undertakes not to claim_refund of  any amounts which have already between received by  them in excess of the amounts due.  No order as to costs. V.P.S.                                Appeal allowed. 770