JUDGMENT R.M.S. Khandeparkar, J.
1. Since common questions of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment.
2. The issues involved in both these petitions are, one relating to the jurisdiction of the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called as "the said Act") to deal with the matter pertaining to the subject of interpretation of the Model or Certified Standing Orders while dealing with a complaint under the said Act and the second, being the interpretation of Clause 27 of the Certified Standing Orders applicable to the parties to the petition.
3. Few facts relevant for the decision are that the petitioner in Writ Petition No. 1903 of 2000 and the respondent No. 1 in Writ Petition No. 1085 of 2000 were employed as the painter and the gardener respectively in the services of M/s Welcomgroup Sea Rock, who are the respondents in the first petition and the petitioners in the second, and hereinafter called as "the employer". As on attaining the age of 55 years by the said employees they were sought to be retired, and their request for extension of retirement on the basis of the Clause 27 of the Certified Standing Orders was not accepted by the employer, the complaints were filed under the said Act alleging unfair labour practices having been adopted by the employer under Item 9 of Schedule-TV of the said Act. When the matters came up for hearing, in the complaint by Shri Tryambak Karbhari Wagh, who is the respondent No. 1 in Writ Petition No. 1085 of 2000, on an objection being raised by the employer regarding the jurisdiction of the Industrial Court to entertain the complaint under the said Act on the ground that the matter involve interpretation of the clauses of the Certified Standing Orders and in terms of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter called as "the SO Act"), the jurisdiction to decide the same vests in the Labour Court under the said Act and the same has to be exercised in accordance with the provisions of the SO Act, the Industrial Court refused to grant any interim relief. Being aggrieved, the Writ Petition No. 2317 of 1999 was preferred by Tryambak Karbhari Wagh, which came to be withdrawn on 21-9- 1999 while obtaining a specific direction to the Industrial Court to hear and decide the complaint expeditiously and preferably by the end of March, 2000. The employer did not raise similar objection regarding lack of jurisdiction in case of complaint by Shri Appu Shetty Koraga, the petitioner in Writ Petition No. 1903 of 2000. After hearing the parties, the complaint filed by Tryambak was allowed by the Industrial Court by judgment and order dated 30-3-2000, holding that the employer was engaged in the commission of unfair labour practices under Item 9 of Schedule-IV of the said Act and it was directed to pay full wages along with the other benefits of the post which the said Tryambak was holding for the period from 1-1-1999 to 31-12-1999. In case of complaint by Appu, after hearing the parties, the same was dismissed by judgment and order dated 21-6- 2000. While in the case of Tryambak, the Industrial Court held that the Clause 27 of the Certified Standing Orders makes it obligatory for the employer to extend the age of retirement of its employee by three years after the age of 55 years, while in the case of Appu the Industrial Court held it to be entirely at the discretion of the employer. Aggrieved by the order allowing the complaint of Tryambak, the employer has filed the Writ Petition No. 1085 of 2000, while aggrieved by the dismissal of his complaint, Appu has preferred the Writ Petition No. 1903 of 2000.
4. Assailing the order of dismissal of the complaint, the learned Advocate appearing for the employees has submitted that Section 13-A of the SO Act does not provide any remedy as such but it merely deals with the issue of interpretation of the Standing Orders and considering the provisions of Section 32 of the said Act, the Industrial Court while dealing with the complaint is sufficiently empowered to deal with the incidental points arising in the matter and therefore it has jurisdiction to deal with the interpretation of the Clause 27 of the Certified Standing Orders and therefore no fault can be found with the exercise of jurisdiction in that regard by the Industrial Court. He has further submitted that such an exercise, however, has been undertaken arbitrarily in the matter of Appu's case in as much as that the Clause 27 has been misconstrued to give unbridled powers to the employer while deciding about the request by the employees for extension of the retirement age. According to the learned Advocate, the Standing Orders cannot be construed to suit to the fluctuations in the business of the employer and the discretion, if any, under Clause 27, should be understood to be relating to the issue of physical fitness of the employee and not for any other purpose. He has further submitted that the expression "may" in the Clause 27 is to be read as "shall" and "must" in relation to the extension of the retirement age, and in any case the discretion, if any, in that regard has to be exercised bona fide and not arbitrarily. It is the contention of the learned Advocate for the employees that in Appu's case the Clause 27 has been construed by the Industrial Court as if the same discloses the retirement age of the employees to be 55 years only. He has also submitted that the Industrial Court failed to take note of the fact that even though the employees had specifically requested for extension of the retirement age and had submitted their medical certificates in terms of the Clause 27 of the Certified Standing Orders, the employer had failed to take any decision on such request and at no point of time the decision in that regard was ever communicated to the employees. Reliance is sought to be placed in the decisions in the matters of State of Uttar Pradesh v. Jogendra Singh, . Dr. K.
Hanumanthappa v. State of Karnataka and Ors., reported in 1982 Lab.I.C. 845, Prabhakar Rajaram Gangan and C. B. Asmar and Ors., reported in 2000(2) Mh.L.J. 65 = 2000 (2) L.L.N. 164, and National Textile Corporation (Mah. North Ltd.) and Ors. v. S. M. Tambe and Anr., reported in 2000(3) Mh.L.J. 486 = 2000 11 CLR 20 in support of the contention pertaining to the interpretation of the Clause 27 of the Certified Standing Orders.
5. On the other hand, drawing attention to Section 13-A of the SO Act, it was argued by the learned Advocate for the employer that when there is a provision of law providing necessary remedy for enforcement of a right or liability, relief can be sought only under such provision of law and in accordance with the procedure prescribed thereunder and not in any other manner and bearing in mind the same and considering the provision of law contained in Section 13-A of the SO Act, according to the learned Advocate, it was necessary for the employees to refer the matter to the Labour Court under the SO Act for necessary interpretation of the Clause 27 of the Certified Standing Orders and therefore the Industrial Court dealing with the complaint under the said Act had no jurisdiction to deal with the said issue relating to the interpretation of the clause of the Standing Orders. Reliance is placed in that regard in the decisions in the matters of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and Ors., , Tata Chemicals Ltd., and others v. Kallash C. Adhvaryu, reported in 1965(1) L.L.J. 54, State of Punjab v. Labour Court, Jullundur and others, reported in Vol. 55 F.J.R. 468, and Krantikari Suraksha Rakshak Sanghatana v. S. V. Naik and Ors., reported in (1993) II L.L.J. 1145. Without prejudice to this submission, it was further contended on behalf of the employer that the Clause 27 nowhere discloses any right in favour of the employees to get extension of the retirement age beyond 55 years and it is entirely at the discretion of the management to extend the same. Undoubtedly, the discretion has to be exercised judiciously, in the sense that it should not only depend upon the physical fitness of the employee but also on the availability of the work with the employer, continuation of his establishment etc., and bearing in mind the same, the materials placed on record by the employer disclose that taking into consideration all the relevant factors in the matter, the employer had not extended the age of retirement beyond 55 years and as per the practice, the same was orally communicated to the employees, including Tryambak and Appu. While justifying the interpretation of the Clause 27 by the Industrial Court in the matter of Appu, it was submitted that the Industrial Court while deciding the case of Tryambak totally misread the decision of the Division Bench in the matter of Tala Textile Mills (U. C.) and Ors. v. Munnilal Nanhoo Yadav and Ors., reported in (1990) I CLR 120, and held the same to be supporting the view taken by the Industrial Court, totally ignoring the observations of the Division Bench, in para 8 of the said decision in particular. According to the learned Advocate, proper reading of the said judgment would support the contention of the employer in relation to the interpretation of the Clause 27 of the Certified Standing Orders. Contending that the decisions which are sought to be relied upon on behalf of the employees being in relation to the provisions pertaining to the discretion conferred upon the public authority coupled with an obligation, it was submitted that those decisions are of no help to the employees in the matter of interpretation of the Clause 27 of the Certified Standing Orders. Attention was also drawn to the letter of appointment issued in favour of the employee, Appu, wherein the year of retirement was clearly mentioned as being the age of 55 years under Clause 4 of the said letter of appointment.
6. As regards the point relating to the jurisdiction of the Industrial Court to deal with the issue pertaining to the interpretation of the Clause 27 of the Certified Standing Orders, the objection thereto is squarely on the basis of Section 13-A of the SO Act. Section 13-A of the SO Act reads thus:-- "13-A. Interpretation, etc. of Standing Orders (model standing order or amendment). -- If any question arises as to the application or interpretation of a standing order (model standing order or amendment) certified under this Act, any employer or workman (or a trade union or other representative body of the workmen) may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947 (XIV of 1947), and specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties."
Bare reading of the above section would disclose that (whenever question arises relating to the interpretation of a Certified Standing Order, any of the parties, namely either the employer or the employee may refer the question for necessary decision on such dispute in relation to interpretation to any of the Labour Court constituted under the Industrial Disputes Act, 1947. When such dispute is referred, the Labour Court is enjoined to decide the same after hearing the parties and such decision is to be final and binding upon the parties. Undoubtedly, therefore, the SO Act makes a specific provision, regarding the disputes pertaining to the interpretation of Standing Orders and also the authority who should decide the same. It is, however, to be noted that the SO Act, either in Section 13-A quoted above, or under any other provision therein, nowhere excludes the jurisdiction of the Industrial Court to deal with the issue pertaining to the interpretation of the clauses of the Standing Orders when such issue arises as an incidental issue in any proceedings pending before such Court. Neither Section 13-A on the face of it provides for exclusive jurisdiction to the Labour Court under the said provision as the sole authority to deal with the issue pertaining to the interpretation of the Standing Orders or the clauses thereof nor it provides that when any such issue arises in any other proceedings pending before any other Court, the same should be referred to the Labour Court in terms of Section 13-A of the SO Act. Being so, merely by referring to Section 13-A, it is difficult to agree with the contention sought to be raised by the learned Advocate appearing for the employer that in view of Section 13-A itself, the Courts dealing with the matters pertaining to obligation of the employer and the employee and disputes pertaining thereto are barred from dealing with the issue pertaining to the interpretation of the Standing Orders or its clauses when such issue arises as an incidental issue in the matters pending before such Courts. I am afraid the decisions which are sought to be relied upon by the learned Advocate for the employer in that regard are of no help to the employer to justify the said contention.
7. The Apex Court in the case of N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and Ors. (supra) had ruled that:--
"It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of."
While delivering the said ruling, the Apex Court referred to the decision in the matter of Wolver hampton New Water Works Co. v. Hawkesford. (1859) 6 C.B. (N.S.) 336, and has quoted a passage therefrom which reads thus:-- "There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The Apex Court therein was dealing with a matter pertaining to election dispute and the provisions of the Representation of the People Act, 1951. While considering the same, the above ruling was delivered. It apparently relates to a case where a special remedy for enforcing a right or liability is provided for. Section 13-A of the SO Act neither speaks about any right nor of any liability nor it speaks about remedy to enforce any such right or liability. It only deals with the procedure to be followed by the parties and the forum before whom the parties are required to approach in case of dispute pertaining to the interpretation of the Standing Orders. That by itself, referring to the decision of the Apex Court in N. P. Ponnuswami 's case, cannot be interpreted to mean that the parties who have right to seek relief under the said Act and to invite the order of the Court on the incidental issues arising while deciding the matter under the said Act would be barred from seeking the opinion of those Courts on the issues relating to the interpretation of the clauses of the Standing Orders even when the same arises as incidental issues in such proceedings.
8. The Gujarat High Court in the case of Tata Chemicals Ltd., and Ors. v. Kailash C. Adhvaryu (supra) was dealing with a matter arising out of a suit filed for declaration that the order of dismissal passed against the appellants before it was illegal and ultra vires and for consequential reliefs. While dealing with the same referring to Section 13-A of the SO Act, it was contended that since special remedy for enforcing the interpretation of the Standing Orders, which was very much an issue in the suit, was provided under Section 13-A of the SO Act, the same could have been resolved only by reference to the Labour Court and not by approaching the civil Court seeking declaration under the Specific Relief Act. One fails to understand how the observations regarding the construction in relation to the provision of law in Section 13-A of the SO Act in the facts and circumstances of the case before the Gujarat High Court in the matter of Tata Chemical can be of any help to the employer in the present matter when the issue pertaining to the interpretation of the Clause 27 had arisen in a matter pending before the Industrial Court arising out of grievance of the workman regarding unfair labour practice being adopted towards him by the management. It is not a case where the workman had approached the civil Court to seek a declaration regarding his right under the Standing Orders by taking resort to the provisions of the Specific Relief Act. It is a case where the grievance pertaining to adoption of unfair labour practice by the management was being looked into by the Court of competent jurisdiction and in the course thereof incidentally the issue pertaining to interpretation of a clause of the Standing Orders had arisen.
9. The decision of the Apex Court in the case of State of Punjab v. Labour Court, Jullundur and Ors. (supra) is in relation to the provisions of the Payment of Gratuity Act. A bare reading of the passage which was read over by the learned Advocate for the employer itself would disclose non-applicability of the said decision to the matter in issue. The passage reads thus :-- "The third contention raised by the appellant is that the employee respondents were not entitled to apply under Section 33-C(2) of the Industrial Disputes Act, 1947, for payment of the gratuity, and should have, if at all, applied under the provisions of the Payment of Gratuity Act. It is urged that the Payment of Gratuity Act is a self-contained Code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose" (emphasis supplied) The Payment of Gratuity Act being a self-contained Code, containing all the relevant provisions to raise the dispute and to obtain the necessary relief in relation to the grievance arising thereunder, certainly the question of taking resort under the other statute cannot arise and considering the same, the Apex Court has held that the provisions of the Payment of Gratuity Act impliedly excludes recourse to any other statute for the purpose of relief pertaining to disputes arising under the Payment of Gratuity Act.
10. Similar is the case in the matter of Krantikari Suraksha Rakshak Sanghatana v. S. V. Naik and Ors. (supra). The Division Bench therein had held that "In the circumstances, the Industrial Court rightly dismissed the complaint filed under the ULP Act, 1971. As regards the breach of provisions of the Security Guards Act, the industrial Court was right in coming to the conclusion that the Security Guards Act, 1981 was a complete Code and if there was any alleged breach, it was open to the appellants to move the Security Guards Board under the said Act, 1981."
11. For the reasons already noted above, Section 13-A of the SO Act nowhere provides for either any relief as such to the parties in relation to any right or liability, not any other provision under the SO Act can be of any assistance to the parties in the matter of grievance pertaining to unfair labour practices adopted by the employer and certainly any issue arising incidentally while dealing with the main issue, neither the provision contained under Section 13-A nor any other provision in the SO Act provide for the reference of such an issue to the Labour Court under the said provision by keeping the main proceedings pending before the Court. Hence the contention regarding lack of jurisdiction, based on Section 13-A of the SO Act, is devoid of substance and is to be rejected.
12. There is yet another reason to discard the contention based on Section 13-A of the SO Act. As already observed above, during the pendency of the proceedings before the Industrial Court, in Tryambak's matter, the workman had applied for interim relief which was rejected by the Industrial Court by order dated 5-5-1999 by referring to the provisions of Section 13-A of the SO Act. The workman had preferred Writ Petition No. 2317 of 1999 which came to be disposed of on 21-9-1999 with the direction that the Industrial Court shall hear and decide the complaint expeditiously and preferably before the end of March, 2000. The said order was passed after hearing the parties, including the employer. In spite of the fact that interim relief was rejected on the basis of Section 13-A, the said issue was not pursued further by the employer in the proceedings before the Industrial Court in the said complaint. Being so, it is too late for the employer to raise the said issue in this petition.
13. The only other point which remains to be considered is the one pertaining to the interpretation of the Clause 27 of the Certified Standing Orders. The Clause 27 thereof reads thus:--
"27. The age for retirement or superannuation may be fifty five years which may be extended by 3 years, one year at a time subject to the production of physical fitness certificate from the Civil Surgeon."
The Industrial Court in Tryambak's case, relying upon the decision of the Division Bench in the case of Tata Textile Mills (U.C.) and Ors. v. Munnilal Nanhoo Yadav and Ors. (supra) has held that the word "may" in the said case is to be interpreted as "shall" in relation to extension of the retirement age beyond 55 years and the only requirement which is to be complied with by the employee is the production of physical fitness certificate from a Civil Surgeon and upon production of such certificate, no other ground can be pressed in service for refusing extension. However, in Appu's case, referring to Clause 27-A of the Certified Standing Orders and the appointment order which was issued to the employee as well as referring to the decision of the Apex Court in the matter of State of Uttar Pradesh v. Jogendra Singh (supra), the decision of the Karnataka High Court in the matter of Dr. K. Hanumanthappa v. State of Karnataka and Ors. (supra) and the decision of the learned single Judge of this Court in the matter of Prabhakar Rajaram Gangan and C.B. Asmar and Ors. (supra), the Industrial Court has held that the decisions cited in relation to the interpretation of the word "may" are not relating to labour cases and mere production of the medical certificate from a Civil Surgeon does not entitle the employee to seek extension of the retirement age as a matter of right and considering the reduction in the strength of employees as well as the business of the hotel, there was no breach of the Clause 27 of the Certified Standing Orders, and no fault can be found with the decision of the employer in refusing the extension beyond the age of 55 years.
14. Bare reading of the judgments of the Industrial Court in both the cases, therefore, would disclose that though the Industrial Court in Tryambak's case has done the exercise of interpreting the Clause 27 of the Certified Standing Orders, there has been no such exercise in Appu's case and the latter case is decided merely on the basis of the contentions advanced by the employer regarding the fact situation in the matter.
15. The rejection of the contentions of the employee by the Industrial Court in Appu's case were sought to be justified by referring to paras 6, 7 and 8 of the decision in Tata Textile Mills' case while contending that the same decision was misconstrued by the Industrial Court in the process of deciding the case of Tryambak. It was sought to be contended that in Tata Textile Mitts case the employees had rejected the proposal of the Millowners' Association in relation to the clause pertaining to the retirement age, as was suggested by them, which clause, in fact, allowed unrestricted discretion in favour of the management as regards the extension of the retirement age beyond 55 years and such clause included the expression "may" while making provision regarding extension of the retirement age beyond the age of 55 years, whereas the clause which was ultimately accepted and incorporated in the Standing Orders contained the expression "shall" while disclosing the superannuation age of the employee. Undoubtedly, the said decision discloses the clause, as was proposed by the Millowners' Association in relation to the retirement age, which reads thus :--
"For Clerks :-- Every employee shall retire from service on completion of 55 years of age. The management may, if the employee is found medically fit, at their discretion grant an extension of not more than one year at a time, provided that the total extension shall not exceed two years.
For Operative:-- Every male operative shall retire from service on completion of 55 years of age and every female operative on completion of 50 years of age. The management may, if the operative is found medically fit, at their discretion grant an extension of not more than one year at a time, provided that the total period of extension shall not exceed two years."
The said proposal was rejected by the employees and ultimately the provision in relation to the retirement age of the employees was included in the Standing Order 20-A as under :--
"20-A. An operative shall retire from service on attaining the age of 60 years, but a male operative shall be retained in service, if he continues to be efficient, upto the age of 63 years, provided that when retrenchment becomes necessary a person who has completed the age of 60 may be retired in preference to younger men."
The Division Bench of this Court after considering the proposal of the Millowners' Association and the ultimate clause in the Standing Order in relation to the retirement age in the said case, observed thus:--
".... The difference in phraseology is so apparent and the effect, therefore, has to be accepted and must be accepted as interpreted by the Member of the Industrial Court (viz. Respondent No. 2 herein) and by the learned single Judge (viz. Mrs. Sujata Manohar, J.) in Writ Petition No. 5844 of 1988.
What the Millowners Association, Bombay, had proposed conferred a discretion on the management to extend the service of a particular operative on a simple consideration which was to be weighed by the employer. Of course, the evaluation had to be fair and honest. On reading the proposed Standing Order (as suggested by the Millowners' Association, Bombay), it could not be reasonably urged by the operative, whether clerks or other workmen, that they had a right to be continued in service till the extended limit. The phraseology of the Standing Order as ultimately adopted is quite clear, since the word 'shall' has been used as far as the extended age is concerned.
Referring to the above observations, it was contended on behalf of the employer that considering the fact that the phraseology in 20-A of the Standing Order in Tata Textile Mills' case used the expression "shall", it was held that it was mandatory for the management to extend the retirement age. However, referring to the clause which was proposed by the Millowners' Association, which included the expression "may" in relation to the extension of service beyond a particular age, it was discretionary and it was entirely at the discretion of the management, albeit which had to be fair and honest and therefore it was contended that applying the said ruling to the matter in hand, the clause which includes the expression "may", twice therein, can by no stretch of imagination be said to be making it obligatory for the management to extend the retirement age beyond the age of 55 years. It is pertinent to note that the decision in Tata Textile Mills' case, as far as it relates to the interpretation of the Clause 20-A of the Standing Orders therein is concerned, has been delivered after taking into consideration the background in which the said clause came to be introduced in the Standing Order. The Division Bench therein after considering the fact that the Millowners Association had proposed the clause in the form of absolute discretion to the management in relation to the extension of the requirement age after a particular age, and the same having been opposed by the Rashtriya Mill Mazdoor Sangh, a representative union, and ultimately the modification was introduced as found in Clause 20-A which specifically provided that the male operative shall be retained in service even beyond the age of 60 years till he completes the age of 63 years, it was held that the phraseology adopted in the Standing Order 20-A, which included the expression "shall" disclose an obligation on the part of the management to retain the employee till the age of 63 years. It is not the case of the employer in the present petition that the Clause 27, as it was then, was introduced as a proposal of the management leaving it to the discretion of the management to extend the retirement age beyond 55 years. Undoubtedly, the clause contained the expression "may" not only in relation to the extension of the age beyond 55 years but even in relation to the retirement age at 55 years. Merely because the clause contains the expression "may" even in relation to the retirement age of 55 years, can it be said that the management would be entitled to retire an employee even before the age of 55 years, considering that the expression "may" gives absolute discretion to the management in that regard? If the argument of the learned Advocate for the employer that same word repeated in the same clause is to be interpreted in the same manner, as to mean the same thing, is accepted and applied in the case in hand, then the word "may" appearing in relation to the extension of the retirement age if construed to mean as absolute discretion of the management in the matter of extension of the retirement age, then the word "may" appearing in relation to the age of 55 years will also have to be interpreted in the same manner and such an interpretation of the Clause 27 would defeat the very purpose for which the Clause 27 is incorporated in the Certified Standing Orders. Being so, no such interpretation can be accepted. The word "may" relating to the age of 55 is undoubtedly to be understood to mean "shall". In other words, every employee shall retire at the age of 55 years in terms of the Clause 27 of the Certified Standing Orders. However, this age can be extended by three years, one year at a time and subject to production of physical fitness certificate from a Civil Surgeon. The Clause 27, as it was contended on behalf of the workmen, apparently does not disclose any condition except the necessity of physical fitness for the purpose of extension beyond the age of 55 years. It specifically provides that for the purpose of extension of the retirement age beyond 55 years, the workman should be physically fit and accordingly has to be certified to be fit by a Civil Surgeon. It does not speak of any other condition to be considered for the purpose of extension of the retirement age.
16. Clause 27-A of the Certified Standing Orders provides that "Where an employer orders a medical examination of a workman or a person desiring to be recruited as his workman under any law, contract, custom or usage applicable to his industrial establishment or under any award, agreement or settlement binding on the employer and the workman in his industrial establishment, such examination in the case of a female shall be made only by a lady doctor, and the expenses of such examination shall be borne by the employer." Clause 27-A neither refers to, in any manner, the extension of the retirement age nor relates to discretion as such to the management in the matter of extension of the retirement age nor it concerns with the conditions based on which the extension can be granted. It merely refers to the matter of medical examination of the workman and the expenses in respect thereof. Merely because the Clause 27-A appears in the Certified Standing Orders under the sub-title 'retirement' after the Clause 27, that by itself will not in any manner justify the same to be read as proviso or an explanation clause to the Clause 27. Being so, reference to Section 27-A for the purpose of construing the Clause 27 is totally uncalled for. No doubt, the Clause 27 can be interpreted by referring to other clauses in the Certified Standing Orders. However, no such attempt has been made on either side to point out any other clause of the Certified Standing Orders which can assist this Court to interpret the Clause 27 in any other manner.
17. As already observed above, the Clause 27 of the Certified Standing Orders does not itself provide for any condition being adopted for the purpose of extension of the retirement age beyond the age of 55 years, except the physical fitness certificate of such workman from a Civil Surgeon. In other words, once a workman attains the age of 55 years, and if he is desirous of continuing to render his services and if he is physically fit and so certified by a Civil Surgeon, his services cannot be terminated before the expiry of the period, as specified in the Clause 27. Undoubtedly, the extension can be maximum for a period of three years and at a time for a period of one year. In other words, at the end of every year, after the age of 55 years, the physical fitness of the workman has to be ascertained and required to be certified by a Civil Surgeon to enable the workman to get extension of the age of retirement upto the period of three years beyond the age of 55 years. Certainly this right is assured to the workman under the Clause 27 of the Certified Standing Orders. I do not find any discretion being left to the management in that regard. Undoubtedly, while granting extension the management will have to be satisfied about the compliance of the requirement under the said clause by the workman relating to physical fitness. If the workman satisfies the said requirement in accordance with the Clause 27, the workman cannot be refused the extension beyond the age of 55 years for a total period of three years, subject to re-verification of the physical fitness at the end of every year during the said period of three years.
18. The view that I am taking in the matter finds support from the decision of the learned single Judge of this Court in Prabhakar Rajaram Gangan's case. In the said case the clause relating to retirement was the Standing Order No. 22(7) which reads thus:--
"Every employee shall retire from the services on attaining the age of 55 years. Extension exceeding one year at a time or 3 years in all may be given at the discretion of the Manager."
Referring to the said clause, the learned single Judge has observed that:-- "It is thus clear that an employee who has completed the superannuation age of 55 years has legitimate expectation under the above Standing Order to get extension initially for one year and for a maximum of 3 years, at the discretion of the Manager. ...... No doubt it is not that the right to get extension is a vested right in the employee but it is the vested right in an employee to expect that his prayer or his request for extension would be objectively and seriously considered on the basis of his service, past record, his reputation and his health and efficiency. All these factors must be found on record before such a decision is taken by the Manager. ...... The Clause 22(7) of the Certified Standing Order casts obligation on the Manager to exercise his discretion while taking any decision under this Standing Order. His discretion must be exercised bona fide, objectively and on the basis of material honestly and properly...."
It is pertinent to note that the clause No. 22(7) specifically provides that every employee "shall" retire at the age of 55 years. In relation to the clause of extension the expression used is "may be given at the discretion of the Manager", and yet it has been held that the exercise of such discretion has to be bona fide, objectively and on the basis of analysis of the materials honestly and properly. Clearly there is difference in the phraseology as regards the age of retirement which disclosed that the employee "shall" retire at the age of 55 and the extension is left to the discretion of the Manager saying that "may be given". In the case in hand, as already observed above, the expression "may" has been used too generously. The same expression has been used while denoting the retirement age of 55 years and also while providing for the extension of the said age beyond 55; but at the same time, the extension has been made subject to production of the medical fitness certificate alone. Being so, I do not find any scope for introducing any other condition in the said clause being a pre-condition for extension of the retirement age, as to read any such provision therein would amount to reading down the Clause 27 giving unbridled powers to the management which has not been agreed upon by the parties while finalising the Certified Standing Orders. It is well-settled that the Standing Orders cannot be changed without following the procedure prescribed for the same. Reading down the Clause 27 to mean that the extension of the retirement age would be at the discretion of the management and subject to other conditions which the management may consider appropriate, would virtually amount to reading in the Clause 27 something which has not been provided thereunder. Hence the contentions of the employer in that regard are to be rejected and it is to held that the Clause 27 provides for the retirement at the age of 55 years, however, it entitles the workman to seek extension for the maximum period of three years by satisfying about the physical fitness of the workman by production of the medical certificate in that regard.
19. The issue as to how the management should get satisfied regarding the physical fitness has also been specified in the Clause 27. It clearly refers to the production of the medical certificate from a Civil Surgeon. Undoubtedly, that would not mean that the employer cannot insist for further check-up at his cost in case the management has doubt about the genuineness of the medical certificate produced by the workman or for any other reason has genuine doubt about the physical fitness of the workman. Certainly, in such a case, the workman can be asked to appear before the Civil Surgeon of the choice of the management for the purpose of medical examination in that regard.
20. The contention that the extension of the retirement age should also depend upon the business condition of the employer or the fact situation which may warrant reduction of the strength of the employees, if accepted, would virtually amount to ignoring the statutory provisions contained in the other statutes dealing with the employer-employee relationship. There are various provisions of law and specific procedure has been prescribed under the relevant statute for the purpose of reduction in the strength of the employees and the employer is not entitled to by-pass those provisions and taking shelter of loss in business the employer is not entitled to deny the rights which have been assured to the employee's under the Standing Orders. To interpret the Clause 27, giving discretion to the employer to refuse the extension beyond the age of 55 years, would virtually amount to terminate the services of such an employee even though he is entitled to continue for a period of three years, subject to physical fitness being established by him.
21. The decisions relied upon by the learned Advocate for the workmen, particularly in the matters of Jogendra Singh and Dr. K. Hanumanthappa (supra) are of no help in the matter as, they are, as rightly submitted by the learned Advocate for the employer, on the point of exercise of discretion conferred upon the public authority coupled with an obligation and being so do not warrant application thereof to the matter in issue.
22. As regards the decision in the matter of National Textile Corporation (Mah. North Ltd.) and Ors. v. S. M. Tambe and Anr. (supra), the same is also of no much help to decide the matter in issue. The learned single Judge therein has observed that:--
"In the circumstances, the controversy in this matter would stand squarely covered under the observations by Mrs. Sujata Manohar, J. (as she then was in this Court), in the case of Maharashtra State Textile Corporation Ltd. v. Vasudeo Vinayak Joshi and Ors. (supra) wherein in para 14 the learned Judge has, in terms stated that this phrase when retrenchment becomes necessary, (appearing in Standing Order 20A) does not refer merely to the subjective satisfaction of the management regarding the need for retrenchment; nor does it refer merely to a settlement or agreement for retrenchment which may be arrived at between the management and the Representative Union. It refers to a further stage when ultimately reduction does take place in the number of workmen or the posts as the case may be. And hence it becomes necessary for the management to comply with Section 25-N of the Industrial Disputes Act before it resort to the provision of the last part of the Standing Order 20A."
The matter therein was relating to the claim of the employees to work upto the age of 63 years based on Standing Order No. 20A, which is quoted hereinabove in relation to the Tata Textile Mills' case. The above quoted observations were made while considering the arguments advanced by the counsel for the Corporation that the sickness of the mill was writ large and hence the provision which was made in the Standing Order No. 20A ought to be properly construed so that the management is not required to continue with its work force beyond the age of 60 years. To that extent the above observations though may lend some support to the contention advanced on behalf of the workmen, it does not help to decide the issue sought to be raised in the matter relating to the interpretation of the Clause 27 of the Certified Standing Orders.
23. It was also sought to be contended on behalf of the employer that the appointment letter issued to the workman Appu discloses that the age of retirement was 55 years and therefore it cannot be said that the workman, as a matter of right, could have insisted for extension of the retirement age beyond the age of 55 years. Attention was drawn to Clause 4 of the appointment letter, which reads thus:--
"4. You will retire on superannuation from our service on December 31, of the year in which you attain the age of 55 years or earlier in the case of female employees. The date of your birth given by you and admitted by us as correct and referred to hereinabove, shall be the basis of your retirement from our service."
This argument is sought to be countered by the Advocate for the workmen by submitting that the Certified Standing Orders were certified on 30-7-1980, much after the issuance of the appointment letter. Irrespective of the fact whether the Certified Standing Orders were certified prior to the issuance of the appointment letter or subsequent thereto, needless to say that once the Standing Orders by which the relationship of the employer-employee is governed clearly provides the retirement age to be of 55 years, subject to its extension of maximum of three years by production of physical fitness certificate issued by a Civil Surgeon, any clause in the appointment letter which is contrary to the provisions of the Standing Orders cannot create any right in favour of the employer. The Standing Orders have statutory recognition which the appointment letter does not enjoy as far as the contents thereof which are contrary to the Standing Orders. Being so, merely because in the appointment letter it was informed that the employee would retire at the age of 55 years, once it is clear that the Standing Orders permit him to render services for a period of three more years after the age of 55 years, subject to condition specified in the Clause 27 of the Certified Standing Orders, the said Clause 4 in the appointment letter cannot come to the rescue of the management to justify its action in the matter.
24. For the reasons stated above, the Writ Petition No. 1903 of 2000, filed by the workman, succeeds, while the Writ Petition No. 1085 of 2000, filed by the employer, fails. The Writ Petition No. 1903 of 2000 is, therefore, allowed. The Impugned order is hereby set aside and the rule is made absolute in terms of prayer Clauses (a) and (b) with costs. The Writ Petition No. 1085 of 2000 is hereby dismissed and the rule is discharged with no order as to costs.