JUDGMENT S.U. Kamdar, J.
Page 1541
1. The present writ petition is filed challenging the order passed by the Industrial Court dated 2.7.2002 in Complaint (ULP) No. 1096 of 2001. Few facts of the present case briefly enumerated are as under :
2. The petitioners are the workmen of the mill known as India United Mills, Mumbai which was taken over by the respondent Corporation under the Sick Textiles Undertakings (Nationalisation) Act 57 of 1974. The petitioners were employed in the mill at the time of the said take over. Before the take over of the mill a settlement was arrived at by and between the workers of the India United Mills and the Mill on 21-2-1956. Under clause 3 of the said settlement it was inter alia provided that the retirement age of the workers from service will be 60 years but the company is entitled to retire an employee after he has attained the age of 55 years if by reason of age or infirmity he is unable to perform his duties properly. The said settlement was arrived at under Section 12(3) of the Industrial Disputes Act, 1947. Sometime in or about 1961, an award was passed by the Industrial Court in Ref. (IC) No. 94 of 1961 under which also it was provided that the age of retirement of the petitioners will be 60 years. On 10.5.1975, an agreement was entered into between the National Union of Commercial Employees and the respondent Corporation which was after taking over of the said mill and under the said settlement it was provided that the terms and conditions and privileges of the employees including the petitioners herein will remain the same. Immediately thereafter the respondent Corporation gave an option to all the employees to provide for their fitment in the grade prescribed for under the NTC service conditions. However, while giving the said option the condition placed was that any employee who desires to avail of the benefit of the fitment grade under the NTC rules then they can do so subject to NTC service conditions which are applicable to the said post will be applicable. On 22.10.1984 the petitioners gave an option. However, while giving the option to opt for NTC pay scales and agreeing to opt for NTC grade they put forth a qualification which reads as under :
These exclude however, age limit laid down for superannuation at the time of my employment. On 23.7.1988, a proposal was put forth for amendment of the standing orders to change the superannuation age from 60 years to 58 years and an application was made under Section 3(3) of the Industrial Employment (Standing Orders) Act, 1946 for reducing the age of retirement from 60 years to 58 years. However, the said application was rejected by an order dated 15.1.1990. On 19.5.1998, an office memorandum was issued by the Government of India providing for the age of retirement at 60 years. On 22.5.1998, a letter was issued by the respondent Corporation addressed to Page 1542 the General Managers of the Mills inter alia stating therein that the Government has decided to enhance the age of superannuation from 58 to 60 years.
3. However, suddenly on 3.10.2000 the Government of India issued a fresh circular conveying that the age of retirement will be rolled back from 60 years to 58 years. Accordingly, on 9.10.2000 a letter was issued by NTC Ltd., New Delhi to the Chairman and Managing Director of the respondent Corporation asking that all employees below the board level should retire at the age of 58 years. On 24.1.2001, 26 employees made a representation protesting the premature notices for retirement on the basis of Government's roll back. On 2.5.2001 a reminder was sent. Ultimately on 15.10.2001, a letter was issued to one Mr. P.B. Tari stating therein that he would stand retired on his attaining the age of superannuation of 58 years. In view of the said step taken by the respondent Corporation, the petitioner preferred a complaint before the Industrial Court on 21.12.2001. The said complaint was heard by the Industrial Court and by the impugned order and judgment the Industrial Court has dismissed the said complaint preferred by the petitioners.
4. Being aggrieved by the said order of the learned Industrial Court, the present petition has been filed by the petitioners inter alia seeking relief that it be declared that the superannuation age of the petitioners is 60 years and not 58 years and the Corporation is bound by the settlement arrived at by and between the parties.
5. The learned counsel appearing for the petitioners has inter alia contended that the roll back provisions which are provided for by the circulars and office memorandum issued by the Government i.e. dated 3.10.2000 reducing the age of retirement to 58 years from 60 years is not applicable to the petitioners and the petitioners are governed by the Model Standing Orders and settlement which has been entered into between the parties. The learned counsel for the petitioners has further contended that under the standing orders the retirement age is prescribed as 60 years and not as 58 yeas. He has drawn my attention to the Model Standing Orders prepared under the Industrial Employment (Standing Orders) Act, 1946 which inter alia under model standing order no. 27 prescribes the age of retirement as 60 years. It has been contended that the workmen are entitled to both the benefits of the NTC pay-scales on the NTC terms and conditions as well as the standing orders provisions which are beneficial to them. It has been further contended that in any event, in the present case the petitioners have exercised the option with the qualification that the condition that their age of superannuation will not be altered even if they opt for NTC terms and conditions and the said condition having been accepted by the respondent Corporation, the respondent Corporation is not entitled to act contrary to the said option exercised and agreement arrived at by and between the parties namely that the petitioners will be entitled to all benefits of NTC pay scales and NTC terms and conditions excluding the age of superannuation will be applicable.
6. The learned counsel for the petitioners has in support of the aforesaid contention relied upon various judgments. Firstly, he has relied upon the Page 1543 judgment of the Supreme Court in the case of Western India Match Co. Ltd. v. Workmen , in particular he has relied upon paras 5, 6 and 7 of the said judgment and is insisting that the petitioners are entitled to both the benefits. He has thereafter relied upon the judgment of the learned Single Judge of this Court in the case of New Hind Textile Mills Unit of N.T.C. (SM) Ltd., Mumbai v. Rashtriya Mill Mazdoor Sangh reported in 2003 III CLR 332. He has thereafter relied upon the judgment of another learned Single Judge of this Court in the case of Engineering Workers' Association v. J.D. Jamdar, Member, Industrial Court and Ors. reported in 2004 III CLR 315, particularly paras 12 and 13 of the said judgment which read as under :
12. Similar standing orders are applicable to the workmen employed for clerical or supervisory work. The Standing Order 27, therefore, stipulates that the age of retirement should be 60 years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award. If the submission of Mr. Talsania is correct that any age could have been the retirement age, there was no need for the Legislature to stipulate the age of 60 years in the Standing Order 27. This has obviously been done in order to ensure that the retirement age of the workman is at least 60 years. Any settlement or agreement or award stipulating any age of retirement which is above the age of 60 years is permissible under the Standing Orders. Standing Order 32 makes it amply clear that the Standing Orders cannot operate in derogation of any law for the time being in force or to the prejudice or any right under the contract of service, custom or procedure or agreement, settlement or award. Therefore, if the contract of service under an agreement, settlement or award stipulates that the age of retirement should be something other than 60 years, the agreement is saved by this Standing Order which when read with Standing Order 27 lends credence to the submission of Ms. Buch. If the retirement age was not to be at least 60 years, there was no need for the legislature to mention this figure in Standing Order 27 and the Standing Order could have read as "the age of retirement or superannuation of the workmen may be such age as may be agreed upon between the employer and the workmen by any agreement, settlement or award". By stipulating the age as 60 years in the Standing Order, obviously the Legislature meant that the minimum age of retirement would be 60 years.
13. In the case of Indian Tobacco Company Ltd., (supra), the learned Single Judge of this Court (H.D. Patel, J.) has held that the Standing Orders must prevail over the contract of employment except when the contract of employment offers better rights. This judgment deals with the standing order 4-A. While interpreting this Standing Order r/w Standing Order 32 of the Model Standing Orders, the learned Judge has held that the provisions contained in the Standing Orders should not operate to Page 1544 the prejudice of any right under the contract of service, custom, or usage or agreement, settlement or award. The prohibition is hence cast against the operation of the Standing Orders only when better rights are acquired on an employee under the contract of service and are likely to be prejudiced. I am in respectful agreement with this view taken by the learned Single Judge. In the case of Philipos Babu (supra), another learned Single Judge of this Court (Srikrishna, J.) has taken a similar view after considering the judgment in the case of Indian Tabacco Co. Ltd., (supra). The learned Judge has held that the provisions of the Model Standing Order 4A would override any provision to the contrary contained in the employment contract or certified standing orders existing on the day on which the Model Standing Order 4A was brought into effect.
7. Relying upon the aforesaid judgments, the learned counsel for the petitioner has contended that the law is well settled that the petitioners cannot be subject to any terms and conditions contrary to the standing orders and if any act is done contrary to the standing orders then the petitioners will be entitled to apply under item 9 of Schedule IV of the MRTU & PULP Act, 1971 on the ground that the respondent employer has committed unfair labour practices. The learned counsel for the petitioner has contended that in so far as the roll back of age by the government is concerned, the same is not applicable to the petitioners because the petitioners are governed by the standing orders in so far as their age of superannuation is concerned. He has further submitted that though the said circular applies to all employees below board level and the petitioners are also the employees below board level still they are governed by the standing orders by virtue of the qualified acceptance of the terms and conditions of the NTC pay-scale and the Corporation having accepted the same, they are not governed by the said circular and they cannot be retired at the age of 58 years but are entitled to be in service upto the age of 60 years.
8. The learned counsel for the respondent on the other hand contended that the NTC after nationalisation of the mills had three categories of employees. The first category is of the employees who are governed by the BIR Act and to whom Sections 35 to 41 of the BIR Act apply. The second category of the employees is the employees who are workmen under section 2(s) of the Industrial Disputes Act, 1947 these are the employees who were working in the retail shops and/or head office or other establishments and they were governed by the Industrial Employment (Standing Orders) Act, 1946 and to them the Model Standing Orders apply. The petitioners were the employees in the head office and thus they fall in this category. The third category of the persons were those persons who were new recruits directly by the NTC under the NTC pay scales and rules and those who are promoted from the lower categories to the higher categories and given the NTC grades and thus bound by the NTC Rules. It is the case of the petitioners that the petitioners in the present case were employees of Class II category as mentioned above and after exercising option which was given to them on 22.10.1984 have became the persons falling in third category by virtue of promotion they got for the NTC pay scales and NTC service conditions.
Page 1545
9. The learned counsel for the respondents has contended that irrespective of the fact that in so far as superannuation age is concerned they have given qualification but still the petitioners are bound by the said NTC terms and conditions including those pertaining to age of superannuation. It has been submitted that the petitioners cannot accept those terms and conditions which are beneficial to them and at the same time reject those terms and conditions which are not beneficial to them. The learned counsel for the respondent has thereafter submitted that this Court should treat the said qualification as invalid and hold that the petitioners are governed by all the terms and conditions of the NTC pay scales and service terms and conditions and consequently the petitioners superannuation age including the reduction of age from 60 years to 58 years is applicable to the petitioners herein. The learned counsel for the respondents thereafter submitted that it is not permissible in law that an employee can claim that his service conditions are governed by two sets of conditions one under NTC pay scales i.e. terms and conditions of NTC Grade and another being terms and conditions under the Standing Orders. It is further submitted that the petitioners are not falling under workman category and the petitioners are not workmen and, therefore, not entitled to maintain the complaint under Section 28 of the MRTU & PULP Act, 1971.
10. The next contention advanced by the learned counsel for the respondents is that even if it is accepted that under the letter dated 22.10.1984 workman gave a conditional acceptance and that the Corporation by acting upon the same and giving the fitment grade has accepted the said condition, still the learned counsel for the respondent has submitted that it is clear that on 20.1.1998 pursuant to the Supreme Court judgment when the benefits were given to the petitioners by issuing an office order which contained a clause which reads as under :
On the basis of High Power Pay Committee Report/Supreme Court Judgement/Department of Public Enterprises instructions/ Holding Company's guidelines, Rules inforce when amended would be binding on him/her.
11. The learned counsel for the respondent Corporation has contended that by virtue of the aforesaid endorsement contained in the said letter dated 20.1.1998 and having accepted the same by putting the signature thereunder, the petitioner workmen have accepted all the terms and conditions of NTC grade including pertaining superannuation age and thus have given up the said option exercised in respect of superannuation age in 198. Thus, the learned counsel for the respondent Corporation has submitted that the petitioners are not entitled to benefit of superannuation age of 60 years.
12. Thereafter the learned counsel for the respondent corporation has contended that the complaint filed under item 9 of Schedule IV of the MRTU & PULP Act is not at all maintainable. It has been submitted that actually the complaint falls under item 1 of Schedule IV. It has been further submitted that superannuation is equivalent to termination or discharge and/or dismissal and, therefore, it would not be covered by item 9 of Schedule IV. Page 1546 In support of the aforesaid contention the learned counsel for the respondent corporation has relied upon the judgment of the learned Single Judge of this Court in the case of A-Z (Industrial) Premises Co-op. Society Ltd,. v. A.T. Utekar and Ors. reported in 1997 II CLR 1033. Thereafter the learned counsel for the respondent corporation has relied upon the judgment of the learned Single Judge of this Court in the case of Abhudaya Co-op. Bank Ltd., v. S.L. Mehendale and Ors. reported in 2003 I CLR 1025 and the third judgment relied upon by the learned counsel for the respondent corporation is of another learned Single Judge of this Court in the case of Vasudeo Dharanidhar Joshi and Ors. v. Bombay Textile Research Association and Ors. reported in 2004 III CLR 852. The learned counsel has thereafter relied upon the judgment of the Apex Court in the case of Hindustan Level Ltd. v. Ashok Vishnu Kate and Ors. reported in AIR 1996 SC 285 has been thus contended that under the provisions of Section 7 of the MRTU & PULP Act, 1971 it is the Labour Court who had jurisdiction to determine the application under item 1 of Schedule I and not the Industrial Court. It has been further submitted that provisions of Section 5(d) make it clear that the Industrial Court jurisdiction to determine the complaint of unfair labour practice is excluding the matters which fall under item 1 of Schedule IV. It has been thus submitted that the Industrial Court who has passed the impugned order has no jurisdiction to entertain the complaint of the petitioners because the complaint of the petitioners was on the basis of wrongfully applying the age of superannuation which would amount to termination, discharge and/or dismissal of the employee.
13. Taking the last contention of the learned counsel for respondent corporation first, I must state that it is admitted by the learned counsel for the respondent corporation that no such issue was raised before the Industrial Court. In fact before the Industrial Court what was urged was the maintainability of the complaint under section 28 under issue no. 3 as framed by the Industrial Court as under :- "Is the complaint maintainable?" and in para 20 the finding is given that the said complaint is maintainable under section 28 of the MRTU & PULP Act, 1971. The learned counsel for the respondent corporation has further contended that though it is true that the said issue was not raised before the Industrial Court still but the same being a pure question of law and being an issue of jurisdiction going to the root of the matter and therefore the respondents are entitled to agitate the same. It has been thus contended that the said issue should be decided by this Court. Without going into the authorities cited before me, in my opinion, in the present case the said issue does not arise. It is for this reason that what is challenged is not their premature dismissal or premature superannuation. What was challenged is the letter dated 15.10.2001 which is at Exhibit Q to the petition. The said letter is dated 15.10.2001 and it intimates to the 3rd petitioner that his age of Page 1547 superannuation will be as of 28.2.2002 when he will attain the age of 58 years. However, before the said date comes, the 3rd petitioner filed a complaint on 21.12.2001 that is much before the age of superannuation fixed by the respondents. Thus, on the date of the filing of the complaint there was neither discharge, dismissal or superannuation of any of the petitioners. In that view of the matter, the contention that the present case falls under item 1 of Schedule IV because it amounts to discharge or dismissal of the employee, cannot be sustained. In the facts of this case as on the date when the complaint was filed the only issue was "whether the letter is in breach of the terms and conditions of the settlement and/or award and thus was falling under item 9 of Schedule IV of the MRTU & PULP Act, 1971. In that light of the matter, the contention advanced by the learned counsel for the respondent corporation has no merit whatsoever and the same is liable to be rejected.
14. Now turning to the main merit of the matter, there is no dispute that the petitioners workers have exercised an option and opted for NTC grade. However, while exercising the option the petitioners themselves have qualified the said option by the sentence that 'as far as superannuation is concerned, they will continue to take the benefit of the superannuation age as prevailing at the time of their employment. The superannuation age was 60 years at the time of their appointment. The Corporation has accepted the said option letter and given the benefit of NTC scale by accepting the condition that the petitioners will take the benefit of the superannuation age of 60 years which was the age prevailing as on the date of their appointment. Thus, in my opinion, the learned Industrial Court was not justified in holding that by virtue of accepting the terms and conditions of the service conditions of NTC grade the petitioners have also accepted the age of superannuation as prescribed under the NTC rules. In the light of the express condition placed in the option letter the finding of the Industrial Court cannot be sustained. The contention of the respondent Corporation that by virtue of the endorsement made on the said letter which is of 1998 they have given up the option which was earlier exercised in 1984 in my opinion has no merit. Firstly because the letter dated 20.1.1998 does not talk about any option or any age of superannuation. Reliance placed on clause in the said letter and acceptance thereof does not amount to giving up of the condition which was placed at the time of exercising option in 1984 and thus the contention of the Corporation that by virtue of acceptance of the letter dated 20.1.1998 being office order they have given up the option, cannot be accepted. The reading of the letter dated 20.1.1998 makes it clear that the same was in respect of revision of the pay scale by virtue of the judgment of the Supreme Court and extension of the benefit of the pay scale of different categories of workmen. The said benefit was granted on the basis that two persons doing the same work cannot be differently treated by giving different pay scales and accordingly the Supreme Court directed to give an identical pay scale to both the set of employees. This office order does not stipulate in any manner that if the said pay scales are accepted the petitioners who have exercised the option in 1984 would be deemed to have given up the option of retirement on superannuation at the age of 60 years and would be Page 1548 bound by the age of superannuation of 58 years. In fact in 1998, under the NTC rules also the age of superannuation was 60 years. It is only in 2000 that for the first time the NTC decided to revise the superannuation age from 60 years to 58 years and sought to be made applicable to all the employees. In my opinion, by virtue of the fact that by qualified acceptance of the terms and conditions of the NTC as evidenced from the letter dated 22.10.1984, it cannot be said that the petitioners are not entitled to continue to have the benefit of 60 years in accordance with standing orders and they are bound by the revision of superannuation age by virtue of circulars issued in exercise of power under sections 14 and 15 of the Sick Textiles Undertakings (Nationalisation) Act. In my opinion, the petitioners will continue to be governed by the standing orders in so far as the age of superannuation is concerned and, therefore, the impugned order and judgment passed by the Industrial Court cannot be sustained in law. The said judgment is required to be therefore quashed and set aside and the complaint of the petitioners is required to be allowed. It is declared that the respondent corporation has by seeking to reduce the age of superannuation from 60 years to 58 years contrary to the standing orders and settlement arrived at by and between the parties has committed unfair labour practice and the direction is given to the respondent corporation to desist from doing so. However, in view of the passage of time the petitioners have already attained the age of superannuation i.e. 60 years. In that light of the matter, the petitioners are entitled to the monetary benefits as if they are superannuated at the age of 60 years and not at the age of 58 years. The respondents are directed to compute the said benefit accordingly and pay the same to the petitioners within a period of 12 weeks from today. In view thereof the impugned order is set aside. Petition is accordingly made absolute. However, there shall be no order as to costs.