Karnataka High Court
Mag Engineering Employees Union vs State Of Karnataka on 30 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 10887 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 10887 OF 2023 (L-RES)
BETWEEN:
MAG ENGINEERING EMPLOYEES UNION
A REGISTERED TRADE UNION ACT 1926
NO.24, MADHUVANTI
1A CROSS, CHIKKABOMMASANDRA
YELAHANKA BENGALURU-560 065
REPRESENTED BY ITS GENERAL SECRETARY
SRI. L. KALAPPA, AGED ABOUT 70 YEARS
...PETITIONER
(BY SMT. MAITREYI KRISHNAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF LABOUR
VIKASA SOUDHA
BENGALURU -560001
Digitally
signed by REPRESENTED BY ITS SECRETARY
SUMA B N
Location: 2. ADDITIONAL LABOUR COMMISSIONER
High Court of
Karnataka AND APPELLATE AUTHORITY
KARMIKA BHAWAN, DAIRY CIRCLE
BENGALURU-560 029.
3. DEPUTY LABOUR COMMISSIONER, DIVISION-1
AND CERTIFYING OFFICER
UNDER STANDING ORDERS ACT
MANJUNATHA NAGAR, BAGALAKUNTE
BANGALORE-560 065.
4. THE MANAGEMENT OF M/s.MAG ENGINEERING
(SANDHAR TECHNOLOGIES LTD)
NO.46A, 3RD MAIN ROAD
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WP No. 10887 of 2023
2ND PHASE, PEENYA INDUSTRIAL AREA
BENGALURU-560 058.
...RESPONDENTS
(BY SMT. HEMALATHA V., AGA FOR R1 TO R3;
SRI. B.C. PRABHAKAR, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 02.02.2023 PASSED BY THE R2 APPELLATE
AUTHORITY IN CASE NO SOA/CR-05/2022-23 ISSUED BY THE 2ND
RESPONDENT (PLACED AS ANNEXURE-A) AND RESTORE THE ORDER
DATED:20.05.2022 PASSED BY THE R3 CERTIFYING OFFICER IN
DLCB/SO/CR/15A/2021-2022 (PLACED AS ANNEXURE-F) WITH
RETROSPECTIVE EFFECT FROM DATE OF APPLICATION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP,, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
This petition by M/s.Mag Engineering Employees Union against the order dated 02.02.2023 passed in Case No.SOA/CR-05/2022-23 by the respondent No.2-appellate authority produced at Annexure-A by which while allowing the appeal filed by the respondent-management, respondent No.2 - appellate authority has set aside the order dated 20.05.2022 which was passed by respondent No.3-certifying officer according request of the petitioner employees Union for amendment of Certified Standing Orders at Clauses 29.1, 21.1, 21.2 and 21.3.
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2. Brief facts of the case are:
(a) That the petitioner being a registered trade union of the employees working with the respondent No.4 had presented an application on 27.10.2021 to respondent No.3 seeking amendment to clauses 29.1, 21.1, 21.2 and 21.3 of the Certified Standing Orders. That the said amendment was with respect to increasing retirement age of the employees from 58 years to 60 years as well as the amendment with regard to requirement of medical examination by medical officers to be appointed by respondent No.4 to include examination by the Government Medical Officers.
(b) Statement of objections was filed by the respondent No.4-Management. However by an order dated 20.05.2022 respondent No.3-Certifying Officer allowed the application filed by the petitioner-Union granting the amendment as sought for.
(c) Aggrieved by the same, respondent No.4-
Management preferred an appeal, before the Respondent No.2- Appellate authority. By the impugned order appellate authority has set aside the order dated 20.05.2022 passed by the respondent No.3- certifying officer and has allowed the -4- NC: 2024:KHC:30130 WP No. 10887 of 2023 appeal filed by the respondent No.4 -Management. Aggrieved by the same, the petitioner employees Union is before this Court.
3. Smt.Maitreyi Krishnan, learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition and taking this Court through the order and other material enclosed along with the petition submits that the order impugned being cryptic, without any reasons, does not justify interference by the appellate authority with the order passed by the certifying authority. Taking through the reasons assigned in the impugned order learned counsel submits that reasons are not based on any cogent material evidence and that facts and circumstances of the case have not been taken into consideration by the appellate authority before arriving at the impugned order.
4. She further submits that the appellate authority has not adverted to the parameters that are required to be considered for fixing the age of retirement as laid down by the Apex Court and this Court. That the criteria which is required while determining the age of retirement has never been -5- NC: 2024:KHC:30130 WP No. 10887 of 2023 touched upon by the respondent No.2-appellate authority as such the impugned order suffers from perversity warranting interference at the hands of this Court. Hence, seeks for allowing of the petition. Learned counsel for the petitioner relies on the following Judgments in support of her contention:
1. GUEST, KEEN, WILLIAMS, PRIVATE LTD., CALCUTTA vs. P.J STERLING AND OTHERS reported in AIR 1959 SC 1279.
2. IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE LIMITED., AND G.B. CHITNIS AND OTHER vs. THE WORKMEN AND IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE LIMITED AND ANOTHER reported in AIR 1961 SC 1175.
3. M/S BRITISH PAINTS (INDIA) LTD., Vs. ITS WORKMEN reported in AIR 1966 SC 732.
4. M/S KENNAMETAL INDIA LTD., VS.
KENNAMETAL INDIA EMPLOYEES' ASSOCIATION reported in (2012) 3 LLJ 833.
5. MANAGEMENT OF FEDERAL MOGUL GOETZE INDIA PVT. LTD REPRESENTED BY ITS DIRECTOR - OPERATIONS MR. RAJESH SINHA VS. ADDITIONAL LABOUR COMMISSIONER AND OTHERS reported in 2021 SCC ONLINE KAR 14708
6. M/S GRASIM INDUSTRIES LTD., V. GANESH SECRETARTY HARIHAR POLYFIBERS EMPLOYEES UNION reported in W.A. No. 100250 OF 2021 (L-RES), dated 05.07.2022
7. TTK HEALTHCARE LIMITED VS. THE PRESIDENT, BANGALORE EAST INDUSTRIAL WORKERS UNION AND ORS. reported in JUDGMENT DATED 05.07.2022 in W.P. No. 23489/2021.
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5. Per contra, Sri.B.C.Prabhakar, learned counsel for respondent No.4-Management justifying the impugned order submits that the appellate authority apart from posing itself questions which fell for its consideration, had personally visited the respondent No.4 -industry and had inspected the nature of work, the requirement of age to carry out the work involving heavy fabrication, all of that is reflected in the impugned order sufficient enough to justify the rejection of the amendment sought for. He further submits that a specific contention was raised by the respondent-management before the appellate authority with regard to maintainability of application for amendment during the subsistence of a settlement that was arrived at between the parties, in the light of provisions of law and law laid down by the Apex Court prohibiting any such attempt by the Union seeking amendment of any of the service conditions while the settlement is in vogue. He submits admittedly settlement that was arrived at between the parties touching upon the service conditions was in force, as such petitioner employees Union ought not to have made any attempt to change the service conditions. He submits that age of retirement apart from being one of the service conditions -7- NC: 2024:KHC:30130 WP No. 10887 of 2023 would also impose financial burden on the respondent management. That Settlement agreement prohibits imposition of any additional financial burden. As such, he submits that the very amendment to the clauses of the Certified Standing Orders sought for by the petitioner at the outset was not maintainable. He relies upon the Judgment of the Apex Court in the case of Barauni Refinery Pragatisheel Shramik Parishad and others Vs Indian Oil Corporation Ltd., and others in Civil Appeal Nos.930 and 931 of 1990. Referring to paragraph 8 of the said judgment learned counsel emphatically submitted that when the settlement which is valid, fair, reasonable and in force cannot be altered by an attempt of amendment to the certified standing orders having effect on the financial burden of the management. He also relies upon the orders passed by the Division Bench in the case of
(i) Rajashree Cement General Workers and Staff Union Vs The Management of M/s.Ultratech Cement Limited and anr in W.A.200010/2022 dated 13.07.2022.
(ii) The management of Hindalco Industries Ltd., Vs General Secretary and others in W.A.No.100325/2022 C/w W.A.No.100235/2022 dated 25.07.2022.
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(iii) Grindwell Norton Ltd., Employees Association Vs Additional Labour Commissioner and others in W.A.No.640/2021 dated 31.10.2022.
Thus seeks for dismissal of the petition.
6. Heard and perused the records.
7. The respondent No.3-Certified officer has allowed the request of the petitioner employees Union for amendment. In the appeal which is filed by the respondent No.4- Management the appellate authority while extensively extracting the pleadings and contentions urged by the parties and also the Judgment of this Court in the case of Mersen India Pvt. Ltd., Bengaluru Vs Deputy Labour Commissioner, and Additional Labour Commissioner, has given his reasoning at pages 13 and 14 of the impugned order which is extracted hereunder for immediate reference.
ಾರ ೆ ಸಂದಭ ದ ಉಭಯಪ ದವರು ಸ ದ ಾದ,
ಪ ಾದವನು ಆ ದ ಬ ಕ ಮತು !ೕಲ$ಂಡಂ&ೆ 'ಾನ( ಕ)ಾ ಟಕ
ಉಚ, )ಾ(-ಾಲಯದ .ಣ ಯದಂ&ೆ ಅ1ೕಲು ¥Áæ34ಾ5ಗಳ8, ಉಭಯಪ ದವ59ೆ 'ಾ: .ೕ; 4ಾ<ಾ )ೆ9ೆ =)ಾಂಕ :
15.12.2022 ರಂದು >ೇ? .ೕ;ರು&ಾ@ೆ. 4ಾ<ಾ )ೆ9ೆ >ೇ? .ೕ;
4ಾ<ಾ )ೆಯ 4ೆಲಸದ ಸAರೂಪ, 4ೆಲಸದ ಸAರೂಪವC
ಶ ಮEಾಯಕ ೇ ? Fಾಗೂ 58 ವಷ ಗಳ8 Hೕ5ದ 4ಾH ಕ5ಂದ
ಸುಲಭ ಾI 4ೆಲಸ .ವ :ಸಬಹುEೇ ? ಎಂಬುದನು ವಸು L ಮತು
4ಾH ಕ@ೊಂ=9ೆ ನMೆ ದ ಸಂ ಾದ=ಂದ ದುಬಂ=ತು.
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WP No. 10887 of 2023
ಾಸವ ಾI, 4ಾ<ಾ )ೆಯ ಪ NಬO <ಾಯಂ 4ಾH ಕನ
Pೊ&ೆ9ೆ ಇಬOರು ಅಥ ಾ ಮೂವರು ಅ@ೆ4ಾ ಕ ಅಥ ಾ ಗು 9ೆ 4ಾH ಕರು Pೊ&ೆಗೂ; 4ೆಲಸ .ವ :ಸು ರುವCದು ಕಂಡುಬಂ=Eೆ.
ಅಂದ@ೆ ಒಬO <ಾಯಂ 4ಾH ಕನ )ೆರ 9ೆ ಇತ@ೆ ಯುವ ಗು 9ೆ 4ಾH ಕರ )ೆರವC ಅತ(ಗತ( ಾIರುವCದು ಕಂಡುಬಂ=Eೆ. ಅ ೕ >ಾರ ಎತುವ 4ೆಲಸ. heavy fabrication 4ೆಲಸ ಇ&ಾ(= TಷUಕರ ಾದ 4ೆಲಸದ ಸAರೂಪ ಕಂಡುಬಂ=ತು. ಅಲEೇ, 4ಾ<ಾ )ೆಯ 4ೆಲಸದ ಸLಳದ ಅತ(3ಕ ಶಬV 'ಾ ನ( ಮತು ಅ3ಕ ಪ 'ಾಣದ ಧೂಳ8 ಕಂಡು ಬಂ=ರುತEೆ. ಇದ5ಂದ ವಯಸ$@ಾದ 4ಾH ಕರ ಆ@ೋಗ( ಮತು ಅವರ ಉ&ಾXದಕ&ೆಯ !ೕYೆ ವ( 5ಕ ಪ5 ಾಮ ಉಂಟು'ಾಡುವ Zಾಧ(&ೆ ಇರುತEೆ. ಇದರ ಬ9ೆ[ \ಾ-ಾ]ತ ಗಳ8 ಮತು ೕ;Nೕವನು ಸLಳದ &ೆ9ೆದು ಅEೇಶEೊಂ=9ೆ ಲಗ ೆ. (ಅನುಬಂಧ-111 ಮತು III)"
8. Though, as seen above, the appellate authority has posed himself some questions for consideration has however not specifically adverted to the same, except making general observations of he having visited the industry and having seen some of the workers carrying the heavy material, constraining him to come to a conclusion that the nature of the work could not be carried by a person beyond the age of 58 years. He also refers to dusty atmosphere which according to him is hazardous to the employees. The other reason assigned by him is the unemployment problem being faced by the nation to be the reason not to enhance the age of retirement. Except
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NC: 2024:KHC:30130 WP No. 10887 of 2023 this two cryptic reasoning nothing is forthcoming in the impugned order.
9. The Apex Court in the case of Guest, Keen, Williams PR Ltd., Calcutta Vs P.J.Sterling and others reported in AIR 1959 SC 1279 at paragraph 24 of the said Judgment has held as under:
"24. We would, however, like to add that this conclusion should not be taken as a decision on the general question of fixing the age of superannuation in the case of industrial employees. In fixing the age of superannuation industrial tribunals have to take into account several relevant factors.. What is the nature of the work assigned to the employees in the course of their employment? What, is the nature of the wage structure paid to them? What are the retirement benefits and other amenities available to them? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute. In the present case, as we have already observed, the age of 55 has been fixed by both the tribunals for future entrants; and this- is substantially based on the standing order which we have already considered. In regard to the prior employees it is not seriously disputed that the retirement age can and may
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NC: 2024:KHC:30130 WP No. 10887 of 2023 be fixed at 60. It is under these circumstances that we have come to the conclusion that the age of superannuation for prior employees should be fixed at 60."
10. Apex Court in the case of Guest, Keen, Williams Private Limited has set down the parameters which has been consistently followed in all the subsequent Judgments of the Apex Court and various other High Courts when it comes to the question of alteration of age of retirement.
11. In the objection statement filed by the petitioner employees Union to the appeal at paragraph 5 a, b, c, d, e and f referring to the aforesaid Judgment of the Apex Court in the case of Guest Keen Williams (supra) has enlisted the factors/criteria required for determination of retirement age. Though the respondent appellate authority has referred to the principles requiring amendment to the certified standing order, has however not adverted to the criteria to be kept in mind, as laid down by the Apex Court in the case referred to above.
12. Further the Division Bench of this Court in the case of The Management of M/s.Grasim Industries Ltd Vs The General Secretary Harihar Polyfibers and others in
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NC: 2024:KHC:30130 WP No. 10887 of 2023 W.A.No.100250/2021 at paragraph B(ii) C(i) and paragraphs
(h)(i)(ii) has held as under:
(ii) Owing to huge facilities for literacy & communication, largely because of globalization and the like, the overall awareness of masses has improved considerably and people generally have become more health conscious than before.
Obviously, their standard of living has improved. The ill effects of ageing process have been decelerated. The graph of both the life expectancy & general fitness level of the people has strikingly moved up. This is truer of India today. What the Law Commission of India in its 232nd Report', at paragraph 1 observed, is significantly relevant for consideration:
"...There is a general trend to provide for enhanced age of retirement of Chairpersons and Members of various Tribunals constituted by the Government in the country and also of the employees in various spheres e.g. Universities and government undertakings etc. vis-à-vis the normal age of retirement of judges and government servants. It is noticed that the longevity or life expectancy of our citizens is now nearly comparable to that in the developed countries and, therefore, fresh proposals on the subject generally envisage enhanced age of retirement but in the absence of clear-cut guidelines for prescribing retirement age of Chairpersons or Members of various Tribunals in the country, different Ministries of the Government adopt different yard sticks..."
There is an undeniable relationship between the life expectancy of employees and the ideal age of their superannuation. This translates into an organic nexus between 'retirement age' and 'participation in the labor force'. The nuanced aspect of this is examined in the following paragraph of a Research Paper titled 'The Retirement Effects of old-age pension and Early Retirement Schemes in OECD Countries:
"...In principle, there is no straightforward relationship between the effective retirement age and the labor force participation of older workers. For instance, even if participation is higher in a country than another, the effective retirement age may still be lower if labor market participants withdraw earlier. However, there is actually a very strong cross- country relationship between both variables: countries with lower participation rates
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NC: 2024:KHC:30130 WP No. 10887 of 2023 of older workers tend to have lower effective retirement ages. Therefore, increasing the effective retirement age and raising the labor force participation of older workers appear to go hand in hand in practice....
C(i) Prescribing conditions of service generally belongs to the domain of employer and therefore, in laissez- faire era it was the employer who was fixing the age of retirement, with least State intervention. However, in a Welfare State there has been a progressive legislative regulation of employers' prerogatives. The service conditions in industrial establishments are regulated under the provisions of 1946 Act. It is admitted by the appellant that Clause 29 of the CSO prescribed 58 years as the age of retirement way back in the year 1971 and it continued even post 2017 Amendment Rules. It is pertinent to note that, during the said period, the Industrial Employment (Standing Orders) Central Rules 1946 had also not prescribed any age of retirement. The age of superannuation in any employment is prescribed mainly keeping in view the contemporary life expectancy of the working classes and their agility levels in general. What was true of the bygone era becomes untrue of the present, because of march of time. As per the Report titled "SRS Based Life Table 2013- 17" published on 13.03.2020 by the Registrar General & Census Commissioner, Government of India, the average life expectancy has increased from 49.7 during 1970-75 to 69.0 in 2013- 17; this registers an increment of 19.3 years for the block period.
H (i) Learned Senior Counsel Mr. Kathawi passionately submitted that appellants' manufacturing unit involves considerable amount of risk to the workmen "owing to exposure to Hot work, confined to space working, working at height, chemical exposure etc in case of accidental release of fumes & gases and acid spills." He argues that the nature of job which the workmen have to attend to, causes both physical & mental strain and therefore, it is not prudent to continue the workmen in service once they attain 58 years so that the risk to their life & limb is avoided. We do not agree with the logic of this argument and the reasons are at an arm's
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NC: 2024:KHC:30130 WP No. 10887 of 2023 length: Firstly, the industry of the Appellant is not registered as involving 'hazardous processes' under the provisions of the Factories Act, 1948 and the Rules promulgated thereunder, as rightly pointed out by Mr. S.L Matti the learned counsel appearing for the Employee Union. Secondly, every industry of the kind arguably involves some job near furnace, some near wheels, some near belts and some near spikes; that per se, does not make the 'industrial process hazardous' to all classes of workmen.
(ii) The Appellant has not disclosed as to how the manufacturing process in its establishment was hazardous or arduous and that workmen beyond the age of 58 years are not suitable to continue in employment. In fact, appellant had signified his willingness before the authorities to favorably consider employees request for enhancement of retirement age, which aspect we discuss separately later. Whatever potential hazard that lies in every industrial activity can be taken care of by the advanced technology and safety measures; the appellant in the synopsis to the Writ Appeals has specifically admitted that he has installed "the state of the art safety system" and that there is "safe environment" in the unit. Appellant has not produced any expert medical opinion to substantiate the contention that there would be considerable deterioration in the fitness & agility of the employees in the age group of 58-60 years. No statistical data supportive of the contention was produced before the authorities or the learned Single Judge or even here before us. The Co- ordinate Bench in FEDERAL MOGUL, supra referred to several decisions on being challenged in SLP of the Apex Court wherein challenge to fixation of 60 years as the age of retirement was repelled and observed at paragraph 16: "...the Courts have always held in favour of upward revision of the age of retirement and have fixed it at sixty (60) years, even in case where there was no age of retirement fixed or agreed between the parties... " The Bench at paragraph 19 further observed: "This Court too has followed the above and have consistently held that the age of superannuation of workmen in industrial establishments could be fixed
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NC: 2024:KHC:30130 WP No. 10887 of 2023 at sixty (60) years..." It is pertinent to state that these observations were made after repelling the contention of 'hazardous industry' and that this decision has got the seal of Apex Court as already mentioned above."
13. The appellate authority ought to have given specific finding on these aspects as well. Thus as rightly contended by learned counsel for the petitioner employees Union the order impugned lacks reasons and application of mind to the facts and circumstance of the case warranting interference and the matter requires reconsideration by the appellate authority.
14. The contentions of learned counsel for the respondents on the grounds of maintainability of application for amendment during the term of settlement, it is not in dispute that the settlement that was arrived at between the petitioner employees Union and the respondent No.4 -management dated 24.07.2017 was in force upto 31.12.2020 and the application filed by the petitioner employees Union seeking amendment to the clauses referred to above is dated 27.10.2021. In other words as on the date of application, there was no settlement in force. The new settlement is stated to have been entered into on 12.05.2022 which is subsequent to filing of the application for amendment.
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15. Further on a specific query by this Court as to whether the ground being canvassed by the respondent- management with regard to bar of the petitioner employees Union seeking for amendment in view of purported settlement being in vogue was earlier raised before the respondents 2 and 3, learned counsel for the respondent-Management fairly submits that no grounds were urged earlier in the appeal before the Certifying Officer. However, such grounds were raised for the first time at the time of arguments and same was also submitted by way of synopsis before the appellate authority. Needless to state that the respondent-management not having raised such grounds in the appeal memo, the petitioner employees Union would not have got an opportunity of adverting to the same. Though said grounds do not form part of the reasoning of the appellate authority while allowing the appeal, since extensive arguments are addressed by the both petitioner employees Union as well as respondent- management with regard to prohibition for seeking amendment when the settlement is in vogue, this Court is of the considered view the respondent authority shall consider the aforesaid ground as well.
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16. Thus for the aforesaid reason of appellate authority not considering parameters in the case of Guest, Keen, Williams (supra) as well as the bar of seeking amendment during the currency of settlement, as held by the Apex Court in the case of Barauni Refinery Pragatisheel Shramik Parishad and others Vs Indian Oil Corporation Ltd. and others in Civil Appeal Nos.930 and 931/1990 decided on 17.07.1990, this Court is of the considered view that the impugned order requires to be set aside.
Accordingly, the following:
ORDER
(i) Writ petition is allowed.
(ii) Order dated 20.05.2022 is set aside. Matter is remitted to respondent No.2-appellate authority who shall after affording sufficient opportunity to the parties pass order specifically adverting to the criteria laid down by the Apex Court in the case of Guest, Keen, Williams (supra) as well as in the case of Barauni Refineries (supra) whether the law laid down by the Apex Court is applicable to the facts and
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NC: 2024:KHC:30130 WP No. 10887 of 2023 circumstances of the instant case, within a period of sixty days from the receipt of certified copy of this order.
Since the parties are represented by their respective counsel they shall appear before the respondent No.2-appellate authority on 19.08.2024 without any further notice.
Sd/-
(M.G.S. KAMAL) JUDGE SBN List No.: 1 Sl No.: 42