Grindwell Norton Ltd vs Additional Labour
2022 Latest Caselaw 12701 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF OCTOBER, 2022

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

              W.A.No.640/2021 (L-RES)

BETWEEN:

GRINDWELL NORTON LTD
EMPLOYEES ASSOCIATION
DEVANAHALLI ROAD
OFF OLD MADRAS ROAD
BENGALURU - 560 049
(REPRESENTED BY ITS
GENERAL SECRETARY).                      ...APPELLANT

(BY SRI K. SUBBA RAO, SR. COUNSEL FOR
    SRI L. MURALIDHAR PESHWA, ADV.)

AND:

1.     ADDITIONAL LABOUR
       COMMISSIONER AND APPELLATE
       AUTHORITY, UNDER THE INDUSTRIAL
       EMPLOYMENT (STANDING ORDERS)
       ACT, 1946, KARMIKA BHAVAN
       DIARY CIECLE
       BANGALORE - 560 029.

2.     DEPUTY LABOUR COMMISSIONER
       AND CERTIFYING OFFICER
       UNDER THE INDUSTRIAL EMPLOYMENT
       (STANDING ORDERS) ACT, 1946
       KARMIKA BHAVAN, DIARY CIECLE
       BANGALORE - 560 029.

3.     GRINDWELL NORTON LIMITED
       DEVANAHALLI ROAD
                            2

     OFF OLD MADRAS ROAD
     BENGALURU - 560 049
     (REPRESENTED BY ITS
     MANAGING DIRECTOR).                 ...RESPONDENTS

(BY SRI LAXMI NARAYANA, AGA FOR R-1 & R-2;
    SRI ASHOK HARANAHALLI, SR. COUNSEL FOR
    SRI N.S. NARASIMHA SWAMY, ADV., FOR R-3)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT R/W ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER DATED 01/04/2021, PASSED IN WRIT PETITION
43861/2018 ON FILE OF THIS HON'BLE COURT WHICH HAS
SET ASIDE THE ORDERS OF THE 1ST RESPONDENT AND THE
SECOND RESPONDENTS.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY J.,      DELIVERED THE
FOLLOWING:

                   JUDGMENT

This intra court appeal is filed assailing the order

dated 01.04.2021 passed by the learned Single Judge of

this Court in W.P.No.43861/2018.

2. Heard the learned Senior Counsel appearing for

the parties and also perused the material available on

record.

3. Brief facts of the case as revealed from the

records that may be necessary for the purpose of

disposal of this appeal are, the Standing Orders of

respondent no.3 herein was certified on 29.04.1991, and

on 15.06.2015, the appellant had filed an application

before the certifying officer under the Industrial

Employment (Standing Orders) Act, 1946 (for short, 'the

Act') seeking amendment of Clause 21 of the Standing

Orders, which related to the age of retirement from

service. Under the said clause, the age of retirement was

58 years and the amendment was sought to change the

same to 60 years. On 17.03.2017, the State Government

had issued a notification amending the Model Standing

Orders, wherein the age of retirement from service was

enhanced to 60 years. Respondent no.3 herein, after

receipt of notice from the certifying officer, appeared

before the certifying officer and filed its detailed

objections for amending Clause 21 of the Standing

Orders. However, the certifying officer vide order dated

08.11.2017 held that Clause 21 of the Certified Standing

Orders of respondent no.3-Company has to be amended,

and accordingly, directed respondent no.3 to enhance the

age of retirement from 58 to 60 years to all the workers.

Being aggrieved by the same, respondent no.3 preferred

an appeal before the Appellate Authority and the said

appeal was dismissed by the Appellate Authority vide

order dated 09.08.2018 and as against the same,

respondent no.3 had preferred W.P.No.43861/2018 and

the learned Single Judge of this Court vide the order

impugned allowed the writ petition and remanded the

matter to the certifying officer to pass fresh orders after

due consideration of the contentions raised by

respondent no.3 in its statement of objections filed

before the certifying officer within a period of two months

from the date of receipt of the said order. Being

aggrieved by the same, respondent no.3 in the writ

petition viz., the Employees Association has preferred

this intra court appeal.

4. Learned Senior Counsel appearing for the

appellant submits that the learned Single Judge was not

justified in remanding the matter as the objections raised

by respondent no.3 herein had been considered by the

Appellate Authority. He submits that the State

Government has amended the Model Standing Orders in

the year 2017 and the age of retirement has been

enhanced to 60 years. He also submits that in view of the

increase in life expectancy, the age of retirement has

been enhanced in all private and public sectors to 60

years, and therefore, no exception can be made to the

workers of respondent no.3. In support of his arguments,

he has placed reliance on the judgments in the case of

BRITISH PAINTS (INDIA) LTD. VS ITS WORKMEN - AIR

1966 SC 732, IMPERIAL CHEMICAL INDUSTRIES

(INIDA) PRIVATE LTD. VS THE WORKMEN & ANOTHER -

AIR 1961 SC 1175, BURMAH-SHELL OIL STORAGE AND

DISTRIBUTING COMPANY OF INDIA LTD. VS THEIR

WORKMEN & ANOTHER - 1970 II LLJ PAGE 11 SC. He

has also placed reliance on the judgments of the Division

Bench of this Court in W.A.No.2771/2019 disposed of on

25.02.2021 and W.A.No.100250/2021 disposed of on

05.07.2022.

5. Per contra, learned Senior Counsel appearing for

respondent no.3 submits that the Model Standing Orders

cannot be made applicable as there is a separate

Certified Standing Order which binds the parties in the

present case. He also submits that a settlement between

the contesting parties herein has been entered into under

Section 12(3) read with Section 18(3) of the Industrial

Disputes Act, 1947, and it has been agreed under the

said settlement that the said settlement is in full and final

satisfaction of all the demands raised by the Union in the

Charter of Demands dated 18.01.2018 in respect of

permanent workmen which includes enhancement of

retirement age and the Union has agreed that it will not

raise any demand during the period of operation of this

settlement having financial liability on the management

unless agreed between the parties. He submits that the

respondent no.3-Company is a Heavy Engineering

Company, and therefore, the safety and security of the

workmen also requires consideration and this objection

has been specifically raised before the certifying officer.

In support of his arguments, he has placed reliance on

the judgments of the Hon'ble Supreme Court in the case

of BARAUNI REFINERY PRAGATISHEEL SHRAMIK

PARISHAD - (1991)1 SCC 4, JEEWANLAL (1929) LTD. VS

THE WORKMEN & ANOTHER - (1973)3 SCC 528.

6. In reply, learned Senior Counsel for the

appellant has placed reliance on the judgment of the

Hon'ble Supreme Court in the case of SANGRAM SINGH

VS ELECTION TRIBUNAL, KOTAH & ANOTHER - AIR 1955

SC 425, and submits that the High Court should not act

as a court of appeal while entertaining the writ petition

under Article 226 of the Constitution of India and the

discretionary powers should not be exercised arbitrarily.

7. It is not in dispute that a certified standing order

has been issued by the certifying officer under Section 5

of the Act on 29.04.1991 after hearing both the parties

and the terms of the said certifying standing orders binds

both the parties. The appellant herein had filed an

application for amendment of Clause 21 of the said

certified standing orders which relates to the age of

retirement seeking modification of the age of retirement

from 58 to 60 years to all the workers. In the said

proceedings, respondent no.3 herein had appeared

before the certifying officer and filed a detailed objection

statement raising as many as seven objections. The

certifying officer without considering or adverting to the

said objections raised by respondent no.3, has passed

the order directing respondent no.3 to enhance the age

of retirement from 58 to 60 years. The Appellate

Authority has also not properly considered the objections

raised by respondent no.3 herein before the certifying

officer and has dismissed the appeal filed by respondent

no.3.

8. In the judgment of the Hon'ble Supreme Court in

British Paint's case supra, it has been held that

considering the general importance in the standard of

health of the country and also considering that life

longevity has increased, fixation of the age of retirement

at 60 years is reasonable. The said view has been

reiterated by the Hon'ble Supreme Court in Imperial

Chemical Industries case supra and in Burmah-Shell's

case supra and it is also reiterated by the Division Bench

of this Court in W.A.No.2771/2019 and

W.A.No.100250/2021. It is relevant to take note that in

Imperial Chemical Industries case supra, the Hon'ble

Supreme Court has also observed that in fixing the age

of retirement, no hard and fast rule can be laid down.

The decision on the question would always depend on a

proper assessment of the relevant factors and may

conceivably vary from case to case.

9. In British Paints case supra, at paragraph 7, it

has been observed as under:

"7. As to the factory workmen, it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Company [(1964) I LLJ 451] where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory-workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such differences can be justified on cogent and valid grounds. It is only where work in the factory is of a particularly arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff. This appears to have been so in the case of Jessop and Company [(1964) I LLJ 451] for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might therefore have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a

paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore think that even in the case of future factory workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that their will be inefficiency in work on account of fixing the age of retirement at 60 years; on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole therefore we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We therefore modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory- workmen, whether existing or future, at the age of 60 years."

10. Learned Counsel for respondent no.3 has

submitted that respondent no.3 is a heavy engineering

company and the safety of all the workmen would also be

a factor when it comes to considering the age of

retirement and in view of the observation made in

paragraph 7 in the judgment in British Paints case supra,

considering that the nature of work in respondent no.3-

Company is arduous in nature, lower age of retirement is

required to be fixed. An objection in this regard has been

specifically raised before the certifying officer which has

not been properly appreciated either by the certifying

officer or by the Appellate Authority.

11. In Barauni Refinery's case supra, the Hon'ble

Supreme Court at paragraphs 9 & 10 has observed as

under:

"9. The settlement does not make any specific mention about the age of retirement.

Clause 19 of the settlement, however, provides that such terms and conditions of service as are not changed under this settlement shall remain unchanged and operative for the period of the settlement. The age of retirement prescribed by clause 20 of the certified Standing Orders was undoubtedly a condition of service which was kept intact by clause 19 of the settlement. The provisions of the Standing Orders Act to which we have adverted earlier clearly show that the purpose of the certified Standing Orders is to define with

sufficient precision the conditions of employment of workman and to acquaint them with the same. The charter of demands contained several matters touching the conditions of service including the one concerning the upward revision of the age of retirement. After deliberation certain conditions were altered while in respect of others no change was considered necessary. In the case of the latter clause 19 was introduced making it clear that the conditions of service which have not been changed shall remain unchanged, i.e. they will continue as they are. That means that the demand in respect of revision of the age of retirement was not acceded to.

10. By clause 21 of the settlement extracted earlier the Union agreed that during the period of the operation of the settlement they shall not raise any demand which would throw an additional financial burden on the management, other than bonus. Of course the proviso to that clause exempted matters covered under Section 9-A of the Industrial Disputes Act from the application of the said clause. However, Section 9-A is not attracted in the present case. The High Court was, therefore, right in observing: "when the settlement had been arrived at between the workmen and the company and which is still in force, the parties are to remain bound by the terms of the said settlement. It is only after the settlement is terminated that the parties can raise any dispute for fresh adjudication." The argument that the

upward revision of the age of superannuation will not entail any financial burden cannot be accepted. The High Court rightly points out : "workmen who remain in service for a longer period have to be paid a larger amount by way of salary, bonus and gratuity than workmen who may newly join in place of retiring men". The High Court was, therefore, right in concluding that the upward revision of the age of superannuation would throw an additional financial burden on the management in violation of clause 21 of the settlement. Therefore, during the operation of the settlement it was not open to the workmen to demand a change in clause 20 of the certified Standing Orders because any upward revision of the age of superannuation would come in conflict with clauses 19 and 21 of the settlement. We are, therefore, of the opinion that the conclusion reached by the High Court is unassailable."

12. Even in the case on hand, the learned Counsel

for respondent no.3 has pointed out that there is a

settlement executed between the contesting parties and

it is agreed therein that during the period of operation of

the settlement, the Union shall not raise any demand

having financial liability on the management. Even this

aspect has to be considered by the certifying officer

before passing an order on the prayer made by the

appellant-Union for amending the certified standing

orders and modifying the age of retirement from 58 to 60

years.

13. The learned Single Judge having found that the

objections raised by respondent no.3 before the

certifying officer was not considered, has allowed the writ

petition and remanded the matter to the certifying officer

to consider the said objections and pass orders afresh.

Liberty has been given to both the parties to raise

additional points, if any, before the certifying officer.

14. In view of the judgment of the Hon'ble

Supreme Court in Barauni Refinery's case supra, the

settlement that has been executed between the

contesting parties is also required to be taken into

consideration by the certifying officer while passing

orders on the application filed by the appellant-Union

seeking amendment of the certified standing order.

Under the circumstances, we do not find any illegality or

infirmity in the impugned order passed by the learned

Single Judge and no element of perversity is found in the

said order.

15. In Sangram Singh's case, the Hon'ble Supreme

Court has observed at paragraph 14 as under:

"14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."

16. In the background of the said judgment, since

the certifying officer has passed an order without

considering the objections raised by respondent no.3,

substantial injustice has ensued and further non-

consideration of the settlement arrived at between the

parties is likely to ensue further substantial injustice, and

therefore, in our considered view, this is not a fit case for

interference, and accordingly, we decline to entertain this

intra court appeal and the same is dismissed.

SD/-

JUDGE

SD/-

JUDGE KK