Kerala High Court

The Deputy Chairman, Cochin Port ... vs Union Of India on 13 April, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
    THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                       WP(C) NO. 13782 OF 2017
PETITIONER:

          THE DEPUTY CHAIRMAN, COCHIN PORT TRUST
          WILLINGDON ISLAND, KOCHI 682009

          BY ADVS.
          SRI.M.GOPIKRISHNAN NAMBIAR
          SRI.K.JOHN MATHAI
          SRI.JOSON MANAVALAN
          SRI.KURYAN THOMAS
          SRI.PAULOSE C. ABRAHAM


RESPONDENTS:

    1     UNION OF INDIA
          REPRESENTED BY LABOUR SECRETARY,
          MINISTRY OF LABOUR, NEW DELHI

    2     THE GENERAL SECRETARY
          COCHIN PORT TRUST STAFF ASSOCIATION,
          WILLINGDON ISLAND, COCHIN 682009

    3     THE ASSISTANT LABOUR COMMISSIONER (CENTRAL)
          OFFICE OF THE REGIONAL LABOUR COMMISSONER
          (CENTRAL),KENDRIYA SRAMA SADHAN, KAKKANAD,KOCHI 682030

    4     CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
          CUM LABO8UR COURT
          38/337, A4-KARITHALA LANE,
          KARSHAKA ROAD,COCHIN 682016

          BY ADVS.
          SRI.AUGUSTINE JOSEPH
          SRI.GEORGE RENOY
          SRI.K.S.ROCKEY
          SRI.TONY AUGUSTINE
          SRI.E.K.NANDAKUMAR, SR.
          DSGI

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
13/04/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.13782/2017                      2




                               JUDGMENT

Petitioner herein is the Cochin Port Trust, one of the major

ports in the country which is governed by the provisions of Major

Port Trusts Act 1963 (Act 38 of 1963). Chapter III of the Major

Port Trusts Act deals with the staff of the Board and Section 28

therein provides that the Board of Trustees of the Port are

empowered to make Regulations pertaining to the terms and

conditions of employees of the Board. Accordingly the Board of

Trustees of Port of Cochin framed Cochin Port Employees

(Retirement) Regulations 1977 which was duly approved by the

Central Government and published in the official gazette as

required under Section 124 of the Act. Regulation 3 of the said

Regulations prior to its amendment in 1998, mandated the

retirement age of the workmen to be 60 years which was later

reduced to 58 years w.e.f. 31.03.2001 after following the

procedures set forth in the Major Port Trusts Act, 1963, which was,

w.e.f. 30.09.2007 again restored to 60 years after making suitable

amendments in the Regulations, as there was a change in policy of

the Central Government by making the required publications.

Cochin Port Wharf Staff Association and Cochin Port Employees

Organization raised an industrial dispute over the reduction of

retirement age from 60 years to 58 years in 2001, wherein

Government of India, first respondent therein, had refused to refer

the issue for adjudication on the ground that the decision of the

Management of Cochin Port Trust to reduce the age of retirement

was in accordance with policy decision of the Government vide

order Exts P1 and P2 dated 04.05.2001. Thereafter when the

retirement age was raised to 60 years from 30.09.2007, at the

instance of the second respondent Union herein, the Assistant

Labour Commissioner (Central), the third respondent herein,

submitted a report to the first respondent Union of India Ext. P3

dated 14.05.2012 and reference of the issue viz. superannuation of

employees during the period between 31.03.2001 and 30.09.2007.

2. Pursuant to Ext P3 report, the first respondent referred the

claim in respect of persons who were allowed to retire during the

period between "31.03.2001 and 30.09.2007" to the fourth

respondent i.e., The Central Government Industrial Tribunal cum

Labour Court Emakulam, in exercise of their powers under Section

10(2A) of the Industrial Disputes Act, 1947, Ext.P4 dated

13.12.2012. Accordingly ID No. 9/2013 Ext. P5 dated 08.07.2013

was registered and parties put in appearance. On 13.09.2013

Ext.P6 written statement was filed by the petitioner.

3. Fourth respondent, Tribunal, passed an Award Ext.P7 dated

30.11.2016 recorded its findings as that the superannuation of

employees during the period between 31.03.2001 and 30.09.2007

was violative of Section 33 of the Industrial Disputes Act, 1947 and

workmen were held entitled to 30% wages for the loss of

employment for two(2) years and by holding two(2) years

accountable for fixing pension and other retirement benefits.

Aggrieved by the Exhibits P7 award, P3 report and P4 reference

order management has assailed through this writ petition, seeking

the following prayers:-

i) Issue appropriate Writ/Order calling for the records relating to

Exhibit P-3 report of the 3rd respondent and Exhibit P-4

reference Order made by the 1st respondent and quash the

same;

ii) Issue appropriate Writ/Order calling for the records relating to

Exhibit

P7 Award and quash the same;

iii) Pass an Order holding that Exhibit P-3 Report and Exhibit P-4

reference

Order are arbitrary, illegal and unsustainable;

iv)Declare that Exhibit P-7 Award is opposed to the materials on

records

and Industrial Law and hence unsustainable;

v) Declare that the rolling back of retirement age from 60 years

to 58 years is in accordance with the relevant statutory

provisions and it cannot be the subject matter of an Industrial

Dispute and it cannot be assailed as per the provisions of the

Industrial Disputes Act, 1947;

vi)Declare that Exhibit P-7 Award is illegal and unsustainable; as

it is opposed to Exhibit P-8 Judgment of this Hon'ble Court;

vii) To stay the operation of Exhibit P-7 Award during the

pendency of this Writ Petition.

4. Learned Senior counsel for the petitioner submitted that

certain employees who retired at the reduced age of 58 years filed

Writ Petitions before this Hon'ble Court numbered 33685 and

34149 of 2000 and 8492 of 2001 which were disposed by a

Common Judgment dated 11.02.2007 Ext.P8 whereby this court

upheld their retirement assigning reason that their retirements

were effected as per the Regulations amended in accordance with

law. In the abovementioned judgement, this Court clearly laid

down that in exercise of the powers under Section 28 of the Major

Port Trusts Act, 1963, Regulations were framed revising the

retirement age from 60 years to 58 years which was approved by

the Central Government under Section 124 of the Major Port Trusts

Act, 1963 and was duly published and observed that the retirement

effected at the age of 58 years to be legal and proper, thus, Exhibit

P-7 Award is contrary to the abovementioned judgement and

observations therein, rendering it to be illegal, arbitrary and

unsustainable and prayed this Hon'ble court to quash the same.

5. On the other hand, learned counsel for the second

respondent Cochin Port Trust Staff Association denied the

averments of the petitioner management and submitted that there

was no government order changing the policy of retirement age or

rolling back of retirement age to 58 years in 2001. It was only to

cut down expenses as recommended by the Comptroller and

Auditor General as the establishment charges had tremendously

increased thus prayed for dismissal of the writ petition with costs.

6. I have heard the counsel for the parties and appraised the

paper book.

7. Sections 28 and 124 of the Major Port Trusts Act, 1963

reads as under :

"28. Power to make regulations.-A Board may make regulations, not inconsistent with this Act, to provide for any one or more of the following matters, namely:-

(a) the appointment, promotion, suspension,

reduction in rank, compulsory retirement, removal and dismissal of its employees;

(b) their leave, leave allowances, pensions, gratuities, compassionate allowances and travelling allowances and the establishment and maintenance of a provident fund or any other fund for their welfare;

(c) the terms and conditions of service of persons who become employees of the Board under clause (f) of sub-section (1) of section 29;

(d) the time and manner in which appeals may be preferred under sub- section (2) of section 25 and the procedure for deciding such appeals;

(e) any other matter which is incidental to, or necessary for, the purpose ch of regulating the appointment and conditions of service of its employees."

"124. Provisions with respect to regulations.- (1) No regulation made by the Board under this Act other than a regulation made under sub-section (2) of Section 17, shall have effect until it has been approved by the Central Government and until such approval has been published in the official gazette.

(2) No such regulation other than a regulation made under section 28 shall be approved by the Central Government until the same has been published by the Board for two weeks successively in the Official Gazette and until fourteen days have expired from the date on which the same had been first published in that Gazette. (3) Any regulation made under this Act other than a regulation made under section 28, may provide that a breach thereof shall be punishable with fine which may extend to two thousand rupees, and where the breach is a continuing one, with further fine which may extend to five hundred rupees for every day after the first during which such breach continues.

(4) Every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one

session or in two or more successive sessions, and if, before the expiry of the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."

8. On perusal of the above, it is evident that the Board has

"the power to make regulations, not inconsistent with the

provisions of Act with regard to appointment, promotion,

suspension, reduction in rank, compulsory retirement, removal,

dismissal, leave, leave allowances, pensions, gratuities,

compassionate allowances, the terms and conditions of the service"

and such regulations shall have effect only as per Section 122

approved by the Central Government. The controversy pertains to

the period 2001-2007 when retirement age of the Board employees

was rolled back to 58 years with effect from 31.03.2001.

Thereafter, the retirement age as noticed above was again rolled

ahead to 60 years. Aggrieved by the same, the petitioner preferred

a complaint before the conciliation officer. The conciliation officer

vide communication dated 04.05.2001 informed the General

Secretary of the Cochin Port employees Organisation with copy to

the petitioner that the decision taken by the management to

reduce the age of retirement was in accordance with the policy

decision of the Government and the conciliation proceedings thus

failed. Thereafter only in 2013, claim petition was filed. The

Labour Court on examination of the evidence on record could not

have struck down Ext.M11 Gazette notification permitting the

employees to retire at the age of 58 years which was in accordance

with the then applicable regulations by affording the benefit of 30%

of salary and other service benefits.

9. The same controversy came before this Court and this

Court vide order dated 21.02.2007 dismissed the Writ Petition.

Ext.P8 judgment reads as under :

"The issue raised in these writ petitions pertains to dispute regarding reduction of retirement age from 60 to 58 under the Cochin Port Trust. It is seen from the counter affidavit that in exercise of their powers under Section 28 of the Major Port Trusts Act, 1963, Regulations have been framed revising the retirement age from 60 to 58 and that has been approved by the Central Government under Section 124 of the Act and the same were duly published also. In view of such intervening developments and also the fact that the petitioners have since retired from service and still the further fact that the retirement age is 58 in all the major Port Trusts in India, there is no merit in these writ petitions. They are accordingly dismissed. However, it is made clear that if any of the petitioners are otherwise entitled for pension treating the age as 60 under the Regulations, it is for them to approach the Port Trust in which case their eligibility will be duly examined by the Port."

10. Rolling back of the retirement age was implemented not

only in the Cochin Port Trust, but all major Ports in India. Claimants

did not perform their duties and accepted the superannuation at

the age of 58 years. If the plea is accepted, it will open pandora of

litigation and would lead to an incongruous situation hypothetically

taking that all the employees who retired from different institutions

at the age of 58 years would wake up and file cases for claiming

salary for the period they did not render the service.

For the reasons aforementioned, the impugned award is not

sustainable and is hereby set aside. Writ petition is allowed.

Sd/-

AMIT RAWAL JUDGE csl