Avery India Limited v. the Second Industrial Tribunal, West Bengal

Judgment

The Judgment of the Court was delivered by Mathew, J. The appellant, a company incorporated under the C:m;:anics Act, filed a writ pe:ition b~fore the High Court of Calcutta praying fo·: the issue of a writ or an order in the nature of certiorari quashing the award passed by the Second Industrial Tribunal, West Bengal, Calcutta, directing the reinstatement of Ganapati Sontra, the second respondent, in the se1vice of the appellant. A learned judge cf that Court dismissed the writ petition. The appellant filed an appeal before a Division Bench of that Court. The a:ipeal was also dismissed. This appeal is preferred against the order of the Divi;ion Bench by certificate granted by the High Court under Article 133(1 )(c) of the Constitution. The second respondent was employed by 1he appellant in the year 1946 as a clerk in its Service Department. At the time, there was no rul·~ prescribilll!, the age of retirement of the work· men of the company.

In November, 1951, the appellant introduced standing orders under the provisions of the Industrial [l 973] l S.C.R. Employmer.t Standing Orders) Act, 1946 (Central Act 20 of 1946 was amended by th>~ Act 36 of 1956. The Standing Orders fixed at 55. On September 17, 1956, the Central Act 20 or 1946 was amended by the Act 36 of 1956. The Standing orders • in the appellant company were modified on May 30, 1961, but the provision regarding the age of superannuaiion remained unch1nged. On November 27, 1961, the appellant issued a notice to the second respondent informing him that he was due to retire on August 31, 1962 as he would' be attaining the age of 55 on that date. On August 11, 1962, respondent No. 3, the Union of che employees of the appellant, submitted a charter of demands. One of the demuds was to raise the age of retirement of the workmen in the establishment from 55 to 60. On August 18, 1962, respondent No. 3 wrote to the appellant to keep the retirement of second respondent in abeyance. till a decision is arrived at on the charter of demands.

On August 30, 1962, the second respondent wrote to the appeJlant to postpone taking a final decision on the matter as a dispute had already been raised about the retirement age of the workmen in the establish.'Uent. By his letter dated August 31, 1962, the Secretary oi the appellant company replied that as long as the retirement age as provided in the standing orders was not altered, he had to be guided by the same but that, if at a later date, the retirement age was altered, the same will b¢ adhered to. The second respondent was made to retire on September l, 1962 The Government of West Bengal, by its order dated January 29, 1963, made a reference to the first respondent of the industrial dispute between the appellant and its workmen represented by the third respondent. The second question referred; which alone is material for our purpose was : ls the superannuation of Shri Ganapati Santra justified? What relief, if any, is he entitled to ?

What shoulc! be the age of retirement of the workmen in the factory ? The appe]]2nt contend~d before the Tribunal on the basis of the st:mdingorder:; that the age of retirement was 5 5 years and that the action of the appellant in retiring the second respondent at the a)1;e of 55 was proper. The Union, on the other hand, contended that, as the second respondent was <'\{lpointe<l in 194 6 when there was no age fixed for superannuation, he was not bJund · by the provision as regards the age of superannuation in the standing orders of 1952 or the modified standing orders of 1961. ff The Industrial Tribunal, by its award dated April 27, 1964. held that the retirement of the second respondent at the age of 5 5 AVERY LTD. v. INDUSTRIAL TRIBUNAL (Mathew, J.)

671 was unjustified as the second respondent was not bound by the provision in the standing orders of 1952 or of 1961 fixing the age of retirement at 55 as he was employed in the concern in 1946, and directed reinstatement of the second respondant. The Tribunal also held "tl:at the ·;ige of retirement of all categories of workmen should be raised ft m 55 to 58 and that standing orders would stand-modified accordingly." The appellant company challenged the validity of the award in so far as it directed the reinstatement of the 2nd respondent, in rthe writ petition and contended that the view of the Tribunal that the 2nd respondent was not bound by the P.rovision of the standing orders relating to age of ietirement was erroneous as the standing orders would bind all the workmen in the esta.blishment whether they were employed before or after the framing and certification of the standing orders.

A single judge of the High Court, following the decision of this Court in Guest Keen Williams Private Ltd. v. !'. J. Sterling and others(1) held that the provision as regards the age of retirement in the standing orders would not bind the 2nd respondent as he was emi;-loyed prior to the coming into force of the standing orders and dismissed the writ petition. He further held that as the second respoodent had already attained the age of 5 8 years, there was no question of his reinstatement but that the appellant should pay the 2nd respondent the salary fo1 the period between the date when he was actually made to retire and the date when he attained the age of 58. It was this order that was challen!'ed by the appellant in the appeal before the division b~nch. The Division Bench agreed with the view of the learned single judge and dismissed the appeal.

The only question which should normally arise in this appeal is whether the view of the High Court, that the provision in the standing orders regarding ·the age of retirement of the workmen of the appellant company would not govern the 2nd respondent who was employed prior to the coming into force of the standing orders, can be sustained. The view of the High Court t11at the p~ovision in the standing orders regarding .retirement age cannot bmd the w~rkm.en who were employed. in the establishment prior to t~e commg mto force of. ~he standmg orders cannot stand in the hght of the decisions of this Court in Agra Electric S1ipp/y C~. f-td'. v. Shri Alladin and others('), Salem Erode Electricity D1sributwn Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees' Union(') and the United Provinces Electric Supply Co. Ltd., Allahabad v. T. N. Chatf:!rjee and vthers(') n> [1960J 1 s.c.R. 348. <2l [1970J 1 s.c.R. 30s. (3) [1966] 2 S.C.R. 498. (4) Civil A~poal No. 1734of1967, decided on 13-3-1972 · .

[1973] 1 S.C.R. · But co~nsel for the second respondent contended that even if . the High Court had applied the correct law as enunciated by this Court in the above mentioned cases, that would not have enabled the High Court to quash that part of the award which directed the' reinstatement of the 2nd resp'ondent, for, it would have been open to the 2nd respondent to support the award on the ground that since the retirement age of all the workmen in the employment of the appellant had been raised to 58 years by the award, the 2nd respondent could not have b:een made to retire by the appellant before he attained the age of 58.

In other words, counsel argued that even if the High Court applied the correct law as laid down in the rulings cited above, it could not have quashed that part of the award, for, the age of superannuation of all the workmen in the employment of the appellant was raised to 58 by the award and that although the 2nd ·respondent was not a workman when he was a party to the dispute under s. 18(3) of the Industrial Disputes Act, 1947, hereinaf~zr called the "Act". Counsel submitted that the 3rd respondent, the Union, was a party to the dispute which means that all the workmen in the establishment were _parties to the dispute as regards the age of retirement, and the award, in· so far as it raised the age of retirement to 58, would bind al! persons who were employed in the establishment to which the dispute relilted.on the i:late of the dispute. Section 18_ ( 3) of the Act provides :

"18 ( 3 )-A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a · notification has been issued · und·~r sub-section (3A) of section lOA of an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on- ( a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proc,eedini:s as parties to the diSpute, unless the Do::rd, arbitrator, Labour Court, .Tribunal or National Tribu- . nal, as the case may be, records· the opinion that they were so summoned without proper case; ( c) where a party referred to in clause (a) or clause (b) is · an employer, his heirs, successors ·or assigns in respect of the establishment to which the dispute .relates:

( d) where a party referred to in clause (a) or clause (bi) is compo~d of workmen, all persons . who are employed in the establishment, or part of the establishment as the case may be, to which the dispute relates ll AVERY LTD. v. INDUSTRIAL TRIBUNAL (Mathew, J.) 673 on the date of the dispute and all persons who subsequently become employed in that establishment or part." On the other hand, it was contended on behalf of_ the appellant, that the only question referred to the Tribunal so far as the 2nd respondent was concerned, was whether his superannuation at the age of 5 5 was justified and the only case put forward by the Union before the Tribunal was whether the provisio11 in the standi.ng orders fixing the age of retirement as 55 would bind him as he was employed before the standing orders came into force in the concern.

And as 'that was the only question. raised and considered by the Tribunal and the High Court, it is not open to this Court, in this appeal, to enlarge the scope of the controversy and go into the question whether the 2nd respondent could sustain the award on any other ground not decided in his favour by the Tribunal or the HiQh Court. It was further contended on behalf of the appel!ai11 that since no date was specified in the award for its coming into operation, it came into operation when it became en· forceable as provided in section 17 A ( 1) by virtue of section 17 A I 4) of the Act and since tire 2nd respondent had retired on September 1, 1962, long before the award became operative, even though the award raised the retiremnt age of all the workmen in the concern to 58, the 2nd respondent cannot get the benefit of the enhanced age of retirement.

In other words, the argument was that the award had no retrospective operation and since the award conferred the benefit of the enhanced age of retirement only on the workers in the establishment on the date the award came into operation and since the 2nd respondent was made to retire in accordance with the retirement age as specified in the standing orders of 1he company and had ceased 'to b-2 a workman on ihe date when the award became operative, the awarJ did not confer upon the 2nd respondent any benefit in respect of his age of retirement. We do not think it necessary to decide the interesting question that in '1ew of the fact that the award became operatiw only in 1964 whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement ~ge fixed by the award, on the ground that the award was binding on him and the appellant by virtue of section 18(3) of the Act.

It is clear from the award that the Tribunal did not order the rei~statement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on al.I categories of workers m the establishment by the award. (The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders and, therefore, the provision in the standin11; orders fixing the age of retire" meat at 55 was not binding on him in ithe light of the dccisiwi of this Court in Guest Keen Williams Private Ltd. v. P. I. Sterling and others( 1).

The 2nd respondent did not support the award in respect of his reinstatement in the counter-affidavit filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the benefit of the retirement age. as fixed bl}' the award and, for that reason, the direction for his reinstatement was in any event justified. He will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was basoo.) As we find that the decision of the High Court was wrong, we set aside that decision and allow the appeal. We make no order as to costs. G.C. Appeal allowed. (11[1960J1 s.cR.J48.