IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5948 of 1991
For Approval and Signature:
Hon'ble MR.JUSTICE KUNDAN SINGH
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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KARAMCHAND T SHAHDADPURI
Versus
KANDLA PORT TRUST
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Appearance:
MR KETAN A DAVE for Petitioner No. 1
MR SR BRAHMBHATT for Respondent
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CORAM : MR.JUSTICE KUNDAN SINGH
Date of decision: 11/01/2002
ORAL JUDGEMENT
By means of this petition, the petitioner has
challenged vires of Regulation 4 (b) of the Kandla Port
Employees’ (Retirement) Regulation, 1978 read with
Regulation 3 (e) and Annexure-A of the Regulations framed
by the Board of the Trustees in exercise of power
conferred u/s 28 of the Major Port Trusts Act, 1963 as
illegal and ultra virus and for a direction that all the
employees who are workmen as defined in the Industrial
Disputes Act, 1947 and artisans as defined in Fundamental
Rules. 56 (o) – Note, or who belongs to category similar
to those enumerated in Schedule-A, including the category
of Pump Driver-cum-Mechanic are entitled to continue in
service, subject to superannuation upon attainment of
sixty years of age and for quashing and setting aside the
order dated 3/4-1-1990 in respect of entry no. 8 made in
the letter regarding the date of retirement as 31-8-1991
and for a direction to the Post Trust to allow the
petitioner to continue in service upto 31-8-1993 and that
the petitioner would retire at the age of 60 years.
2.The petitioner was initially appointed as a Pump
Driver in September, 1957 and thereafter he was promoted
to the post of Driver-cum-Mechanic by the order dated
17-3-1973. In the year 1977, the petitioner was promoted
as Chargeman (Water Supply) and then he was reverted as
Pump Driver-cum-Mechanic with effect from 17-3-1986. In
the year 1986, the Water Supply Work in respect of
Gandhidham/Adipur area of Kandla Port was transferred to
Gujarat Water Supply and Sewerage Board, and surplus
staff of Water Supply Section of Kandla Port Trust was
posted/accommodated in other sections/posts in Kandla
Port Trust. The petitioner was given option to be
accommodated in other section under this Kandla Port
Trust. The petitioner opted and he was posted as Pump
Driver-cum-Mechanic by the order dated 17-3-1986. In the
year 1978, Kandla Port Employees (Retirement) Regulations
1978 was framed and constituted and those Regulations
after approval from the Central Government came into
force on 7-9-1978. Relevant Regulation of the said
Regulation, reads as under :
4. Age of Retirement :
(a) Except as otherwise provided in these
regulations, every employee of the Board
shall retire from service on the
afternoon of the last day of month in
which he attains the age of fifty-eight
years.
(b) An employee who is a workman and who
entered the Board’s service before 11th
April, 1974, shall retire from service on
the afternoon of the last day of the
month in which he attains the age of 60
years.
(c) An employee in Class – IV service of
post, who was in the service of the Board
before 11th April, 1974, shall retire
from service on the afternoon of the last
day of the month in which he attains the
age of 60 years.
(d) An employee to whom Sub-Regulation 4(a)
applies but who is not a Head of
Department may be granted extension of
service after he attained the age of 58
years with the Sanction of Chairman if
such extension is in public interest and
the grounds thereof are recorded in
writing. In the case of a Head of the
Department, the power to grant such
extension of service shall be exercisable
by the Central Government after
consultation with the Chairman. No
extension under this Sub-Regulation shall
be granted beyond the age of 60 years in
very special circumstances.
Explanation : A person appointed to Class IV
post before 11-4-1974 on his appointment after
11-4-1974 to another Class IV post or to any
category of post included in the list of workman
at Annexure-A, shall retire at the age of 60
years. If he is appointed to a Class III
category which is not one of the categories in
the list of workmen at Annexure-An he shall
retire at the age of 58 years.”
It is stated that the category of Pump Driver
(Diesel) appears in the said Schedule at Sr. 57.
However, the Pump Driver-cum-Mechanic is not
included in the said Schedule.
3.The workman has been defined under clause 3 (e)
of the Kandla Port Employees (Retirement) Regulations
1978 and as per that clause “workman” means an employee
of one of the categories shown in Annexure-A to those
regulations. Category of Pump–Driver (Diesel) appears
in the said Schedule at Sr. No. 57. Mechanic appears
in the said schedule at Sr. No. 6. However, Cadre of
however, Pump Driver–Mechanic is not included in the
said Schedule. The employees who are workmen in the
categories included in the Annexure-A of the aforesaid
Regulations, are entitled to work upto the age of 60
years. While the employees who are not included list of
employees are required to retire upon attaining the age
of 58 years. As the petitioner is Pump
Driver-cum-Mechanic is not included in the Annexure-A,
the authority concerned directed the petitioner to retire
at the superannuation age of 58 years and accordingly he
was retired on 31-8-1991. The petitioner made a
representation to the Kandla Port Trust authority to
permit him to work upto the age of 60 years. The
representation made by the petitioner was turned down by
the respondent authority vide letter dated 13-5-1991. It
is also stated that several categories higher in pay
scale have been included in the Annexure-A to the
Schedule of the Regulations while the petitioner’s
category Pump Driver-cum-Mechanic has not been included
in the Schedule of the aforesaid Regulations. The
Chargeman (Mechanical) and Chargeman (Electrical) are
included in the Schedule. The petitioner’s category is
lower than the aforesaid category of chargeman. The
category of mechanic is also included in the schedule
defining workman. The category of Pump Driver (Diesel)
which is equivalent to category of Pump Drivers (without
the qualifying word ‘Diesel’), is also included in the
schedule. The petitioner’s work which combines in itself
the functions of Pump Driver and Mechanic but pump driver
cum mechanic is not included in the said Schedule. It is
also stated that there is no justification for treating
Pump Driver-cum-Mechanic differently in the matter of
retirement age as compared to Pump Drivers simpliciter,
Mechanic simpliciter Chargeman of different Branches and
several other categories.
4.This petition has been filed on the ground that
Regulation 48 of the Kandla Port Trust Employees
(Retirement) Regulations, 1978 read with Regulation 3 (e)
and Annexure-A thereto is ultra vires to Articles 14 & 16
of the Constitution of India insofar as it purports to
confine to the application of the provision regarding the
age of retirement at the age of 60 years, to the
employees covered by the category shown in Annexure-A.
The workman defined and enumerated under the category is
not based on any scientific classification or on rational
basis. The category of Pump Driver-cum-Mechanic is not
enumerated in the Annexure while two categories of
Chargeman (in pay scale higher than the petitioner’s
category besides being identical to the category of
Chargeman (Water Supply) which is a cadre of promotion
from the petitioner’s post), are not mentioned in the
list. There does not appear to be any justifying reason
to treat the enumerated categories under the heading of
workman. Classification of only artificial having no
rational nexus with the object of providing higher
retirement age for workmen or artisans. The second
ground is mentioned that all the employees who are
workmen as defined under Section 2 (s) of the Industrial
Disputes Act, 1947 or who are artisans as defined in
Fundamental Rules. 56 (b) – Note must be considered to
be entitled to have the benefits of the provision
regarding retirement at the age of 60 years. The
petitioner being workman as defined in the Industrial
Disputes Act, an artisan as defined in the Fundamental
Rules and the employee belonging to a category quite
similar to those covered by Schedule-A to the regulation
is entitled to continue in service upto the age of 60
years. the order dated 3/4-1-1990 of the respondent
authorities requiring the petitioner to retire on
31-8-1991 upon attaining the age of 58 years is ultra
vires to Articles 14 & 16 of the Constitution of India.
5.The affidavit-in-reply has been filed by the
Assistant Secretary of Kandla Port Trust, stating therein
that the petitioner is not a workman under the category
as enumerated in Annexure-A of Kandla Port Employees
(Retirement) Regulations, 1978 (hereinafter referred to
as Regulations, 1978). Regulation 4. (b) of the
Regulations, 1978 is clear to the effect that an employee
who is a workman and who entered the Board service before
11-4-1974 shall retire from the service at the age of 60
years. The workman is defined in Regulation 3 (e) of
Regulations, 1978. The petitioner being Pump
Driver-cum-Mechanic does not come within the meaning of
workman as defined in Regulation 3 (e) of the
Regulations, 1978. The retirement age of the petitioner
is 58 years. The petitioner was appointed as Pump Driver
with effect from 1-9-1957 and he was promoted to the post
of Pump Driver-cum-Mechanic with effect from 14-4-1973
and thereafter he was promoted as Chargeman (Water
Supply) with effect from 1-2-1977 and he was transferred
and posted as Pump Driver-cum-Mechanic on administrative
ground with effect from 15-3-1986. The Kandla Port
Employees (Retirement Regulations 1978 came into force
with effect from 7-9-1978. Under the Regulation the
petitioner is not a workman within the aforesaid
definition. The employees should be workman within the
contemplation of the Regulations, 1978 on the day on
which the question of his retirement arises. As per the
judgment of this Court rendered in Special Civil
Application No. 2919 of 1983, the employee has to
establish is that (i) he is a workman and (ii) he was in
service of the respondent Trust before April 11, 1974.
If these two conditions are satisfied the employee is
entitled to the benefit of retirement age of 60 years and
the employee who is workman has to be decided on the date
on which the question of his retirement arises. The
petitioner retires on 31-8-1991 and at that time he was
Pump Driver-cum-Mechanic which does not come within the
category mentioned in Annexure-A to the Regulations,
1978. Hence, the petitioner is not governed by
Regulation 4 (b) of the Regulations and he is not
workman. Thus, the retirement age of the petitioner is
58 years. It is admitted that the category of Pump
Driver (Diesel) appears in the said Schedule at Sr. 57
and the Mechanic at Sr. 6. But the petitioner is not a
workman as mentioned in Annexure-A. In the year 1986,
Water Supply Work in respect of Gandhidham/Adipur area of
Kandla Port Trust was transferred to Gujarat Water Supply
and Sewerage Board and surplus staff of Water Supply
Section of Kandla Port Trust was posted accommodating in
other sections/posts in Kandla Port Trust. Therefore,
the petitioner was transferred and posted as Pump
Driver-cum-Mechanic with effect from 15-3-1986. The
category of Chargeman (Water Supply) is a non-workman
category. Had the Water Supply work not been transferred
Gujarat Water Supply and Sewerage Board and the
petitioner would have continued on the post of Chargeman
(Water Supply) which is a non-workman category and he was
required to retire at the age of 58 years. The pay scale
or designation of post is not a criteria for determining
the workman category for the purpose of retirement. The
categories of the Chargeman (M) and Chargeman (E) are
included in the list but the category of Pump
Driver-cum-Mechanic is not included as workman in the
list. Electrician in the scale of 1320-2220 is a
“Workman” Auto Electrician in the same scale of pay is
not included as “Workman” Assistant Foreman (M) and
Assistant Foreman (E) carry the same scale of pay but
former category is enumerated in the list of workmen but
the later category i.e. Assistant Foreman (E) is not
included in the workman. In the same manner, the
category of Driller is included in the workman category.
But the Moulder carrying identical pay scale of Driller
is not a workman as per Annexure-A. Chargeman (E) and
Chargeman (M) are workmen category. Chargeman (Water
supply) is not a workman category. The definition of the
workman was arrived at by the respondent Board after
analysing all the relevant aspects, duties and
responsibilities attached to each and every category. As
neither nomenclature of the post nor the pay scale is the
criteria for determining the posts as workman.
Regulation 6 of the said Regulations 1978 abundantly
makes it clear that F.R. 56 as applicable to the
employees of the respondent Board immediately before
commencement of the said regulations, will no longer
apply to the employees of the Board. Thus, the petition
is liable to be dismissed and the petitioner is not
entitled to any relief claimed in the petition.
6.Additional affidavit was filed on behalf of the
respondents for a limited purpose showing justification
for noninclusion. As such, as defined in the impugned
Regulation. F.R. 56 as well as Rule 48 of the
Regulations 1978 which were adopted by the Board have
been replaced by the Kandla Port Trust Employees
(Retirement) Regulations, 1978 and those Regulations were
submitted to the Board in it meeting held on 29-3-1978.
The issue could not be decided due to certain reasons.
The draft resolution was accordingly discussed and the
suggestions made by Mr. A.K. Shah were also recorded
and with other trustees discussion was made after giving
opportunity to the Labour Representatives under item no.
14.2. Shri A.K. Shah (Labour Trustee) stated that the
points which have been made by him were aimed at ensuring
that once the employee has the age of superannuation of
60 years it should remain the same irrespective of
whether he gets promotion to higher post. Under item No.
14.8 Shri Manohar Kotwal stated that all the employees
are workman and therefore there should be no difficulty
in making addition to the list of workman annexed to the
regulations. Under Item No.14.4., it was Chairman’s
clarification which has elaborately stated as to why
other categories are not included. The Chairman pointed
out that as per the recommendations of the Wage Board,
the age of 60 years as retirement age, what had been done
was to keep for those persons so long as they remain in
the same category the age by 60 years, for all others the
age of retirement is 58 years. The Chairman also stated
that the special provision of 60 years for certain
category has been made for employees who were in service
prior to 11-4-1974. There was no ground for adding any
more categories in the list. Under item No. 14.5 which
is set out as whether Shri Manohar Kotwal stated that the
item might be approved but the Chairman might give
consideration to new categories, if any, which might be
suggested by the Union for inclusion in the annexure to
the regulations. Under Item No. 14.6, the Board
approved the proposal and resolution 60 resolved to make
the retirement regulations for the employees of the Board
as per notification at Annexure-VI subject to the
approval of the Union Government. It was provided under
the aforesaid Regulations that every employee of the
Board was to retire from the service on attaining the age
of 58 years. Exception has been made under the
Regulations that the employee who is workman and who
entered the Board’s service before 11-4-1974 will retire
on attaining the age of 60 years. Under Explanation, a
person appointed to a Class IV post before 11-4-1974 on
his appointment and transferred after 11-4-1974 to
another Class – IV post or to any category of post
included in the list of workmen at Annexure-A shall
retire at the age of 60 years. If he is appointed to a
Class III category which is not one of the categories in
the list of workman at Annexure A, he shall retire at the
age of 58 years. As per clarification given by the
Chairman in the Board meeting, the exception was required
to be carved out from the retirement age of 58 years only
for those employees who were under the categories already
enjoying the age of 60 years as retirement age. Thus,
any other category and / or employee who are not
fulfilling these two categories were to retire at the age
of 58 years.
7.Rejoinder affidavit has already been filed
stating therein that the Pump Driver is not included in
the list to be termed termed as “Workmen” for the purpose
of Regulation 3 (e) of the Kandla Port Employees
(Recruitment) Regulations. At the same time category of
Pump Driver (Diesel) has been included in the list of
Workman at Sr. No. 57. There were 40 Pump Drivers (Not
Pump Drivers (Diesel). All these Pump Drivers were
allowed to retire at attaining age of 60 years. Keshaji
and Atu Shamji were working in Kandla Port Trust as Pump
Drivers and they were not Pump Drivers (Diesel). They
were allowed to retire at 60 years. Pump Driver is a
category of workman. Mechanic is also a category of
workman. Therefore, clubbing of these two categories and
re-designating into one category viz. Pump
Driver-cum-Mechanic, would not render it into a category
of non-workman. Category of Driver (Motor) and the
category of Pump Operator were clubbed together and
redesignated as Pump Operator-cum-Driver and they are
under category of workman. However, the Pump
Operator-cum-Driver was not included in the list of
workman. The Board has corrected the mistake and
subsequently, in the year 1979, the category of Pump
Operator-cum-Driver has been included in the list of
workmen by way of amendment. Categories of Winchman,
Quarter Master and higher categories within prefix of
senior were added in the list of work in the year 1986.
The list of workmen shown under the Regulations is not
complete and exhaustive. The respondent authority has
from time to time amended the said list and several
categories of workmen are subsequently included in the
list of workmen.
8.The petitioner worked as Pump Driver and used to
operate diesel as well as electric Pumps. As a Pump
Driver-cum-Mechanic, the petitioner was attending the
defects and/or repairs and maintenance of machine. As
such, the petitioner comes in the category of workman and
hence he is entitled to all the benefits including the
salary and allowance etc. as if he retired on attaining
the age of 60 years.
9.I have carefully considered the contentions made
by the learned counsel for the petitioner and perused the
relevant papers on the record of this case.
10.The draft recruitment regulations for Kandla Port
Employees are to replace fundamental Rules 56 as well as
Rule 48 of the Central Civil Services (Pension) Rules of
the Central Government which were adopted by the Board
and the said regulations in draft were submitted to the
Board in its meeting held on 20-3-1978. However, that
issue was deferred as 2 Labour Trustees Shri Manohar
Kotwal and Shri A.K. Shah suggested that these
regulations first be discussed with the Union
Representatives. Thereafter, the meeting was convened
and an opportunity of hearing was given to the union
representative. Elaborate submissions were made at the
time of hearing with the other labour trustees. Certain
items were clarified and were deleted and certain items
were included and the classification was made under
different Articles. The conclusion was made having with
regard to the fact that certain categories already had
the age of 60 years as retirement and that was made
continue till they remain in the same category and the
retirement age for them remained as 60 years but the age
for all others the age of retirement is 58 years.
11.As regard the age of retirement it was settled
that except as otherwise provided in the regulations,
every employee of the Board shall retire from service on
the afternoon of the last day of the month in which he
attains the age of 58 years. Some exception was made to
the aforesaid Rules to the extent that the employee who
is a workman within the definition of workman under the
category shown at Annexure-A to the Regulations and who
had entered the Board’s service before 11-4-1974, to
retire from service at the age of 60 years. Annexure-A
to the Regulations has been framed by the Kandla Post
Trust Board after considering the material on record,
terms and conditions of the High Power Committee,
irrespective of the pay scale or nature of the work or
duty and the Regulations stated above have been approved
by the Central.
12.The contention of the learned counsel for the
petitioner is that the Regulations do not provide any
reason for making classification of the employees or
workmen mentioned in Annexure-A to the Regulations, is
not tenable and sustainable in the eye of law in view of
the fact that the High Power Committee after hearing the
members and affording an opportunity of hearing to the
representatives of the Union and considering the nature
and duty of the workman, this Court does not find any
reason to pass and to mould definition of workman
mentioned in the Regulation only on the basis that no
classification has been prescribed.
13.Learned counsel for the respondent has pointed
that there are various posts which have been included as
workman after permission, they are not included as
workman. Only those the employees have been included in
Annexure-A to the Regulation as workman for applicability
of the retirement age of 60 years. As the definition of
workman has been given in the context of the employees
mentioned in Annexure-A to the Regulation that cannot be
compared with the workman defined under the Indian
Industrial Disputes Act or artisan in Fundamental Rules.
14.In the facts and circumstances of the case, I do
not find any good ground calling for interference by this
Court in exercise of extra ordinary jurisdiction under
Article 226 of the Constitution of India. As such, this
petition deserves to be dismissed. Accordingly, this
petition is dismissed. Rule is discharged with no order
as to costs. Interim relief, if any, stands vacated
forthwith.
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