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Mgt. Of Pandiyan Roadways … vs P.O., Labour Court And Ors. on 24 December, 1993

Madras High Court
Mgt. Of Pandiyan Roadways … vs P.O., Labour Court And Ors. on 24 December, 1993
Equivalent citations: (1995) ILLJ 328 Mad
Author: Somasundaram
Bench: Somasundaram


ORDER

Somasundaram, J.

1. M/s. Southern Roadways Private Limited was a Transport Company operating with Head Quarters at Madurai. Under the Nationalaisation Programme, the same had been taken over and the petitioner Corporation – Pandian Roadways Corporation had been formed. Under the Standing Orders of M/s. Southern Roadways Private Limited, the retirement age of its employees had been fixed at 55 years or completion of 30 years of service whichever was earlier. The same had been adopted by the petitioner Corporation also till the year 1974 when modified Standing Orders raising the age of retirement to 58 years were proposed for certification before the Certifying Officer. In the proceedings before the Certifying Officer, the Unions proposed the age of retirement to be fixed at 58 years, whereas the petitioner management wanted to retain the age of retirement at 55 years. The certifying Officer by his Order dated January 16, 1975 accepted the demand of the Unions and modified the Standing Order 24 of the petitioner establishment fixing the age of retirement at 58 years. As against the order of the Certifying Officer, dated January 16, 1975, the management filed Standing Order Appeal No. 1075 before the Labour Court. The Labour Court dismissed the appeal of the management and confirmed the Order of the Certifying Officer fixing the age of superannuation of the workmen at 58 years. The petitioner management thereupon filed Writ Petition No. 4005/75 against the order of the Labour Court, and in W.M.P. No. 5416775, obtained orders of stay on June 9, 1975. Subsequently W.P. No. 4005/75 was dismissed on February 15, 1977, so far as the modification of the Standing Order 24 raising the age of superannuation from 55 years to 58 years was concerned. As against the order in W.P. No. 4005/75, the management filed Writ Appeal No. 144/77. The said Writ Appeal was admitted and in CMP No. 4885/77, this Court by order dated April 29, 1977 granted interim stay of operation of the Standing Order fixing the age of superannuation of the workmen of the petitioner establishment at 58 years. Subsequently by order dated January 3, 1979, the interim stay granted in CMP No. 4885/77 was vacated. When the Writ Appeal 144/77 was pending before this Court, a settlement under Section 12(3) of the Industrial Disputes Act (hereinafter referred to as the Act) between the management and the workmen of the establishment has been arrived at on November 27, 1979 in the course of the conciliation proceedings. According to the petitioner, when the Writ Appeal was pending, the Government had raised the age of retirement of its servants to 58 years of age and consequently the petitioner management also felt that the same age of retirement may be adopted for its employees also and it was in terms thereof that the settlement under Section 12(3) of the Act had been arrived at on November 27, 1979. The terms of the settlement, so far it relates to the age of retirement of the employees of the petitioner establishment, are as follows:-

“It is agreed that Standing O.24 (as certified by the certifying officer on January 16, 1975) regarding the age of superannuation fixed at 58 years shall be made effective from January 3, 1979 subject on the following conditions:-

A. All those employees who had reached the age of 55 years and have not been retired from service with effect from February 3, 1979 will continue to be in service subject to service conditions till the age of superannuation of 58 years.

B. The employees who were retired prior to January 3, 1979 but have not settled the provident fund and gratuity accounts and not engaged so far will be re-employed in the same post which they were holding at the time of retirement and their pay fixed on the same scale as may be applicable. They will not be entitled to any back wages, but the period of non-employment will be reckoned for continuity of service,

C. The employees who were retired from service prior to January 3, 1979 but engaged on daily wage will be made regular with affect from January 3, 1979 or from such actual date of engagement whichever is later, subject to service conditions and fixed salary on the same scale as may be applicable. They will be paid the difference in salary with effect from January 3, 1979 or from such actual date of engagement whichever is later. For the period of non-employment they will not be paid any wages, any compensation, etc.

D. The employees who were retired from service and who have settled provident fund and gratuity account or provident fund accounts alone and not engaged so far will be reemployed on the same posts without back wages and without continuity of service and their pay fixed on the same scale as may be applicable, effective from the date of their joining duty.”

After the said settlement under Section 12(3) of the Act was arrived at, the Writ Appeal 144/77 was dismissed by this Court on January 22, 1980 as not pressed.

2. Subsequent to the disposal of Writ Appeal 144/77, the second respondent in each of the Writ Petitions filed petition under Section 33C(2) of the Act before the Labour Court in C.P. Nos. 250/82 and 48/83, claiming the amounts mentioned in those petitions contending that as per Standing Order 24, as modified by the Order of the Certifying Officer, dated January 16, 1975. They were entitled to work till they complete the age of 58 years, that the petitioner management had retired them on superannuation on completion of 55 years, that such action of the petitioner management retiring them from service before they completed the age of 58 years was illegal and against the Standing Order 24 of the Certified Standing Orders of the petitioner establishment and that therefore, they are entitled to recover the amounts, detailed in the annexures to the petitions filed under Section 33C(2) of the Act under the heads of Salary, Bonus, Provident Fund and double wages for work during holidays. The Labour Court by the common order dated September 9, 1983 countenanced the plea of the second respondent in each of the writ petitions and allowed C.P. Nos. 250/82 and 48/43, computing the amounts payable to the petitioners therein at Rs. 25,558.77 and Rs. 25,956.55 respectively. Aggrieved by the said common order of the Labour Court, dated September 9, 1983, the petitioner management has filed the present Writ Petitions to quash the common order of the Labour Court dated September 9, 1983 allowing C.P. Nos. 250/82 and 48/83.

3. Mr. S. Jayaraman, learned counsel for the petitioner, contended that the second respondent in each of these writ petitions were entitled to be in service of the petitioner management till they attained the age of 58 years only if the provisions of the standing orders of the petitioner establishment are applicable to them. The contention of the learned counsel for the petitioner is that with regard to the age of superannuation, the second respondent in each of these writ petitions would be governed not by the provision of the Standing Order of the petitioner establishment as modified by the order of the Certifying Officer dated January 16, 1975, but by the settlement entered into between the petitioner management and its workmen on November 27, 1979 under Section 12(3) of the Act and that if the terms of Section 12(3) settlement dated November 27, 1979 are made applicable to the case of the second respondent in each of these Writ Petitions, the second respondent in Writ Petition 2384/84 who retired on January 1, 1977 would be entitled to only a month’s salary and that the second respondent 1 in Writ Petition 2385/84 who retired from service on January 1, 1976 would not be entitled to any relief, in view of Clauses A and B of Section 12(3) Settlement dated November 27, 1979. In other words, the contention of the learned counsel for the petitioner is that the second respondent in each of the Writ Petitions can claim the rights only under the terms of the settlement dated November 27, 1979 arrived at under Section 12(3) of the Act and not under the provisions of the certified Standing Orders of the petitioner establishment. In support of his contention, the learned counsel for the petitioner relied on the decision in Pallavan Transport Corporation Ltd. v. Appellate Authority (1974-II-LLJ-262)(Mds).

4. Per contra, Mr. Subbiah, learned counsel for the second respondent in these writ petitions,; contended that on the facts and circumstances of the case, the second respondent in these writ petitions are entitled to claim their rights under the provisions of the Standing Order relating to the age of superannuation and that the settlement dated November 27, 1979 arrived at under Section 12(3) of the Act between the petitioner management and its workmen would not bind the second respondent, in view of Section 12 of the Act.

5. In view of the contentions of the counsel for the parties, the following point arises for consideration in these writ petitions.

“Whether the second respondent in each of these writ petitions is entitled to claim benefits under the provisions of the Standing Order 24 of the petitioner establishment as modified by the order of the Certifying Officer dated January 16, 1975 with regard to the age of retirement or whether he is bound by the terms of settlement dated November 27, 1979 arrived at between the petitioner management and its workmen under Section 12(3) of the Act as to the question of the age of retirement?”

6. Let me first examine the question whether the second respondent in each of these writ petitions would be bound by the Terms of Settlement arrived at between the petitioner Management and its workmen under Section 12(3) of the Act on November 27, 1979. On the question of age of retirement Section 18 of the Act refers to person on whom settlement and awards are binding. In the present case Section 12(3) settlement dated November 27, 1979 was arrived at between the petitioner management and its workmen in the course of conciliation proceedings and therefore, the relevant provision applicable to the present case is Sub-section (3) of Section 18 of the Act. Sub-section (3) of Section 18 lays down that a settlement shall be binding on:-

(a) all parties to the industrial disputes;

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless it is held that they were so summoned without proper cause;

(c) the heirs, successors or assigns to the employees;

(d) all workmen employed in the establishment, or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment.

It is relevant to note that under the provisions of Section 18 of the Act, past workmen in the establishment are not held to be bound by the settlement which had been arrived at after they had ceased to be workmen in the establishment concerned. It is clear from Sub-clause (d) of Sub-section (3) of Section 18 of the Act that a settlement arrived at between the management and its workmen under Section 12(3) of the Act will be binding only the present and future workmen of the establishment and it will not bind persons who were employed in the past and also ceased to be workmen of the establishment on the date of settlement under Section 12(3) of the Act. In the light of the said Clause (d) of Sub-section (3) of Section 18 of the Act, it is not all at possible to accept the contention of the learned counsel for the petitioner that a settlement arrived at under Section 12(3) of the Act, will be binding on all the workmen of the establishment past, present and future. In the present I case, admittedly, the second respondent in Writ Petition 2384/84 and Writ Petition 2385/84 re-tred from service on January 1, 1977 and on January 1, 1976 respectively, long prior to the settlement arrived at under Section 12(3) of the Act on November 27, 1979 and therefore, they would not be bound by the terms of the said Section 12(3) settlement. Further the petitioner has not produced any evidence in these cases to show that notices as contemplated in such Clause (b) of Sub-section (3) of Section 18 of the Act have been sent to the second respondent in these writ petitions, who are retired workmen on the date of the Section 12(3) settlement, asking them to appear in the course of conciliation proceeding as parties to the disputes before the settlement under Section 3 12(3) of the Act was arrived at between the petitioner management and its workmen on November 27, 1979. In these circumstances, it has to be held that the second respondent in these Writ Petitions would not be bound by the terms of the settlement arrived at between the petitioner management and its workmen under Section 12(3) of the Act on November 27, 1979.

7. The next question we have to examine is; this: when the second respondent in each of these writ petitions are not bound by the terms of the Section 12(3) settlement dated November 27, 1979 can they rest their claims under Standing Order 24 of the Certified Standing Orders of the petitioner management as modified by the certifying officer raising the age of retirement from 55 years to 58 years by his order dated January 16, 1975. The admitted facts are that the certifying officer by his order dated January 16, 1975 modified Standing Order 24 fixing the age of retirement of the workmen of the petitioner establishment at 58 years. As already pointed out the second respondent in W.P. No. 2384/84 retired from service on January 1, 1977 and the second respondent in W.P. No. 2385/84 retired from service on January 1, 1976. On the date of their retirement, there was no settlement under Section 12(3) of the Act, as it came into existence only on November 27, 1979. On the date when the second respondent in each case retired from service on completion of the age of 55 years, the standing order 24 of the petitioner establishment was in force on the question of the age of retirement of the workmen of the petitioner establishment. The second respondent in each of these cases, could not get the benefit of Standing Order 24 as modified by order of the Certifying Officer fixing the age of retirement of the workmen of the petitioner establishment at 58 years in view of the order of stay obtained by the petitioner management in W.P. No. 4005/75 staying the operation of Standing Order 24. It is needless to say that but for the stay order granted by this Court in W.P, No 4005/75, staying the operation of Standing Order 24, the second respondent in each of these cases would have continued in service till they attained the age of 58 years. As already pointed out, the appeal filed by the petitioner management against the order of the Certifying Officer, modifying the Standing Order 24 and raising the age of retirement from 55 years to 58 years, was dismissed by the Labour Court on May 14, 1975. The said order of the Labour Court was challenged by the management by filing Writ Petition 4005/75 before s this Court. Though, this court granted an order staying the operation of the order of the Certifying Officer dated January 16, 1975 raising the age of retirement of the workmen of the petitioner establishment till the disposal of the Writ Petition, the Writ Petition 4005/75 was ultimately dismissed by this Court on February 15, 1977 and the order of the Certifying Officer dated January 16, 1975 fixing the age of superannuation at 58 years was confirmed. As against the order of this Court in W.P. No. 4005/75, dated February 15, 1977, the petitioner management filed Writ Appeal 144/77. In C.M.P. No. 4005/77 in W.A. No. 144/77 the Division Bench of this Court granted stay of the operation of the order made in W.P. No. 4005/75, pending disposal of the appeal, on April 29, 1977. Subsequently, by order dated January 3, 1979, the stay granted in C.M.P. No. 4855/77 was vacated. The order dated January 3, 1979 made in CMP No. 4885/77 reads thus;

“Interim stay vacated. It is made clear that those who have not been relieved from duty on the invocation of the challenged rule shall be retained pending disposal of the Writ Appeal. As regards persons who have already been relieved pursuant to the challenged rule they will await the result of the Writ Appeal.”

Ultimately, Writ Appeal 144/77 itself was

dismissed as not pressed on January 22, 1980 in the following terms;

“The learned counsel for the appellant represented that the appellant had settled the matter with its employees and that therefore the appellant is not pressing the Writ Appeal. Accordingly the Writ Appeal is dismissed as not pressed. There will be no order as to cost”.

The dismissal of Writ Petition 4005/75 and Writ Appeal 144/77 by this court will have the effect of this court upholding the order of the Certifying Officer dated January 16, 1975 modifying the Standing Order 24 and fixing the age of retirement of the workmen of the petitioner establishment at 58 years. Thus the order of the Certifying Officer dated January 16, 1975 raising the age of retirement from 55 years to 58 years was not only in force on the date of retirement of the second respondent in each of these writ petitions, but continued to be in force as far as the second respondent in these Writ Petitions are concerned even after the settlement under Section 12(3) of the Act was arrived at on November 27, 1979 because, as already found by me, the settlement under Section 12(3) of the Act dated November 27, 1979, would (not?) bind the second respondent in these Writ Petitioners, as they ceased to be workmen under the petitioner management long prior to the date of Section 12(3) settlement. In other words, the Section 12(3) settlement arrived at between the petitioner management and its workmen would not be binding on the second respondent in each of these writ petitions, as they ceased to be the workmen of the establishment on the date of Section 12(3) settlement and in as much as the Validity of the order of the Certifying Officer dated January 16, 1975 modifying and fixing the age of retirement at 58 years was upheld by this Court in Writ Petition 4005/75 and Writ Appeal No. 144/77. I have no hesitation in holding that the second respondent in each of these Writ Petitions are entitled to claim the benefits available to them under the provisions of the Standing Order fixing the age of retirement at 58 years. The decision in Pallavan Transport Corporation Ltd v. Appellate Authority (supra) relied on by the learned counsel for the petitioner is not helpful to the petitioner, in view of my finding that the settlement arrived at between the petitioner management and its workmen under Section 12(3) of the Act on November 27, 1979 would not bind the second respondent in these writ petitions, as they ceased to be the workmen under the petitioner management on the date of Section 12(3) settlement.

8. Even assuming for the purpose of argument that the settlement under Section 12(3) of the Act is binding on the second respondent in these Writ Petitions, they are entitled to be in service till they completed the age of 58 years for the following reasons. On January 16, 1975, Standing Order 24 was modified by the Certifying Officer raising the age of retirement to 58 years. The settlement under Section 12(3) of the Act was arrived at between the petitioner management and its workmen only on November 27, 1979 and as per the terms of the Section 12(3) settlement, it was agreed that Standing Order 24 as certified by the Certifying Officer on January 16, 1975 regarding the age of superannuation fixed at 58 years shall be made effective from January 3, 1979. Till November 27, 1979 the date of Section 12(3) settlement or in any event till January 3, 1979, the second respondents in these Writ Petitions, were entitled to the benefits of Standing Order 24 fixing the age of superannuation of the workmen of the petitioner establishment at 58 years. The second respondent in Writ Petition 2385/84, attained the age of 55 on January 1, 1976 and he attained the age of 58 on December 31, 1978 long before Section 12(3) settlement was arrived at on November 27, 1979. Therefore, the second respondent in writ petition 2385/84 is entitled to claim the benefits under the Standing Order 24 of the certified Standing Orders of the petitioner establishment. Similarly the second respondent in Writ Petition 2384/84 completed age of 55 on January 1, 1977 and the age of 58 on December 31, 1979. As already pointed out, as per the terms of the Section 12(3) settlement dated November 27, 1979, it shall be made effective from January 3, 1979, regarding the age of superannuation fixed at 58 years. Therefore, till January 3, 1979 the second respondent in Writ Petition 2384/84 was entitled to be in service till he completed the age of 58 years. Even after January 3, 1979 he was entitled to the benefit of Sub-clause (3) of the settlement under Section 12(3)

of the Act and therefore, he was entitled to be in service till he completed the age of 58 years. Further, it must be remembered both under the Standing Order of the petitioner establishment as modified by the order of the Certifying Officer dated January 16, 1975, as well as under Clause (d) of the terms of the Section 12(3) settlement, the second respondent in Writ Petition 2384/84 was entitled to be in service till he completed the age of 58 years. Therefore, in any view of the matter the seasonal respondent in each of these writ petition was entitled to continue in service till they completed the age of 58 years. However, they were improperly not allowed to continue in service after they completed the age of 55 years. In these circumstances, the Labour Court rightly held that the petitioner management cannot deny the claims of the second respondent in these Writ Petitions as would be available to them under the Certified Standing Orders which have been finally confirmed by this Court in Writ Petition No. 4005/75 and Writ Appeal No. 144/1977, particularly when by order dated January 3, 1979 made in C.M.P. No. 4885/77 in W. A. No. 144/77, this Court while vacating the interim stay, directed that as regards persons who have already been relieved pursuant to the challenged rule, they would await the result of the Writ Appeal. Now that the Writ Appeal 144/77 has been dismissed, the second respondent in these writ petitions are entitled to claim the benefits under the Standing Orders.

9. For all the above reasons stated above, I see no infirmity in the order of the Labour Court, dated September 9, 1983, warranting interference in these writ petitions and they are liable to be dismissed. Accordingly, these Writ Petitions are dismissed. No costs.

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