Saroj Kumar Ghosh vs Chairman, Orissa State … on 3 October, 1969

Orissa High Court
Saroj Kumar Ghosh vs Chairman, Orissa State … on 3 October, 1969
Equivalent citations: AIR 1970 Ori 126
Author: K Misra
Bench: G Misra, R Misra


K.N. Misra, J.

1. In this application under Articles 226 and 227 of the Constitution the petitioner before us is the General Secretary of the City Distribution Division, Electrical Worker’s Union and the Cuttack Electric Supply Workers’ Union.

2. The short point that arises for consideration in this case is as to whether the opposite party Board is entitled in law to call upon the workmen in the employment of the Cuttack Electric Supply Co. Ltd., whose services have now been taken over by the Orissa State Electricity Board, to retire from service on attaining the age of 55.

3. It is not disputed that the Cuttack Electric Supply Co. Ltd. which was being managed by the Managing Agency M/s. Octavus Steel Co. Ltd. was taken over by the State of Orissa and was placed under the Orissa State Electricity Board. The Company came before this Court in O. J. C. No. 31 of 1962 challenging the order of the State Government in taking over the undertaking and cancelling its liecnse. Ultimately the matter was settled on certain terms and the services of 135 workmen hitherto in the employment of the Company were taken over by the State Electricity Board. The Board issued fresh orders of appointment to the workmen and attempted to change the conditions of service. A dispute arose which led to tripartite agreement on 1-7-63 to which the State, the Electricity Board and the Union were parties. It was decided, inter alia, (1) that the workmen previously seiving under the Company would be entitled to the same conditions of service as were applicable to them under the Board, and (2) that the Board would take urgent steps for drafting a set of standing orders and getting them

certified in accordance with law.

4. It is alleged that the opposite party Board committed violation of the terms of the agreement. Ultimately an industrial dispute was referred to the Tribunal in the following terms:

“Whether the workers of the Company which was purchased by the Board are entitled to continuity of service without any change in their conditions of service they were enjoying under the Company.”

The Tribunal, after a regular enquiry, came to hold.

“I conclude that the employees under the Company would have continuity of service while working under the Board without any change in their important conditions of service. But regarding other matters comparatively less important they would be governed by the Boards’ Rules.”

It is further contended by Mr. Ram for the petitioner that no rules have yet been framed by the Board in regard to less important conditions of service. The opposite party Board came before this Court mainly for expunction of the direction in the Tribunal’s Award that the workmen should have continuity of service while working under the Board without any material change in their conditions of service. The said writ application was dismissed on 15-3-65. The matter was carried in appeal before the Supreme Court and their Lordships of the Supreme Court by their judgment in Civil Appeal No. 967 of 1966 D/- 29-11-1968 (SC) dismissed the same.

5. On 21-6-69. the Board superannuated some of the employees now working under the Board on the ground that they had reached the age of 55 and were, therefore liable to superannuate.

6. The challenge in the writ application is that the direction to the workmen to superannuate on the ground that they have reached the age of 55 is without authority of law and such a direction runs counter to the direction in the Award. In 1950, there were a set of standing orders of the Cuttack Electric Supply Co. Ltd. There was no provision for age of superannuation therein. The contention of Mr. Ram is that superannuation is one of the important conditions of service and the direction in the Award is that in respect of such conditions the company’s workmen employed by the Board, are to be governed by the terms of service in vogue under the Company, and, therefore, the Board, in the face of the direction in the Award and having lost its cause before the Courts, is not entitled to direct superannuation of these workmen. For the first time in the counter affidavit filed before us the Board took the plea in parapraph 7 of the counter affidavit in the following way:

“. . . . The conditions of service of the employees of the Company prior to their coming over to the Board were governed by the certified standing orders, certified in respect of the Cuttack Electric Supply Co. Ltd. The aforesaid Standing Orders inter alia provided for retirement after serving for 30 years or on reaching the age of 55 years. The relevant clause of the standing Order reads as follows:

’32. An employee who has served 30 years or who has reached the age of 55 shall be retired.’ ”

It is contended by Mr. Rath, appearing for the Board, that such a term of superannuation was already the condition of service in respect of the workmen under the Cuttack Electric Supply Co. Ltd., and as such even in terms of the Award the workmen under the defunct Company, while working under the Board, are bound by these terms. He, therefore, justifies the order of superannuation on this score,

7. The petitioner has contended that Clause 32 as referred to above was a part of the Standing Orders which have never been in force. Mr. Ram contended before us that the Management of the Company carried an appeal before the learned District Judge of Cuttack against the order of the Certifying Officer under Section 5(2) of the Industrial Employment (Standing Orders) Act of 1946 and the said appeal was ultimately dismissed for default. The appellate authority, that is, the District Judge of Cuttack did not comply with the requirements of Section 6(2) of the said Act, and as such the said Standing Orders never came into force. Therefore, they were not existing conditions of employment of the employees of the Company at the time the opposite party Board took over their service. Mr. Ram next contends that the provision for superannuation could not be made in the Standing Orders, and, therefore, even if it is conceded that there was such a clause as referred to above and the Standing Orders had been in force, such a term was without the authority of law and the matter of superannuation could not be provided in the Standing Orders.

8. It is conceded before us by both parties that if it is ultimately found that the clause of superannuation could not be provided in the Standing Orders, then the petitioner is entitled to succeed and it cannot be held that the existing conditions of service in respect of the Company’s workmen made provision for superannuation at the age of 55. In the circumstances we proceed to examine the correctness of the contention of Mr. Ram as to whether superannuation could be provided for in the Standing Orders. This will require a detailed examination of the scheme provided under the Industrial Employment (Standing Orders) Act, 1948,

The scheme of that Statute, as far as relevant for the present purpose, is found in Sections 3 and 4 of the Schedule appended to the Act. For convenience, the said provisions are extracted hereunder:

“3. Submission of draft standing orders.

(1) Within six months from the date of which this Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment.

(2) Provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be so far is practicable, in conformity with such model.

  XX XX                         XX    

 4. Conditions for certification of standing orders.- 

 Standing Orders shall be certifiable under this Act, if- 

 (a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and  

 (b) the standing orders are otherwise In conformity with the provisions of this Act;   

 and it shall be the function of the Certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders.   

 The Schedule:  

 Matters to be provided in Standing Orders under this Act  

 1. Classification of workmen, e.g., whether permanent, temporary apprentices, probationers, or badlis.  

 2. Manner of intimating to workmen periods and hours of work, holidays, paydays and wage rates.  

 3. Shift working.  

 4. Attendance and late coming.  

 5. Conditions of, procedure in applying for, and the authority which may grant, leave and holidays.  

 6. Requirement to enter premises by certain gates, and liability to search.  

 7. Closing and reopening of sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.  

 8. Termination of employment, and the notice thereof to be given by employer and workmen.  

 9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.  

 10. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.  

11. Any other matter which may be prescribed."    

9. None of the 11 items of the Schedule, as extracted above, covers the case of superannuation. Mr. Ram’s contention, therefore, is that in respect of a matter which is not covered in the Schedule, there was no scope to provide for in the Standing Orders, and no provision could have been certified in the Standing Orders unless it was in conformity with the provisions of the Act. His contention is that Clause 32 of the Standing Orders in question was not certifiable under the Act. Even if the workmen had not questioned the propriety of the said provision, since it was a case of jurisdiction it cannot be contended that in the absence of a dispute regarding the term, by the rule of acquiescence, the term regarding superannuation becomes enforceable.

10. Under Section 15 of the Act, authority has been conferred to provide for any other matter to be added to the 11 items already appearing in the Schedule so as to confer jurisdiction on the relevant bodies under the Act to make, certify and approve Standing Orders in respect of such matters. (Admittedly there has been no addition to the 11 items appearing in the Schedule in the State of Orissa). Mr. Rath for the Board contends that ”termination of employment” really covers a case of superannuation. Accord-Ing to him, superannuation is a process of termination, and termination being a term of comprehensive import superannuation which is a class of termination must be taken to be included in it and, therefore, no provision has been separately made. In support of Mr. Bath’s contention he has placed reliance on a decision in (1960) 1 Lab LJ 187 = (AIR 1960 Mad 107), Hindu v. Hindu Office & National Press Employees Union wherein a learned Single Judge of the Madras High Court has taken the view that termination would cover superannuation. We do not accept the contention of Mr. Rath as the reasonings in the said decision do not appeal to us.

11. Termination and superannuation cannot be equated. The dictionary meanings of the two also do not indicate that there is any similarity in the two processes. The meaning of ‘superannuation’ as in the dictionary is “to cause to retire from service on a pension, to pension off, to become too old for a pension, to reach an age at which one retires from an office”, and the meaning of ‘termination’ is ‘cessation, closure, conclusion, the act of bringing a matter to an end”. Superannuation seems to us to be an event which comes more or less in an automatic process. An age is fixed on the reaching of which the holder of an office is required to go out of office. There is

no violation in the act. With the lapse of time the event automatically comes. Both the parties, that is, the employer
and the employee have notice of the matter long before and it is an event which cannot be arrested by them if the rule is to be followed. On the other hand, termination is a positive act by which one party even against the desire of the other can bring about the end to an employment. In these circumstances the two processes are essentially different and there is hardly any room to equate one with the other. Apart from this common sense view of the matter we are supported in our views by the ratio available from a decision of the Supreme Court in the case of R. & H. Districts Electric Supply Co. v. State of U. P., AIR 1966 SC 1471. In U. P. the Schedule has been amended and there are some more items added to the Schedule in exercise of authorities conferred under Section 15 of the Act on the State of U. P. 11-C was an item categorically making provision for superannuation or retirement. The manner in which the matter was examined by their Lordships of the Supreme Court clearly gives us an impression that but for the entry 11-C in the Schedule brought about by amendment, superannuation was not considered to be covered by the existing entry of termination of service. Gajendragadkar, C. J., speaking on behalf of the Court, stated,–

“It is for the appropriate authority to decide whether a particular Standing Order is fair or reasonable, or not. Sometimes, the employees may not be organised enough to resist the pressure of the employer or may not be articulate; and where the employees are not organised or strong enough to put forward their point of view vigorously, the fact that the employer has persuaded his employees to agree to the draft Standing Orders, will not preclude the appropriate authority from discharging its obligation by considering the fairness or reasonableness of the draft.”

In an earlier case before the Supreme Court in Associated Cement Co. v. P. D. Vyas. AIR 1960 SC 665, Gajendragadkar, J., as he then was, analysed at length the different provisions of the Act and laid down.

“The cumulative effect of these provisions is that the certifying officer has to be satisfied that the draft standing orders deal with every matter set out in the Schedule and are otherwise in conformity with the provisions of the Act.”

Due emphasis seems to have been given on every matter stated in the Schedule. It is also pertinent to indicate that a set of Model Standing Orders has been provided under the rules and such Model Standing Orders make no provision for superannuation. If termination comprehended superannuation, one was bound to find provision for superannuation in the Model Standing Orders. Absence of such provision is only compatible with the position that superannuation is not taken as covered by termination. In the decision of 1960 just quoted in another portion the judgment indicates,–

“This latter requirement necessarily imports the consideration specified in Section 3, Sub-section (2), that is to say, the draft standing order must be in conformity with the model standing order which is provided under Section 15(2)(b) for the purposes of the Act, and as we have already seen, unless it is shown that it would be impracticable to do so, the draft standing order must be in conformity with the model standing order.”

If this is the basis, there is no room for upholding the provision for superannuation. We must, therefore, hold that the provision contained in Clause 32 of the Standing Orders, as extracted above, was without the authority of law. The Certifying Officer did not perform his job properly and overlooked the mandate of the Statute and certified it though such a provision was not certifiable under Section 4 of the Act. The fact that the workmen did not challenge such a provision cannot add enforceability to such a provision without jurisdiction. We, therefore, conclude that there was no valid Standing Order applicable to the workmen of the Cuttack Electric Supply Co. Ltd. which made any provision for superannuation. The position that, emerges out of the aforesaid discussion and finding is that at the time when the workmen were taken over from the Cut-tack Electric Supply Co. Ltd. by the Board they were not subjected to any condition of superannuation. The question that remains for examination is –Can it be said that superannuation is one of the lesser terms of service in respect of which the workmen of the Company are now to be regulated by the terms and conditions of the employees under the Board? Mr. Rath for the opposite party Board did not seek, to support the order of superannuation on the ground that it was covered by the lesser terms of service. In Fact the stand taken in the counter affidavit was otherwise as already discussed. In the circumstances, we are led to hold that superannuation is an important condition of service and was not liable to change in terms of the Award which determined the terms of service of the workmen of the Company. We also indicate that the opposite party did not want to support its direction on the basis that it was authorised in terms of the Award.

12. The impugned direction superannuating the workmen is, therefore, not sustainable. We issue a writ of mandamus and command the opposite party Board not to enforce the said order of superannuation in respect of the workmen who had been taken over from the Cuttack Electric Supply Co. Ltd, by the Board The petitioner asked for stay of enforcement of the order and we had granted an interim order of stay on 23-7-69. But it was later on contended that before the order reached, the superannuation had been given effect to. In view of our aforesaid decision, the order, even if given effect to, was illegal and is liable to be quashed. We, therefore, further direct that the superannuation of the workmen, even though given effect to, be quashed and the opposite party Board is also commanded to take them into employment and treat them to be in service. This writ application is, therefore, allowed in the manner indicated above with costs. Hearing fee of Rs. 200 (two hundred).

G.K. Misra, C.J.

13. I agree..

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