PETITIONER:
U.P. STATE ELECTRICITY BOARD AND ANOTHER
Vs.
RESPONDENT:
THE LABOUR COURT (I) U.P., KANPUR AND OTHERS
DATE OF JUDGMENT06/10/1983
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1984 AIR 1450 1984 SCR (1) 282
1984 SCC (1) 147 1983 SCALE (2)1042
ACT:
Industrial Employment (Standing Orders) Act, 1946-
Workmen employed by a company-No age of retirement fixed-
Company nationalised-Workmen opted to serve-Service
regulations framed and notified-Assurance by management that
old service conditions would apply to company employees-
Whether valid-Workeman, whether bound by new regulations.
HEADNOTE:
The respondent-workman entered service as a coolie in
1945 under the Kanpur Electricity Supply Corporation
Limited. When the time the company had no rules as to the
age of retirement for its employees and therefore his date
of birth was not entered in the service card. When the
Corporation was nationalised the new management, without
asking him as to his date of birth, showed his age as 20
years 9 months. From the village records it was found that
he was born on 24.6.1924. Meanwhile, the new management got
the Standing Orders certified without making any provision
for the age of retirement. When the Electricity Board
constituted under the Electricity (Supply) Act, 1948, took
over the management of the Administration in 1949 it was
made clear that conditions of service of workmen would not
be adversely affected. But on 31st January, 1979 the workman
was retired from service on the ground that he had completed
58 years of age. The workman complained that he was retired
in contravention of his conditions of service according to
which there was no age of retirement.
The labour court held that even after framing the
regulations under section 79C of the Electricity (Supply)
Act, 1948, fixing the age of retirement at 58 and notifying
them under section 13B of the Industrial Employment
(Standing orders) Act, 1946, the new management made it
clear to the employee that old service conditions of the
employees would continue to operate and that a similar
assurance was given to the respondent in writing that the
new regulations would not apply to him. In this view the
respondent's retirement was held to be invalid.
Allowing the appeal.
HELD: The workman is bound by the regulations fixing
the age of retirement at 58 and therefore his retirement on
attaining the age of superannuation was correct. [287 C]
The Industrial Employment (Standing Orders) Act, 1946
is a special law in regard to matters enumerated in the
schedule. The regulations made by the Electricity Board with
respect to any of those matters are of no effect unless
283
they are either notified by the Government under section 13B
or certified by the Certifying Officer under section 5 of
the Standing Orders Act. In regard to matters in respect of
which regulations made by the Board have not been notified
by the Governor or in respect of which no regulations had
been made by the Board, the Standing Orders Act would
continue to apply. Since, in the instant case, the
regulations framed by the Board with regard to the age of
retirement under section 79C have been notified by the
Government under section 13B of the Standing Orders Act, the
respondent is bound by those regulations and his retirement
on attaining the age of 58 years was correct.
[286 F-H; 287 A-B]
U.P. State Electricity Board and others v. Hari Shanker
Jain and others, [1979]1 S.C.R. 355, applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3549
(NL) of 1982.
Appeal by Special leave against the Award passed by the
Labour Court (I) Kanpur dated 16th December, 1980 in
Adjudication Case No. 8 of 1980.
S. Markandeya for the Appellants.
Hari Swarup, Manoj Swarup and Ms. Lalita Kohli for the
Respondent.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is
directed against the award of the Labour Court, Kanpur in
Adjudication Case No. 8 of 1980 holding that the retirement
of the second respondent Jag Dutt from 31.3.1979 is
unjustifiable and directing his reinstatement with back
wages with a right to work so long as he is physically fit.
The second respondent entered service as a coolie on
11.4.1945 under the then Kanpur Electricity Supply
Corporation Limited. No date of birth was mentioned in his
service card and there was no age of retirement for
employees in that concern. That establishment was
nationalised on 15.9.1947 and thereafter it became a
department of the Government of Uttar Pradesh. The new
management Kanpur Electricity Supply Administration filled
up the second respondent’s age as 20 years 9 months without
asking him for any certificate regarding his date of birth.
His date of birth is 24.6.1924 and an entry about his date
of birth has been made in the Police Station, Chawani Basti
at the instance of the Chowkidar of that village. The new
management got its standing orders certified without making
any provision
284
for age of retirement. The State Government made it clear
that the workmen to whom the Industrial Employment (Standing
Orders) Act, 1946 applied would not be governed by the Civil
Service (Classification, Control and Appeal) Rules. The
Electricity Board constituted under the Electricity (Supply)
Act, 1948 took over the workmen of the erstwhile Kanpur
Electricity Supply Administration from 1.4.1949 making it
clear that their service conditions will not be adversely
affected. That position regarding the service conditions of
the employees was reiterated in Government Order No. 3679-
E/71-21-PB dated 1.4.1971 and the Electricity Department’s
Chief Engineer’s letter dated 2.3.1972. The initial
condition was that the second respondent should work so long
as he was physically fit to work without any age of
retirement. However, the Kanpur Electricity Supply
Administration retired the second respondent from 31.3.1979
on the ground that he has completed 58 years. This
retirement is invalid for two reasons, namely that his date
of birth is 24.6.1924 and that there is no age of retirement
so far as employees like the second respondent who had
joined service under the Kanpur Electricity Supply
Corporation Limited are concerned. The new management had
allowed 19 named workmen to retire when they were 60 to 75
years old. The second respondent has thus been retired not
only before he completed 58 years, his date of birth being
24.6.1924 but also in contravention of his conditions of
service, according to which there is no age of retirement.
This was the second respondent’s case before the Labour
Court.
The defence of the appellant-management was that though
when the Electricity Board was constituted and the
management of the Kanpur Electricity Supply Administration
was taken over in 1948 no age of retirement was prescribed
for the employees the Electricity Board framed regulations
under s.79C of the Electricity (Supply) Act, 1948
subsequently prescribing the age of retirement as 58 years
and 60 years and the second respondent was retired on
31.3.1979 under those regulations. It is open in law for the
Electricity Board to frame regulations prescribing the age
of retirement of its employees even where initially there
was no age of retirement, as has been held by the Allahabad
High Court and this Court. The second respondent’s
retirement is valid and cannot be set aside.
The Labour Court found that the second respondent
joined service as a cooly under the Kanpur Electricity
Supply Corporation Limited on 11.5.1945 and he became the
State Government’s employee on 16.9.1947 when that
establishment was taken over by
285
Kanpur Electricity Supply Administration and the employees
of that Administration became the employees of the State
Electricity Board when it took over that Undertaking after
that Board was constituted on 1.4.1959. It was not disputed
that by the Regulations framed under s. 79C of the
Electricity (Supply) Act, 1948, age of retirement fixed at
58 or 60 years and that those Regulations were notified on
28.5.1972 under s. 138B of the Industrial Employment
(Standing Orders) Act, 1946. But the Labour Court found that
even after the publication of those Regulations the new
management made it clear to the employees by Government’s
Order No. 3679-E/71-23-PB dated 1.7.1979 that even after
absorption of the employees their old conditions of service
would continue in the same way and that a similar assurance
had been given to the second respondent by the documents
marked as Ex.B-9 to B-15 that the Regulations would not
apply to him and he could work so long as he was physically
fit without any age of retirement. In this view the Labour
Court held that the second respondent’s retirement from
31.3.1979 inspite of the fact that he is physically fit is
invalid in law and it accordingly allowed the second
respondent’s claim as mentioned above.
The Labour Court has not recorded any finding regarding
the second respondent’s actual date of birth. In this Court
no argument was advanced by the learned counsel on either
side on that question. The only point argued before this
Court by Mr. S. Markendeya, learned counsel for the
appellants and Mr. Hari Swarup, learned Senior counsel
appearing for the second respondent was as to the binding
nature of the Regulations framed by the Electricity Board
under s.79C of the Electricity (Supply) Act, 1948 fixing age
of retirement as 58 years in regard to workmen like the
second respondent who were originally employees of the
Kanpur Electricity Supply Corporation Limited. By Order
dated 3.10.1978 of the General Manager of the U.P. State
Electricity Board in the department of Kanpur Electricity
Supply Administration eleven employees including the second
respondent were retired on attaining the age of
superannuation with effect from 31.3.1979 on the basis that
according to the Board’s records they were completing 58
years on that date. There is no dispute that the Board has
framed Regulations under s.79C of the Electricity (Supply)
Act, 1948 fixing the age of retirement of employees like the
second respondent at 58 years and that the Regulations have
been notified under s.13B of the Industrial Employment
(Standing Orders) Act, 1946. Mr. Hari Swarup admitted before
us that the Regulations have statutory force. The Member
Secretary of
286
the U.P. State Electricity Board had informed the government
employees whose Services had been lent to the Board on
deputation that their salary, allowances and other
conditions of service shall be governed by Regulations made
by the Board under s.79C of the Electricity (Supply) Act,
1948 from time to time. It is not disputed that the second
respondent had thereafter exercised his option to serve in
the U.P. State Electricity Board. The second respondent is,
therefore, bound by the Regulation by which the age of
retirement has been fixed in regard to employees like him at
58 years. A similar question arose before a Division Bench
of the Allahabad High Court in Bhai Lal and another v.
Superintending Engineer, Allahabad where it has been held as
follows:
“Once the regulations framed under s.79(c) of the
Electricity (Supply) Act, 1948 have been notified by
the State Government under s.13-B of the Industrial
Employment (Standing Orders) Act, the standing orders
framed by the erstwhile licencee to the extent they
concerned the subject dealt with by the regulations
became ineffective and inoperative and that in respect
of such matter, the right of the parties would be
governed only by the regulation so notified. In the
circumstances even if it be a fact that the standing
orders framed by the erstwhile licencee contained a
clause specifying an age higher then 58 years, as age
of superannuation for its employees, the employee would
none-the-less, as provided in the notified regulation,
be superannuated at the age of 58 years.”
A similar question arose before this Court in U.P.
State Electricity Board and others v. Hari Shanker Jain and
others to which two of us were parties. There it has been
held that the Industrial Employment (Standing Orders) Act,
1946 is a special law in regard to the matters enumerated in
the schedule and the regulations made by the Electricity
Board with respect to any of those matters are of no effect
unless such regulations are either notified by the
Government under s.13B or certified by the Certifying
Officer under s. 5 of the Industrial Employment (Standing
Orders) Act, 1946. In regard to matters in respect of which
regulations made by the Board have not been notified by the
Governor or in respect of which no regulations have been
made by the Board, the Industrial Employment (Standing
287
Orders) Act shall continue to apply. In that case the
regulation made by the Board with regard to the age of
superannuation had been duly notified by the Government and
it has been held that the regulation had effect
notwithstanding the fact that it was a matter which could be
the subject matter of standing orders the Industrial
Employment (Standing Orders) Act, 1946 and that the
respondents in that appeal had been properly retired when
they attained the age of 58 years. In view of the admitted
fact that the regulations framed by the Board under s.79C of
the Electricity (Supply) Act, 1948 have been notified by the
Government under s. 13B of the Industrial Employment
(Standing Orders) Act, 1946 we hold that the second
respondent is bound by those regulations in which the age of
retirement has bean admittedly fixed at 58 years and that he
has no reason to complain against his retirement on that
basis with effect from 31.3.1979. The appeal is accordingly
allowed and the order of the appellant retiring the second
respondent with effect from 31.3.1979 is upheld. It is,
however, made clear that the second respondent shall not be
liable to refund any amount paid to him under orders of the
Court pending these proceedings and that he is entitled to
draw the sum of Rs. 2,000 which has been directed to be
deposited towards his costs in this appeal.
P.B.R. Appeal allowed.
288