Wasant Sheshrao Kale vs National Textile Corporation … on 4 February, 2010

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
                     NAGPUR BENCH: NAGPUR




                                                                  
                WRIT PETITION NO. 194 OF 2001




                                          
    PETITIONER :
           Wasant Sheshrao Kale, Model Mill Staff Quarter
           No. A-6, Umrer Road, Ganeshpeth, Nagpur




                                         
           440 018
                             VERSUS
    RESPONDENTS:




                                 
    1]     National Textile Corporation [Maharashtra North]
                      
           Limited, a Subsidiary of the National Textile
           Corporation - wholly owned by the Government of
                     
           India, 15, N.M. Morarji Marg, Mumbai 400 083 -
           Through its Chairman - cum - Managing Director.
    2]     The Model Mills, [A unit of National Textile
      


           Corporation (Maharashtra North Ltd.)], Umrer
   



           Road, Nagpur, Through its General Manager.
    ===============================
    Shri S.D. Thakur, advocate for petitioner





    Shri R.B. Puranik, advocate for respondent no.2
    ===============================
    CORAM: S.A. BOBDE & SMT. VASANTI A. NAIK, JJ.

DATE: 4TH FEBRUARY 2010.

ORAL JUDGMENT [PER : S.A. BOBDE, J]

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By this petition, the petitioner has challenged

the order dated 17.10.2000 of the respondent –

National Textile Corporation, addressed to the

petitioner, informing him that he will retire from the

services of the National Textile Corporation on

31.1.2001 on attaining the age of 58 years.

2]

The petitioner is a pre-nationalization employee

who was employed with the Model Mills at Nagpur

on 29.5.1962 as a Paid Learner Clerk. Eventually he

was promoted as Senior Accountant from the year

1981. There is no dispute that the age of

superannuation in force in the Model Mills was 60

years.

3] Shri Thakur, the learned counsel for the

petitioner submitted that the petitioner having been

employed with the Model Mills with age of 60 years

as the age of superannuation and his services being

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governed by the Bombay Industrial Relations Act,

1946 [hereinafter referred to as BIR Act], he was

fully protected by section 14 of the Textile

Undertakings [Nationalization] Act, 1995 [hereinafter

referred to as Nationalization Act.] which reads as

follows:

“14(1) Every person who is a workman

within the meaning of the Industrial

Disputes Act, 1947, and has been
immediately before the appointed day, in
the employment of a textile undertaking

shall become on and from the appointed
day, an employee of the National Textile
Corporation, and shall hold office or service
in the National Textile Corporation with the

same rights and privileges as to pension,
gratuity and other matters as would have

been admissible to him if the rights in
relation to such textile undertaking had not
been transferred to, and vested in, the

National Textile Corporation, and shall
continue to do so unless and until his
employment in the National Textile
Corporation is duly terminated or until his
remuneration, terms and conditions of

employment are duly altered by the
National Textile Corporation.

(2) Every person who is not a workman
within the meaning of Industrial Disputes
Act, 1947, and who has been, immediately

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before the appointed day, in the
employment of a textile undertaking shall,
in so far as such person is employed in

connection with the textile undertaking
which has vested in the National Textile

Corporation, become, as from the
appointed day, an employee of the National
Textile Corporation and shall hold his office
or service therein by the same tenure, at

the same remuneration and upon the same
terms and conditions and with the same
rights and privileges as to pension and
gratuity and other matters as he would

have held the same under the textile

undertaking if it had not vested in the
National Textile Corporation and shall
continue to do so unless and until his

employment in the National Textile
Corporation is duly terminated or until his
remuneration, terms and conditions of
employment are duly altered by the

National Textile Corporation

(3) Notwithstanding anything contained in
the Industrial Disputes Act, 1947, or in any
other law for the time being in force, the

transfer of the services of any officer or
other employee of a textile undertaking to
the National Textile Corporation shall not
entitle such officer or other employee to
any compensation under this Act or any

other law for the time being in force and no
such claim shall be entertained by any
court, tribunal or other authority.

(4) Where, under the terms of any
contract of service or otherwise, any person

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whose services become terminated or
whose services become transferred to the
National Textile Corporation by reason of

provisions of this Act is entitled to any
arrears of salary or wages or any payment

for any leave not availed of or other
payment, not being payment by way of
gratuity or pension, such person may,
except to the extent such liability has been

taken over by the Central Government
under section 5, enforce his claim against
the owner of the textile undertaking but not
against the Central Government or the

National Textile Corporation.”

It is further submitted by Shri Thakur that the age of

superannuation of 60 years having been protected

by section 14 of the Nationalization Act, that age

continued to be so protected until duly altered by

the National Textile Corporation. The age of

superannuation never having been duly altered,

petitioner could not have been superannuated at the

age of 58 years, like in the same manner as other

employees of National Textile Corporation who were

governed by its own Rules & Regulations.

4] Shri Puranik, the learned counsel for the

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respondent – National Textile Corporation submitted

that the petitioner’s conditions of service have been

duly altered within the meaning of section 14 of the

Nationalization Act (supra) by the enactment of

Rules & Regulations framed by the National Textile

Corporation in the year 1985 called “National Textile

Corporation (Maharashtra North) Limited,

Recruitment & Promotion Rules 1985” [hereinafter

referred to as rules]. According to Shri Puranik these

rules have come into force on 6.9.1985 and the

petitioner’s superannuation being subsequent to

these rules, it must be taken to be governed by

these rules. There is no dispute that these rules

provided that the age of superannuation will be 58

years vide amendment dated 23.8.1988.

5] At this juncture, we may note that it is also an

undisputed position that the retirement age of

National Textile Corporation employee was at one

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point of time enhanced to 60 years and thereafter

was rolled back to 58 years. This enhancement and

rolling back is of no material significance to the

present case.

6] So the issue that arises is, whether the

petitioner’s conditions of service including the age of

superannuation of 60 years are protected by section

14 of the Nationalization Act, or whether they have

been duly altered by the N.T.C. Rules in accordance

with that section, to 58 years.

7] Shri Thakur, the learned counsel for the

petitioner strongly relied on Rule 2.3 of the Rules,

which reads as follows:

“2.3 These rules shall not apply in respect

of any posts for which any industry-wise
agreements/ awards / undertakings are
applicable from time to time.”

According to Shri Thakur, these rules themselves do

not apply to a post for which any industry wise

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agreement or award or understandings are

applicable and since there is an award which was

applicable to the services of the petitioner in the

Model Mills dated 30.10.1962, which provided

superannuation at the age of 60 years vide clause 8

thereof, the Rules will not apply in terms of rule 2.3

of the Rules of 1985.

8] Shri Thakur, the learned advocate further relies

on clarification issued by the Board of Directors to

the effect that for Technical Officers or

Administrative Officers not covered by the Bombay

Industrial Relations Act, the retirement age be fixed

at 58 years. According to learned counsel since

petitioner’s services were covered by the BIR Act his

age of superannuation remained to be 60 years.

9] Shri Puranik, the learned counsel for the

respondent, however, submitted that clause 2.3 and

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the clarification do not have the effect of excluding

the petitioner’s services from the purview of the

Rules framed by the National Textile Corporation.

The learned counsel specifically submitted that

clause 2.2 is the only clause which provides for

exclusion of certain categories of employees from

the rules and that clause reads as follows:

“2.2.

The following categories shall also
be excluded from the purview of these
Rules:

(a) Workers/Operatives borne on the muster
of the mills.

(b) Clerical/Semi Clerical Staff of the mills.

(c) Watch & Ward Personnel of the Mills.

(d) Employees of Retail Outlets/Show-
Rooms and Depots including erstwhile

employees of marketing division.

He further submitted that clause 2.3 relied on by the

petitioner clearly states that these rules will not

apply in respect of any posts for which any industry-

wise agreements / awards / undertakings are

applicable from time to time. According to learned

counsel the agreement which is relied on by the

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petitioner between Union and the erstwhile Model

Mills is not an industry-wise agreement and

therefore, petitioner’s services can not be held to be

excluded from the operation of the rules.

10] Having considered the matter, we have no

hesitation in coming to the conclusion that the rules

do not exclude the petitioner’s services from the

purview of their operation. The rules do not apply

vide clause 2.3 only in respect of posts for which

there is any industry-wise agreement. The

agreement between erstwhile Model Mills and the

Union can by no stretch of imagination be held to be

an industry-wise agreement as is commonly

understood in Industrial Law. It is merely an

agreement between the Union and that particular

Industrial Establishment i.e. the Model Mills. There is

nothing in the agreement which makes it applicable

to the entire industry either at the local level, the

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state level or the national level. In these

circumstances, we are of the view that the

conditions of services have been duly altered by the

rules within the meaning of section 14. There is no

material on record to show and indeed in fairness to

the petitioner, this point was not argued, that the

rules have not been duly enacted. There is also no

substance in the submission on behalf of the

petitioner that the age of retirement was lowered to

58 only in respect of employees who are not

specifically covered at the time of their employment

by the BIR Act . The resolution of the Board in its 96th

meeting dated 31.1.1986 which provides as

aforesaid, appears to have been clearly superseded

by the amendment to the Recruitment Rules by the

Board of Directors in the 130th Board meeting on

23.8.1988, where the Rule was amended as follows:

“Rule No.18 – Superannuation
No person shall ordinarily be retained in
the service of the Corporation beyond the

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age of 58 years. However, extension in a
special case may be granted in accordance
with the instructions of Government of

India and for reasons to be recorded. The
date of superannuation shall be the last

date of the month in which the person
attained the age of 58 years.
Notwithstanding anything contained in
Rule, the Competent Authority, shall, if it is

of the opinion that it is in Corporation’s
interest so to do, have the absolute right to
retire any employee by giving him notice of
one month/ three months in writing one

month’s / three months’ pay and

allowances in lieu of such notice, as may be
applicable to him as per terms and
conditions of service.

11] In these circumstances, we find that the

petitioner’s conditions of service stood duly altered

by virtue of the Rules framed by the N.T.C. The said

alteration is a due alteration under section 14 of the

Nationalization Act and he was made aware of the

same at the time of his promotion to the post of

Senior Accountant, in following words:

“1. While in the Services of this
Corporation he is liable for transfer
anywhere in India at the discretion of
Management, and to the Holding Co.,

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viz. N.T.C. Ltd, New Delhi or any of its
Subsidiaries or Mill Units.

2. He shall be governed by the Rules

and Regulations of the Corporation in
supersession of earlier Awards /

Agreement under BIR Act.”

12] In the result, we see no reason to interfere with

the order directing that the petitioner shall be

superannuated at the age of 58 years by the

impugned communication dated 17.10.2000. Rule is

discharged. No order as to costs.

                  JUDGE                      JUDGE
      


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