Judgement

MITTER, J.: This is an appeal by special leave from an award and order dated August 23, 1967 of the Industrial Court Maharashtra under S. 6 of the Industrial Employment (Standing Orders) Act, 1946 read with the provisions of the Bombay Industrial Employment (Standing Orders) Rules, 1959. The questions involved relate to the fixation of the age of superannuation and proof of age of a workman in case of dispute between him and the appellant.

2. The facts are as follows. The appellants who manufacture and sell aluminium wares took over the management of the business formerly carried on by a Canadian firm in 1951 and issued a notice to all the employees on July 19, 1951 to the effect that such of them as had put in 30 years of active service or who were already 55 years of age and/or infirm, debilitated by age or disease were liable to be retired and further continuation of their service after such age or period of service would be at the discretion of the management. This however could not be enforced at law.

3. The original Standing Orders of the appellants for workmen (other than clerical staff) were certified by the Commissioner of Labour under S. 5 of the Industrial Employees (Standing Orders) Act on December 13, 1951. The State Government had in the meanwhile prescribed certain model Standing Orders as contemplated by the said Act. Neither of the two sets of Standing Orders contained any provision for the age of superannuation of industrial employees.

4. The appellant made an application to the Commissioner of Labour under section 10 of the Act for insertion of clause 22-A in their Standing Orders reading:

"Those employees who have put in 30 years of active service and or have attained or may hereafter attain the age of 55 years and/or are infirm and debilitated by age or disease are liable to be discharged by the management and further continuation of their service after such age or period of service will be at the discretion of the management. Such discharged workmen will be given 14 days notice prior to their discharge or payment of 14 days of wage in lieu of such notice." After some correspondence on the subject the Commissioner rejected the application. An appeal to the Industrial Court was also fruitless.

5. The Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957 had in the meanwhile been passed by the State Legislature. Section 2-A and matter No. 10-A in the Schedule to the Act were introduced there in the year 1958. The said matter read:

"The age for retirement or superannuation".

Omitting the proviso S. 2A provided:

"Where this Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf."

6. By an order dated October 29, 1960 the Commissioner of Labour acting as Certifying Officer under the provisions of the Bombay Act modified the Standing Orders as applicable to the workmen (other than clerks) employed at the works of the appellants by introducing a new Clause 22-A reading:

"The age for retirement or superannuation of the workmen shall be 58 years. Extension up to two years may be granted in proper cases purely at the discretion of the Company subject to fitness of the workmen concerned."

Simultaneously with the above, a separate Clause 21-A was inserted in the Standing Orders for clerical staff reading:

"The age for retirement or superannuation of the clerks shall be 60 years."

7. Aggrieved by the said orders the appellants preferred appeals under the provisions of Section 6 of the Standing Orders Act read with the relevant rules to the Industrial Court, Maharashtra. The said Court disposed of the appellants appeals as also of two Cross Appeals filed by Jeewan Lal Employees Union by a common order dated 17th February 1961. The appellants contentions in the appeals were that