Judgement

MATHEW, J.:- The appellant, a company incorporated under the Companies Act, filed a writ petition before the High Court of Calcutta praying for the issue of a writ or an order in the nature of certiorari quashing the award passed by the Second Industrial Tribunal, West Bengal, Calcutta, directing the reinstatement of Ganapati Santra the second respondent, in the service of the appellant. A learned Judge of that Court dismissed the writ petition. The appellant filed an appeal before a Division Bench of that Court. That appeal was also dismissed. This appeal is preferred against the order of the Division Bench by certificate granted by the High Court under Article 133 (1) (c) of the Constitution.

2. The second respondent was employed by the appellant in the year 1946 as a clerk in its Service Department. At the time, there was no rule prescribing the age of retirement of the workmen of the company. In November, 1951, the appellant introduced standing orders under the provisions of the Industrial employment (Standing Orders) Act, 1946 (Central Act 20 of 1946) by which the age of superannuation of the workmen was fixed at 55. On September 17, 1956, the Central Act 20 of 1946 was amended by the Act 36 of 1956. The standing orders in the appellant company were modified on May 30, 1961,but the provision regarding the age of superannuation remained unchanged. On November 27, 1961, the appellant issued a notice to the second respondent informing him that he was due to retire on August 31, 1962 as he would be attaining the age of 55 on that date.

3. On August 11, 1962, respondent No. 3, the Union of the employees of the appellant, submitted a charter of demands. One of the demands was to raise the age of retirement of the workmen in the establishment from 55 to 60. On August 18, 1962, respondent No. 3 wrote to the appellant to keep the retirement of second respondent in abeyance till a decision is arrived at on the charter of demands. On August 30, 1962, the second respondent wrote to the appellant to postpone taking a final decision on the matter as a dispute had already been raised about the retirement age of the workmen in the establishment. By his letter dated August 31, 1962, the Secretary of the appellant Company replied that as long as the retirement age as provided in the standing orders was not altered, he had to be guided by the same but that, if at a later date, the retirement age was altered, the same will be adhered to. The second respondent was made to retire on September 1, 1962.

4. The Government of West Bengal, by its order dated January 29, 1963, made a reference to the first respondent of the industrial dispute between the appellant and its workmen represented by the third respondent. The second question referred, which alone is material for our purpose was:

Is the superannuation of Shri Ganapati Santra justified ? What relief if any, is he entitled to ? What should be the age of retirement of the workmen in the factory ?

5. The appellant contended before the Tribunal on the basis of the standing orders that the age of retirement was 55 years and that the action of the appellant in retiring the second respondent at the age of 55 was proper. The Union, on the other hand, contended that, as the second respondent was appointed in 1946 when there was no age fixed for superannuation, he was not bound by the provision as regards the age of superannuation in the standing orders of 1952 or the modified standing orders of 1961.

6. The Industrial Tribunal, by its award, dated April, 27, 1964, held that the retirement of the second respondent at the age of 55 was unjustified as the second respondent was employed in the concern in the standing orders of 1952 or of 1961 fixing the age of retirement at 55 as he was employed in the concern in 1946, and directed reinstatement of the second respondent. The Tribunal also held "that the age of retirement of all categories of workmen should be raised from 55 of 58 and that standing or