Judgment

VAIDIALINGAM, J.:- This appeal, by special leave, is directed against the award dated February 29th, 1968 of the 5th Industrial Tribunal, West Bengal, in case No. 334 of 1967, setting aside the order dated August 2, 1966 passed by the appellant directing the retirement of the concerned workman on his attaining the age of 58 years.

2. The appellant is a Joint Stock Co. incorporated under the Companies Act, 1956. It carries on business throughout India as manufacturers and dealers of tyres, tubes for motors, trucks and tractors etc. The workman concerned Hari Nath Bhattacharjee, was appointed in 1944. At that time there was no rule regarding the age of superannuation. On April, 26, 1955, the Company framed and brought into force under Section 7 of the Industrial Employment (Standing Orders) Act, 1946, Standing orders relating to its staff employees. Under clause 28 of the Standing Orders a staff employee was to retire on the first January next following the year in which he attains 55 years of age. But it was also provided that if a staff employee desires to remain in service of the Company after the date when he should have been normally retired, the Managing Director had the power to extend the employee s service year by year provided the work was found to be satisfactory and the employee was certified by the Chief Medical Officer as of good health.

3. In 1956 an agreement was entered into between the appellant and its workmen represented by the Dunlop Rubber Factory Labour Union. Clause 14 of the agreement fixed the age of retirement of a staff employee s the 1st of January next following the year in which he has attained 55 years of age, Notwithstanding this agreement under which the age of retirement of a staff employee was 55 years, the appellant issued a Circular on April 20, 1960 to the effect that the management will not ask any employee to retire before attaining the age of 58 years. In this Circular after referring to the uniform age of retirement in West Bengal of employees in Government and Commercial Establishments as the age of 55 years, it is stated that the Industrial Tribunal throughout the Country have fixed the age of retirement varying from 55 years to 60 years.

4. On June 29, 1961, an agreement was entered into between the appellant and the Dunlop Rubber Factory Labour Union regarding the terms of engagement and conditions of employment of staff employees. The agreement deals with various matters. Clause 14 of this agreement provided that the staff employees shall retire at the end of the month in which they attain the age of 58 years. This clause also provides for a staff employee retiring when he is declared unfit on medical grounds. Clause 27 provided that the agreement was to take effect from 1st January, 1961 and was to remain in force for five years from that date. In view of the expiry of the above agreement, the appellant and the same Union entered into a fresh agreement on December 6, 1966 regarding the terms of engagement and conditions of employment for staff employees. This agreement also deals with various matters. Cl.6 dealing with retirement, provided that the staff employees shall retire at the end of the month in which they attain the age of fifty-eight years. Clause 32 provided that the agreement was to have effect from 1st January, 1966, and was to remain in force for five years from that date.

5. On August 2, 1966 the Company informed the concerned workman that as per the Company s Regulations, he was due to retire on February 28, 1967 as he will be attaining the age of 58 years on February 15, 1967. The workman replied on September 7, 1966 stating that he was not bound to retire on completion of 58 years as he had entered the service of the Company long before the Standing Order fixing the age of retirement at the age of 55 years were framed. According to the workman, he was entitled to continue in service till he completed 60 years of age. In the reply he had also referred to the m