JUDGMENT

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.

2. The second respondent entered service as a cooly 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 respondents 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 Choukidar of that village. The new management got its standing orders certified without making any provision 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 Services (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 Departments Chief Engineers 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 contratravention of his conditions of service, according to which there is no age of retirement. This was the second respondents case before the Labour Court.

3. 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. 79 (c) of the Electricity (Supply) Act, 1948 subsequently, prescribing the age of retirement as 58 years and 60 years, and the 2nd 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 respondents retirement is valid and cannot be set aside.

4. 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 Governments employee on 16-9-1947 when that establishment was taken over by 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 o