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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Suraj Govindaraj, J.
The Management Of M/s Mersen India Pvt. Ltd., Rep. By Managing Director - Petitioner
Versus
The Deputy Labour Commissioner And The Certifying Office Under The IE(SO) Act - Respondents
Writ Petition No. 4114 Of 2021 (L-RES)
Decided On : 06-09-2022
Factories Act, 1948 - Section 2(cb), 41A to 41H - Industrial Employment (Standing Orders) Act, 1946 – Section 4, 6, 20, 5(2), 12(1), 4, 22, 18(1), (3) - Industrial Disputes Act, 1947 - Section 19(2), 2(p), 9-A - Company - Increasing Age of Retirement - Petitioner is before this Court seeking for following reliefs Order passed by First Respondent in amending Certified Standing order of Company increasing age of retirement from 58 years to 60 years - Order passed by Second Respondent in increasing age of retirement from 58 years to 60 years - Grant any other relief(s) as may be deemed fit and proper by this Hon’ble Court, in interest of justice and equity. [Para 19]
Finding of the Court: Both Certifying Authority and Appellate Authority discharging quasi judicial functions, it is required that for any decision rendered by Certifying Authority and/or Appellate Authority, reasons are made known in order passed by such authority - As aforesaid, when there is an important duty being discharged by Certifying Authority and Appellate Authority, which would have an impact not only on functioning of industrial establishment but also on all workmen working therein, this aspect of matter cannot be taken lightly by Certifying Authority and Appellate Authority - In view of above, both orders passed by Certifying Authority and Appellate Authority would be required to be set aside and matter remitted back to Certifying Authority for fresh consideration as per principles enunciated hereinabove and decision of various Courts more so in Guest Keen Williams’s Case, Wipro Infrastructure Engineering’s Case, Barauni Refinery’s Case, Jeewanlal’s Case - Certifying authority is directed to inspect industrial establishment of petitioner, ascertain if a workman between age group of 58 years and 60 years can be involved in manufacturing process without any harm being caused to him/her after ascertaining manufacturing process and age and health requirements of workmen - If it is permissible and possible for persons above 58 years and within 60 years to discharge such manufacturing functions, to approve same, if not to reject modification sought for - Order passed by respondent No.1 at Annexure-F is hereby quashed - Order passed by respondent No.2 at Annexure-J is hereby quashed - Matter is remitted to respondent No.1 to comply with observations made hereinabove within a period of 6 weeks of receipt of a copy of this order.
Result: Petition allowed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
ii. Order dated 1.12.2020 passed by the Second Respondent in SOA/CR-05/2019-20 increasing the age of retirement from 58 years to 60 years (Annexure-J).
iii. Issue a writ of certiorari or any other appropriate writ or direction quashing the following orders:
a. Order dated30.3.2019 passed by the First Respondent in No.DLCA2/SO(T)/CR-14/2018-19/231 amending the Certified Standing order of the Company increasing the age of retirement from 58 years to 60 years (Annexure-F).
b. Order dated 1.12.2020 passed by the Second Respondent in NO.SOA/CR-05/2019-20 increasing the age of retirement from 58 years to 60 years (Annexure-J).
c. Grant any other relief(s) as may be deemed fit and proper by this Hon’ble Court, in the interest of justice and equity.
2. The petitioner is stated to be a Company engaged in the business of manufacture of Industrial Carbon and Carbon Brushes, which is allegedly classified as hazardous industry as defined under Section 2(cb) of the Factories Act, 1948. The said Section 2(cb) of the Factories Act is reproduced hereunder for easy reference:
(i) cause material impairment to the health of the persons engaged in or connected therewith, or
(ii) result in the pollution of the general environment:
Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule;]
3. The service conditions of the workmen are stated to be governed by the Certified Standing Orders of the Company as also the Memorandum of Settlement entered into between the recognized Union and the employer from time to time.
4. The Standing Orders were last certified by the Certifying Officer on 18.03.2000 where the age of retirement was enhanced from 55 years to 58 years which is also confirmed by the Appellate Authority by order dated 14.11.2002 and by this Court in W.P.No.45985/2002 on 10.07.2007.
5. A Tripartite Wage Settlement came to be entered into with the respondent No.3 on 13.02.2017. It is contended that the said settlement is a package deal and as such, there cannot be any claim made contrary to the settlement arrived at in the year 2017.
6. Clause 36 of the Settlement Agreement, which deals with Package Deal is reproduced hereunder for easy reference:
7. Clause 37 of the Settlement Agreement also being relevant is reproduced hereunder for easy reference:
8. The petitioner contends that despite the settlement, the respondent No.3-Union had submitted an amendment to the existing Standing Orders seeking for enhancement
Chapter IVA contained Section 41A to 41H of the Factories Act, 1948 deals with ‘Provisions relating to Hazardous Process’, these provisions deal with the manner of setting up of a factory dealing wit....
The main legal point established in the judgment is that the amendment of Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, can be justified in law if made in acc....
Point of Law : Under the Industrial Disputes Act, a settlement has been defined as a settlement which is arrived at during a conciliation proceeding and it also includes a written agreement arrived a....
The main legal point established in the judgment is that the retirement age can be increased based on factors such as the nature of work, financial aspects, global trends, and judicial opinion, and e....
The main legal point established in the judgment is that settlements between the employer and the trade union have binding nature, and subsequent amendments to the Model Standing Orders cannot be use....
Each industrial establishment of a Company can have different Certified Standing Orders and different ages of retirement. On amalgamation, the CSOs applicable to each industrial establishment continu....
Section 10 of IESO Act is reproduced hereunder for Duration and modification of standing orders.
The legal principle established is the binding nature of government guidelines mandating a retirement age of 60 years for Central Public Sector Enterprises, overriding any contradictory internal regu....
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