Standing Order 20-A of the Standing Orders for Operatives in Bombay Cotton Textile Industry is mandatory and requires the management to retain an efficient male operative in service until he attains the age of 63 years.

Headnote:
RETIREMENT AGE - STANDING ORDER 20-A - BOMBAY INDUSTRIAL RELATIONS ACT - SECTION 25-N OF THE INDUSTRIAL DISPUTES ACT, 1947 - INTERPRETATION - RETIREMENT OF EMPLOYEES - RETRENCHMENT - NEED FOR PRIOR PERMISSION OF APPROPRIATE GOVERNMENT - SUMMARY
Fact of the Case:

The respondent, a permanent employee of the petitioner company, was served with a notice of retirement at the age of 60 years under Standing Order 20-A of the Standing Orders for Operatives in Bombay Cotton Textile Industry. The respondent challenged the order, contending that he was entitled to be retained in service until he attained the age of 63 years as per the provisions of the Standing Order.
Finding of the Court:

The court held that Standing Order 20-A is mandatory and requires the management to retain an efficient male operative in service until he attains the age of 63 years. The court further held that the management cannot retire an efficient employee at 60 years of age on the ground that he is otherwise unsuitable. The court also held that the management cannot retire an employee under Standing Order 20-A without obtaining prior permission of the appropriate Government under section 25-N of the Industrial Disputes Act, 1947.
Issues: 1. Whether Standing Order 20-A is mandatory or discretionary? 2. Whether the management can retire an efficient employee at 60 years of age on the ground that he is otherwise unsuitable? 3. Whether the management can retire an employee under Standing Order 20-A without obtaining prior permission of the appropriate Government under section 25-N of the Industrial Disputes Act, 1947?
Ratio Decidendi: 1. Standing Order 20-A is mandatory and requires the management to retain an efficient male operative in service until he attains the age of 63 years. 2. The management cannot retire an efficient employee at 60 years of age on the ground that he is otherwise unsuitable. 3. The management cannot retire an employee under Standing Order 20-A without obtaining prior permission of the appropriate Government under section 25-N of the Industrial Disputes Act, 1947.
Final Decision: The court rejected the review application filed by the petitioner and held that the respondent was entitled to be retained in service until he attained the age of 63 years.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---The respondent No. 1 is a permanent employee of the Western Indian Spining and Manufacturing Mills Limited. The said undertaking now vests in the petitioners. The 1st respondent is in permanent employment of the petitioner as a 'Jobber' in the Combing Department of the said Mills. He completed the age of 60 years on 31 December, 1987. The petitioners proposed to retire the respondent No. 1 from service with effect from 1-1-1988. This order of retirement is under Standing Order 20-A of the Standing Orders for Operatives in Bombay Cotton Textile Industry, as finally settled by the Industrial court under section 36(3) of the Bombay Industrial Relations Act. It governed the retirement of the respondent. This order is as follows :----

"20A. An operative shall retired from service on attaining the age of 60 years, but a male operative shall be retained in service, if he continues to be efficient, upto the age of 63 years, provided that when retrenchment becomes necessary a person who has completed the age of 60 may be retired in preference to younger men."

The respondent filed a complaint being ULP. No. 1236 of 1987 before the Industrial Court challenging his order of retirement. It is his contention that the notice of retirement served on him does not state that he is inefficient. He therefore contends that he is entitled to be retained in service until he attains the age of 63 in view of the provisions of the Standing Order 20-A.

2. In this complaint an ad interim order was granted ex parte under which the petitioners were restrained from retiring the complainant from 1-1-1988. This order is dated 29th December, 1987. Nothing further appears to have been done.

3. The petitioners however, thereafter reached a settlement with the representative union on 20th of May, 1988 under which it was agreed between the Mills and the representative union that the management had reorganised and rationalised the workload of the mills. As a result, an agreement was reached for a revision of the sanctioned strength of workmen and their wages. Under the terms and conditions of this settlement it was agreed that the present sanctioned strength of 457 workmen would be reduced to 423 workmen. The agreement sets out in detail the various posts which were to be reduced as well as the number of workmen in each of the posts which were being so reduced. One such post is the post of Jobber in the Combing Department. The settlement records that the present sanctioned strength of 2 workmen is being reduced to nil. The settlement also records that the 1st respondent will be retired, presumably under Standing Order No. 20-A.

4. After the settlement was arrived at the petitioners made a review application before the Industrial Court dated 29th June, 1988 for review of the interim order passed by the Industrial Court on 29-12-1987. The petitioner contended that since retrenchment had become necessary, they should be permitted to retire the respondent who had completed the age of 60 year as per Standing Order 20-A. This application has been rejected by the Industrial Court. Hence the petitioners have preferred the present writ petition.

5. The petitioners submit that under Standing Order 20A it is open to them either to continue or to discontinue the services of male employee once he has completed the age of 60 years. They submit that if a male operative continues to be efficient after attaining the age of 60 years they may or may not continue him in service.

6. In order to consider the submission it is necessary to look at the Standing Order in question. The 1st part of the Standing Order says that an operative shall retire from service on attaining the age of 60 years. The second part says that a male operative shall be retained in service, if he continue to be efficient, after the age of 60 years. According to the petitioner the first 'shall' is mandatory, while the second 'shall' should be read as "may" and not as mandatory. The

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