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HIGH COURT OF CALCUTTA
DEEP NARAYAN SINHA, ARUN KUMAR MUKHERJEE
AVERY CO OF INDIA PRIVATE LTD - Appellant
Versus
SECOND INDUSTRIAL TRIBUNAL - Respondent
. Of .
Decided On : November 28, 1967
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 10 - STANDING ORDERS - RETIREMENT AGE - APPLICABILITY TO EMPLOYEES APPOINTED BEFORE FRAMING OF STANDING ORDERS - EMPLOYEES NOT BOUND BY STANDING ORDERS FIXING RETIREMENT AGE - INDUSTRIAL DISPUTE - JURISDICTION OF TRIBUNAL AND COURT TO DECIDE DISPUTE AND FIX RETIREMENT AGE.
Fact of the Case:
The appellant company had framed standing orders in 1952 and 1961, both of which fixed the retirement age at 55 years. The respondent, who was appointed in 1946, was retired in September 1962. He challenged the retirement age fixed by the standing orders, claiming that he was not bound by them as he was a "previous" employee, i.e., appointed before the standing orders were framed. An industrial dispute was raised and referred to the tribunal, which held that the respondent was not bound by the standing orders and was entitled to reinstatement and full wages from the date of retirement till reinstatement.
Finding of the Court:
The court held that the respondent, being a "previous" employee, was not bound by the standing orders fixing the retirement age at 55 years. The court relied on the Supreme Court decision in Guest Keen, Williams (P) Ltd. v. P. J. Sterling and Ors., which held that standing orders fixing the retirement age did not apply to employees who were already in employment when the standing orders were certified.
Issues: 1. Whether the standing orders fixing the retirement age at 55 years were applicable to the respondent, who was appointed before the standing orders were framed? 2. Whether the industrial tribunal had jurisdiction to decide the dispute regarding the retirement age and fix the same?
Ratio Decidendi: 1. The court held that the respondent, being a "previous" employee, was not bound by the standing orders fixing the retirement age at 55 years. The court relied on the Supreme Court decision in Guest Keen, Williams (P) Ltd. v. P. J. Sterling and Ors., which held that standing orders fixing the retirement age did not apply to employees who were already in employment when the standing orders were certified. 2. The court held that the industrial tribunal had jurisdiction to decide the dispute regarding the retirement age and fix the same. The court noted that after the amendment of the Industrial Employment (Standing Orders) Act, 1946 in 1956, the certifying officer or appellate authority was required to adjudicate upon the fairness or reasonableness of the provisions of the standing orders. The court also noted that under Section 10 of the Act, both the employer and the employee could apply for modification of the standing orders.
Final Decision: The court dismissed the appeal, upholding the judgment of the court below. The court clarified that the tribunal's award as to reinstatement could no longer be given effect to, but it only affected the rights of the workman concerned, to the payment of his wages from the date of retirement until he reached the age of 58.
( 1 ) THIS is an appeal against the judgment and order of B. C. Mitra, J. dated the 18th July, 1966. The facts are briefly as follows: The appellant is a company incorporated under the Indian Companies Act. The respondent No. 2 Ganapati Santra was appointed by the appellant in 1946 as a clerk in the service department. On or about the 23rd of April 1946 was passed the Industrial Employment (Standing Orders) Act, 1946 (Central Act 20 of 1946) (hereinafter referred to as 'the Act' ).
( 2 ) PRIOR to the said Act of 1946, there was no rule as to superannuation of workers. The 1946 Act laid down provisions for the drawing up of standing orders and certification thereof by the certifying officer. Sometime in 1952, the appellant submitted draft standing orders under the provisions of the 1946 Act, and the same were duly certified in November 1952. By and under the said standing orders, the age of superannuation of workmen was fixed at 55 years. On or about the 17th September, 1956 the 1946 Act was amended by Act XXXVI of 1956. Under Section 4 of the Act as it stood before the amendment, it written statement provided that it should not be the function of the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions contained in any standing orders. Therefore, the certifying officer was not required to go into the question as to whether the standing orders were fair or reasonable. After the amendment, however, the certifying officer or the appellate authority is required to adjudicate upon the fairness or reasonableness of the provisions of the standing orders. Under Section 10 (2) as it stood before the amendment, only the employer could ask for modification of the standing orders but after the amendment, both the employer and the employee could ask for such amendment. No workman, including the respondent Santra, asked for any modification of the standing orders, including the question of age of retirement. In May 961 the certified standing orders were modified but the age of superannuation was not touched and remained at 55 years. On 27th of November, 1961 notice was given to Santra by the appellate that he was due to retire on 31st August, 1962 as on that date he would complete his 55th year. On the 11th August, 1962 the respondent no. 3, the Avery Company Limited Employees' Union submitted a charter of demands. One of the demands was to raise the retirement age from 55 to 60 years. On 30th October, 1962 Santra wrote to the appellant requesting that the question of his superannuation might be deferred until a decision is arrived at on the charter of demands, but the appellant rejected this proposal and on 31st August, 1962 informed both Santra and the Union that the standing orders will be followed and Santra would retire upon his attaining 55 years age. Thereafter, the Government referred an industrial dispute between the appellant and their workmen including Santra under Section 10 of the Industrial Disputes Act, 1947. the disputes that were referred were as follows: (1) Grades and scales of different categories of workmen. (2) Is the superannuation of Sri Ganapati Santra justified? What relief, if any, is he entitled to? What should be age of retirement for the workmen of the factory?
( 3 ) MEANWHILE, Santra had been made to retire from the 1st day of September, 1962. The Industrial dispute was contested and on the 6th of May 1964 an award was made by the Second Industrial Tribunal. It may be stated here that all parties including Santra have accepted the award of the tribunal on issue no. 1 and the last part of issue no. 2. In other words, the only dispute that remains is as regards the superannuation of Sri Santra, and the relief, if any, to which he was entitled. In this appeal, therefore, we are not concerned with any other question. On 6th May 1964, the tribunal made an award holding that, as Santra had joined service prior to the coming into operation of the
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