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HIGH COURT OF CALCUTTA
D. N. SINHA, A. K. MUKHERJI
AVERY CO. OF INDIA PRIVATE LTD. - Appellant
Versus
SECOND INDUSTRIAL TRIBUNAL - Respondent
A. F. O. O. 201 Of 1966
Decided On : NOVEMBER 28, 1967
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 10 - AGE OF SUPERANNUATION - APPLICABILITY TO PREVIOUS EMPLOYEES - STANDING ORDERS FRAMED AFTER AMENDMENT OF 1956 - WHETHER BINDING ON PREVIOUS EMPLOYEES - INTERPRETATION OF SUPREME COURT DECISIONS - INDUSTRIAL DISPUTE - REFERENCE - JURISDICTION OF TRIBUNAL.
Fact of the Case:
The appellant company had framed standing orders in 1952 and 1961, both of which fixed the age of superannuation at 55 years. The respondent, who was appointed in 1946, was retired in September 1962 upon attaining the age of 55 years. He challenged his retirement, contending that the standing orders were not binding on him as he was a "previous" employee, i.e., he was appointed prior to the framing of the standing orders. An industrial dispute was 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. The appellant challenged the award before the High Court.
Finding of the Court:
The High Court upheld the award of the tribunal. It held that, as per the Supreme Court decision in Guest, Keen, Williams (Pr.) Ltd. v. P. J. Sterling, standing orders fixing the age of superannuation were not binding on employees who were appointed prior to the framing of such standing orders. The court noted that the amendment of 1956 to the Industrial Employment (Standing Orders) Act, 1946, which empowered the certifying officer and appellate authority to adjudicate upon the fairness and reasonableness of standing orders, did not alter this position. The court also held that the respondent had not acquiesced in the standing orders by raising the dispute promptly after his retirement.
Issues: 1. Whether the standing orders fixing the age of superannuation at 55 years were binding on the respondent, who was a "previous" employee, i.e., he was appointed prior to the framing of the standing orders? 2. Whether the amendment of 1956 to the Industrial Employment (Standing Orders) Act, 1946, which empowered the certifying officer and appellate authority to adjudicate upon the fairness and reasonableness of standing orders, altered the position of "previous" employees?
Ratio Decidendi: 1. The Supreme Court decision in Guest, Keen, Williams (Pr.) Ltd. v. P. J. Sterling held that standing orders fixing the age of superannuation were not binding on employees who were appointed prior to the framing of such standing orders. This decision was based on the fact that, prior to the amendment of 1956, the certifying officer and appellate authority had no jurisdiction to consider the fairness and reasonableness of standing orders. 2. The amendment of 1956 to the Industrial Employment (Standing Orders) Act, 1946, which empowered the certifying officer and appellate authority to adjudicate upon the fairness and reasonableness of standing orders, did not alter the position of "previous" employees. This is because the amendment did not provide for retrospective application of the new provisions.
Final Decision: The appeal was dismissed. The High Court's judgment upholding the award of the tribunal was affirmed.
( 1 ) THIS is an appeal against the judgment and order of B. C. Mitter 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 1946 Act') 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 was 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 whethar the Standing Orders wen fair or reasonable. After the amendment, however, the certifying officer or the appellate authority is required to adjudicate upon the fairneas 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 the age of retirement. In May 1961 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 appellant that he was due to retire on 31st August, 1962 as on that date be would complete his 55th year On the 11th August, 1962 the respondent No. 3 the Avery Co. Ltd. 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 of age. Thereafter the Government referred an industrial dispute between the appellant and their workmen including Santra unler 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?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 he 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 Standing Order of 1952, he was not
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