JUDGMENT

H.N. Seth, J. - Messrs. India Tobacco Co. Ltd. (hereinafter referred to as the employers) have filed the present writ petition praying for the issue of a writ, direction or order in the nature of certiorari, for quashing the award of the Labour Commissioner, U. P. dated 22/25-11-1972, made under clause (4) of the U. P. Workmen's Gratuity Scheme, enforced by the State Government, as per its Notification No. 4268 (ST) XXXVI-1-170 (ST)-71, dated November 19, 1971 issued under Section 3 (b) of the U. P. Industrial Disputes Act, 1947.

2. The facts giving rise to the present writ petition briefly stated are that the petitioner company carries on the business of manufacture and sale of cigarettes and smoking tobacco. One of its factories is situated at Saharanpur. In the year 1962, a settlement was arrived at between the employers and their workmen which was duly registered under Section 6 (b) of the U. P. Industrial Disputes Act. This settlement provided that with effect from 1st January, 1961, all workmen will be retired from the service of the company on 31st December of the year in which they attained the age of 58 years according to the age mentioned in employers records. The settlement further enabled a workman who attained the age of 55 years to retire from service on 31st December, of that year, or on 31st December of the subsequent two years. This settlement was to remain in full force until it was modified or substituted or terminated by another settlement or by an award. The settlement further provided that nothing in it was deemed to affect or limit the right to which the workmen were entitled to under the existing legislation or may become entitled to under legislations by the Central or U. P. Legislature. The employers and their workmen entered into a further settlement on 26th December, 1967. This settlement was also registered as provided in Section 6 (b) of the U. P. Industrial Disputes Act. The new settlement provided that subject to it, all previous memorandums of settlement were to remain in force until a fresh agreement was arrived at and that nothing in it was deemed to affect or limit the rights to which the workmen are entitled to under the existing legislation or may become entitled to under legislations by the Central or the State legislature. The result of these two settlements was that the workmen employed by the petitioners were to retire from service on 31st of December of the year in which they attained the age of 58 years. On 1st of February, 1971, the petitioner issued letters to 45 workmen (including opposite parties Nos. 3 to 42) who were to attain the age of 58 years during the calendar year, 1971, that they would retire from service on 31st December, 1971. However, on November 19, 1971, the State Government, purporting to exercise its power under Section 3 (b) of the U. P. Industrial Disputes Act, issued the Notification No. 4268 ST-XXXVII-I-170 (ST) 71, -introducing a scheme entitled the U. P. Workmen's Gratuity Scheme, (hereinafter referred to as the State Gratuity Scheme). This scheme provided for payment of gratuity to workmen in certain establishments including inter alia, those employed, or who may come to be employed, in any factory as defined in clause (m) of the Factories Act, 1948. It provided for payment of gratuity to workmen on retirement after attaining the age of superannuation. Clause 4 of the Scheme defined the age of superannuation as 60 years. But, by agreement between the employer and the workmen, this age could be extended further. The workmen to whom notices had been issued, took up the stand that under the State Gratuity Scheme, their age of superannuation had been raised to 60 years and they were to continue in service even after 31st December, 1971. In the circumstances, the notices issued to them should be withdrawn. The petitioner informed the workmen that without prejudice to their right, the workmen who had been asked to retire on 31-12-1971 would be permitted