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HIGH COURT OF MADHYA PRADESH
(FULL BENCH)
G.P. SINGH, J.S. VERMA, M.L. MALIK, U.N. BHACHAWAT & C.P. SEN, JJ.
Madhya Pradesh State Road Transport Corporation
v.
Heeralal and others.
M.P. No. 10 of 1977;
Decided on : 29-9-1979.
(2) Industrial Employment (Standing Orders) Rules, 1963 (MP)-Standing Order 11-word 'termination' -does not include super-annuation.
The word 'termination' in the context cannot be constured to be so extensive as to include retirement on attaining the age of superannuation and is confined to such termination as is brought about by notice by either the employer or any employee. AIR 1972 SC 1201 relied on. 1977 JLJ 292 (Para 34) overruled. [Para 8]
(3) Road Transport Corporation Act. 1950- S.45-Industrial Employment (Standing Orders) Act, 1946-S. 13-B-Industrial Employment (Standing Orders) Act, 1961 (M P) –S. 2 (2)-regulations made under section 45 of the Road Transport Corporation Act - cannot over• ride Standing Orders made under the Standing Order Acts-when can they become operative.
A general provision like section 45 of the Road Transport Corporation Act is not intended to effect a law designed to lay down conditions or employment for a special class of employees such as industrial workers governed by the Industrial Employment (Standing Orders) Act, 1946, which is an Act to require employers in industrial establishments formally to define conditions of employment under them, or the corresponding Madhya Pradesh Act i.e. the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. The Standing Orders Acts are special laws dealing with conditions of employment of industrial workers and so on principles of construction their provisions prevail over the general provision contained in section 45 (2) (e) of the Road Transport Corporations Act. The regulations made, therefore. cannot have any effect on matters contained in the Schedule to the Standing Orders Acts on which standing orders can be made under those Acts for industrial workers. The regulations can, however, be operative even in respect of industrial workers on matters contained in the schedule to the standing Orders Acts. The only method by which the regulations can be applied to matters contained in the schedule to the Standing Orders Acts is either to notify them under section 13-B of the Central Standing Orders Act or section 2 (2) of the Madhya Pradesh Act, as the case may be, or to have them certified as Standing Orders in accordance with the procedure laid down in those Acts. AIR 1979 SC 65 relied on. [Para 10]
(4) Master and Servant-age-entered in service record-presumed to be correct unless rebutted. [Para 12]
(5) Constitution of India-Art. 254 - applicability of-both Central and State Acts should pertain to concurrent list.
Article 254 of the Constitution applies only when the competing legislations, one made by Parliament and the other made by the State Legislature, both pertain to a subject in the Concurrent List. Article 254 (2) is in terms limited to matters in the Concurrent List and although in Article 254 (1) the language while referring to a law made by Parliament is not that specific judicial decisions have confined its application to Concurrent List. AIR 1979 SC 898, AIR 1976 SC 1031, AIR 1954 SC 749 and AIR 1957 SC 297 relied on.
If a legislation made by Parliament, which in pith and substance is under the Union List, incidentally trenches upon a subject in the concurrent list or State list covered by a State legislature, the legislation made by Parliament whether before or after the State ligislation will prevail in case of conflict not because of something contained in Article 254 but because of inherent supremacy of Parliament's power of legislation in respect of a matter in the Union List conferred by clause (1) of Article 254 of the Constitution. [Para 13]
(6) Constitution of India - Art. 254 (2)-doctrine of pith and substance-should be applied as a last resort. [Para 13]
G.P. Singh, C, J.- 1. Respondent No. 1, Heeralal was employed as a driver by the petitioner, the Madhya Pradesh State Road Transport Corporation. By an order passed on 28th September 1966, the respondent was retired from service with affect from 1st October 1966 on the ground that he had attained 58 years of age. The respondent filed an application under section 31 (3) of the Madhya Pradesh Industrial Ralations Act, 1960, in the Labour Court, Gwalior. Omitting the chequered history of this application which is now not relevant we may straight way state that the Labour Court, by its order dated 14th June 1976, held that the respondent was governed by the Standard Standing Orders made under the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, in which a provision for superannuation was made only on 2nd November 1973 and therefore the respondent could not be retired on the ground that he had attained the age of 58 years on 1st October 1966. The Labour Court, however, refused the relief of reinstatement and directed payment of wages upto 2nd November 1973 on the ground that the respondent would have, in any case, retired on that date under the Standard Standing Orders. The order of the Labour Court was maintained by the Industrial Court in revision filed by the petitioner which was dismissed on 17th September 1976. The petitioner then filed this petition for issuance of a writ of certiorary to quash the order of the Labour Court and the Industrial Court.
2. The Corporation's contentions in this petition are that the respondent could be retired on completion of 58 years of age under Standard Standing Order 11 as construed by a Full Bench of three judges in M.P.S.R.T.C. v. Ramchandra, 1977 JLJ 292 = 1977 MPLJ 341 and that the respondent could also be retired under Regulation 59 of the M. P. State Rood Transport Corporation Employees' Service Regulations made under section 45 of the Madhya Pradesh Road Transport Corporations Act, 1950.
3. When this petition came up before a Division Bench of this Court, a doubt was raised as to the correctness of the decision of the Full Bench in Ramchandra's case (supra) on the point that the .Corporation can retire an employee on attaining 58 years of age as a matter of general policy under Standing Order II. The Division Bench, therefore, referred the petition for decision by a larger Bench. This is how the petition has come up before us.
4. The Petitioner Corporation was constituted under the Road Transport Corporations Act, 1950. Section 45 (1) of this Act provides that "a Corporation may, with the previous sanction of the State Government, make regulations not inconsistent with this Act and the rules made thereunder for the administration of the affairs of the Corporation." In particular, this section authorises the Corporation to make regulations to provide "the conditions of appointment and service and the scales of pay of officers and servants of the Corporations other than the Chief Executive officer or General Manager and the Chief Accounts Officer" It was in exercise of this power that the Corporation made the Employees' Service Regulations. The Full Bench in Ramchandra's case held that these regulations were enforced from 1st June 1970. Regulation 59 of the Regulations reads as follows :
"Employees of State Transport are liable to compulsory retirement on the date of their completion of fifty eight years of age unless specifically permitted by the Corporation to continue in service for a specified period thereafter, but he must not be retained after the age of 60 years, without the sanction of State Government."
5. The Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, is an Act to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the State of Madhya Pradesh. This Act which received the assent of the President generally displaces the application of the corresponding Central
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