Letters Patent Appeal No.77 of 2005,Cross objections (ST) No.16071 of 2005,Letters Patentat Appeal No.77 of 2005

6th June, 2011

Petitioner Counsel: Mr. J.P. Cama,Mr. G.S. Shetty,Crawford Bayley & Co.
Respondent Counsel: Ms. Nayana Buch,Mr. Shailesh More

Cases Cited:
Tulsiram K. Gathad V/s. The Superintendent, Mahatma Gandhi Memorial Hospital and Anr., 2007III CLR 718 [Para 5,11,12,20,22]
Western India Match Co. Ltd. Vs. Workmen, AIR 1973 SC 2650 [Para 13]
U.P.Electricity Board and Ors., V/s. Hari Shankar Jain and Ors., 1978 II LLJ 399 [Para 14]
Bajaj Auto Ltd. Vs. Bhojane Gopinath D. and Ors., (2004) 9 SCC 488 [Para 15]
Dhurandhar Prasas Singh V Jai Prakash University, (2001) 6 SCC 534: JT (2001) 5 SC 578 [Para 15]
The Indian Tobacco Company Limited Vs. The Industrial Court and Ors., 1990 I CLR Page 88 [Para 16]
Philipos Babu V/s. M/s.Bajaj Tempo Ltd. and Anr., 1996 III LLJ (Suppl.) 666 [Para 17]
Pyarelal V/s. The Municipal Council, Ramtek and Anr., 1992 I CLR page 27 [Para 18]
New Hind Textile Mills Unit of N.T.C. (SM) Ltd., Mumbai Vs. Rashtriya Mill Mazdoor Sangh, , 2003 III CLR page 332 [Para 19]

JUDGMENT

P. B. MAJMUDAR, J. :- The present Letters Patent Appeal and Cross Objection are directed against the judgment and order delivered by the learned Single Judge in Writ Petition No.5247 of 1990 dated 09062004. By the impugned judgment and order, the learned Single Judge allowed the writ petition filed by the respondents Union, by holding that the age of retirement is to be treated as 60 years, as provided in the Model Standing Orders. Consequently, the learned Single Judge set aside the order passed by the Industrial Court by holding that the appellant company has committed unfair labour practice under Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971.

2. On behalf of the respondent Union, a complaint bearing (ULP) No.914 of 1989 was filed under Items 5 and 9 of Schedule IV of the Act, against the present appellant company. It is the case of the respondent Union that as per the provisions of the Model Standing Orders which are applicable to the workmen of the Container Division of the company, prescribed the age of retirement as 60 years, which can be extended by an agreement or by settlement between the parties. Since the company continued to retire the workmen of Container Division at the age of 58 years in view of the Settlement dated 03061964, a complaint was filed by the respondentUnion on the ground that the said action of the company amounts to unfair labour practice as envisaged under Items 5 and 9 of Schedule IV of the said Act. The concerned workmen on whose behalf the Union has filed a complaint, were working in the Container Division of the appellant Company at the relevant time. On behalf of the recognized Trade Union, an industrial dispute was raised in connection with the employees serving in Grease Division in respect of extending the age of superannuation upto 60 years. The retirement age, which according to the Union, should be 60 years. The Industrial Tribunal, Bombay, decided the said Reference (IT) No.304 of 1977, by holding that the age of retirement shall be 60 years. It is the grievance of the petitioner Union that the said benefit is given to the workmen of the Grease Division and it is not given to the workmen who were discharging duties in Container Division. It is the case of the respondent Union that even though a demand was made before the Management to increase the retirement age from 58 to 60 years so far as the workmen engaged in the employment of Container Division is concerned, yet the said demand was not considered by the Management. The Management did not agree to increase the retirement age from 58 to 60 years, which ultimately resulted into filing of the aforesaid complaint.

3. The said complaint was resisted on behalf of the appellant on various grounds. It is the say of the appellant that the company is having various divisions out of which Grease and Container Divisions are located in the same premises. The said complaint was adjudicated by the Industrial Court, Bombay and by its order dated 05101990, dismissed the said complaint. Against the said order, respondentUnion filed a writ petition before the learned Single Judge of this Court. The learned Single Judge allowed the writ petition by holding that as per the Model Standing Orders, the age of retirement is 60 years and same shall prevail over the agreement which fixes a lower age of retirement. The learned Single Judge held that the age of retirement should be fixed at 60 years as per the Model Standing Orders and accordingly allowed the writ petition. The aforesaid order is challenged by the appellant company by way of this Letters Patent Appeal.

4. On behalf of the respondents, Crossobjections are also filed, challenging the findings of the learned Single Judge to the effect that the service conditions of the workmen employed in two divisions were separate and remained different. The cross objections have been filed by the respondent Union on the ground that the learned Single Judge erred in holding that the Grease and Container Division are different and not integrated and amalgamated division.

5. On behalf of the appellant Company, Mr.Cama, the learned Senior Advocate, vehemently submitted that the point in issue is covered by the judgment of the Division Bench of this Court in Tulsiram K. Gathod V/s. The Superintendent, Mahatma Gandhi Memorial Hospital and Anr., 2007III CLR 718 wherein the Division Bench has held that the agreement between the parties shall govern the field and that the view expressed by the learned Single Judge in the present matter, is overruled by the Division Bench in the aforesaid case. The learned counsel for the appellant further submitted that a complaint was filed on the ground of discrimination. It is submitted that the employees working in Container Division have already raised various demands, out of which certain demands were accepted by the Management and this very demand of increase in the age in connection with the employees serving in Container Division was already withdrawn by the Union. It is submitted by Mr.Cama that even after the Award in favour of employees serving in Grease Division, the age of retirement for the employees serving in containers division was treated as 58 years and the employees serving in the containers division were asked to retire on completing the age of 58 years and no grievance was made by the present employees in this behalf for a considerable period and therefore, the Award given in favour of Grease Division, is not applicable so far as employees serving in Container Division are concerned. It is submitted that in any case, the point in issue is already decided by the Division Bench of this Court in the aforesaid case. It is submitted that the learned Single Judge has gravely erred in holding that the agreement can be arrived at between the Management and the employees only for increasing the age of 60 years and not for reducing the age from 60 years.

6. Learned counsel for the respondentUnion submitted that benefit given to the workmen serving in Grease Division should be made available to the employees working in the Container Division also, especially when the Award given in favour of the workmen serving in Grease Division, is an Award in favour of all the employees. It is submitted that there is no reason to discriminate the employees by the management between workmen serving in the same management so far as the superannuation age is concerned. It is submitted that when the age of superannuation is prescribed as 60 years as per Model Standing Orders, even by agreement such age cannot be reduced and such agreement will be contrary to the Model Standing Orders. The learned counsel for the respondents further submitted that even if there is an agreement contrary to the Model Standing Orders, the latter shall prevail and such agreement by which the age is reduced from 60 to 58 years is contrary to the Model Standing Orders and such agreement is required to be ignored.

7. During the course of hearing, it is pointed out to the Court that even in respect of the Container Division, a settlement has taken place between the Management and Workmen, by which in the year 1994, now the age of 60 years has been prescribed for superannuation of employees serving in the said Division. The dispute now relates to few employees who were asked to retire on completion of 58 years of age at the relevant time. The Division Bench of this Court, while admitting the appeal, passed following order at interim stage.

1. Heard Mr.Cama and Mr.Talsania in support of this civil application. Ms.Buch appears for respondent No.1 Union.

2. It appears that only four or five employees are concerned with the benefit under the order of the Single Judge. Mr.Cama has stated that the Applicant Company is willing to deposit the amount meant for these employees in the Court. It is also informed to the Court that from 1994 onwards the age of retirement is now revised to 60 years for the concerned Division. This being the position, we do not think that there is any occasion to grant stay. The civil application is therefore, disposed of by permitting the applicants to deposit the amount in Court which the employees concerned may withdraw by giving security to the satisfaction of the Registrar. In the event any other prior employee make any application to the management for claiming on the same footing, it will be open to the applicantManagement to file appropriate civil application in which case a prayer for stay of the order will be considered. Respondent No.1 Union may furnish the list of workmen who are covered under the order of learned Single Judge.

3. Civil application is disposed of.

8. We have heard learned counsel for the parties at length and have gone through the order passed by the Industrial Court as well as of the learned Single Judge. At this stage, a reference is required to be made to the Model Standing Orders 27 and 32, which are reproduced as under :

27. The age for retirement or superannuation of the workmen may be sixty years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award which may be binding on the employer and the workmen under any law for the time being in force.

32. Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force or to the prejudice of any right under a contract of service, custom or usage or an agreement, settlement or award applicable to the establishment.

9. It is submitted by Mr.Cama that in view of Model Standing Order 27, the age of retirement of the workmen is 60 years or such other age as may be agreed between the employer and workmen by an agreement or settlement arrived at between them. It is submitted that when there is an agreement between the workmen and employer, such agreement shall prevail and in the instant case, by an agreement between the parties, the superannuation age is already fixed at 58 years, shall prevail as per the Model Standing Order 27. It is further submitted that Model Standing Order 27 itself provides for an agreement and Model Standing Order 32 will have no application. It is further submitted that in any case, as a Coordinate Bench, this Court is bound by the view taken by the earlier Division Bench dealing with identical situation.

10. As against this, Ms.Buch submitted that as per Model Standing Order 32, nothing contained in the Standing Order can prejudice the claim in favour of the workmen under any law or under the contract or custom.

11. The Division Bench of this Court while dealing with the aforesaid Standing Orders, in the case of Tulsiram K. Gathod (Supra) has observed in concluding part of para No.3 and in para No.4 as under :

" In our opinion, therefore, it is clear that the learned Single Judge in her judgment in the case of "Engineering Workers' Association V. J.D.Jamdar, Member, Industrial Court and Ors." was not right in placing construction on Model Standing Orders No.27 which results in addition of words to that provision. In our opinion, therefore, that judgment does not lay down law which can be called good law. We hereby therefore, overruled that judgment.

4. So far as the Model Standing Order No.32 is concerned, it is not necessary for us to consider that provision because in view of the provisions of Model Standing Order No.27, the position is clear that the age of retirement mentioned in that provision will apply only if there is no other age of retirement mentioned in the agreement between the parties. Perusal of the judgment of the learned Single Judge in the case "Engineer Workers' Association V. J.D.Jamdar, Member, Industrial Court and Ors., shows that the learned Single Judge has in support of the view that she has taken, relied on the judgment of the learned Single Judge in the case of "The Indian Tobacco Company Ltd. V/s. The Industrial Court and Ors. Perusal of that judgment shows that the learned Single Judge in that case was considering the provisions of Model Standing Order No.4A and not Model Standing Order No.27. In our opinion, this case turns on the language employed in the Model Standing Order No.27 and therefore, the judgment of the learned Single Judge in the case "The Indian Tobacco Company Ltd. Vs., the Industrial Court and Ors., as also the judgment of the Supreme Court in the case between "Western India Match Company Ltd. V. Workmen, 1973 II LLJ 59, are not relevant. We may mention here that in so far as the Model Standing Order No.32 is concerned, our attention was invited by the learned Counsel appearing for respondent No.1 to the judgment of the Division Bench in the case of "Pune Municipal Corporation & Ors. V. Dhananjay Prabhakar Gokhale, 2006 II CLR 105" referred to above, where construction different from the one placed by the learned Single Judge in the case ""The Indian Tobacco Company Ltd. Vs., the Industrial Court and Ors., on Model Standing Order No.32 has been accepted by the Division Bench. However, as observed above, in view of the clear language employed by the Model Standing Order No. 27, it is not necessary for us to consider Model Standing Order No.32."

12. Learned counsel for the respondent further submitted that the present respondents were not parties before the aforesaid Division Bench and this Court may take contrary view or may refer the matter to Larger Bench for reconsidering the said view. We cannot accept the said submission canvassed by the learned counsel for the respondent Union, as being a coordinate Bench this Court is bound by the view taken by the earlier Division Bench. Apart from the aforesaid aspect, it is required to be noted that the present respondent Union itself has raised various demands in the past, which included a specific demand regarding raising the retirement age in connection with the workmen serving in the Container Division and the said demand was withdrawn while settling the dispute at the time when the Management accepted other demands. As per the Model Standing Order 27, the age of retirement is fixed at 60 years or any other age which may be agreed between employer and the workmen. It is not possible to accept the submission of the learned counsel for the respondents that the agreement can only be arrived at only for the purpose of extending the age beyond 60 years and not for reducing the age from 60 to 58 years or that such agreement will have no effect in the eyes of law. Reading of the Model Standing Order 27, it is clear that the age of retirement would be 60 years, but the same shall be subject to specific agreement between employer and workmen in a given case. It is not the case of respondent Union that in the appointment order, no specific age was mentioned i.e. 58 years and when it is not in dispute that by virtue of settlement under the Industrial Dispute Act, the age of retirement serving in the Container Division was fixed at 58 years, in our view, such agreement cannot be said to be contrary to the Model Standing Order 32, in view of the clear provision in the Model Standing Order 27. When Model Standing Order 27 itself provides for an agreement by which particular age can be fixed, it is not possible to give restrictive meaning to Standing Order 27 as contended by the learned counsel for the respondent. In our view, considering the provisions prescribed in the said Model Standing Order, it is clear that in absence of agreement or settlement between Management and workmen, the retirement age shall be 60 years. However, the same shall be subject to any agreement or Award or custom which shall prevail in the field. We agree with the submission of Ms.Buch that in case of conflict between Model Standing Orders and any other agreement, the former shall prevail over any agreement between the parties. However, in the instant case, Model Standing Order 27, itself provides for an agreement between the employer and workmen. In a given case, if by an agreement some better rights are given to the workmen, then such better service conditions or rights provided by the agreement or by any law or contract or custom, the same shall prevail over the Standing Order. But, by reading Model Standing Order 32, it cannot be said that even though Standing Order No.27 itself provides for an agreement, such agreement can be arrived at only for the purpose of increase in the age and not for reducing the age from 60 years. As stated earlier, in the absence of agreement between the parties, as per Model Standing Order 27, the age of retirement is to be considered as 60 years. In any case, since this Court is bound by the Judgment of the earlier Division Bench in the case of Tulsiram K. Gathod (Supra), the submission of the learned counsel for the respondent cannot be accepted, as this Court being a Coordinate Bench cannot take different view interpretating the same Model Standing Order 27.

13. The learned counsel for the respondentUnion has placed reliance upon a decision of the Supreme Court in the case of Western India Match Co. Ltd. Vs. Workmen, AIR 1973 SC 2650 wherein it was held that the employer cannot enter into an agreement with workmen which is inconsistent with the Standing orders of the Company. The terms of the Standing Orders would prevail over the terms in the contract of service. In the instant case, it is not in dispute that the settlement was already prevailing between the parties prescribing the particular age of superannuation. In our view, such settlement can be said to be in consonance with the provisions of Model Standing Order 27.

14. The learned counsel for the respondents has also made a reference to the case of U.P.Electricity Board and Ors., V/s. Hari Shankar Jain and Ors. 1978 II LLJ 399. The Supreme Court in the aforesaid case, has held that the Industrial Establishments (Standing Orders) Act is a special law in regard to matters enumerated in the Schedule and the Regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under Section 13B or certified by the certifying officer under Section 5 of the Standing Orders Act. It has been observed in para No.18 of the said judgment, as under :18. We therefore, hold that the Industrial Establishments (Standing Orders) Act, is a special law in regard to the matters enumerated in the Schedule and the regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under S.13B or certified by the certifying Officer under Section 5 of the Industrial Establishments (Standing Orders) Act. In regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Establishments (Standing Orders) Act shall continue to apply regard to age of superannuation having been duly notified by the Government, the regulation shall have effect notwithstanding the fact that it is a matter which could be the subject matter of standing orders under the Industrial Establishments Standing Orders Act. The respondents were therefore, properly retired when they attained the age of 58 years. The appeal is therefore, allowed.

15. As pointed out earlier, in the present proceedings, the Court is required to find out whether the agreement is in consonance with the Model Standing Order 27. The learned counsel for the respondent placed reliance on the judgment of the Supreme Court in the case of Bajaj Auto Ltd. Vs. Bhojane Gopinath D. and Ors., (2004) 9 SCC 488 wherein it was held that "under Section 3, as amended by the State Legislature, it is not imperative either on the employer or the workmen to apply for amendments in the Model Standing Orders, but it is optional and that Model Standing Orders ipso facto apply to the industrial establishment from the date enumerated in the notification issued by the State Government. In para No.10 of the judgment, the Supreme Court has observed thus :

10. It would be relevant to state that Item 10C has been incorporated in the Schedule of the 1946 Act by the State Legislature in the year 1974 with effect from 2101977 which enumerates matters to be provided in the Model Standing Orders in relation to "employment or reemployment of probationers or badlis or temporary or casual workmen, and their conditions of service". By virtue of the Bombay Industrial Employment (Standing Orders) (Amendment) Rules, 1977, which were published in the Bombay Gazette on 2891977 and came into force with immediate effect. Rule 4C was incorporated in the Model Standing Orders which lays down that a temporary workman who has put in 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calender months shall be made permanent in that establishment by order in writing signed by the manager or any person authorized in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve calendar months. Rule 4C in the Model Standing Orders has been incorporated relating to the matter set out in Item 10C of the Schedule, as such deletion of the said rule by the Certifying Officer, being in the teeth of legislative command incorporated in the proviso to Section 3(1), was wholly without jurisdiction and would make the order of the Certifying Officer to that effect null and void and liable to be disregarded as it is well settled that if an order is null and void, the same can be disregarded in collateral proceeding or otherwise. Reference in this connection may be made to decision of this Court in the case of Dhurandhar Prasas Singh V Jai Prakash University, (2001) 6 SCC 534: JT (2001) 5 SC 578.

16. The learned counsel for the respondents also placed reliance on the decision of a learned Single Judge of this Court in the case of The Indian Tobacco Company Limited Vs. The Industrial Court and Ors., 1990 I CLR Page 88 wherein it was provided Standing Orders must prevail over the contract of employment except when contract of employment offers better rights.

17. Reliance has also been placed on the decision of the learned Single Judge of this Court in the case of Philipos Babu V/s. M/s.Bajaj Tempo Ltd. and Anr., 1996 III LLJ (Suppl.) 666 wherein it was held that Model Standing Orders under the Act will automatically override the existing Standing Orders unless the certifying Officer is of the view that they are less advantageous to the workmen and it would override any provision in the contract of employment or certified standing orders existing on the day of order 4A coming into effect.

18. Learned counsel for the respondents placed reliance on a decision of the learned Single Judge of this Court in the case of Pyarelal V/s. The Municipal Council, Ramtek and Anr., 1992 I CLR page 27 wherein it was held that between the Municipal Law and Industrial Law, it is the Industrial Law which is to be treated as a special law and therefore, must prevail over the general law viz. Municipal Law.

19. Reliance has also been placed by the learned counsel for the respondents on a decision of the learned Single Judge of this Court in the case of New Hind Textile Mills Unit of N.T.C. (SM) Ltd., Mumbai Vs. Rashtriya Mill Mazdoor Sangh, 2003 III CLR page 332 wherein the same principal has been enunciated.

20. As held by the Division Bench in the case of Tulsiram K. Gothad (Supra), wherein the impugned judgment has also been considered by the Division Bench and has found that the view expressed by the learned Single Judge is not correct one and this Court now cannot take any contrary view as this Court is bound by the view taken by the earlier Bench. Even otherwise, considering the Model Standing Order 27, the employer and employee can always arrived at an agreement fixing a particular age of retirement. In view of the same, the order passed by the learned Single Judge is required to be set aside and the order of the Industrial Court is required to be restored.

21. So far as the cross objections are concerned, it is required to be noted that as per the complaint itself, the employees serving in the containers division are subjected to discrimination and similar treatment is required to be given to the employees serving in containers division, which is given to workmen serving in the Grease Division. It is not the case of the workmen that the award given in case of employees serving in the Grease Division is straight way applicable to the employees serving in the Containers Division. The Industrial Court as well as the learned Single Judge negatived the contention of the Union that the benefit of Award in favour of the workmen of Grease Division should be made available to the particular set of employees/Division also. In this connection, learned Single Judge has held that :

6. On behalf of the petitioner, Ms.Buch learned Advocate, submits that the Industrial Court is totally in error in coming to the conclusion that there is no unfair labour practice under Items 5 or 9 of Schedule IV of the MRTU and PULP At. She submits that when a Reference is made for adjudication, the Reference is between the company and its workmen. There is no segregation of the divisions of any company and according to her, the Reference is made for adjudication in respect of all the workmen of the company. She therefore, submits that the award made pursuant to such a Reference would cover all the workers and not just those who were employed in the grease division.

7. On the other hand, Mr.Talsania, learned counsel for respondent Nos.2 and 3, submits that admittedly, the service conditions of the workmen employed in the two divisions were disparate and historically had remained different. According to him, the demands were raised by a recognized union which existed in the grease division and at no point of time did the petitioner Union appear in the Reference or at any stage submit that the workmen employed in the container division would also be covered by the same set of demands made by the recognized union in the grease division. He therefore, submits that the award will naturally be applicable only to the employees of the grease division and not the other employees.

8. The submission of Mr.Talsania appears to be correct. It was open for the petitioner union to appear in the Reference before the Tribunal and contend that the demands raised by the recognized union were also applicable to the workers in the container division. In all probability, the petitioner did not appear and contest the award because only a recognized union would have been heard before the Industrial Tribunal in a Reference for general demands. Admittedly the petitioner was not a recognized union in the grease division in which the Balmer Lawrie employees union had obtained recognition. Therefore, the Award would be applicable only to the grease division which has always been treated as separate division from that of the container division. There is nothing on record to indicate that the other service conditions such as Dearness allowance, hours of working, leave etc., were the same in both the divisions. Therefore, the submission of Ms.Buch that the Award is applicable to the workmen of the container divisions cannot be accepted.

22. Considering the said reasoning of the learned Single Judge as well as of the Industrial Tribunal, this Court would not like to interfere with the said finding of fact in the appeal. In our view, there is no merit in the cross objections. Considering the said aspect and in view of the decision of the Division Bench in the case of Tulsiram K. Gothad (Supra), wherein identical point was involved, as well as considering Model Standing Order 27, it is not possible to accept the submissions of the learned counsel for the respondents that the agreement in a given case, can only be made for extending the age of 60 years and not lowering the age, especially when there was already settlement which have taken place between the present appellants and the respondents prescribing 58 years as the age of retirement. As pointed out earlier, now the Management has already increased the age upto 60 years subsequently by way of settlement, even in respect of employees serving in Container Division and since now only few workmen are concerned in this case and they have already reached the age of 60 years long back, while allowing the appeal, we deem it proper to direct that out of total amount deposited, 35% amount with accrued interest may be paid to the concerned workmen on whose behalf a complaint was filed by the Union and rest of the amount so deposited, may be paid back to the appellant company with accrued interest. This part of direction is not seriously objected to by the learned counsel appearing for the appellants.

23. The order regarding allowing the concerned workmen to withdraw 35% of the amount is passed in view of the fact that the Management has subsequently increased the retirement age to 60 years so far as employees serving in the Containers Division are concerned.

24. In view of what is stated above, the appeal is accordingly partly allowed. The cross objection stands dismissed. No order as to costs.

Appeal partly allowed