Bombay High Court
Berar Oil Industry vs National Berar Oil Industry Workers' ... on 30 January, 1987
Equivalent citations: (1994)IIILLJ418BOM
JUDGMENT H.W. Dhabe, J.
1. The petitioner employer has challenged the preliminary order passed by the learned Industrial Court, Maharashtra, Nagpur Bench, Nagpur in thiswrit petition.
2. The respondent union has filed the instant complaint case under Sections 28 and 30 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the 'Act'), challenging as unfair labour practice the action taken by the petitioner in superannuating by giving 30 days' notice as many as 84 employees on the ground that 1 they have either completed 55 years of age or 25 years of service by taking for the first time recourse to the Standing Order No. 20 of the Standing Orders framed under Section 30 of the C.P. and Berar Industrial Disputes Settlement Act, 1947 (for short the C.P. Act.).
3. By amending its complaint case the respondent union raised a contention that since the application of the Bombay Industrial Relations Act, 1946 (for short the B.I.R. Act.) was withdrawn from 1.11.1972, the aforesaid Standing Orders of the petitioner which were applicable by virtue of; the provisions of Section 123-A of the B.I.R. Act could not be made applicable thereafter to the industry of the petitioner since it was thereafter governed by the provisions of the Industrial Employment (Standing Orders) Act, 1946. It also raised a further contention that since the petitioner employer did not frame any Standing Orders under the aforesaid Industrial Employment (Standing Orders) Act as applicable to the State of Maharashtra, the Model Standing Orders provided in Schedule 1-A of the said Act would be operative and applicable to its employees. It is thus its submission that since as per Clause 27 of the Model Standing Orders in Schedule 1-A of the aforesaid Industrial Employment (Standing Orders) Act, the age of retirement was 60 years, the employees of the petitioner could not be retired or superannuated at the age of 55 years, which was the age of superannuation under the aforesaid old Standing Order No. 20, previously applicable to the industry of the petitioner. The above legal position was contested by the petitioner contending that the old Standing Orders were still applicable to its employees.
4. Although it is true that the above legal issue between the parties presented a pure question of law, it is unfortunate that the learned Industrial Court should have decided it as a preliminary issue since it was not in that sense a preliminary issue which would have finally disposed of the list it before it in the instant case. At any rate, it has led to unnecessary delay in the trial of the instant case. The learned Industrial Court in its aforesaid order upon the above preliminary issue upheld the case set out by the respondent in that regard holding that the Old Standing Orders were not effective in view of the withdrawal of the application of the BIR Act and, therefore, the Industry of the petitioner was governed by the Model Standing Orders incorporated in Schedule 1-A of the Industrial Employment (Standing Orders) Act, 1946, as applicable to the State of Maharashtra, which are prescribed for the workmen doing manual or technical work. Being aggrieved, the petitioner has preferred the instant writ petition in this Court challenging the aforesaid preliminary order of the Learned Industrial Court by way of this writ petition.
5. To appreciate the rival contentions of the parties upon the above issue, it is necessary to state a few facts having bearing on the said issue. It is not in dispute that the respondent union was a recognised union under the C.P. Act, which was applicable to the industry of the petitioner prior to the application to it of the BIR Act. The Standing Orders in question were framed on 21.9.1955 under the provisions of Section 30(1) of the aforesaid C.P. Act. The C.P. Act was repealed by Section 123-A of the BIR Act which was introduced by Section 52 of the Maharashtra Amending Act No. 22 of 1965 i.e. Bombay Industrial Relations (Extension and Amendment) Act, 1964, by which the BIR Act was made applicable for the first time to the Vidarbha Region of the State of Maharashtra to which previously the C.P. Act was applicable. Although the C.P. Act was repealed, any standing order settled thereunder, were continued in operation as if settled by the appropriate authority under the corresponding provisions of the BIR Act by virtue of the saving Clause (b) of the proviso to Section 123-A of the BIR Act. The Standing Orders, therefore, framed under the C.P. Act. in respect of the employees of the petitioner continued to be operative under the BIR Act, although the aforesaid C.P. Act was repealed. Similarly, the respondent union also continued to be a representative union under the provisions of the BIR Act by virtue of the saving Clause (c) in the proviso to Section 123-A of the said Act.
6. At this stage it is necessary to notice the scheme of Section 2 of the BIR Act as amended by the aforesaid Maharashtra Amending Act No. 22 of 1965. As per proviso to Sub-section (4) of Section 2, the BIR Act was made applicable to all the industries to which the C.P. Act was applicable on the commencement of the Maharashtra Amending Act No. 22 of 1965. However, by virtue of the provisions of Sub-section (5) of Section 2, the power was reserved by the State Government to itself to withdraw by a notification issued in the Official Gazette the application of the BIR Act to such industry in such area and from such date as may be specified in the notification. It is by virtue of the aforesaid provision of Sub-section (5) of Section 2 that a notification was issued by the State Government withdrawing the application of the BIR Act to the industry of the petitioner with effect from 1.11.1972. It is, however, material to notice the further provisions in Sub-section (5) of Section 2, which unfortunately the learned Industrial Court failed to notice and which would have made material change in its view had they been noticed. It is also provided in Sub-section (5) of Section 2 that from the date of withdrawal of the application of the BIR Act to any industry, the provisions of the BIR Act would cease to apply to the said industry and then the provisions of Section 7 of the Bombay General Clauses Act, 1904 would apply to such cesser as if the BIR Act had then been repealed in relation to the said industry by a Maharashtra Act.
7. It appears from the impugned order of the learned Industrial Court that although Section 7 of the Bombay General Clauses Act, 1904 was pressed into service on behalf of the petitioner, the provisions of Section 2(5) of the BIR Act. which made it specifically applicable treating the cesser as repeal were not brought to the notice of the learned Industrial Court. The reasoning adopted by the learned Industrial Court, therefore, is that the BIR Act is not repealed by any of the provisions under the Industrial Disputes Act, 1947 and the principle of Section 7 of the Bombay General Clauses Act, 1904 about the effect of repeal was not, therefore, applicable when the application of the BIR Act was withdrawn to the industry of the petitioner. As already pointed out, Section 7 of the Bombay General Clauses Act, 1904, is in terms made applicable under Sub-section (5) of Section (2) of the BIR Act treating the cesser of the application of the BIR Act to any industry by the notification thereunder as repeal within the meaning of the said section. The saving clauses in Section 7 of the Bombay General Clauses Act, 1904 were, therefore, clearly attracted in the instant case.
8. Once it is held that Section 7 of the Bombay General Clauses Act was applicable to the cesser of the application of the BIR Act with effect from 1.11.1972, it cannot be disputed that by virtue of the saving clauses therein rights and obligations created under the statutory standing orders framed originally under the C.P. Act and, thereafter, operative by virtue of the provisions of Clause (h) of the proviso to Section 123-A of the BIR Act till 1.11.1972 were still effective thereafter and continued to operate until they were replaced by a new set of standing orders framed under the appropriate Act, i.e. the Industrial Employment (Standing Orders) Act, 1946 as applicable to the State of Maharashtra. Since the old standing orders were still applicable, the model standing orders framed under the aforesaid Standing Orders Act, 1946, were not operative in the Industry of the petitioner. The view taken by the learned Industrial Court upon the preliminary legal issue is, therefore, incorrect and it has to be held that that the old standing orders continued and continue to apply to the industry of the petitioner by virtue of the saving clauses in Section 7 of the Bombay General Clauses Act, 1904, which was made applicable expressly by Sub-section (5) of Section 2 of the BIR Act until they are replaced by the new set of standing orders framed under the aforesaid Standing Orders Act.
9. Faced with this difficulty, a new question of law is sought to be urged before me on behalf of the respondent union. It is urged that under Section 30(1) of the C.P. Act, under which the Standing Orders were originally framed in respect of the industry of the petitioner, there was a power to frame the Standing Orders with regard to the industrial matters enumerated in Schedule I of the said Act. It is urged that there was no entry in the said Schedule I of the C.P. Act regarding determination of the age of superannuation or retirement. The submission, therefore, is that the standing order No. 20. framed under the aforesaid Section 30(1) of the C.P. Act was illegal, invalid and inoperative because there was no such power under the aforesaid Act to frame any standing order in relation to the age of superannuation or retirement. The further submission is that since the standing order No. 20 was illegal, invalid, inoperative or ineffective, it could not be saved or be effective or operative as if made by the appropriate authority under the corresponding provisions of the BIR Act, as provided in Sub-clause (b) of the proviso to Section 123-A of the BIR Act with the result that it would not be also operative by virtue of the saving clause under Sub-clause (5) of Section 2 of the BIR Act when its application was withdrawn to the industry of the petitioner from 1.11.1972.
10. In my view, the above submission on behalf of the petitioner is based wholly on misreading of the old standing order 20 applicable to the industry of the petitioner. The relevant part of the standing order 20 is reproduced below for the sake of convenience:
"20. Any worker who has reached the age of 55 or who has put in 25 years' service or who, after examination by the Company's doctor or the Civil Surgeon, is found to be physically unfit to carry out his duties, will be discontinued from service in the discretion of the management on giving one month's notice or pay in lieu of notice".
11. It is clear from the aforesaid Standing Order No. 20 that it does not prescribe the age of retirement or superannuation as such by which automatically the employer-employee relation ceases or comes to an end. The aforesaid Standing Order shows that even on reaching the age of 55 years, the service of any worker does not come to an end automatically but it is open to the petitioner to discontinue his services in its discretion by giving one month's notice or one month's wages in lieu of notice after completion of 55 years of age. The other cases in which the management in its discretion can terminate the services of any employee by notice are the completion of 25 years of service by an employee or his physical unfitness as certified either by the Company's doctor or the Civil Surgeon. The old Standing Order No. 20 which does not provide for the automatic cessation of the contract of employment on reaching the age of retirement on superannuation fixed thereunder but which on the other hand provides for termination of employment by notice of an employee in the discretion of the management in certain cases including the case of completing 55 years of age is thus clearly covered by item 8 of Schedule 1 of the C.P. Act which is as follows:
"Termination of employment. Notice to be given by the employer and employee".
It is because the termination is not automatic under Standing Order No. 20 after reaching the age of 55 years that the respondent union itself has averred in the instant complaint case that the petitioner has committed an unfair labour practice in arbitrarily issuing notice of termination for the first time on the ground that the employees concerned have completed 55 years of age.
12. The various decision relied upon the cited before me on behalf of the respondent union are in relation to a case where the cessation of employment is automatic on reaching the age of retirement or superannuation prescribed under the standing order. They are, therefore, not relevant and applicable in view of the clear language of Standing Order No. 20 which does not fix an age of superannuation or retirement as such. The Standing Order No. 20 was, thus, clearly justified by virtue of and was clearly covered, under item No. 8 of Schedule I of the C.P. Act. It was thus legal and valid and was, therefore, legally saved firstly under Clause (b) to proviso to Section 123-A of the BIR Act when it was made applicable and thereafter by Sub-section (5) to Section 2 when the application of the BIR Act was withdrawn. Since the above standing order was in the field and was applicable to the employees of the petitioner, the model standing order No. 27 incorporated under Schedule A of the Industrial Employment (Standing Orders) Act, 1946, as applicable to the State of Maharashtra would not be operative and/or applicable and govern the employees of the petitioner. The above contention raised on behalf of the respondent union that the Standing Order No. 20 was illegal, ineffective and inoperative from its inception and, therefore, Model Standing Order No. 27 would be applicable, therefore, deserves to be rejected.
13. It is worthwhile to notice that recently as pointed out by the petitioner, the same old standing orders including the Standing Order No. 20 were certified on 17.7.1984 under the Industrial Employment (Standing Orders) Act, 1946, as applicable to the State of Maharashtra by the Dy. Commissioner of Labour, making only certain formal modifications since all the properties and liabilities and obligations of the petitioner stood transferred to and vested in M/s. Akola Oil Industries, Akola, with effect from 1.7.1980. It is also clear from the order of the Dy. Commissioner of Labour dated 17.7.1984 certifying the standing orders that no objections were received from the union in regard to the question of certification of the Standing Order for all these reasons, the effect cannot, therefore, be given to the contention of the respondent union that the Standing Order No. 20 was illegal and invalid and, therefore, the provisions of the Model Standing Order in regard to retirement were applicable in the instant case.
14. In the result, the instant writ petition is allowed. The impugned preliminary order of the learned Industrial Court is set aside, with the result that the proceedings would now commence before the learned Industrial Court upon merits of the case preferred by the respondent. In the circumstances, however, there would be no order as to costs in this petition.