Karnataka High Court
Karnataka Employers Association vs The State Of Karnataka on 29 June, 2018
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION Nos.14576-14577/2017 & 14578/2017 &
15094-15096/2017 & 15129/2017 (L-RES)
C/w
WRIT PETITION Nos.14643/2017, 16100-16103/2017,
17196-17200/2017, 18531-18533/2017,
19784-19785/2017, 23436/2017,
23661/2017 and 25586/2018
IN W.P.Nos.14576-14577/2017 & 14578/2017 &
15094-15096/2017 & 15129/2017
BETWEEN
1. KARNATAKA EMPLOYERS' ASSOCIATION
NO.74, 2ND FLOOR,
SHANKARA ARCADE,
VANIVILAS ROAD,
BASAVANAGUDI,
BENGALURU-560004,
REPTD. BY ITS SECRETARY.
2. ADITYA AUTO PRODUCTS &
ENGG (I) PVT. LTD.,
13E, KIADB, INDUSTRIAL AREA,
DODDABALLAPUR,
BENGALURU-561203,
REPTD BY IT HEAD-HR.
3. M/S J K TYRES & INDUSTRIES LTD.,
VIKRANT TYRE PLANT, K R S ROAD,
METAGALLI, MYSORE-570016,
REPTD BY ITS GENERAL MANAGER HR/IR.
2
4. GRASIM INDUSTRIES LIMITED
UNIT: HARIHARA POLYFIBERS
P.O.KUMARAPATAM,
DIST. HAVERI,
KARNATAKA-581123
REPRESENTED BY ITS
GENERAL MANAGER (LEGAL)
SURESH HEGDE.
5. GRASIM INDUSTRIES LIMITED
UNIT: GRASILENE DIVISION
P.O.KUMARAPATAM,
DIST. HAVERI,
KARNATAKA-581123
REPRESENTED BY ITS
GENERAL MANAGER (LEGAL)
SURESH HEGDE.
6. MYSORE POLYMERS &
RUBBER PRODUCTS LTD.,
A001 "VAISHNAVI SAROVAR"
PLOT NO.4 4-E AND 5-E
DEVARAJA MOHALLA,
YADAVAGIRI, MYSORE-570020.
7. MANAGEMENT OF FEDERAL
MOGUL GOETZE INDIA LTD.,
YELAHANKA,
DODDABALLAPURA MAIN ROAD,
BANGALORE-560064,
REPRESENTED BY ITS
HEAD-HR-MARULUSIDDA.
... PETITIONERS
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
3
DEPARTMENT OF LABOUR,
VIKASA SOUDHA,
BENGALURU-560001.
2. ALL INDIA TRADE UNION CONGRESS
KARNATAKA STATE COMMITTEE
NO.6, SIRUR PARK ROAD,
SHESHADRIPURAM,
BANGALORE-560020,
REPTD BY ITS GEN. SECRETARY.
3. ALL INDIA CENTRAL COUNCIL
OF TRADE UNION (AICCTU)
NO.16/3, MUNIKADIRAPPA LAYOUT,
GRAPHITE INDIA ROAD, HOODY,
BANGALORE-560048
REPTD BY ITS STATE PRESIDENT.
4. ENGINEERING AND GENERAL
WORKERS UNION,
GHATE BHAVAN,
GD PARK EXTENTION,
VYALIKAVAL, BENGALURU-560003
REPRESENTED BY ITS SECRETARY.
5. FEDERAL MOGUL GOETZE INDIA (TPR)
EMPLOYEES ASSOCIATION,
YELAHANKA, BENGALURU-64.
6. K.JAYARAMAN
S/O LATE P.K.S.MURTHY,
#15, 6TH CROSS,
NEAR SHL COLLEGE,
SANTHOSH NAGAR, ATTUR,
BENGALURU-64.
7. M.CHANDRASHEKARA RAO
S/O LATE MUNISHAMA RAO
#162, B, 6TH CROSS,
5TH MAIN, BAPUJINAGAR,
BENGALURU-64.
4
8. S.V.NAGARAJAIAH
S/O VARADHARAMAIAH,
#31/1, MAHAVEERA NILAYA,
ATTUR, 1ST MAIN, YELAHANKA,
BENGALURU-64.
9. CENTRE OF INDIAN TRADE UNION, (CITU)
REPRESENTED BY THE
GENERAL SECRETARY,
KARNATAKA STATE COMMITTEE,
NO.40/5, 2ND 'B' MAIN, 16TH CROSS,
SAMPANGIRAMANAGAR,
BENGALURU-560027.
10. BHARATIYA MAZDOOR SANGH (BMS)
BMS OFFICE, SC ROAD,
BANGALORE-560009,
REPRESENTED BY
STATE PRESIDENT,
KARNATAKA SANGH.
... RESPONDENTS
(BY SRI. ADITYA SONDHI, AAG A/W
SRI. Y.D.HARSHA, AGA FOR R1,
SRI. K.B.NARAYANASWAMY, ADV. FOR R2 & R5,
SRI. K.SUBBA RAO, SR. COUNSEL FOR
SRI. CLIFTON D'ROZARIO, ADV. FOR R3,
SRI. M.NARAYANA BHAT, ADV. FOR R4,
SRI. K.JAYARAMAN, ADV. FOR R6,
SRI. M.CHANDRASHEKAR RAO, ADV FOR R7,
SRI. S.V.NAGAIAH, ADV. FOR R8.)
THESE WPs ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD:27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD:28.3.2017 VIDE ANNEXURE-B
ISSUED BY THE R-1, PERUSE THE SAME AND DECLARE AND
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT [STANDING ORDERS]
5
[AMENDMENT] RULES 2017 AS UNCONSTITUTIONAL VOID AND
UNENFORCEABLE IN LAW ETC.
IN W.P.No.14643/2017
BETWEEN
SWAN SILK (P) LTD.,
POST BOX NO.25210,
40, 4TH CROSS,
RESIDENCY ROAD,
BANGALORE-560 025,
REPRESENTED BY ITS DIRECTOR.
... PETITIONER
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LABOUR,
VIKASA SOUDHA,
BENGALURU-560 001.
2. ALL INDIA TRADE UNION CONGRESS
KARNATAKA STATE COMMITTEE
NO.6, SIRUR PARK ROAD,
SHESHADRIPURAM
BANGALORE - 560 020
REPRESENTED BY ITS
GEN. SECRETARY.
3. ALL INDIA CENTRAL COUNCIL OF
TRADE UNION (AICCTU)
NO.16/3, MUNIKADIRAPPA LAYOUT
GRAPHITE INDIA ROAD, HOODY
BANGALORE - 560 048
6
REPRESENTED BY
ITS STATE PRESIDENT.
... RESPONDENTS
(BY SRI.ADITYA SONDHI, AAG A/W
SRI.Y.D.HARSHA, AGA FOR R1
SRI.K.B.NARAYANASWAMY, ADV. FOR R2
SRI. K.SUBBA RAO, SR.COUNSEL FOR
SRI.CLIFTON D'ROZARIO, ADV. FOR R3)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD:27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD:28.3.2017 VIDE ANNEXURE-B
ISSUED BY THE R-1, PERUSE THE SAME AND DECLARE AND
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT [STANDING ORDERS]
[AMENDMENT] RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEBALE IN LAW ETC
IN WP Nos.16100-16103/2017
BETWEEN:
1. KIRLOSKAR ELECTRICAL CO. LTD.,
1ST CROSS, MAIN ROAD,
PEENYA 1ST STAGE,
PEENYA II PHASE,
PEENYA INDUSTRIAL AREA
BENGALURU-560058
REPRESENTED BY ITS
SENIOR MANAGER
2. ULTRA TECH CEMENTS LTD
UNIT: RAJASHREE CEMENTS WORKS
ADITYANAGAR MALKHED ROAD
GULBARGA-585292
REPRESENTED BY ITS
VICE-PRESIDENT HR & IR
7
3. HINDALCO INDUSTRIES LTD
(FORMERLY KNOWN AS
INDIAN ALUMINIUM COMPANY)
NEHRU NAGAR OPPOSITE VILLAGE
P.B.ROAD, NH4,
YAMANAPUR, BELAGAVI:590010
REPRESENTED BY ITS
UNIT HEAD BELAGAVI WORKS
4. MICRO LABS LTD
#27, RACE COURSE ROAD,
BANGALORE-560001
REPRESENTED BY ITS VICE PRESIDENT
HUMAN RESOURCES
... PETITIONERS
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LABOUR
VIKASA SOUDHA
BENGALURU-560 001
2. KIRLOSKAR ELECTRIC COMPANY
EMPLOYEES ASSOCIATION
NO.212, 1ST MAIN ROAD, 18TH STAGE
SUBRAMANYANAGAR
BENGALURU - 560 021
REPRESENTED BY ITS
SECRETARY
... RESPONDENTS
(BY SRI. ADITYA SONDHI, AAG A/W
SRI. Y.D.HARSHA, AGA FOR R1
SRI. V.R.DATAR, ADV. FOR R2)
8
THESE WPs ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD.27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD.28.3.2017 VIDE ANNEX-B
ISSUED BY THE R-1, PERUSE THE SAME AND DECLARE AND
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT [STANDING ORDERS]
AMENDMENT RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEABLE IN LAW ETC.
IN WP Nos.17196-17200/2017
BETWEEN:
1. WIPRO ENTERPRISES LTD
PLOT NO.4
ANTHARASANAHALLI INDUSTRIAL AREA
TUMKUR-572106
REPRESENTED BY ITS VICE
PRESIDENT-EMPLOYEES RELATIONS
2. INCAP CONTRACTING
MANUFACTURING SERVICES PVT LTD
PANDITHANAHALLI,
HIREHALLI POST
TUMKUR-572104
REPRESENTED BY ITS
MANAGING DIRECTOR
3. BHRUKA EXTRUSIONS PVT LTD
#1-KRS ROAD-MARTAGALLI
MYSORE-570016
REPRESENTED BY ITS
FACTORY-MANAGER
4. KIRLOSKAR FERROUS INDUSTRIES LTD
BEVINAHALLI VILLAGE & POST
KOPPAL DISTRICT-583 234
REPRESENTED BY ITS
SR.MANAGER, H.R. AND ADMN.
9
5. RANE ENGINE VALVE LTD.,
PLOT NO.36B & 37
HIREHALLI INDUSTRIES AREA
TUMKUR-575104
REPRESENTED BY ITS
AUTHORISED SIGNATORIES
... PETITIONERS
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LABOUR
VIKASA SOUDHA
BENGALURU-560001
... RESPONDENT
(BY SRI.ADITYA SONDHI, AAG A/W SRI.Y.D.HARSHA, AGA)
THESE WPs ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD:27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD:28.3.2017 VIDE ANNEXURE-B
ISSUED BY THE R-1, PERUSE THE SAME AND DECLARE AND
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT (STANDING ORDER)
(AMENDMENT) RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEBALE IN LAW ETC.
IN WP Nos.18531-18533/2017
BETWEEN:
1. NKG INDIA COFFEE PVT LTD
903, BRIGADE RUBIX
NO.20, HMT MAIN ROAD
10
PHASE 1, PEENYA
BENGALURU-560 013
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
2. VENLON ENTERPRISES
26 P, GATE II
BELAVADI, INDUSTRIAL AREA
HUNSUR MAIN ROAD
BELVADI, MYSURU-570018
REPRESENTED BY ITS
GENERAL MANAGER
3. NECTAR BEVERAGES PVT LTD
P.B.NO.205, K.C.PARK,
P.O.DHARWAD-580 008,
REPRESENTED BY ITS
MANAGER HR AND IR
... PETITIONERS
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LABOUR
VIKASA SOUDHA
BENGALURU-560 001
... RESPONDENT
(BY SRI.ADITYA SONDHI, AAG A/W SRI.Y.D.HARSHA, AGA)
THESE WPs ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD:27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD:28.3.2017 VIDE ANNEXURE-B
ISSUED BY THE R-1 PERUSE THE SAME AND DECLARE AND
11
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT (STANDING ORDERS)
(AMENDMENT) RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEBALE IN LAW ETC.
IN W.P.Nos.19784-19785/2017
BETWEEN:
1. TRIVENI TURBINE LIMITED
12-A PEENYA INDUSTRIAL AREA
BANGALORE-560 058
REPRESENTED BY ITS
MANAGER-PERSONNEL AND
ADMIN M.S.RAVESH
2. TRIVENI ENGINEERING &
INDUSTRIES LTD
1, 2, 3 INDUSTRIAL AREA
METAGALLI POST
MYSORE-570016
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
GEAR BUSINESS GROUP
RAJIV RAJPAL
... PETITIONERS
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECERTARY
DEPARTMENT OF LABOUR
VIKASA SOUDHA
BENGALURU-560 001
... RESPONDENT
(BY SRI.ADITYA SONDHI, AAG A/W SRI.Y.D.HARSHA, AGA)
12
THESE WPs ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DTD:27.3.2017 AND PUBLISHED
IN THE OFFICIAL GAZETTE DTD:28.3.2017 VIDE ANNEXURE-B
ISSUED BY THE R-1 PERUSE THE SAME AND DECLARE AND
STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED THE
KARNATAKA INDUSTRIAL EMPLOYMENT (STANDING ORDERS)
(AMENDMENT) RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEABLE IN LAW ETC
IN W.P.NO.23436/2017
BETWEEN:
GRASIM INDUSTRIES LIMITED
CHEMICAL DIVISION, KARWAR
P.O.BINAGA 581307
DIST:UTTAR KARNATAKA
REPRESENTED BY ITS
SR. GENERAL MANAGER-HR
... PETITIONER
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LABOUR
VIKASA SOUDHA, BENGALORE-560001
... RESPONDENT
(BY SRI.ADITYA SONDHI, AAG A/W SRI.Y.D.HARSHA, AGA)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
REOCRDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DATED 27.3.2017 AND
13
PUBLISHED IN THE OFFICIAL GAZETTE DATED 28.03.2017 VIDE
ANNEX-B ISSUED BY R-1 PERUSE THE SAME AND DECLARE
AND STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED
THE KARNATAKA INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) (AMENDMENT) RULES 2017 AS UNCONSTITUTIONAL,
VOID AND UNENFORCEABLE IN LAW ETC
IN W.P.No.23661/2017
BETWEEN:
M/S AUTOMOTIVE AXLES LTD
HOOTAGALLI INDUSTRIAL AREA,
OFF HUNSUR ROAD, MYSORE-18
REPRESENTED BY ITS
DEPUTY GENERAL MANAGER-HR.
... PETITIONER
(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR
SRI. B.C.PRABHAKAR, ADV. )
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LABOUR,
VIKASA SOUDHA,
BENGALURU-560001
... RESPONDENT
(BY SRI.ADITYA SONDHI, AAG A/W SRI.Y.D.HARSHA, AGA)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO, CONCERNING AND CONNECTED WITH
THE IMPUGNED NOTIFICATION DATED 27.3.2017 AND
PUBLISHED IN THE OFFICIAL GAZETTE DATED 28.3.2017 VIDE
ANNEX-B ISSUED BY R-1, PERUSE THE SAME AND DECLARE
AND STRIKE DOWN THE IMPUGNED NOTIFICATION CALLED
THE KARNATAKA INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) (AMENDMENT) RULES 2017 AS UNCONSTITUTIONAL,
VOID AND UNENFORCEABLE IN LAW ETC.
14
IN W.P.No.25586/2018
BETWEEN
WEST COAST PAPER MILLS COMPANY LTD.,
HAVING ITS CORPORATE OFFICE AT
CHANDRAKIRAN 4TH FLOOR, 10-A,
KASTURBA ROAD, BANGALORE-560001,
REPRESENTED BY SRI. S.N. PATIL,
VICE PRESIDENT (H.R.) AND
FACTORY MANAGER.
... PETITIONER
(BY SRI. SOMASHEKAR, ADV.)
AND
THE GOVERNMENT OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LABOUR,
VIKASA SOUDHA,
BENGALURU-560001.
... RESPONDENT
(BY SRI. A C BALARAJ, HCGP)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO IMPUGNED NOTIFICATION
DTD:27.03.2017 AT ANNEXURE-A AND DECLARE AND STRIKE
DOWN THE IMPUGNED NOTIFICATION CALLED THE KARNATAKA
INDUSTRIAL EMPLOYMENT [STANDING ORDERS] AMENDMENT
RULES 2017 AS UNCONSTITUTIONAL, VOID AND
UNENFORCEBLE IN LAW ETC.
THESE WPs HAVING BEEN HEARD AND RESERVED FOR
ORDERS, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
RESERVED ON: 14.06.2017
PRONOUNCED ON: 29.06.2018
15
ORDER
Heard the learned Senior Counsel Sri. S. S. Naganand on behalf of the petitioners, the learned Senior Counsel Sri. K. Subba Rao on behalf of the private respondents and the learned Senior Counsel and Addl. Advocate General Sri. Aditya Sondhi on behalf of official respondents.
2. Facts in Brief:
The State of Karnataka vide proceedings bearing No.LD 282 LET 2009 dated 07.12.2009 issued a notification in exercise of powers vested in it under Section 15 of the Industrial Employment (Standing Orders) Act, 1946 (Herein after referred to as the "Act 20 of 1946" for the sake of brevity) proposing to amend the schedule by way of substitution and thereby gave notice of its intention and called upon the affected parties to specify their objections within the stipulated period of 30 days from the date of publication in the Official Gazette in respect of the proposed amendment.
The Government notified the interested parties of its intention 16 to amend the schedule under the heading Model Standing Orders prescribed under Rule 3(1) in the entries at serial No.15-(A) and thereby substitute the words and figures 58 years with the words and figures to 60 years and also proposed a similar amendment under the heading Model Standing Orders for clerks in the entries at Serial No.22-A by substituting the words and figures 58 years with the words and figures 60 years.
3. Pursuant to the said intention notification, only a few of the petitioners namely the Karnataka Employers' Association, M/s. J.K. Tyres & Industries Ltd., Mysore Polymers & Rubber Products Ltd., Triveni Engineering & Industries Ltd., alone had submitted objections. The other petitioners have not submitted any objections to the intention notification. The petitioners No.1, 3, & 6 in W.P. Nos.14576- 578/2017, petitioner No.2 in W.P. Nos.19784-785/2017, petitioners in W.P. Nos.18531-33/2017, petitioners in W.P. Nos.23661/2017 and petitioners in W.P. Nos.16100- 17 103/2017 and petitioner in W.P. No.14643/2017 are not amongst the parties who had filed objections to the intention notification. But it is also relevant to note that certain trade representative bodies and organizations have submitted their objections. It is also pertinent to point-out at this juncture itself that none of the petitioners have placed on record the objections filed before the Government. During the course of hearing, certain registered Trade Unions who are recognized by some of the petitioners have also come on record by way of impleadment applications and the said applications have been allowed and the Trade Unions and representative bodies have been permitted to come on record and they have been heard. In the petitions, all the petitioners have uniformly pleaded and no specific and separate grounds are urged.
4. The undisputed fact is that, all the petitioners with the exception of first petitioner in W.P. Nos.14576- 577/2017 are all Industrial Establishments functioning in the State and to which the Karnataka Industrial Employment 18 (Standing Orders) Rules, 1961 apply. It is also pertinent to note that objections to the intention notification were also preferred by M/s. Mysore Petro Chemicals, M/s. AITUC, North Bangalore Industries Association, Bangalore Chambers of Commerce, Karnataka Chamber of Commerce and Industries Association, Forum of Entrepreneurs, the Belgaum Chamber of Commerce Industries, Electronics Corporation, L&T Company. But curiously none of the above objectors have preferred writ petition/s. But, as is apparent, few of them are representative Trade Bodies of the Industrial Establishments. Even the petitioners who have not preferred objections to the intention notification have been heard.
5. In this background, the State of Karnataka by notification bearing No.LD-72-LET-2013 dated 27.03.2017 had published in the Official Gazette dated 28.03.2017 and issued the final notification whereby, the Karnataka Industrial Employment (Standing Orders) Rules, 1961 came to be amended and the words and figures '58' years in entries 19 at Serial No.15-A and entry at Serial No.22-A of Model Standing Orders came to be substituted with the words and figures '60' years, thereby, retirement age stipulated in the Model Standing Orders came to be enhanced from 58 years to 60 years.
6. It is pleaded that the "Act 20 of 1946" was enacted by the Union of India and came into force on 23.04.1946. That the avowed object of the Act was to require industrial establishments to define with sufficient precision the prevailing conditions of employment and thereby make them known to the workmen/employee in the Industrial Establishment.
7. The term `appropriate Government' is defined under Section 2(b) of the Act of 20 of 1946 whereby, except for the industrial establishments under the control of the Central Govt. Railway Administration, Major ports, Mines and Oil Fields is the Central Government and in all other cases, it is the State Government concerned. It is also relevant to note 20 that the State, by the Rules has made the Act applicable even to establishments employing 50 and more workmen. Standing orders is defined under Section 2(g) as follows:-
"2. (g) "standing orders" means rules relating to matters set out in the Schedule;"
8. It is pleaded that all industrial establishments that come under the purview or the ambit of the State are required by the provisions of Section 3 to submit draft standing orders enumerating the conditions of employment for certification thereof and Section 5 provides for certification of the draft standing orders by the Certifying Officer. The conditions for certification of the proposed draft standing orders are set-out under Section 4 of the Act and reads as under:-
"4. Conditions for certification of standing orders. - Standing orders shall be certifiable under this Act if -
(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and 21
(b) the standing orders are otherwise in conformity with the provisions of this Act, and it [shall be the function] of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders."
and one of the important duties cast upon the certifying officer is to adjudicate upon the fairness or reasonableness of the provisions incorporated in the draft standing orders.
9. The provisions of Section 15 empowers the appropriate Government to make rules for the purpose of the Act after a previous publication, for effectuating the purposes and objective of the Act. The provisions of Section 15 are culled out for the sake of reference and reads as follows:-
"15. Power to make rules. - (1) The appropriate Government may, after previous publication, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may -
(a) prescribe additional matters to be included in the Schedule, and the 22 procedure to be followed in modifying standing orders certified under this Act in accordance with any such addition;
(b) set out model standing orders for the purposes of this Act;
(c) prescribe the procedure of Certifying Officers and appellate authorities;
(d) prescribe the fee which may be charged for copies of standing orders entered in the register of standing orders;
(e) provide for any other matter which is to be or may be prescribed:
Provided that before any rules are made under clause (a) representatives of both employers and workmen shall be consulted by the appropriate Government.
[(3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in sessions for a total period of thirty days which may be comprised in one sessions or [in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.] 23
10. On a perusal, it is seen that the clause-(a) of Sub- Section 2 of Section 15 enables the inclusion of additional matters to the schedule. Clause - (b) enables the appropriate Government to set-out Model Standing Orders for the purposes of this Act.
11. It is pleaded that when the enactment came into force by way of the Central Act, 1946, there was no specific provision regarding age of retirement or superannuation, as one of the matters in respect of which provision should be made in the Standing Orders. Even the State Rules, 1961 when enacted, did not provide for the age of retirement or superannuation and that only in the year 1982 the schedule was amended by the Karnataka Industrial Employment (Standing Orders) (Amendment) Rules, 1982 and the age of superannuation came to be provided as one of the matters under the Standing Orders. By the said amended Rules, Clause 15-A came to be inserted and the same read as follows:-
24
"The age for retirement or superannuation of the workman may be 58 years or such other age as may be agreed upon between the employer and the workman by any agreement, settlement or award which may be binding on the employer and workman under any law for the time being in force".
12. Thus clause 15(A) provided for settlement of the age of retirement or superannuation of the workman by means of an agreement, settlement or award. That the intention notification dated 07.12.2009 vide Annexure-A to the writ petitions is purportedly issued in exercise of the powers vested in the appropriate Government under the provisions of Section 15 as stated supra. That the proposed amendment by way of substitution reads as follows:-
"1) Under the heading "Model Standing Orders prescribed under Rule 3 (1)", in the entries at Serial No.15-A, for the words and figures "58 years" the words and figures "60 years" shall be substituted.
2) Under the heading "Model Standing Orders for Clerks" in the entries at Serial No.22-A, for the words and figures "58 years" the words and figures "60 years" shall be substituted."25
13. That objections were submitted by the aggrieved persons and that the Government after considering the representations arrived at the opinion that the proposed amendment is not conducive for industrial growth or harmony and shelved the proposal and decided not to pursue the same. That the decision to shelve the proposal was a conscious decision and it was decided to continue the status- quo with regard to the age of retirement or superannuation of the workman.
14. That the decision of the Government has not been communicated, but has been obtained by the petitioners under the Right to Information Act and annexed to the Writ Petitions as Annexure-C. It is further pleaded that even the Additional Labour Commissioner (IR) and appellate authority under the Employment (Standing Orders), 1946 by its order dated 09.10.2014 has recognized this fact and has turned down the demand of the workmen of M/s. L&T Company for enhancement of the age of retirement.
26
15. That the Government having shelved the proposal to alter the age of superannuation has after lapse of more than 7 years and for no discernable reason and without there being any kind of discussion on the subject or consideration of the objections filed by the petitioners and with utter impunity, disregarding the decision already taken and without any rational, promulgated the impugned notification bringing about the amendment to the schedule and thereby, substituted the age of retirement by enhancing the same from 58 to 60 years. That the same is without the authority of law.
16. That the important question of law involved in the writ petition is whether the final notification could be issued in the year 2017 in lieu of the intention notification of the year 2009. That the impugned notification is vitiated by outrageous delay and a foundational error as the notification amending the schedule has been published without inviting objections once again. That the final notification does not 27 indicate a chain of circumstances which warranted the Government to change its stance at this distant point of time.
17. The grounds urged in support of the petitions are that, viz, the State is bereft of authority in law to issue the impugned notification. That it does not stem from Section 15 of the Act 20 of 1946 and flows outside its purview. That the impugned notification is violative of Article 14-A, 19 (1) (g) and Article 21 of the Constitution of India. That the impugned notification is in the teeth of the dictum of the ruling rendered by the Hon'ble Apex Court in the case of Kailash Chandra vs. Union of India. That the Hon'ble Apex Court has held that the employers are not bound to retain any workman after a particular age irrespective of his efficiency and no employee even a ministerial employee is entitled to be continued beyond the prescribed age.
18. That the decision to amend is taken hurriedly even without a discussion and that too when the budget session was in progress and only in order to camouflage the same, it 28 is stated in the notification that the objections and suggestions received have been considered and addressed to by the Government. That apart from the said statement there is nothing on record to indicate the consideration of the objections. Hence, impugned notification is an act of legal malice and hence is hit by legal malice and hence violative of Article 14 of the Constitution of India. That the impugned notification is per-se illegal as the same is notified without following the due process of law and it ought to have been preceded by fresh deliberation as no reasons are set-forth setting out the changed circumstances which necessitated the notification of the proposed amendment. That the decision of the Government is arbitrary and going by the Wednesbury principle the same Government cannot take a diametrically opposite view. No public notices of hearing have been issued after the earlier decision of the Government to drop the proposal. That the enhancement of the age of superannuation would adversely affect the industrial growth 29 and harmony and would also deprive lakhs of youth of an opportunity to earn the livelihood.
19. That the State cannot force its political views and ethos on the industrial concerns nor can the industry be penalized for not adopting the notification in their respective standing orders and if such insistence is made, the same would be despotic and authoritative, thereby, resulting in violation of Article 14 of the Constitution of India also. That the law is well settled that amendment to the Model Standing Orders would not automatically apply to the employees unless the certified standing orders to that effect are amended by the Certifying Officer under the Act.
The following citations/decisions though filed into court are not elucidated on behalf of the petitioners:
1. The decision rendered by High Court of Karnataka in W.P.No.13072/2012 C.S.Jayalakshmi vs. The State of Karnataka
2. The decision rendered by High Court of Karnataka in W.P.No.10515/2008 C.S.Jagadesh Shastry vs. The State of Karnataka 30
3. The decision rendered by High Court of Karnataka in W.P.No.21257/2017 The Management of Gems vs. The Tumkur Zilla Engineering and General Workers Union
4. The decision rendered by High Court of Karnataka in the case of Nanjappa vs. The Management of Krishnarajendra Mill Limited
5. The decision rendered by Delhi High Court in W.P.No.13802/2006 R.N.Tiwari vs. Videh Sanchar Nigam Ltd.,
6. The decision rendered by Jharkhand High Court at Ranchi in W.P.No.4517/2005 Kamod Prasad Sinha vs. The Food Corporation of India.
7. The decision rendered by Odisha High Court in W.P.No.9279/2015 Premalatha Panda vs. The State of Orissa.
8. The decision rendered by Rajasthan High Court in W.P.No.8629/2010 Pukraj Choudhary vs. The State of Rajasthan.
9. The decision rendered by Hon'ble Supreme Court of India in the case of British Paint India Ltd., vs. The Workmen.
10. The decision rendered by Hon'ble Supreme Court of India in the case of Imperial Chemicals Industries vs. The Workmen and connected.
11. The decision rendered by Hon'ble Supreme Court of India in Civil Appeal No.605/2013 in the case of Rajiv Kapoor vs. Kiran Pal Singh.
12. The decision rendered by Hon'ble Supreme Court of India in Civil Appeal No.5527/2012 in the case of State of Utter Pradesh vs. Dayanaand Chakrawarty.31
20. The writ petitions are stoutly opposed by both, the State and the private respondents by filing detailed statements of objections. The statement of objections by the Respondents canvass common grounds and are mostly similar.
21. The prayer by the petitioners to strike-down the notification amending the entries in the schedule is resisted by contending that the writ petition itself is not maintainable and is liable to be dismissed in limine. It is pleaded that, for the first time in the year 1982, the age of retirement came to be introduced by inserting Clause 15-A in the Karnataka Industrial Employment Rules, 1961 fixing the age of retirement at 58 years. That the amendment enhancing the age of superannuation has been introduced after the passage of nearly 35 years and by no stretch of imagination can it be described as a hurried move. That the amendment would directly benefit nearly 21 lakhs workers employed in 4,032 factories and 6,900 shops and commercial establishments in 32 the State of Karnataka. That the amendment introduced is after taking into consideration the socio-economic considerations, the workers face at the advance stage of their life and nearing retirement, they are many a time called upon to incur expenditure in the discharge of the parental duty to finance higher educations or weddings of their off-springs.
22. That several States have already adopted and implemented 60 years as the age of retirement. A similar exercise by the Government of Madhya Pradesh is annexed and placed before the court as Annexure-R1. That the allegation that there was no consideration or discussion preceding the issuance of final notification is flatly denied. That all stake holders and the objectors have been called for discussions prior to issuance of the impugned notification. Further reliance is placed on the statistics released by the Union, Ministry of Health and Family Welfare, whereby, it is asserted that the life expectancy of the average Indian is above 68 years. Hence, the allegations that there is no rationale thinking prior to the issuance of the notification is 33 denied. It is further pleaded that the Government of India raised the age of superannuation from 58 to 60 years vide notifications dated 13.05.1998 and 28.05.1998. That the Government of Karnataka has also enhanced the age of superannuation to 60 years on 17.08.2008 in its budget for 2007-08. The allegation of foundational error is denied and is out-rightly rejected. It is averred that 10 objections from the employers and four suggestions from the unions were received and they have been duly considered. Hence, impugned notification is not tainted by any illegality on account of any procedural irregularity.
23. It is averred that the respondent is vested with full authority under the provisions of Section 15 of the "Act 20 of 1946" to issue the impugned notification and thereby, amend the age of superannuation by way of substituting the enhanced age limit.
24. That no final decision was taken by the Government pursuant to the draft notification and the matter 34 was kept pending. That in the year 2013, representations were received from the employee unions of M/s. Gajanana Motor Transport Company and M/s. Mysore Petro Chemicals pointing out the failure to take a final decision with regard to the intention notification of 2009. Hence, the State rejects the allegation that there was no justifiable reason for re- igniting the process to issue the impugned notification. That the pending file was taken up for consideration on the receipt of the representation by the workers Union in 2013.
25. It is averred that previously the Government had only deferred the final decision and there was no closure of the proceedings in a manner known to law. That it is the prerogative of the State, either suo motu or on the request of any person to progress the consideration of any proposal. Further, two representations dated 02.03.2013 and 18.12.2013 were received, prompting the executive to reignite the process.
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26. That amongst the 133 countries who are members of the International Labour Organisation, only 18 Nations have an age of retirement below 60 years. That in several developed countries the age of retirement is 65 years. That this is on account of the increase in life expectancy, which has dramatically altered on account of improved health of the populace. That the working population are required to be provided with a socio-economic security at the advanced age between 58 and 60. That the workman of this age group bring in their invaluable experience and knowledge acquired in the various fields which can be usefully passed on to the succeeding generation.
27. That the overall economic growth is over the rate of 7% and with "Make in India" and other investment friendly initiatives of the Central and State Governments, no dis-advantage is caused to anybody in the matter of employment opportunities.
36
28. That the Division Bench of this Court by its decision rendered in the case of M/s. Kennametal India Ltd. Vs. Kennametal India Employees Association held that, on expiry of a settlement between the workmen and the management, the workmen are entitled to seek alteration of the terms of settlement. Under the instant case, they are entitled to seek enhancement of age of retirement from 58 to 60 years which in fact was allowed by the certifying officer in the case of M/s. Kenna Metal India Limited Vs. Kenna Metal India Employees Association
29. It is contended that the amendment to the Model Standing Orders would take immediate effect and apply to industrial establishments which do not hold certified standing orders, thereby, resulting in automatic implementation of the notification. That with regard to industrial establishments holding certified standing orders, it is open either to the management or to the employees union to make an application to certifying officer under the provisions of Section 37 10 of the "Act 20 of 1946" for the purpose of enhancing the age of superannuation or retirement.
30. The learned Addl. Advocate General Sri. Aditya Sondi has also placed on record by way of a memo a tabular statement indicating life expectancy in India and also the extract of the Secretariat Manual indicating the meaning of 'Call Book'.
31. The private respondents have also preferred objections on similar lines. Apart from the above, it is averred that as per Rule 3 (1) of the Karnataka Rules, Model Standing Orders for the purpose of the Act have been set-out in Schedule-I appended to the said Rules. As per Schedule-I of the Model Standing Orders the prescribed age of retirement has now been raised to 60 years by way of substitution.
32. That all concerned parties have been heard and impugned notification is issued after consideration of all the objections and representations received by the Government. 38
33. That the amendment introducing the substitution of the age of retirement is in consonance with the policy decision of the State Government. That one of the considerations for issuing the impugned notification is the longevity of the life span of the workman. That the decision being a policy decision is not open to judicial review. That even otherwise considering the improved hygiene and the formulation of health schemes and various other social measures leading to improved food consumption has resulted in enhancing the longevity and life span of the workman. That apart, the trend of the decisions of the Hon'ble Apex Court with regard to the fixing of age of superannuation has been that the age of 60 years is reasonable, just and in consonance with the present trends.
34. That both the Central and State Governments and public sectors units, aided institutions and even in respect of autonomous institutions, the age of superannuation has been enhanced to 60 years.
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35. That the fact remains that the employees in the above sectors and institutions are provided with better socio- security measures and draw higher incomes. On the contrary, the salary paid to employees in the private sector is comparatively and substantively lesser. Hence, the writ petitions are misconceived and are liable to be rejected. That the Government has at no point of time ordered closure of the file pertaining to the notification dated 2009. On the contrary Government has heard all the stake holders and hence, the contention that the Government had a shelved the proposal is puerile and unsustainable.
36. That the Hon'ble Apex Court in similar circumstances while considering the similar issue of age of date of retirement above 50 years in the case of British Paints (India) Limited Vs. Its Workmen, reported in AIR 1966 SC 732 has pleased to observe as follows:-
"Considering that there has been a general improvement in the standard of health in this country and also considering that longevity have 40 increased, fixation of age of retirement at 60 years appears to us to be quite reasonable in the present circumstances. Age of retirement at 55 years was fixed in the last century in Government service and had become the pattern for fixing the age of retirement everywhere. But, time in our opinion has now come considering the improvement in the standards of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level and we consider that generally speaking, in the present circumstances, fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement."
37. It is averred that the Govt. has considered all objections and taking into consideration every aspect of the matter including the prevailing trend with respect to the age of retirement throughout the country, has arrived at a just conclusion and the Government has followed the due process of law. The contention that the Govt. had shelved the proposal is entirely baseless and is liable to be rejected. The contention that the impugned notification is likely to cause migration of industries is a desperate argument and a feeble attempt and contrary to reality.
41
Judgments relied upon by the learned AAG.
1. In the case of Indian Oil Corporation Ltd., vs. Joint Chief Labour Commissioner and Appellate Authority and others rendered by the High Court of Judicature at Delhi in Civil Writs Nos. 1770 and 3417 of 1987, dated 15 September 1989.
2. In the case of Pune Municipal Corporation & another vs. Promoters and Builders Association and another decision rendered in (2004) 10 SCC 796.
3. In the case of Securities and Exchange Board of India vs. Akshya Infrastructure Private Limited decision rendered in (2014) 11 SCC 112.
4. In the case of State of Tamil Nadu vs. M/s. Hind Stone and Others decision rendered in (1981) 2 SCC 205.
38. The respondents Unions namely, CITU & AITUC have also filed their detailed statement of objections on similar lines. It is contended that the respondents represent more than one lakh industrial and general workers in the State. The Trade Unions affiliated to it are recognized by the managements of industries and establishments and several bilateral settlements have been arrived at and executed between these respondent and managements. That enhancement of the age of superannuation by substitution in Clause-15A and Clause-22A of Model Standing Orders is in 42 consonance with public policy and is within the legislative powers of the appropriate Government. That even in recent past, in the cases of Mysore Cements Limited (Now known as Heidelberg Cement India Limited), Mico Limited and Astra Zeneca are some of the industrial establishments who have arrived at a settlement to increase the age of retirement to 60 years. That there are several industrial establishments like M/s. Kennametal Widia Co. Ltd., Federal Mogul, Printers Mysore, Champion Packaging, Expert industries, Incap Contracting Manufacturing Services Pvt. Ltd., etc. in respect of whom the authorities under "Act 20 of 1946" have certified the age of retirement as 60 years.
39. That the Central Govt., various State Governments, Central Govt. Undertakings, State Govt. Undertakings, Banking Industry, LIC, GIC and various autonomous bodies like IISc. II of Astro Fix, National Aerospace Laboratories, Vishveswaraiah Industrial and Technological Museum etc. have enhanced the age of 43 retirement to 60 years. That the fifth Central Pay Commission, an expert body has also recommended that the age of retirement of 60 years is just and reasonable.
40. That the Hon'ble Apex Court in India in various judicial pronouncements has held that it is reasonable to fix the age of retirement at 60 years in view of the development in the field of medical science and resultantly longevity of life and a reference is made to the following citations:-
(a) G.M. Talang & Others Vs. Shaw Wallace Co., Ltd., - AIR 1964 SC 1886.
(b) British Paints India Limited., Vs. Workmen -
1966 ILLJ Page 407 SC.
(c) Indian Antibiotics Ltd., Vs. Workmen 1967 ILLJ 114 SC.
(d) The Railway Board & Another Vs. A. Puchumani & Another - AIR 1972 SC 508.
41. That there are several industrial establishments who have on their own accord enhanced the age of retirement to 60 and some have fixed the age of retirement at 60 pursuant to settlement arrived at between the management and the workmen. In the light of the prevailing trends, the 44 amendment to the Model Standing Orders pursuant to the impugned notification is just and reasonable. That the amendment was necessitated as the adjudicating authorities/certifying authorities, under the "Act 20 of 1946"
are required to decide while certifying the reasonableness and fairness of the certified standing orders. The copy of the representation submitted by this respondent is produced and marked as Annexure-R1.
42. It is further averred that the instant petitioner has not filed any objections and hence, is not entitled to object to the impugned notification.
43. It is further averred that this respondent submitted representations on 03.05.2016 and 21.12.2016 seeking enhancement of the retirement age of the industrial workmen. That the representations are marked and produced as Annexure R2 and R3. That the amendment to clause 15-(A) and 22-(A) of the schedule-I of the Rules is just and reasonable, albeit belated. That all procedures have been 45 followed and the impugned notification suffers from no procedural infirmity. That the legislative action of enhancing the age of retirement is in the realm of policy making and the same cannot be called in question under Article 226 of the Constitution of India.
44. That the Government of the day yielded to the pressure brought upon them and thus allowed the file and the proceedings to languish, thereby, enabling a status-quo with regard to the age of retirement. That by itself would not tantamount to a final decision. That during the period 2016 the authorities have certified several standing orders certifying the age of retirement as 60 years.
45. That the first respondent has not only considered the objections but has also afforded an opportunity of hearing. That the first respondent kept in abeyance the further consideration of the proposal and at no point of time had the first respondent given it a quietus.46
46. The respondent denies that there is an outrageous delay and would specifically contend that the sole beneficiary of that outrageous delay is the petitioners who stood to gain as the workmen were deprived of the benefits they would have otherwise got if the impugned notification had been issued earlier. That thousands of workers have been deprived of their livelihood on account of the huge delay in promulgating the impugned notification. That the jurisdiction of the first respondent to introduce the amendments to the Model Standing Orders is beyond question. That the Model Standing Orders partake the characteristics of a statutory provision and as such the employer and workmen are bound by the same.
47. That it preempts the act of the employer in trying to retire the workman at his own sweet will. That the delay in issuance of the notification has not prejudiced the rights of the petitioners and on the contrary the petitioners have derived benefits on account of the delay and hence, cannot be 47 heard complaining about the Governments belated action.
That the impugned notification is neither arbitrary nor discriminatory and is brought about to fulfill the objective of the "Act 20 of 1946". It is asserted that there is no lapse on the part of the State and that the grounds raised in the writ petition with regard to opportunity and procedural irregularity and delay are patently false and entirely misleading. That the first respondent has entertained even objections that have been filed belatedly. That out of the thousands of employers only a microscopic section are opposed to the enhancement of the age of retirement.
48. The fourth respondent has also filed a detailed statement of objection on similar lines as canvassed by the other private respondents. Additionally it is contended that the employers having failed to lay challenge to the introduction of the item into the schedule or the amendment of the rules are estopped from impugning the present amendment substituting the age of retirement. The third 48 respondent has also filed a detailed statement of objections on similar lines.
Contentions:
49. Learned Sr.Counsel Sri S.S.Naganand appearing on behalf of the petitioners would contend that by virtue of the provisions of Section 15 of the Act of 1946, States are enabled to frame Rules. In consonance thereof, Rules of 1961 came to be framed and the Rules included the schedule. The learned Sr.Counsel would submit that a public notice inviting objections was published on 7.12.2009. By the said notification, objections were invited to the proposal of the State Government to enhance the age of superannuation by substituting the figure and words `58' with the figures `60' in the schedule to the Rules. He would submit that interested and aggrieved parties have submitted their manifold objections and the Government after discussion with the various stake holders had decided on 18.11.2010 not to pursue any further the notification dated 7.12.2009. He would contend that suddenly after the lapse of nearly six and 49 half years, the file came to be resurrected and the impugned notification dated 27.3.2017 came to be published. He would contend that the same is illegal as it is not done in the manner as stipulated under the law. He would submit that, in fact vide Annexure-C, by proceedings dated 2.8.2011, a decision was taken to close the file. Elaborating further, he would contend that having taken the said decision, the State has failed to state the reasons which forced it to reopen the file. He would contend that the State has also not made known the reasons that weighed with the Government to reopen the closed file. He would submit that the impugned notification could have been issued only after redoing the process and the respondent-State ought to have called for objections afresh in the light of the enormous delay and the decisions dated 18.11.2010 and 2.8.2011. Continuing further, he would submit, Government should have at least held a process of re-consultation and the Government merely acting on the representation of the workmen can in any no manner be equated with the process of consultation as 50 mandated under the proviso to Section 15(2) of the Act. He would further contend that the impugned notification is bad and stands vitiated in the light of the decision of the Government to maintain the prevailing status. That the decision to maintain status-quo is by itself a final decision and the decision having been taken by the Hon'ble Minister the process had attained finality. He would contend that on account of inordinate delay, the industries which came into existence after the publication of the intention notification have been deprived of an opportunity to put-forth their objections to the notification and he would further contend that by the decision of the Minister to maintain status quo, the earlier notification spent itself. He would contend that, the impugned notification stood vitiated on account of the inordinate delay itself. Elaborating the said contention, he would contend that the exercise of power by the State and the authorities ought to be in a reasonable manner and within a reasonable time.51
50. In this regard, in aid of his contention, he would place reliance on the ruling of the Apex Court reported in (2009) 9 SCC 352. He would invite the attention of the Court to para. 11 wherein the Hon'ble Apex Court has been pleased to observe as follows:
"11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein."
51. He would submit that the delay of more than six and a half year's can by no stretch of imagination be construed and considered as a reasonable time and hence, the exercise of power by the respondent-State resulting in 52 issuance of notification stands vitiated as being unreasonable and beyond reasonable time.
52. To buttress the said contention, he would place further reliance on another ruling of the Apex Court reported in (1984) 1 SCC 125. He would invite the attention of this Court to the observations of the Hon'ble Apex Court in para.12:
"12. What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, there is one more aspect of the matter which we cannot overlook. The appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. Basantrai Sharma in his lifetime tried to obtain possession of the premises from the appellant 53 alleging grounds available to him under the Rent Control Order other than unauthorised entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, his successor-in-interest one Smt Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorised. To slightly differently formulate the proposition, could the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict 54 the appellant on the short ground that he entered the premises in contravention of clause 22(2)? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial Entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which 55 he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal v. State of U.P1 wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by Section 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this Court declined to interfere with that order. No doubt it must be confessed that Section 7-A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of 56 power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha. In that case Commissioner exercised suo motu revisional jurisdiction under Section 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2).57
53. From a reading of the above, it is apparent that the Apex Court has not only frowned upon the delayed actions but has categorically held that the exercise of power must not only be in a reasonable manner but also within a reasonable time. There can be no quarrel with the proposition of law as enunciated by the Hon'ble Apex Court.
54. He would submit that the State having failed to adhere to the procedure as mandated by the law the impugned notification is vitiated by arbitrariness and thereby is violative of the provisions of Article 14 of the Constitution of India thereby rendering perverse the exercise of power by the State and consequently vitiating the impugned notification. In support of his contention, learned Sr.Counsel places reliance upon the ruling of the Apex Court reported in AIR 1986 SC
515. Reliance is placed on the observations of the Hon'ble Court in Paragraphs 73, 77 and 93. In the opinion of this Court the said ruling is of no avail to the petitioner as the petitions do not demonstrate any arbitrariness. 58
55. He would draw the attention of the Court to Annexure-C to the writ petition being the copy of the note sheet contained in the file pertaining to the impugned notification and issued to the petitioners under the RTI Act. He would invite the attention of the court to notings at paragraphs 34, 35 and 36 and he would contend that the respondent-State after considering the objections that enhancing the retirement age is likely to act as a disincentive to prospective investors had consciously taken a decision to maintain the prevailing status in respect of retirement age.
56. He would draw the attention with particular reference to the file, note at para.36 dated 18.11.2010. He would further draw the attention to para.41 of the note sheet wherein by proceeding dated 2.8.2011, the Deputy Secretary to Government, Labour Department has drawn up the proceedings as under:
59
"41. PÀqv À ª À £ À ÀÄß ¥ÀÄ£Àgï «ÃQë¹zÉ. n¥Ààt PÀArPÉ 33-36 £ÀÄß zÀAiÀÄ«lÄÖ £ÉÆÃqÀĪÀÅzÀÄ. ¥Àæ¸ÀÄÛvÀ AiÀiÁªÀÅzÉà PÀª æ ÀÄ E®è¢gÀĪÀ PÁgÀt PÀqv À ª À £ À ÀÄß ªÀÄÄPÁÛAiÀÄUÉƽ¸À§ºÀÄzÀÄ."
57. He would also invite the attention of the Court to the reasoning preceding the purported decision of the State which is reflected in para.34 of the note sheet.
"34. ¥À¸ æ ÁÛ«vÀ wzÀÄÝ¥r À UÉ PÀ£ÁðlPÀ JA¥ÁèAiÀÄgïì C¸ÉÆùAiÉÄõÀ£ï, ¨ÉAUÀ¼ÀÆgÀÄ ZÉÃA§gï D¥sï PÁªÀĸÀð CAqï EAqÀ¹Öçøï, D¯ï EArAiÀiÁ ªÀiÁå£ÀÄå¥sÁåPÀj Ñ AUï C¸ÉÆùAiÉÄõÀ£ï ¹LL ªÀÄÄAvÁzÀ ºÀ®ªÁgÀÄ ¸ÀA¸ÉÜU¼ À ÀÄ DPÉëÃ¥ÀuU É ¼ À £ À ÀÄß ¸À°è¹gÀÄvÀÛª.É EzÀ®èzÉ ºÀ®ªÁgÀÄ ªÉâPÉU¼ À ° À è ºÁUÀÆ EwÛÃZÉUÉ £Àqz É À «±Àé §AqÀªÁ¼À ¸ÀªÉÄäüÀ£z À ° À è ¸ÀºÀ EzÀgÀ §UÉÎ DPÉëÃ¥ÀuU É ¼ À £ À ÀÄß JvÀÛ¯ÁVzÉ.
¸Áj¸ÀUÀmÁV ¤ªÀÈwÛ ªÀAiÀĸÀì£ÀÄß ºÉa¸ Ñ ÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¤ªÀÈwÛ ªÀAiÀĸÀì£ÀÄß ¥Àw æ AiÉÆAzÀÄ PÉÊUÁjPÉ ºÁUÀÆ C°èAiÀÄ PÉ®¸ÀzÀ ªÉÄÃ¯É ¤zsð À j¸À¨ÃÉ PÁUÀÄvÀÛz.É PÉ®ªÉÇAzÀÄ PÉëÃvÀz æ ° À è 58 ªÀAiÀĹì£À £ÀAvÀgÀ PÁ«ÄðPÀgÀ PÁgÀåzÀPÀëvA É iÀÄ£ÀÄß ¸ÀºÀ ¥Àj²Ã°¸À¨ÃÉ PÁUÀÄvÀÛzÉ ºÁUÀÆ F PÀª æ ÄÀ ¢AzÀ ¤gÀÄzÉÆåÃUÀ ¸ÀªÀĸÉå ºÉZÀÄv Ñ ÀÛz.É F PÀª æ ÀĪÀÅ §AqÀªÁ¼À ºÀÆrPÉUÉ ¨ÁzsPÀ ª À ÁUÀ§ºÀÄzÉAzÀÄ CªÀgÀÄ ¥Àw æ ¥Á¢¹gÀÄvÁÛg.É "
58. From a reading of the above, it is apparent that the grounds of objections canvassed by the Karnataka Employers Association is that, the proposal had drawn adverse reaction during the `Global Investors Meet' and that unilaterally enhancing the age of retirement is improper and 60 that the fixation of age of retirement ought to be with reference to the nature of work and that in certain sectors employing workmen beyond the age of 58 years is hazardous that the proposal is likely to increase the rate of unemployment and lastly the proposal is likely to have an adverse impact on the investments proposed in the State. It is contended that, on the above grounds, the State decided not to further pursue with the notification and ordered that the status-quo be maintained in the matter and the same amounts to a final decision.
59. Nextly, learned Sr.Counsel would elaborate the contention with regard to non-observance of mandatory procedure of consultation. In this regard he would contend that, in the process of rule making by subordinate legislation, it is mandatory upon the rule making authorities to follow and adhere to the requirement of law. He would contend that neither the material which necessitated the re-opening of the file nor the reasons for re-opening the file have been 61 furnished to the petitioners. That the failure to furnish the material relied upon by the State to restart the process by itself vitiates the impugned notification. He further elaborates this contention by stating that the consultation must be stage-wise and parties ought to have been heard before the State ventured to issue the impugned notification. In support of his contention, the learned Sr.Counsel would place reliance on the extract from the book on `Administrative Law' by Sir William Wade, 10th Edition and extracts from De Smith's Judicial Review, 6th Edition. He would submit that wherever the procedure requires a consultation, the same has to be stagewise. The author on the subject of preliminary consultation has been pleased to observe as follows:
"HEARING OF OBJECTIONS In the case of rules and orders which are clearly legislative as opposed to administrative, there is normally no room for the principle of natural justice which entitles person affected to fair hearing in advance, But where regulations, though general in form, bear particularly hardly on one person or group, an exception may be made.62
Orders fro such things as housing and planning schemes, although they may affect numerous people, are for this purpose treated by Parliament, and also by the courts, as matters of administration and not of legislation. They are subject to the procedure of preliminary public inquiry under various Acts, and also to the principles of natural justice, as we have seen. The right to reasoned decisions given by the Tribunals and Inquiries Act 1992 is expressly excluded in the case or rules, orders or schemes of a legislative and not an executive character. But it may be presumed that the right extends to all orders and schemes of the kind just mentioned.
The US Federal Administrative Procedure Act 1946 gives a right to interested persons to participate in the rule-making through submission of written data, views or arguments', and in some cases Congress has prescribed a formal hearing. Hearings preliminary to rule-making have thus become an important part of the administrative process in the United States. But there is often no right to an oral hearing and there is a wide exception where the authority finds 'for good cause' 63 'that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest'.
In Britain the practice counts for more that the law. Consultation with interests and organizations likely to be affected by rules and regulations is a firmly established convention, so much so that is unusual to hear complaint. Whether or not consultation is a legal requirement, once embarked upon it must be carried out properly. This requires consultation while the proposals are still in a formative stage, adequate reasons for the proposals to be given so that those consulted may give an 'intelligent response', adequate time to do so and proper consideration of those responses. It may be that consultation which it not subject to statutory procedure is more effective formal hearing, which may produce legalism and artificiality. The Cabinet Office has published a code of practice on consultation which will apply to most Government initiatives, including delegated legislation. It has no formal legal force but urges timely, through and focused consultation.64
STATUTORY CONSULTATION AND ADVISORY BODIES Particular Acts often require affected interests to be consulted by the responsible minister. Some statutes provide for schemes of control to be formulated by the persons affected themselves. Another device which is often used is that of an advisory committee or council, which is set up under the Act and which must be consulted. The council will usually be constituted so as to represent various interests, and so as to be independent of ministerial control. And, in its turn, it may often consult other persons. Procedural rules for statutory tribunals may be made only after consultation with the Council on Tribunals. In these cases there is no statutory procedure for consulting other interests such as there is with the Social Security Advisory Committee. But these councils may consult other people and hear evidence if they wish, and frequently they do so.
A statutory duty to consult requires that the person or body consulted should be given a reasonably ample and sufficient opportunity to state their views 'before the mind of the executive 65 becomes unduly fixed. It is not satisfied if it is treated as a mere opportunity to make ineffective representations. Moreover, where there is a history of dealing between consultor and consultee and the impact of the proposed regulations on the consultee's business would be profound, fairness requires disclosure of the reports of independent experts on which the consultor seeks to rely. To this extent the principles of natural justice can apply to delegated legislation. There is no general duty, however, to disclose the representations to any other person.
Failure to consult will normally render the order void, as for neglect of a mandatory requirement."
60. From the above, one can safely deduce that right of oral hearing is an exception and not the normal rule. With regard to the concept of statutory consultation, the author has observed that, the statutory duty cast to consult would imply the person or body to be consulted should be given a reasonably ample and sufficient opportunity to state their views. Elaborating further on the point, the learned 66 Sr.Counsel would also take this Court to the observations of the author De Smith in his book `Judicial Review' at para. 7-054 in the matter involving consultation has been pleased to observe as follows:
"Essentially, in developing standards of consultation, and applying those standards to particular statutory contexts, the courts are using the general principles of fairness to ensure that the consulted party is able properly to address the concerns of the decision-maker. Although consultation must take place at the formative stage, it does not require consultation on every possible option, although there should be consultation on every viable option. Consultation may be phased. It is clearly necessary to consult sufficiently widely; and to give adequate time to those consulted to respond. Proper consultation requires the "candid disclosure of the reasons for what is proposed" and that consulted parties are aware of the criteria to be adopted and any factors considered to be decisive or of substantial importance. Consultation documents "should be clear as to their purpose". The consultation must also be in respect of proposals, rather than merely a bland generality. Where the 67 decision-maker has access to important documents which are material to its determination whose contents the public would have a legitimate interest in knowing, these documents should be disclosed as part of the consultation process. While consultation requires that sufficient reasons be given for the particular proposals to enable those consulted to give intelligent consideration and an intelligent response to the proposals, it does not usually require that sufficient information be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections. Moreover, in general, there is no duty to re-consult unless there is a "fundamental difference" between the proposals consulted on and those which the consulting party subsequently wishes to adopt, or if, after consultation has concluded, the decision-maker becomes aware of some internal material or a factor of potential significance to the decision to be made. A consultation may be vitiated however where errors have been made by either the consulted party or the adviser.68
61. The learned Sr.Counsel with regard to the above, would place reliance on the ruling of this Court rendered by a co-ordinate Bench of this Court and reported in ILR 1990 KAR 427, wherein this Court, while dealing with the scope of the words, "after previous publication in conjunction with Section 23 of General Clauses Act" was pleased to hold, reasonable opportunity must be given to the aggrieved person to go through the draft rules and to file objections and that in the event of denial of such opportunity, the rule cannot be enforced against such persons.
62. Lastly, the Sr.Counsel Sri S.S.Naganand would place reliance on the ruling of this Court rendered in the case of M.C.Raja vs.Deputy Director reported in 1985 (1) LLJ 210 and would draw the attention of the Court to the opinion expressed by the Court at para.7 and it is relevant to state that the Division Bench was dealing with an issue of coming into effect of the amendment to the model standing orders and the Division Bench held as follows in para.7: 69
"7. What is expressly provided in S. 12-A of the Act is that the prescribed Model Standing Orders shall be deemed to be adopted by the establishment commencing from the date on which the Act becomes applicable to the Industrial Establishment and ending with the date on which the Standing Orders as finally certified under the Act come into operation under S. 7. The transitory period during which the Model Standing Orders shall be deemed to be applicable to the establishment has been provided with precision. That period is the one between the date on which the Act becomes applicable to the establishment and the date on which the Standing Orders as finally certified under the Act come into operation under S. 7. The expression 'commencing from the date on which the Act becomes applicable' is significant. It does not speak of the date on which any amendment to the Act or Rules comes into force. If the contention of Sri. Krishnaiah is accepted S. 12- A will get attracted on every occasion when the Act is amended. But what is provided by S. 12-A is fixed date for commencement of the transitory period during which the Model Standing Orders shall be deemed to be applicable, which is the date on which the principal Act came into force. The other termini of 70 the transitory period is the date on which the Standing Orders as finally certified under the Act come into operation under S. 7. Here again, the reference is to the final Standing Orders and not to the amendment to the Standing Orders already in operation in the establishment. The contention urged by Sri Krishnaiah, in our opinion, leads to absurd results if the Model Standing Orders become applicable with effect from the date of commencement of the Act as it would be giving retrospective effect to the amended Model Standing Orders when the amendment to the Act itself making provision in that behalf did not provide for giving any retrospective operation. The language of S. 12- A makes it clear that the Model Standing Orders shall be deemed to be applicable until the standing Orders are made as contemplated by the Act. The reference to the Standing Orders, as finally certified under the Act in S. 12-A, is obviously to the first Standing Orders made for the establishment after the Act came into force. It therefore follows that if the Model Standing Orders are amended subsequent to the coming into operation of the first Standing Orders in respect of the particular establishment, the same do not automatically become applicable to the 71 establishment concerned. Steps have to be taken to amend the existing Standing Orders in accordance with S. 10 of the Act. Until Such steps are taken to amend the existing Standing Orders to bring them in conformity with the amended Model Standing Orders, the amended Model Standing Orders will not be applicable to the establishment."
63. There can be no quarrel with the proposition of law laid down by the Division Bench and any digression on this point is not necessitated as the challenge in the present case is the validity of the amendment itself. Hence, this Court does not express any views with regard to the same.
64. Per contra, Sri.Subba Rao, learned Senior Counsel would lead challenge on behalf of the private-respondents and contend that the challenge to the final notification enhancing the age of superannuation from 58 years to 60 years by way of substitution is baseless as it is well within the statutory power vested in the respondent-State. He would submit that originally the age of superannuation was neither incorporated in the Schedule nor in the Model Standing Orders. That the 72 age of superannuation came to be inserted into Schedule vide amendment dated 11.03.1982.
65. He would submit that the amendment by way of substitution assumes significance particularly with reference to the proviso to sub-Section (2) of Section 15 of the Industrial Employment (Standing Orders) Act, 1946. He would contend that the proviso mandating process of consultation comes into play only if State desires or attempts to include additional matters to the Schedule. He would further draw the attention of the Court to the proviso more particularly to Clause (a) of sub-Section (2) of Section 15 of the Act. On a bare reading, the language of Clause (a) clearly pertains to attempts by the appropriate Government to prescribe additional matters to be included in the Schedule and while modifying the Standing Orders certified under this Act the specified procedure is to be followed.
66. From a reading of the proviso, it is obvious that the proviso contemplates prior consultation with both 73 employer and the workman in the event, the appropriate Government deems it necessary to frame Rules under Clause
(a) of Section 15(2) of the Act.
67. The interpretation placed by the learned Senior counsel virtually undermines the primary contention on behalf of the petitioners. Learned Senior counsel elaborating further on the said contention would submit that in the instant cases, the notification impugned does not come within the ambit of Clause (a) of Section 15(2) of the Act, as it neither purports to include additional matters to the Schedule or amounts to framing of Rules, specifying the procedure to be followed in modifying certain Standing Orders. He would further contend that by the impugned notification, no additional matter is sought to be prescribed or introduced in the Schedule to the Rules. He would contend that under the impugned notification, the Government by invoking power vested under Clause (b) of sub-Section 15(2) of the Act has substituted the words and figures only and 74 that the appropriate Government has exercised the power vested in it under Section 15 (2) (b) of the Act and that being the case, the question of application of proviso to mandate prior consultation is inapplicable. He would further contend that the proviso would be attracted only in the event of there being an amendment to the Act. In the present cases, the exercise being restricted to amending the Schedule to the Rules by way of substitution, the proviso is not attracted.
68. Apart from the objections to the applicability of the proviso, he would contend that even otherwise factually also there is no violation of the mandate of the proviso to Section 15(2) of the Act. He would invite the attention to paragraph 20 of note sheet produced at annexure-C to the writ petitions wherein the respondent-State has also considered the objections, filed belatedly, to the intention notification. He would contend that even assuming that the consultative process is required to be undergone before the respondent- State issued the notification, the said requirement has also 75 been fulfilled. He would submit that the very fact that the belated objectors have also been consulted, is by itself sufficient to reject the contention that the process of consultation has been given a go bye. He would submit that elaborate arguments have been advanced on the issue of non- compliance by the respondent-State of the consultative process but factually the material on record suggest otherwise.
69. He would contend that the rulings relied upon by the learned Senior counsel on behalf of the petitioners is inapplicable to the facts and circumstances of the case. He would submit that the alleged delay has not caused any prejudice to the petitioners and on the contrary, the petitioners have directly benefited by the delay. He would submit that even otherwise, the issue of age of superannuation at 60 years has already been the subject matter of discussion by the Apex Court and favourably considered by the Courts.
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70. He would contend that in similar circumstances, the challenge was raised to the State notification dated 16.03.2011 issued under Section 15 of the ESI Act, 1948 thereby extending the operation of the ESI Act to the Educational Institutions in the State and that the Doctrine of Desuetude was pressed into the service there, on the premise that the primary or intention notification was not acted upon in the next six to seven years and that the same has to be construed as a spent notification and that the Court while answering question No.2 that arose in the writ petitions, was pleased to negate the said contention.
71. The Co-ordinate Bench of this Court while disposing W.P.Nos.31457-31460 of 2017 and connected matters has been pleased to hold that the Doctrine of desuetude does not come to the rescue of the petitioners merely on account of there being delay or time lapse between the issuance of intention notification and the final 77 notification. The learned Single Judge was pleased to observe as follows:
"36. Question No.2: Whether the time-gap between the intention notification and the final notification can exceed six month or one month, as the case may be?
37. The answer is emphatic 'yes'. The statute does not prescribe any time limit for issuing the final notification. On the ground that the final notification is issued after 6-7 years of the issuance of the intentment notification, the former cannot be invalidated. When the statute itself does not contain any restriction, prohibition or embargo in the matter, this Court would not venture to prescribe any time- limit. That apart, no prejudice is caused to the petitioning association/institutions by the delay of 7 years. If anybody's interest are affected by the inordinate delay, it is only the employees' interest. The Madras High Court in the case of Maharaja College (supra) has laudably considered the ground of delay as follows:
"Further the plea that notification came to be issued after 21/2 years from the preliminary notification and hence it is invalid 78 also cannot be accepted as the petitioners are not bound to be losers by delay. There cannot be said to be any prejudice by the said delay.
On the other hand, the coverage of
establishment only starts from a final
notification. If at all, to some extent the petitioners were said to be benefited by the delay. It may be their employees who are affected by the belated coverage and they are said to have lost valuable benefits arising out of the labour legislation."
38. The doctrine of desuetude also does not come to the rescue of the petitioners in any way. The said doctrine means that a statutory provision has become a dead letter on account of not only its disuse but also contrary practice for some long duration. The second factor of contrary practice or usage is not shown in the instant case. This Court finds it horrendously difficult to hold that there is implied or quasi withdrawal of the earlier notification of intention."
72. He would further draw the attention of the Court to the judgment rendered by the High Court of Judicature at 79 Madras in the case of Maharaja College of Arts and Science v. State of Tamil Nadu wherein, the Hon'ble Court was pleased to reject/repel a similar contention, that the lapse of time of 2½ years between the intention notification and the final notification vitiates the final notification. In fact, the Hon'ble Court was pleased to observe that the petitioners are direct beneficiaries on account of delay and that no prejudice is caused on account of the alleged delay.
73. Proceeding further, he would place reliance on the ruling of the Apex Court rendered in the case of M/S. British Paints (India) Ltd. vs Its Workmen reported in AIR 1966 SC 732 and draw the attention of the Court to the observations made by the Apex Court in para Nos.5 and 7. The same reads as under:
"5. Considering that there has been a general improvement in the standard of health in this country and also considering that longevity has increased, fixation of age of retirement at 60 years appears to us to be quite reasonable in the present circumstances. Age of retirement at 55 years was 80 fixed in the last century in government service and had become the pattern for fixing the age of retirement everywhere. But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement.
7. As to the factory workmen, it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one 81 hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particular arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and sub-ordinate staff. This appears to have been so in the case of Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might, therefore, have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore, think that even in the case of future factory-workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a 82 workman if he becomes physically or mentally incapable of working before the age of retirement.
This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We, therefore, modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory workmen, whether existing or future, at the age of 60 years."
74. Sri.Subba Rao, learned Senior counsel would take the Court through the provisions of Section 4 of the Act and contend that the act enables the certifying authority to fix the age of retirement lower than the age specified under the Model Standing Order. Section 4 of the Act reads as under: 83
"4, Conditions for certification of standing orders. - Standing orders shall be certifiable under this Act, if,-
(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and
(b) the standing orders are otherwise in conformity with the provisions of this Act;
and it (shall be the function) of the Certifying Officer or Appellate Authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order."
75. On a plain reading of the provision, it is apparent that the contention advanced by the learned Senior counsel is not without substance. The provision mandates that it shall be a function of the Certifying Officer to adjudicate upon fairness or reasonableness of the provision of any Standing Order thereby implying that it is adjudicatory process which give scope for the parties to have an adjudication with regard to the age of retirement.
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76. He would contend that it is open for the Certifying Officer to certify a different age of superannuation for different classes of employees for reasons to be recorded and that it is not impermissible in law and hence, the present writ petitioners have jumped the gun and in fact have attempted to have factual aspects adjudicated under Article 226 and the same is impermissible. He would further contend that by enhancing age of retirement, future uncertainties of the workmen which stare at them at the advanced age stands mitigated. He would further contend that the enhancement of the retirement age is directly relatable to the enhanced average life span or longevity.
77. He would further place reliance on the ruling of the Division Bench rendered in W.A.No.2395/2012 in the case of M/s. Kennametal India Ltd vs. Kennametal India Employees' Association disposed of on 29.05.2017 and draw the attention to the observations of the Division Bench made in para Nos.7 and 8, which reads as under:
85
"7. There is no substance in the submission made by the learned counsel for the appellant that the Respondent Association ought to have filed another fresh application after the expiry of period of settlement. The very same application was again considered by the Certifying Authority on merits and came to be allowed enhancing the age of retirement from 58 years to 60 years by a considered order keeping in mind the observation made by the Apex Court in AIR 1959 Supreme Court 1279 (Guest Keen, Williams Pr. Ltd., Calcutta Vs. P.J.Sterling and Others), AIR 1980 SUPREME COURT 2181 (The Life Insurance Corporation of India Vs. D.J.Bahadur and Others), 1970 I LLJ 336, (Burmah-Shell O.S. & D.Cos), SC 1967 I LLK P 191 (Hindustan Antibiotics Ltd., Vs. Their Workmen) and 1964 II LLJ 644 (Talang (GM) Vs. Shaw Wallace and Company Limited and the various parameters such as, nature of the work assigned to the employees in their course of employment, the nature of wage structure paid to them, the retirement benefit and other amenities available to them, the age of superannuation fixed in comparable industries in the same region, the general practice prevailing in the industry in the past in the matter of retiring its employees etc., The Appellant Authority ratified the 86 decision of the Certifying Authority. The Writ Petition preferred also met with the same result. The learned Single Judge while dismissing the Writ Petition, in Para 8 and 9 of the judgment, observed as under:-
"8. Secondly, it is contended that the certifying officer committed an illegality in not considering the relevant factors for enhancement of age of retirement. There is no substance in this contention. A perusal of the impugned order passed by the certifying officer specifies that by following the law declared by the Apex Court, this court, the age of retirement in similarly situated industry, the general trade, the model standing orders and other circumstances the certifying officer held that the age is to be enhanced from 58 to 60 years. The certifying officer also noticed that as per the certified standing orders, discretion is vested with the petitioner company to enhance the retirement age from 58 to 60 years. By considering the entire objections filed by the petitioner and also the entire material on record, the certifying officer rightly concluded that the age of retirement is to be enhanced. In the circumstances, I find no justifiable ground 87 to interfere with the impugned order.
Accordingly, the writ petition is liable to be dismissed.
9. It is brought to my notice that subsequent to the order of certifying officer on 26.08.2011 some of the employees have retired from service. The order of certifying officer will come into effect on expiry of 30 days from the date of order. Therefore, the petitioners to extend the monetary benefit to such of the employees who have retired from service on the expiry of 30 days from the date of order of certifying officer."
8. We have also gone through other documents so as to ascertain the financial viability of the Appellant. It has been running under profit. From the perusal of the aforesaid decisions of the Apex Court, the trend is in favour of enhancement of age of superannuation from 58 years to 60 years since from 1960. Now, we are in 2014. Definitely, the life expectancy has greatly increased in recent years due to healthier living conditions, better food and improved medical facility. It is equally true that the needs of workmen are greater between 50 years and 60 years. 88
They have to look after education and marriages of their children. The retirement age of the Government servant is also increased from 58 years to 60 years. The Appellant Company has not made out any circumstances, much less, special circumstances justifying the fixation of the retirement as 58 years even in the year 2014. It is needless to say that in general, the efficiency of a workman is not impaired till the age of 60 years. It must be remembered that this Court does not interfere with the order passed by the Certifying Authority which has been ratified by the Appellate Authority and the learned Single Judge in Writ Petition unless it suffers from grave errors. Thus, having regard to the facts and circumstances of the case, we do not find any error committed by the Certifying Authority, Appellate Authority and the learned Single Judge while enhancing the age of retirement as 60 years, which is fair and proper."
78. He would also place reliance on the judgment by the Co-ordinate Bench of this Court rendered in W.P.No.47312/2013 and decided on 10.01.2017, whereby, the Co-ordinate Bench of this Court has been pleased to uphold the orders of the Certifying Authority and the 89 Appellate Authority enhancing the age of retirement of the workman belonging to the respondent-Union therein from 58 years to 60 years by amending Clause 29 of the Standing Orders of the Company. He would contend that the enhanced stage of superannuation is in vogue in numerous industries across the State.
79. Learned Senior counsel proceeding further would contend that fixation of age of retirement is a policy decision and in this regard, he would place reliance on the ruling of the Apex Court in the case of T.P.George and Ors. vs. State of Kerala and Ors. reported in 1992 Supp. (3) SCC 191. Learned Senior counsel would contend that policy decisions are in the domain of the executive and are beyond the scope of judicial review unless and until it can be demonstrated that the policy is perse illegal or arbitrary. He would draw the attention of the Court to para.6, which reads as under:
"6. Although the appeals and the writ petitions, in our view, cannot succeed, we do feel that age of retirement fixed at 55 years in the case 90 of teachers of affiliated colleges is too low. It is only after a teacher acquires several years of teaching experience that he really becomes adept at his job and it is unfortunate if the students have to lose the benefit of his experience by reason of an unduly early age of retirement. However, it is not for the court to prescribe the correct age of retirement but that is a policy function requiring considerable expertise which can properly be done by the State Government or the State Legislature or the Universities concerned. We hope that some time in near future, the State Government will be able to consider the question and determine the age of retirement as it best thinks fit."
80. Learned Senior counsel would contend that the impugned notification does not amount to subordinate legislation but it is merely an amendment. In support of his contention, learned counsel would place reliance on the ruling of the Apex Court rendered in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Parithos Bhupeshkumar Sheth and others reported in AIR 1984 SC 1543 and invite the attention of the 91 Court with particular reference to the observations of the Hon'ble Apex Court at para Nos.15, 16 and 18, which reads as under:
"15. We shall first take up for consideration the contention that clause (3) of Regulation 104 is ultra vires the regulation-making powers of the Board. The point urged by the petitioners before the High Court was that the prohibition against the inspection or disclosure of the answer papers and other documents and the declaration made in the impugned clause that they are "treated by the Divisional Board as confidential documents" do not serve any of the purposes of the Act and hence these provisions are ultra vires. The High Court was of the view that the said contention of the petitioners had to be examined against the back-drop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing off the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regulation 104 had failed to detect the mischief. In our opinion, this 92 approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation-whether a rule or regulation or other type of statutory instrument-is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus within the object and purpose 93 of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegated by the Statute. Though this legal position is well established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the High Court to the consideration of the question as to whether the impugned clause (3) of Regulation 104 is ultra vires. In the light of the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regulation 104 (3).94
16. As already noticed, the power to make regulations is conferred on the Board by Section 36 of the Act. Sub-section (1) of the said Section lays down that the Board may make regulations for the purpose of carrying into effect the provisions of the Act. Sub-section (2) enumerates, in clause (a) to (n) the various matters for which the provisions may be made by such regulations, the said enumeration being without prejudice to the generality of the power conferred by sub-section (1). We have already extracted clauses (c), (d), (f) and (g) which deal with the conditions governing admission of candidates for the final examinations, the arrangement for the conduct of final examinations by the Divisional Boards and for publication of results, and the appointment of examiners, their powers and duties in relation to the final examinations, etc. These topics are comprehensive enough to cover the prescription of the procedure for finalizing the results of the examination based on the evaluation of the answers of the candidates who have appeared for the examinations, as well as the laying down of the restrictive provisions relating to verification of marks, prohibition against disclosure and inspection of answer books and denial of any right or claim for 95 evaluation. We fail to see how it can be said that these are not matters pertaining to the conduct of the final examination and the publication of the results of such examination. Further, Section 19 of the Act which sets out the powers and duties of a Divisional Board lays down in clauses (f) and (g) that the Board shall have the power and is under a duty to conduct in the area of its jurisdiction the final examination on behalf of the State Board and to appoint paper- setters, examiners, etc, for conducting the final examination in the area of its jurisdiction, for evaluation of candidates, performances and for compiling and release of results in accordance with such instructions as the State Board may from time to time issue. It is thus clear that the conduct of the final examination and the evaluation of the candidates' performance and the compiling and release of results are all to be carried out by the divisional Board in accordance with the instructions to be issued by the State Board from time to time. It is, therefore, manifest that a duty is cast on the State Board to formulate its policy as to how the examinations are to be conducted, how the evaluation of the performances of the candidates is to be made and by what procedure the results are to 96 be finalised, compiled and released. In our opinion, it was perfectly within the competence of the Board, rather it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, within the ambit of the general power to make regulations conferred under Sub-section (1) of Section 36. In addition, these matters fall also within the scope of Clause (c), (f) and (g) of Sub- section (2) of the said Section. We do not, therefore, find it possible to accept as correct the view expressed by the High Court that Clause (3) of Regulation 104 is ultra vires on the ground of its being in excess of the regulation-making power conferred on the Board Instead of confining itself to a consideration whether the impugned regulations fall within the four corners of the Statute and particularly 97 of Section 36 thereof which confers the power to make regulations, the High Court embarked upon an investigation as to whether the prohibition against disclosure and inspection of answer books and other documents imposed by the impugned Clause (3) of Regulation 104 would, in practice, effectively serve the purpose of the Act ensuring fair play to the examinees. The High Court was of the opinion that'll deciding the question as to whether the impugned clause was ultra vires, the Court had to bear in mind "the glaring deficiencies" found to exist in the working of the system inspite of all the elaborate precautionary measures taken for preventing such lapses which were detailed in the affidavit in reply and "the far- reaching implications of the said deficiencies on the future of the examinees" and it went on to observe that "the nexus or absence thereof between the purposes of the Act or the purpose of the examination and the prohibition against inspection in the impugned clause can be discovered only by reference to these factors. Then the High Court proceeded to make following further observations:98
"he examinee is the person affected by miscalculation of totals, omissions to examine any answer, misplacement of the supplementaries of the answer books and misplacement or tampering with the said record in any manner, if any. Adverse result creates suspicion in his mind about the possible errors in the system and his claim to inspection against this background must be held to be reasonable and calculated to observe the purposes of the examination as also the over-all purposes of the Act. This enables him to verify if his suspicions are ill or well founded. Existence of some over-riding factors alone can justify denial of his claim."
18. In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or 99 regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation- making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case and hence there was no scope at all for the High Court to invalidate the provision contained in clause (3) of Regulation 104 as ultra vires on the grounds of its being in excess of the regulation-making power conferred on the Board. Equally untenable, in our opinion, is the next and last ground by the High Court for striking down clause (3) of Regulation 104 as unreasonable, namely, that it is in the nature of a bye-law and is 100 ultra vires on the ground of its being an unreasonable provision. It is clear from the scheme of the Act and more particularly, Section 18, 19 and 34 that the legislature has laid down in broad terms its policy to provide for the establishment of a State Board and Divisional Boards to regulate matters pertaining to secondary and higher secondary education and it has authorised the State Government in the first instance and subsequently the Board to enunciate the details for carrying into effect the purposes of the Act by framing regulations. It is a common legislative practice that the legislature may choose to lay down only the general policy and leave to its delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the Statute by framing rules/regulations which are in the nature of subordinate legislation. Sec.3(39) of the Bombay General Clauses Act, 1904, which defines the 'rule' states: Rule shall mean a rule made in exercise of the power under any enactment and shall include any regulation made under a rule or under any enactment." It is important to notice that a distinct power of making bye-laws has been conferred by the Act on the State Board Under Section 38. The legislature has thus 101 maintained in the Statute in question a clear distinction between 'bye-laws' and 'regulations'. The bye-laws to be framed Under Section 38 are to relate only to procedural matters concerning the holding of meetings of State Board, Divisional Boards and the Committee, the quorum required, etc More important matters affecting the rights of parties and laying down the manner in which the provisions of the Act are to be carried into effect have been reserved to be provided for by regulations made Under Section 36. The legislature, while enacting Sections 36 and 38, must be assumed to have been fully aware of the niceties of the legal position governing the distinction between rules/regulations properly so called and bye-laws. When the statute contains a clear indication that the distinct regulation-making power conferred under Section 36 was not intended as a power merely to frame bye-laws, it is not open to the Court to ignore the same and treat the regulations made under Section 36 as mere bye-laws in order to bring them within the scope of justiciability by applying the test of reasonableness."
81. He would further draw the attention of the Court to the authoritative pronouncement by the Constitutional 102 Bench reported in AIR 1966 SC 1471 and would draw the attention of the Court to para Nos.7, 8, 9, 14, 17 and 18, which reads as under:
7. Before dealing with this point, it is necessary to indicate the broad features of the Act.
The Act was passed on the 23rd April, 1946, and the Standing Orders framed by the U.P. Government under S.15 of the Act were published on the 14th May, 1947. The Central Act came into force on the 1st April, 1947, whereas the U.P. Act came into force on the 1st February, 1948. It will thus be seen that the Act came into force before either the Central Act or the U.P. Act was passed. The scheme of the Act originally was to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to the workmen employed by them. The Legislature thought that in many industrial establishments, the conditions of employment were not always uniform, and sometimes, were not even reduced to writing, and that led to considerable confusion which ultimately resulted in industrial disputes. That is why the Legislature passed the Act making it compulsory for 103 the establishments to which the Act applied to reduce to writing conditions of employment and get them certified as provided by the Act. The matters in respect of which conditions of employment had to be certified were specified in the Schedule appended to the Act. This Schedule contains 11 matters in respect of which Standing Orders had to be made. In fact, the words "Standing Orders" are defined by S.2(g) as meaning rules relating to matters set out in the Schedule. The "Certifying Officer" appointed under the Act is defined by S.2(c), whereas "Appellate Authority" is defined by S.2(a).
8. Originally, the jurisdiction of the Certifying Officer and the. Appellate Authority was very limited; they were called upon to consider whether the Standing Orders submitted for certification conformed to the Model Standing Orders or not. Section 3(2) provides that these Standing Orders shall be, as far as practicable, in conformity with such Model Standing Orders. Section 15 which deals with the powers of the appropriate Government to make rules, authorises, by Cl.(2) (b), the appropriate Government to set out Model Standing Orders for the purposes of this Act. That is how the 104 original jurisdiction of the certifying authorities was limited to examine the draft Standing Orders submitted for certification and compare them with the Model Standing Orders.
9. In 1956, however, a radical change was made in the provisions of the Act. Section 4 as amended by Act 36 of 1956 has imposed upon the Certifying Officer or the Appellate Authority the duty to adjudicate upon the fairness or the reasonableness of the provisions of any Standing Orders. In other words, after the amendment was made in 1956, the jurisdiction of the certifying authorities had become very much wider and the scope of the enquiry also has become correspondingly wider. When draft Standing Orders are submitted for certification, the enquiry now has to be twofold; are the said Standing Orders in conformity with Model Standing Orders; and are they reasonable or fair? In dealing with this latter question, the Certifying Officer and the Appellate Authority have been given powers of a Civil Court by S.11(1). The decision of the Certifying Officer is made appealable to the Appellate Authority under S.6 at the instance of either party. Similarly, by an 105 amendment made in 1956 in S.10(2) both the employer and the workmen are permitted to apply for the modification of the said Standing Orders after the expiration of 6 months from the date of their coming into operation. It will thus be seen that when certification proceedings are held before the certifying authorities, the reasonableness or the fairness of the provisions contained in the draft Standing Orders falls to be examined. That is one aspect of the matter which has to be borne in mind in dealing with Mr. Setalvad's contention.
14. The next contention which Mr.Setalvad has raised is that the appropriate authorities under the Act were in error in insisting upon conformity with the Model Standing Orders under S.3(4). His argument is that in certifying the Standing Orders the appropriate authorities may, no doubt, compare them with the Model Standing Orders, but they need not insist upon strict compliance with them. He also suggested that it would be open to the employers to include matters in the Standing Orders which may not strictly be included in the Schedule. In this connection, he relied on the fact that the draft Standing Orders which the appellant had submitted 106 for certification, had been assented to by the employees. In our opinion, this contention is misconceived and, must be rejected. The consent of the employees is, no doubt, a relevant factor which the certifying authorities may bear in mind in dealing with the question as to the fairness or reasonableness of the said Orders. If both the parties agree that certain Standing Orders submitted for certification are fair and reasonable, that, no doubt, is a consideration which the appropriate authority must take into account; but clearly, the appropriate authority cannot be denied the jurisdiction to deal with the matter according to its own judgment. It is for the appropriate authority to decide whether a particular Standing Order is fair or reasonable, or not. Sometimes, the employees may not be organised enough to resist the pressure of the employer or may not be articulate; and where the employees are not organised or strong enough to put forward their point of view vigorously, the fact that the employer has persuaded his employees to agree to the draft Standing Orders, will not preclude the appropriate authority from discharging its obligation by considering the fairness or reasonableness of the draft. The present case itself is an illustration in 107 point. When the Standing Orders were drafted by the appellant and submitted for certification, it was found that the employees of the appellant had no Union of their own: and so, three representatives were elected by the employees at the instance of the Labour Department. The fact that the employees' representatives have not appeared before this Court also shows that they are either not organised enough, or have not the financial capacity to take steps to engage lawyers to appear before this Court. Therefore, we do not think that the consent of the employees can have a decisive significance in certification proceedings.
17. Then in regard to the conformity with the Model Standing Orders, the position is clear. Section 3 (2) of the Act specifically requires that the Standing Orders shall be, as far as practicable, in conformity with the model. These words indicate that the appropriate authority may permit departure from the Model Standing Orders if it is satisfied that insistence upon such conformity may be impracticable. This fact also shows that in a given case, the appropriate authority may permit departure from the Model Standing Orders and may come to 108 the conclusion that one or the other of the conditions included in the Model Standing Orders may not, for the time being, be included in the Standing Orders of any particular establishment (vide Associated Cement Company Ltd. v. P.D.Vyas, 1960-1 Lab LJ 563: (AIR 1960 SC 665).
18. The next point raised by Mr.Setalvad is in relation to the addition of two items to the Schedule by respondent No.1. We have already mentioned these items. Mr.Setalvad objects to the addition of item 11-B which has reference to welfare schemes, such as provident fund, gratuities, etc., as well as item 11-C which has reference to the age of superannuation or retirement, rate of pension or any other facility which the employers may like to extend or may be agreed upon between the parties. We do not think that this argument is well-founded. We have already emphasised the fact that the Act, even in its original form, was intended to require the employers to define with sufficient precision the conditions of employment under them. In pursuance of the said object, the Schedule enumerated 10 items in respect of which Standing Orders had to be drafted by the employers and submitted for 109 certification. Item 11 in the Schedule refers to any other matter which may be prescribed. When the appropriate Government adds any item to the Schedule, the relevant question to ask would be whether it refers to the conditions of employment or not. If it does, it would be within the competence of the appropriate Government to add such an item. Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and S.15(2) specifies some of the matters enumerated by Cls.(a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by sub- section (1) of S.15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law. Whether or not such addition should be made, is a matter for the appropriate Government to decide in its discretion. The reasonableness of such addition cannot be questioned, because the power to decide which additions should be made has been left by the Legislature to the appropriate Government. Having 110 regard to the development of industrial law in this country during recent years, it cannot be said that gratuity or provident fund is not a term of conditions of employment in industrial establishments. Similarly, it would be difficult to sustain the argument that the age of superannuation or retirement is not a matter relating to the conditions of employment. Therefore, we are satisfied that the contention raised by Mr. Setalvad that the addition of items 11B and 11C to the Schedule is invalid, must fail."
82. Learned Senior Counsel would also place reliance on the ruling of the Apex Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation reported in AIR 2010 SC 1116 and draw the attention of the Court to para Nos.17 and 20 to contend that the interpretation of the statutes of similar nature have to be done keeping in view the objects of the enactments.
83. Learned Senior Counsel would also place reliance on the ruling of the Apex Court in the case of Union of India and anr. vs. Cynamide India Ltd. and anr reported in AIR 111 1987 SC 1802 and place reliance on the observations of Apex Court at para.5.
84. Learned Senior Counsel would submit that amendment by way of substitution would benefit nearly 33 lakhs employees in the State and hence, he would pray that the writ petitions be rejected.
85. Learned Addl. Advocate General Sri Adithya Sondhi appearing on behalf of the official respondents would contend that the writ petitions are premature. The grounds urged in support of the writ petitions are vague in nature and do not in any manner construct a ground which demonstrates any illegality.
86. He would draw the attention of the Court to the scheme of the Act and with particular reference to Sections 3 and 4 of Act. He would submit that as per provisions of Section 3(1), the `Employer' as defined under the Act is required to submit a standing order within six months from 112 the date of operation and further, sub-section (2) mandates that the Draft Standing Orders as far as practicable are to be in conformity with the Model Standing Orders. He would further draw the attention of the Court to provisions of Section 4 to impress upon the Court and to contend that the writ petitions are premature in the light of the fact that the provisions of Section 4 vest the authority with the duty to adjudicate/certify the fact of fairness or unreasonableness of any of the provisions of the Standing Orders. That such adjudication involves assessment of factual aspects in order to establish the fairness or reasonableness or otherwise of the provisions of the Standing Orders. That the present attempt by the petitioners amounts to calling upon this Court to adjudicate factual aspects, which authority is specifically vested in the certifying officer.
87. Learned AAG would further submit that prior to amendment, no power was vested in the authority to look into or adjudicate the fairness or reasonableness of any of the 113 provisions in the Standing Orders. In this regard, he would place reliance on the ruling of the High Court of Judicature at Delhi rendered by a Division Bench in the case of Indian Oil Corporation Ltd., Vs. Joint Chief Labour Commissioner - Appellate Authority and others dated 15.9.1989 and rendered in Civil Writ No.1770 and 3417/87. He would invite the attention of the Court to paragraphs 2, 10 and 20 in reiteration of his contention, that adjudication of fairness or reasonableness of a provision in the Standing Orders is within the sole domain of the Certifying Officer. He would conclude that in the light of the observations of the Division Bench, the present writ petitions are premature. He would further draw the attention of the Court to paragraph 40 to buttress his contention that the writ petition is premature and that the onus of adjudicating the correctness or otherwise of the provisions of the Standing Orders is wholly cast on the certifying officer. Paragraphs 40 and 41 are extracted hereunder:
114
"40. Even before Section 4 was amended the Mysore High Court in Mysore Kirlosker Employees' Association v. Industrial Tribunal, Bangalore, Air 1959 Mysore 235(10), had expressed the view categorically that it was not absolutely necessary that the Standing Orders should conform with the Model Standing Orders so that both are identical. It is useful to quote the observations of the Mysore High Court in this connection :
"WE find no difficulty whatever in answering the first question in the negative. The compulsion of the statute is that the standing orders shall make provision for such of the matters set out in the schedule with the additional matters prescribed by the Government as are applicable to the industrial establishment in question. If any of the matters so set out in the schedule are applicable to the industrial establishment in question, the employer is bound to make provision for them. It does not, in our opinion, mean that provision cannot be made for any additional matters at all.
THE Act is not intended to cover or provide for all contingencies and all matters which may be applicable Indian Oil Corporation Ltd. Vs. Joint Chief Labour Commissioner & Appellate Authority & others 115 and Sri Ram Vinod Vs. Jt. Chief Labour Commissioner and others to each and every industrial establishment in the country. Certain important matters which are more or less Of general application to all industries are set out in the schedule. The appropriate Government is also given the discretion having regard to the special conditions of the industries within its jurisdiction to add further matters to the list contained in the schedule. All such matters may be shortly described as compulsory matters. A direction or mandate to do certain things cannot in our opinion, be read as a direction or mandate not to do any other things, ".....In answering the second question, the statute itself furnishes two important clues. They are the use of the words 'conformity' and 'model'. Conformity, in our opinion, cannot by any stretch of imagination be equated to identity. When one thing is required to conform to another, it simply means that the former should be formed according to the pattern furnished by the latter or that the former should be similar to the latter or that the former should adapt itself to the latter. A model means a shape, a figure, or a pattern proposed for limitation.116
When, sub-section (2) of Section 3 of the Act states that the draft standing orders shall be, so far as practicable, in conformity with the model standing orders, it simply means that the model standing orders furnish the pattern which the draft should try to resemble or imitate, It cannot, in our opinion, mean that the draft should copy the model verbatim. Absolute identity being ruled out by the very use of the words found in the section, it is impossible to accept the construction that the draft should copy the model and should not depart from its wording.
The use of the words 'so far as is practicable' also points to the same result. The learned counsel on behalf of the petitioner has contended that the draft should be identical with the model unless the employer can show that it is not practicable to copy it. In our opinion this is reading too much into the statute. The mandate of the statute is not that the model shall invariably be copied, but that the draft shall conform to the model as far as is practicable. The very content of the mandate is limited to the practicability of achieving conformity. The mandate is not stated in absolute terms to be cut down in stated circumstances, but is itself limited in its terms on considerations of practicability.117
If the object of the statute was to prescribe an absolute standard or to finally standardise standing orders in certain matters, the provisions would have been worded quite differently. It could well have prescribed those Rules and set them out in; the schedule to the Act and provided that those Rules shall govern all industries. But the Legislature has not done so. It has only made provision; for a model being prescribed. The model standing orders are no more than a model. They do not have the force of a statutory rule which has to be obeyed without in any manner altering its content."
41. In view of the above discussion, we hold that the authorities have not exceeded their jurisdiction in allowing; the modification in the Standing Order, so as to raise the age of superannuating or retirement from 58 years to 60 years even though the Model Standing Order had provided for age of retirement as 58 years."
88. Elaborating further, he would contend that the plethora of decided cases would demonstrate the fact that several industrial establishments have on their volition or on 118 the insistence of the Trade Unions or on the intervention of the Certifying Authority, have been pleased to enhance the age of superannuation from 58 years to that of 60 years. Hence, he would submit that the present writ petitions are devoid of any cause of action and it would be open to the petitioners to agitate the fairness or reasonableness of the proceedings before the certifying officer.
89. Learned AAG would contend that the decision of respondent-State to enhance the age of superannuation is a policy decision and that the public policy was evolved with a view to benefit several lakhs of employees and that the amendment is a social obligation discharged by the State. That the decision being a policy decision and the same not being patently unjust or arbitrary or beyond the competence of the State, the writ petitions calling in question the same are liable to be rejected in limine.
90. He would further contend that the case canvassed by the petitioners that the final notification is bad on account 119 of official respondents having failed to afford an opportunity of hearing is baseless as the impugned notification is issued invoking provisions of clause (b) of sub-section (2) of Section
15. That the provisions of Section 15(2)(b) does not envisage affording of any opportunity of hearing. He would submit that even under clause (a) of Section 15(2) only a consultative process is provided for. That the attempts by the petitioners to interpret a consultative process as an adjudicatory process and thereby contended that it vitiates the impugned notification is unsustainable and requires to be rejected.
91. Learned AAG would submit that the amendment does not fall within the ambit of clause (a) of Section 15(2) of the Act but it is squarely covered by clause(b) of Section 15(2). He would contend that it is settled law that the power to make rules implies power to amend, vary, etc. as provided under Section 21 of the General Clauses Act, 1897 Further he would place reliance on ruling of the Hon'ble Apex Court reported in (2014) 11 SCC 112 and would draw the attention 120 of the Court to the observation of the Hon'ble Apex Court with regard to breach of rules of natural justice and its effect. In this regard, the Hon'ble Apex Court at para.37 and 38 has held as follows:
"37. This now brings us to the submission of Mr Nariman that there was a breach of rules of natural justice. It is a matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to place on the record either before SAT or before this Court the prejudice that has been caused by not observing rules of natural justice. It is by now settled proposition of law that mere breach of rules of natural justice is not sufficient. Such breach of rules of natural justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh v. Director of Enforcement4 wherein it was held that:
(SCC p. 268, para 26) 121 "26. ... There must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice."
38. All the information sought by SEBI related to the three earlier acquisitions when the creeping limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent."
92. Elaborating on the said point, he would contend that the petitioners have failed to demonstrate any prejudice that is suffered by them, on account of the alleged delay. He would contend that the delay has affected only the workmen in multitude of workers and in fact and to the contrary, the petitioners have hugely benefited by the delay and have superannuated workers who have attained the age of 58 years. He would submit even assuming for the sake of arguments that the petitioners ought to have been afforded 122 another opportunity of placing their objections and the failure amounts to a breach, it was incumbent upon the petitioners to categorically demonstrate the harm or prejudice that has occasioned on account of the breach. In the absence of any such proven prejudice or on the petitioners failing to demonstrate such prejudice, then, the mere breach would not amount to any substantial infringement and would only amount to a technical infringement which would not suffice or constitute a ground, enabling the Court to strike down the amendment. He would also draw the attention of the Court to the observations of Apex Court at para.30 and would contend that a callous and lackadaisical attitude on the part of the Department cannot enure to the benefit of the petitioners as a mere delay would not enure to the benefit of a party. He would place reliance on the ruling of the Apex Court reported in (1981) 2 SCC 205 and would invite the attention of the Court to the observation at para.13. The said para is extracted hereunder:
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"13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by 124 applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist."
93. The learned AAG would also place on record a memo enclosing therewith the data with regard to the life expectancy in India and in particular in Karnataka and the Karnataka Government Secretariat Manual of Office Procedure (Revised), 2005 with regard to call book. As per the Statistics Department, the average life expectancy in Karnataka is calculated at 68.8 years and he would submit that the said statistics is an indication by itself to the fact that average life expectancy has vastly improved from around 55.2 to 68.8 years. He would draw the attention of the Court 125 to paragraph 10 of the statement of objections and would submit that amongst 133 countries who are signatories and members of International Labour Organisation only 18% of the member countries have a retirement age below 60 years and an overwhelming 82% of the countries have fixed the retirement age as 60 years or above and that in developed countries, the age of retirement is 65 years. He would contend that the workmen at their advanced age would require socio- economic security. He would also place reliance on the statistics of the Government of India reporting growth rate at 7% to contend that in view of accelerated growth, it can be fairly expected that the same would address the issue of unemployment amongst the youth.
94. He would submit that notification is issued keeping in view the larger public interest and the petitioners have not demonstrated any prejudice on account of the impugned notification. He would also refer to the Judgment of Division Bench of this Court in Writ Appeal NO.2395/2012 126 rendered in M/s.Kenna Metal India Ltd., vs. Kenna Metal India Employees Association settlement between the workmen and management, the certifying officer was pleased to uphold the plea of the workmen seeking for alteration of the age of retirement from 58 years to 60 years was allowed by the Certifying Officer. The said decision of the Certifying Officer had been upheld by the learned Single Judge and affirmed by the Division Bench of this Court.
95. Lastly, with regard to the contention of the petitioners that a quietus has been given to the file on account of final orders passed by the Minister, he would contend that the same is erroneous. He would draw the attention of the Court to Annexure-C wherein the decision has been taken to place the file in the Call book thereby indicating that the Government has treated it as a case, which at that stage, no further steps could be taken and which required to be excluded from the monthly statement of pending case. Elaborating further, he would submit that in 127 respect of files and cases where no immediate action was possible, the same would be entered in the Call Book and thereafter, the progress of the said case file would be observed through call books thereby implying that the Government had only postponed the final decision and had not abandoned the proposal or given a quietus. He would submit if the file is closed same is not placed in the Call book for observation of future progress and hence he would submit the contention requires to be rejected.
96. Learned AAG would fairly submit, mere amendment to the model standing orders would not result in automatic modification of the standing orders of industrial establishments and that automatic application is only with regard to industrial establishments that come up after the publication of the notification and those industrial establishments that do not have Standing Orders. He would pray for rejection of the petitions.
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97. In reply, the learned Sr.Counsel Sri S.S.Nagananda appearing on behalf of the petitioners would submit, that challenge is not to the policy but is stimulated on account of procedural irregularity. That in matter involving subordinate legislation, judicial review of the same would also include the limb of natural justice, in assessing the validity of any exercise of the powers vested in the State. The State has given a go-bye to the principles of natural justice. Learned Sr.Counsel would contend that the argument on behalf of the respondents that clause (a) of Sec.15(2) is inapplicable and baseless, as the State itself has proceeded on the footing that the amendment involves consultation with the stake holders. The parties having understood and having been at ad idem, with regard to the process to be adopted and having accepted the necessity of consulting the stake holders, it is not open to the respondent- State to retract and contend otherwise. That the process of consultation ended abruptly and there is no material on record to demonstrate as to what is the action after 2.8.2011. 129 He would contend that there is no embargo on the State to redo the exercise but, the instant notification stands vitiated. That the challenge is restricted to the exercise of statutory power and hence, he would pray that the writ petition be allowed and the impugned notification be struck down.
98. This Court has given its anxious consideration to the various contentions raised on behalf of the parties. In the background of the facts and contentions canvassed before this Court, it is apparent that the petitioners though have raised various contentions in the petitions but, what is canvassed before this Court is the point of the delay, vitiating the notification. That the failure to exercise the power within a reasonable period has vitiated the notification and secondly the impugned notification stands vitiated on account of procedural irregularity as mandated by the provisions of Section 15(2) in as much that the respondent-State has not completed the process of consultation as mandated by the provisions of Section 15(2). Alternatively, the third limb of 130 argument was that respondent-State had closed the file by order dated 2.8.2011.
99. It is pertinent to mention at this stage itself that the petitioners have neither produced the objections canvassed by them before the State nor have they detailed the objections or canvassed the same before this Court during the course of hearing. It is not in dispute that, apart from a couple of the petitioners, none of the other petitioners have filed objections to the intention notification of 2009. It is also not in dispute that the substitution proposed under the intention notification was to enhance the age of superannuation from 58 to 60 years. The petitioners who are fully aware of the proposal at the time of approaching this Court despite the same, have not set out any ground or a fact which would prima facie demonstrate any hardship or loss that is or would be caused to the petitioners. The petitioners have also not disputed the fact of longevity of life or increased 131 life expectancy amongst the general populace of the State and more particularly the hard-working workman.
100. The first contention that the delay of seven and a half years vitiates the impugned notification requires to be rejected on two grounds namely;
101. Firstly, it is not demonstrated as to whether the law of limitation applies to a legislative action nor is it demonstrated that the delay vests a rights in the petitioners to impugn the action which, even as per the petitioners, is in the nature of subordinate legislation. It can be safely concluded that there can be no restraint on the power to legislate and certainly the power to legislate cannot be circumscribed by inferring delay whether gross or otherwise in the exercise of legislative powers. The power of legislation is the exclusive domain of the legislating body and no fetters can be placed in the exercise of such power in the garb of limitation or the lapse of any long period between the intention notification and the final notification. This Court 132 hold so, as neither the act nor the rules impose any such crubs or fetters on the power to legislate. In the absence of any legislations to the contrary, the contention that the impugned notification stands vitiated on account gross delay requires to be rejected and it is accordingly rejected.
102. Secondly, the reliance placed by the learned Sr.Counsel on the rulings of the Apex Court reported in 1984(1) SCC 125 and 2009 (9) SCC 352 is of little aid in advancing the contention that delayed exercise of power is fatal. There can be no quarrel with the principle enunciated by the Hon'ble Apex Court but the distinguishing factor lies in the fact that the Hon'ble Apex Court was dealing with a factual matrix which involved exercise of statutory power by the Executive, unlike in the instant case. The Hon'ble Apex Court, in the facts obtaining therein was pleased to hold that invocation of powers vested in an authority ought to be done in a reasonable manner and within a reasonable time. That invoking and exercising powers or jurisdiction by an 133 Executive in discharge of duties as a statutory authority or quasi-judicial authority under a statute which does not prescribe any limitation are to be exercised within a reasonable time.
103. The Hon'ble Apex Court deemed it necessary to evolve a principle in view of the fact that exercise of power may result in unsettling a settled position and also affect third party rights created bona fide. In the instant case, neither has any right got vested nor any such right is demonstrated before this Court. Secondly, the said contention also requires to be rejected in the light of the law laid down by the Apex Court that a mere technical infringement on account of delay cannot be a valid ground unless it is demonstrated by the party canvassing such ground that he has been prejudicially affected by such delay. The Hon'ble Apex Court in the ruling reported in 2014(11) SCC 112 has categorically held that it is settled proposition of law that a mere breach of rules of natural justice is not sufficient and such breach of 134 rules must also entail prejudice to the party. In the case on hand, the petitioners have not demonstrated any breach that has been caused on account of lapse of time between the intention notification and the final notification that has prejudicially affected them. On the contrary, as rightly argued by the learned AAG, the petitioners have stood to gain on account of delay. Hence, contention that the impugned notification stands vitiated on account of exercise of power beyond reasonable period requires to be rejected and is accordingly rejected. It is further held that the delay occasioned on account of the long lapse of time between the intention notification and the final notification has in no way prejudicially affected the rights of the petitioners.
104. Nextly, it was contended by the learned Senior counsel Sri S.S.Naganand that, the proceedings had attained finality and file was closed for all practical purposes and the issue had been given a quietus and the same is reflected by the note dated 2.8.2011. In the opinion of this Court, the said 135 contention is fallacious for the simple reason that a bare reading of the `Note' would demonstrate that it was only a proposal of the Under Secretary. It is only a suggestion. The said note at No.41 is preceded by the Note at No.40.wherein it has been decided to register the file in the Call Book as per Karnataka Government Secretariat Manual of Procedure (Rules), 2005. Chapter 15 deals with file management system more particularly with regard to monitoring of pending files. Entry No.220 of the said Chapter deals with the Call Book. A Call Book is intended to refer to a procedure adopted by the Secretariat to monitor long pending cases or cases which have reached a stage, where no steps can be taken for a long time. In effect, the Call Book is a procedure in respect of a file, where no expeditious action can be taken or which has been pending for a long time and such cases are entered in a separate book and monitored through said book which is called a `Call Book'. Thus, the very fact of the file having been entered in the call book, is by itself a manifestation of intention of the State not to give a closure to the intention 136 proposal. Further, it is also clarified by the official respondents by their statement of objections that the file relating to the intention notification came to be taken up for consideration on account of successive and subsequent representations received from various quarters including trade unions and other bodies. Thus, the contention that the respondents had given a quietus and closed the proceedings is unsubstantiated and requires to be rejected. Accordingly, it is rejected.
105. That apart, as demonstrably argued by the respondents, several industrial establishments have on their volition and certain other establishments on the demand of the workmen have enhanced the age of superannuation from 58 to 60 years. Further, the contention put forth on behalf of the respondents that the fact of fairness and reasonableness of a provision in the Model Standing orders involve adjudication of the facts and such adjudication is solely vested in the Certifying Officer has not been negated by the 137 petitioners. On the contrary, the contentions stand vindicated on a plain reading of Section 4 of the Act.
106. Thirdly, with regard to allegation that process of consultation has been given a go bye and vitiates the impugned notification, requires to be rejected for the following reasons:
Firstly, the petitioners have failed to demonstrate that the respondent-State is devoid of powers to issue the notification under the provisions of clause (b) of Section 15(2) of the Act. Alternatively, the petitioners have also failed to demonstrate that the amendment by way of substitution comes within the ambit of clause (a) of Section 15(2). On account of these twin failures, the contention that consultation is a mandatory or that consultative process is adjudicatory in nature and the failure amounts to infringement is without basis and is accordingly rejected.138
107. The answer to the queries raised by the petitioners are not far to seek. The observations of the Constitutional Bench while negating the arguments of Sri.Setalvad, answer the issue of validity raised in the petitions. At the cost being repetitive, the observations in paragraph Nos.17 and 18 of the Constitutional Bench reported in AIR 1996 SC 1471 are re- produced as under:
17. Then in regard to the conformity with the Model Standing Orders, the position is clear. Section 3 (2) of the Act specifically requires that the Standing Orders shall be, as far as practicable, in conformity with the model. These words indicate that the appropriate authority may permit departure from the Model Standing Orders if it is satisfied that insistence upon such conformity may be impracticable. This fact also shows that in a given case, the appropriate authority may permit departure from the Model Standing Orders and may come to the conclusion that one or the other of the conditions included in the Model Standing Orders may not, for the time being, be included in the Standing Orders of any particular establishment (vide Associated 139 Cement Company Ltd. v. P.D.Vyas, 1960-1 Lab LJ 563: (AIR 1960 SC 665).
18. The next point raised by Mr.Setalvad is in relation to the addition of two items to the Schedule by respondent No.1. We have already mentioned these items. Mr.Setalvad objects to the addition of item 11-B which has reference to welfare schemes, such as provident fund, gratuities, etc., as well as item 11-C which has reference to the age of superannuation or retirement, rate of pension or any other facility which the employers may like to extend or may be agreed upon between the parties. We do not think that this argument is well-founded. We have already emphasised the fact that the Act, even in its original form, was intended to require the employers to define with sufficient precision the conditions of employment under them. In pursuance of the said object, the Schedule enumerated 10 items in respect of which Standing Orders had to be drafted by the employers and submitted for certification. Item 11 in the Schedule refers to any other matter which may be prescribed. When the appropriate Government adds any item to the Schedule, the relevant question to ask would be 140 whether it refers to the conditions of employment or not. If it does, it would be within the competence of the appropriate Government to add such an item.
Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and S.15(2) specifies some of the matters enumerated by Cls.(a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by sub- section (1) of S.15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law. Whether or not such addition should be made, is a matter for the appropriate Government to decide in its discretion. The reasonableness of such addition cannot be questioned, because the power to decide which additions should be made has been left by the Legislature to the appropriate Government. Having regard to the development of industrial law in this country during recent years, it cannot be said that gratuity or provident fund is not a term of conditions of employment in industrial establishments. 141
Similarly, it would be difficult to sustain the argument that the age of superannuation or retirement is not a matter relating to the conditions of employment. Therefore, we are satisfied that the contention raised by Mr. Setalvad that the addition of items 11B and 11C to the Schedule is invalid, must fail."
108. Nextly, with regard to the feasibility and appropriateness of enhancing the age of superannuation from 58 years to 60 years is answered by the Larger Bench of the Hon'ble Apex Court in the British Paints case. The Hon'ble Apex Court was pleased to observe at Para Nos.4, 5 and 7 as under:
"4. Then there is the question as to future workmen and whether their age of retirement should also be fixed at the same level as in the case of existing workmen. We are of opinion that generally speaking there should not be any difference in the age of retirement of existing workmen and others to be employed in future in a case like the present unless there are special circumstances justifying such difference. In this connection our attention is 142 drawn to the case of Guest, Keen, Williams (P) Ltd., (1960) 1 SCR 348; 1959-2 Lj 405; (AIR 1959 sc 1279), where the age of retirement of future workmen was 55 years. In that case however, the age of retirement of future workmen was fixed at 55 years by the Standing Order and the question whether that age of retirement should be changed was not before this Court for consideration. All that this Court had to consider in that case was whether the age of retirement of existing employees, before the Standing Order fixing the age of retirement at 55 years was introduced, should be 60 years or not. In the present company so far there is no age of retirement and unless there are valid and cogent reasons for making a differences in the age of retirement of existing workmen and those employed in future, the future workmen should also have the benefit of the same, age of superannuation.
5. Considering that there has been a general improvement in the standard of health in this country and also considering that longevity has increased, fixation of age of retirement at 60 years appears to us to be quite reasonable in the present circumstances. Age of retirement at 55 years was 143 fixed in the last century in government service and had become the pattern for fixing the age of retirement everywhere. But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement.
7. As to the factory workmen, it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one 144 hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particular arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and sub-ordinate staff. This appears to have been so in the case of Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might, therefore, have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore, think that even in the case of future factory-workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a 145 workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We, therefore, modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory workmen, whether existing or future, at the age of 60 years."
The observations of the larger Bench emphatically answers issues raised by the petitioners.
109. Further, reliance on the ruling in the case of M/s. L & T case is of no assistance, as the Certifying Officer has been pleased to reject the claim of the workmen on the 146 premise that the same is contrary to the settlement arrived at between the parties. Further, the respondents have been successful in demonstrating that not only the Courts but also Industrial establishments by themselves have enhanced the age of superannuation. In certain other cases, the age of superannuation has been enhanced after adjudication by the Certifying Officer.
110. That apart, fact remains that not only the Union Government and the Corporations under its control even the State Government and Autonomous Institutions have enhanced the retirement age to 60 years. These facts have not at all been contraverted by the petitioners. Hence, it can be safely concluded that the enhanced age of retirement is the prevailing trend in the Industrial establishments.
111. Further, in the opinion of this Court, no prejudice would be caused to the petitioners by enhancement of age of superannuation. Merely because of the age of retirement is increased, it does not foreclose the option of the Industrial 147 establishments/employers to remove a non-performing workmen or compulsory retire a person on the ground that he is physically unable to discharge his duties.
112. As contended by Sri.K.Subba Rao, learned Senior counsel and learned AAG, the notification is purportedly issued under Clause-B of Section 15 (2) of the Act.
113. From a plain reading of the provisions, the proviso mandating consultation can be invoked only if Clause-A is attracted. In the instant case, as rightly pointed out, there is only an amendment of the age limit by way of substitution and there is no insertion or addition to the Schedule under the amendment. It is also relevant to note that the scheme of the Act does not visualize any adjudication by way of consultation.
114. That being so, this court holds that the notification as contended is covered under Clause-B of Section 15(2) of the Act and is validly issued. 148
115. Secondly, the said contention requires to be rejected in the light of the law laid down by the Apex Court wherein the Hon'ble Apex Court has held that mere technical infringement not resulting in any substantial prejudice would be of no consequence. In the light of law laid down by the Hon'ble Apex Court, it was mandatory on the part of the petitioners to demonstrate substantial prejudice caused to them or at least that they have been prejudicially affected by the omission on the part of the State to consult the stake holders. Additionally, it also requires to be rejected, because the delay has not only not caused any prejudice to the petitioners but on the other hand has enabled the similarly placed parties to participate and file their objections and participate in the discussions long after the time stipulated for filing of objections was over. The fact that the discussions have been held with the stake holders is apparent from Annexure-C placed on record by the petitioners. From a bare reading of the provision it is apparent that only a consultation is prescribed and no adjudicatory process is mandated. 149
In view of the above, the writ petitions require to be rejected and in view of the conditional interim order granted, it is clarified that the employees who have retired during the pendency of the petitions, such of those employees shall be entitled for their monetary benefits including back wages for the period during which they have been kept out of employment on account of superannuation during the pendency of the writ petitions.
The writ petitions stand rejected.
There is no order as to costs.
Sd/-
JUDGE Chs*/VM/Sk/-
CT-HR