Karnataka High Court
Wipro Infrastructure Engineering vs Additional Labour Commissioner on 3 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.15615 OF 2016 (L-RES)
BETWEEN
WIPRO INFRASTRUCTURE ENGINEERING
(A DIVISION OF WIPRO ENTERPRISES LIMITED)
PEENYA, BENGALURU-560058.
REPRESENTED BY MR.S.NAGARAJA,
HEAD HR
...PETITIONER
(BY SRI S S NAGANAND, SENIOR COUNSEL FOR
SRI B C PRABHAKAR, ADVOCATE)
AND
1. ADDITIONAL LABOUR COMMISSIONER
(ADMINISTRATION)
& APPELLATE AUTHORITY,
UNDER INDUSTRIAL EMPLOYMENT
(STANDING ORDERS) ACT,
KARMIKA BHAVANA BANNERGHATTA ROAD,
BENGALURU-560029.
2. WIPRO KARMIKA SANGHA
9B-10A, 1ST PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU-560058.
REPRESENTED BY ITS GENERAL SECRETARY.
...RESPONDENTS
(BY SRI BHOJEGOUDA KOLLER,AGA FOR R1
SRI K SUBBA RAO, SENIOR COUNSEL FOR
SRI K S SUBRAMANYA, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 04.03.2016 PASSED BY R-1 IN APPEAL NO.SOA/CR-
4/2013-14 AT ANNEX-M AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.12.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
This Writ Petition is filed challenging the order dated 4.3.2016 passed by Respondent No.1 - Additional Labour Commissioner and Appellate Authority as a consequence of which amendment to clause 23.1 of the Certified Standing Orders (for short 'CSO') of the Petitioner Company was permitted and the age of retirement of the workmen of the Petitioner - Company was stipulated at 60 years.
2. The brief facts of the case are that the Petitioner is a Public Limited Company engaged in the manufacture of Hydraulic Cylinders and components for the Infrastructure and other Industries. The age of retirement is fixed at 58 years under Clause 23 of the CSO of the Petitioner Company. The Respondent No.2 - Union 3 filed an application dated 4.7.2012 before the Certifying Officer under the Industrial Employment (Standing Orders) Act, 1964 seeking for modification of the retirement age from 58 to 60 years. The said application was opposed by the Petitioner - Management by filing detailed objections. The Certifying Officer, vide order dated 7.8.2013 rejected the application.
3. Being aggrieved, Respondent No.2 - Union filed an Appeal before Respondent No.1 - Appellate Authority. The said Appeal was opposed by the Management by filing statement of objections. The Appellate Authority, vide order dated 3.3.2014 set aside the order passed by the Certifying Officer and allowed the application for amendment of the Standing Orders and increased the retirement of employees from 58 to 60 years.
4. Being aggrieved, the Petitioner has filed WP No.12137/2014 before this Court, which was allowed by order dated 8.7.2015, wherein the writ Petition filed by the Management was allowed and the matter was remanded to 4 the Appellate Authority for fresh adjudication in accordance with law and permitted both the parties to adduce evidence. The learned Single Judge further observed that in the event the Appellate Authority allows the appeal, the same shall come into force from the date on which the earlier order was passed i.e., 3.3.2014. Being aggrieved by certain observations made by the learned Single Judge, the Petitioner has filed WA No.2482/2015. A Division Bench of this Court, vide order dated 7.11.2015 modified the order of the learned Single Judge by setting aside the direction that the Standing Order to be amended would come into effect from 3.3.2014 and held that the amendment shall be prospective in nature.
5. After remand, both the parties adduced evidence. The Respondent No.1 - Appellate Authority by its order dated 4.3.2016 allowed the Appeal and set aside the order of the Certifying Officer and the modification sought for by Respondent No.2 - Union to Clause 23(1) of the CSO was allowed and the retirement age was increased from 58 to 5 60 years. Being aggrieved, the present Writ Petition is filed.
6. This Court, vide order dated 19.7.2021 appointed two persons who are experts in the field to visit the Petitioner - Company and furnish a report as to whether the nature of work prevailing in the Company (Establishment) is arduous or hazardous or not, subsequent to which the reports have been submitted and the same has been taken on record vide order dated 13.12.2021.
7. The learned Senior Counsel for the Petitioner Sri S.S.Naganand appearing for the Petitioner contended that, having regard to the nature of the work that is carried in the Petitioner - Company the retirement age ought not to be increased; that the report of the experts who were appointed discloses that the workmen while working in the assembly line is required to lift heavy materials and hence the retirement age ought not to be increased. In support of his submissions the learned 6 Senior Counsel relies on various portions of the reports submitted to this Court as well as the portions of the impugned order to indicate that the nature of the work done is arduous and hazardous. In support of his submission, the learned Senior Counsel relied upon the following judgments:
(i) Guest, Keen, Williams Private Ltd., Vs. P.J. Sterling & Others 1
(ii) Jeewanlal (1929) Ltd., Vs. The Workmen and another2
(iii) Burmah Shell Oil Storage & Distributing Company of India Ltd., Vs. Their workmen and another3
(iv) Hindustan Antibiotics Ltd. Vs. Their Workmen4
(v) Imperial Chemical Industries (India) Private Ltd., Vs. The workmen (and connected appeal)5
(vi) ITI Ltd., Naini Officers Association and another and union of India and another6
(vii) Workmen Vs. Jessop & Co., Ltd.,7 1 [1959 II LLJ 405] 2 1972 (1) LLJ SC 472 3 1970 (1) LLJ 363 SC 4 1967(1) LLJ SC 114 5 AIR 1961 SC 1175 6 2003 I LLN 32 (ALH HC DB) 7 1964 (1) LLJ 451 7
(viii) I.T.I. Ltd., & Others Vs. Venugopalan N & Others8
(ix) K. Nagaraj and others Vs State of Andhra Pradesh and another9
(x) The Management of M/s. Mersen India Pvt.
Ltd., Vs. The Deputy Labour Commissioner and others10
8. Per contra, Sri Subba Rao, learned Senior Counsel appearing for Respondent No.2 - Union contended that in recent times having regard to the health and wellbeing of the people the retirement age practically in all sectors have been increased from 58 to 68 and even the State Government has increased the retirement age in the Model Standing Orders; that with the passage of time and practically all aspects of manufacturing having become automatic, the work carried on by the workmen is neither arduous nor hazardous. Hence, seeks for dismissing of the Writ Petition filed by the Petitioner. In support of his submissions, the learned Senior Counsel relied upon the following judgments:
8
2010 - III LLJ - 77 (Kar. HC) 9 AIR 1985 SC 551 10 W.P. No.4114/2021 DD 06.09.2022 (High Court of Karnataka) 8
(i) Rohtak and Hissar Districts Electric Supply Co.
Ltd. V. State of U.P. and Others11
(ii) Guest Keen Williama Pr.Ltd., Vs. P J Sterling and Others12
(iii) Burmah Shell Oil Storage & Distributing Company of India Ltd., Vs. Their workmen and another13
(iv) G.M.Talang and others Vs. Shaw Wallance and another14
(v) British Paints (I) Ltd., Vs. Its workmen15
(vi) Hindustan Antibiotics Ltd., Vs. Its workmen and oths.16
(vii) Tej Bahadur Ram Vs. STate of UP & Oths.17
(viii) Indian Oil Corporation Ltd., Vs. Joint Chief Labour Commissioner & Appellate Authority18
(ix) Kennametal India Ltd., Vs. Kennametal India Employees Association19
(x) Kennametal India Ltd., Vs. Kennametal India Employees Association20
(xi) United Breweries Ltd., Vs. Karnataka Engg. & General Workers Union21 11 AIR 1966 SC 1471 12 AIR 1959 SC 1279 13 1970 II LLJ Pg.11SC 14 1964 AIR 1886- 15 1996 I LLJ 407 SC 16 1967 I LLJ Pg. 114 17 (2006) 7 SCC 660 18 1990 I LLJ 408 SC 19 2012-III LLJ 833 (Kart) (single Judge) 20 W.A. No.2395/2012 (L) dt. 29.05.2014 (Division Bench)(Kart.) 21 W.P. No.47312/2013 (L) dt.10.01.2017 9
(xiii) Sangram Singh Vs. Election Tribunal Kotah and another23
(xiv) Syed Yakoob Vs. K.S. Radhakrishnan24
(xv) The Management of Federal Mogul Goetze India Pvt. Ltd., Vs. Additional Labour Commissioner and 235 others25 (xvi) Management of Federal Mogal Goetze India Pvt Ltd., and Additional Labour Commissioner (Admn) & Appellate Authority and others26 (xvii) The Management of Grasim Industries Ltd., Unit: Harihar Polyfibers Vs. The General Secretary, Harihar Fibers Employees Union 27
9. I have considered the submissions made by the learned Senior Counsels for the Petitioner, Respondent No.2 and the learned AGA for Respondent No.1 and perused the material available on record. The question that arises for consideration is, "Whether the order dated 4.3.2016 passed by the Appellate Authority is liable to be interfered with?"
22
W.A. No.1/2019 (L) dt.17.07.2019 23 AIR 1955 SC 425 24 AIR 1964 SC 477 25 W.A. No.2771/2019 dated 25.02.2021 (Division Bench) 26 W.P. Nos.45822-825/2012 and 46462/2012 dtd: 12.07.2019 (Single Judge) 10
10. The Appellate Authority, after remand of the matter and after both sides have examined their witnesses, vide its order dated 4.3.2016 has recorded the following findings:
i) during the visit to the factory it is noticed that the factory has adopted modern technology and has completely undertaken automation work and the job of the employees does not involve hard work and dangerous work;
ii) that with regard to eye sight of the employees, the work does not have any major bearing on the eye sight;
iii) that the Management has not produced any document to establish that the employees work in the Management are not physically fit after subjecting them to medical check up;
27
W.A. No.100250/2021 dtd: 5.7.2022 (High Court of Karnataka, Dharwad Bench) 11
iv) that the employees who work in the automation division who have attained 60 years have a higher skill;
v) that the employees of the factory are physically and mentally fit to work till 60 years of age;
vi) that there is no necessity of physical strength to discharge the work in the factory and the job is not dangerous in nature;
11. Pursuant to the order dated 2.7.2021 wherein both the parties were directed to furnish names of two Technical experts/persons who are competent to identify whether the nature of the work of the Petitioner - Company is arduous or hazardous, the Petitioner suggested the names of Sri Avinash Khare and Sri Ashok Christodas Samuel Raj and on behalf of the Respondents the names of Sri.Vidhu Narayanan P.N and Sri Ramakrishne Gowda were suggested. Pursuant to the same, this Court vide order dated 19.7.2021 appointed two persons namely, Sri Vidhu Narayanan P.N and Sri 12 Ashok Christodas Samuel Raj to inspect the Petitioner - Company/establishment and submit their report.
12. Sri Ashok Christodas Samuel Raj (Ashok C.S.Raj) in his report dated 19.8.2021 has observed:
i) The operators insist on helpers to handle even manual loaded components of less than 15 kgs., and hoist and tackle facilitated short components below 40 to 45 kgs. This gives the impression that the older operators feel that this work is arduous;
ii) There are instances to indicate that the work causes fatigue to operators and hence, it is arduous.
iii) The instances of operators taking sick leave/half pay leave is in much higher occurrence in older groups.
iv) The components are large, heavy and in many cases unbalanced and although effective handling equipment is provided, the work needs much concentration, endurance and agility.13
v) Hence, it is opined that the work is arduous to older workmen and hazardous.
13. In the report dated 20.9.2021 submitted by Sri Vidhu Narayanan, he has observed as under:
i) With respect to Small Cylinder Plan (SCP) jib cranes are made available for each station for loading and unloading work. The assembly line-wise and machine-wise operations carried out in the plant have been noticed;
ii) With regard to Medium Cylinder Plant Automatic line assembly (MCP) it is noticed that the components are washed in automatic washing machines.
The cranes are used for loading and unloading with the help of helpers;
iii) In addition, the nature of work carried out at the Proto Shops, MCP Shop, Prison Road Plant (PRP), Dumper Assembly, disposal of waste are noticed;
iv) The work carried out is neither arduous nor hazardous and the nature of work carried out by the 14 Petitioner - Company does not come under the hazardous category;
v) Maximum number of machines are CNC
automatic machines;
vi) Cranes are used for loading and unloading with
the assistance of helpers wherever required;
vii) Robotic machines are used for welding, loading and unloading;
viii) Forklift and maini battery charged movement lifters are used for material movement;
ix) Safety devices are provided and used wherever required;
x) Systemized way of work culture is found in the factory;
xi) All operations are carried out in auto machines and assemblies are carried out in auto machine assembles and semi auto;
15
xii) The industry does not come under heavy industry.
xiii) Hence, it is opined that the work is not arduous or hazardous.
14. The State Government, vide the Karnataka Industrial Employment Standing Orders (Amendment) Rules, 2017 (hereinafter referred to as 'Amendment Rules, 2017'), which was gazetted on 28.3.2017 has amended the age of retirement to 60 years by modifying the Model Standing Orders. The amendment was made keeping in view the rise in the expectancy of life of people to 69.16 years in 2017 as against 54.69 years in the year 1981 when retirement age was fixed at 58 years vide amendment to clause 15A to Schedule I of the Karnataka Industrial Employment (Standing Orders) Rules, 1961, which was amended w.e.f., 18.3.1982.
15. Amendment Rules of 2017 were the subject matter of challenge in W.P.No.14576-577/2017, which were dismissed vide order dated 29.6.2018. The same 16 was challenged in WA.No.2304-2309/2018 and a Division Bench of this Court, vide its judgment dated 1.10.2010 permitted withdrawal of the Appeals with a cost of `25,000/- payable by each of the industrial establishments and liberty was reserved to question the CSO that were incorporated pursuant to 2017 amendment, inasmuch as re-fixation of 60 years by the amendment did not automatically apply to establishments which had fixed the retirement age as 58 years in their respective CSO. Hence, the request for amendment of the Standing Orders is required to be considered in the peculiar context of each case.
16. Both the learned Senior Counsels for the Petitioner and Respondent No.2 have relied upon various judgments, some of which have been duplicated. Hence, all the judgments relied on by both the parties are being considered together for the purpose of noticing the settled propositions of law.
17
16.1 In the case of Rohtak and Hissar Districts Electric Supply Co. Ltd., (supra) a Constitution Bench of the Hon'ble Supreme Court considering the applicability of the Model Standing Orders, has held as follows:
"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 Cement Co. Ltd. v. P. D. Vyas, 1960-1 Lab LJ 563: (AIR 1960 SC 665))."
(emphasis supplied) 16.2 In the case of Guest, Keen Williams, Private LTd., (supra) the Hon'ble Supreme Court has held as follows:
"........... In fixing the age of superannuation industrial tribunals have to take into account several relevant factors.. What is the nature of the work assigned to the employees in the course of their employment? What, is the nature of the wage structure paid to them? What are the retirement 18 benefits and other amenities available to them? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute. In the present case, as we have already observed, the age of 55 has been fixed by both the tribunals for future entrants; and this is substantially based on the standing order which we have already considered. In regard to the prior employees it is not seriously disputed that the retirement age can and may be fixed at 60."
(emphasis supplied) 16.3 A four judge Bench of the Hon'ble Supreme Court in the case of British Paints (I) Ltd., (supra) has held as follows:
"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 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, 19 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."
(emphasis supplied) 16.4 In the case of Jeewanlal (1929) Ltd., (supra) the Hon'ble Supreme Court was considering a case where, on an application filed by the employees union, the Certifying Officer directed the age of retirement or superannuation to be 60 years, which was under
challenge. The Hon'ble Supreme Court considering various judgments and noticing that the Certifying Officer or the Court had not considered the relevant material including a prayer made by both the parties for personal inspection of the factory, set aside the order and remanded the matter to the Certifying Officer to dispose off the matter in accordance with law within a period of 6 months.
16.5 In the case of Burmah-Shell Oil Storage and Distributing Company of India, Ltd., (supra) the Supreme Court was considering a case where the 20 Industrial Tribunal, Delhi, considering the general trend in the Delhi area raised the age of superannuation of workmen to 60 years in respect of two categories of workmen i.e., clerical staff and other workmen. The Hon'ble Supreme Court considering various factors like, wage structure in other comparable concerns, pension scheme in operation in other factories, modified the Award by fixing the age of superannuation in the case of clerical staff to 58 years and left the Award of the Industrial Tribunal undisturbed insofar as the other workmen.
16.6 In the case of Hindustan Antibiotics Ltd., (supra), a Constitution Bench of the Hon'ble Supreme Court was considering a case where the Industrial Tribunal considering the charter of demands and proceedings under Section 10(1)(d) of the Industrial Disputes Act, 1947 ('ID Act' for short) had passed an Award recording its finding on various aspects like, wage structure to various categories, etc. The said award having been challenged and considering the same, the Hon'ble Supreme Court, 21 while considering the question regarding fixation of the age of retirement for the employees and noticing that the existing age of retirement is 55 extendible to 60 years at the discretion of the management if the workmen were to be considered suitable and medically fit and mentally alert, and the fact that the Tribunal had raised the age of retirement from 55 years to 58 years but gave a discretion to the Company to continue an employee after that age, considering the various factors and following the trend of judicial opinion, held that the retirement age of the employees of the company should be raised to 60 years.
16.7 In the case Imperial Chemical Industries (India) Pvt.Ltd., (supra), the Hon'ble Supreme Court was considering a case where a dispute between the workmen and the Company was referred for adjudication to the Industrial Tribunal under Section 10 (1) of the ID Act and the Tribunal had, vide its Award gave various findings and with regard to the age of retirement had fixed the age of retirement to 58 instead of 55 years, which was 22 challenged by both the Company contending that the age of retirement should be reduced to 55 years and the workmen contending that the age of retirement should be increased to 60 years. The Hon'ble Supreme Court noticing that the Tribunal had not considered an important material on record fixed the age of retirement at 60 years.
16.8 In the case of ITI Ltd., Naini Officers Association (supra) a Division Bench of the Allahabad High Court was considering a case where the Government of India had issued a Notification, by which the age of superannuation of Central Government employees was raised to 60 years and after the same was implemented, subsequently by a circular, the age of superannuation was rolled back and restored to 58 years, which circular was the subject for consideration. The Division Bench of Allahabad High Court upheld the circular and dismissed the writ petition challenging the same.
16.9 In the case of Workmen of Jessop & Co., Ltd., (supra) the Hon'ble Supreme Court was considering a 23 case where a dispute between the workmen and the employer was referred for adjudication and the Industrial Tribunal, vide its Award had adjudicated upon various aspects pertaining to the conditions of service of the workmen and with regard to retirement age, refused to increase the retirement age beyond 55 years, which award was challenged before the Hon'ble Supreme Court. Considering various factors and its earlier judgments, the Hon'ble Supreme Court had increased the age of retirement to 58 years.
16.10 In the case of ITI Ltd., (supra) a Division Bench of this Court was considering the circular issued by the Government of India which circular was also under consideration before the Division Bench of the Allahabad High Court in the case of ITI Ltd., Naini Officers Association (supra). In the said case the learned Single Judge had quashed the said circular. The Division Bench set aside the order of the learned Single Judge and upheld the circular issued by the Government of 24 India. However, it noted that the rollback in the age of superannuation, vide the said circular, cannot affect the existing rights of the employees recognized in terms of its Standing Orders.
16.11 In the case of K.Nagaraj (supra), the Hon'ble Supreme Court was considering a case where, in the State of Andhra Pradesh upon the assumption of office by a new Government, two Notifications were issued in exercise of the power conferred by proviso to Article 309 r/w 313 of the Constitution of India, wherein the age of superannuation of all government employees other than the last grade service was reduced from 58 to 55 years. The Hon'ble Supreme Court dismissed the challenge made to the said Notifications and upheld the same.
16.12 In the case of G.M.Talang (supra), the Hon'ble Supreme Court was considering a case where an industrial dispute arose as regard the age of retirement. The Tribunal had directed the age of retirement should be 58, but that the Company may in its discretion and with 25 the express or implied consent of the employee concerned continue an employee after he attains that age. The Hon'ble Supreme Court, after considering all the facts and circumstances disclosed by the oral and documentary evidence on record held that the age of retirement of the workmen should be fixed at 60 years.
16.13 In the case of Tej Bahadur Ram (supra) the Hon'ble Supreme Court was considering a challenge made by a workman pursuant to the order passed by the employer ordering compulsory retirement on attaining the age of 58 years pursuant to Regulation 2 of the U.P. State Electricity Board (Employees' Retirement) Regulations, 1975. The challenge made by the workman was rejected by the High Court and the said rejection was upheld by the Hon'ble Supreme Court.
16.14 In the case of Indian Oil Corporation Ltd., (supra), a Division Bench of the Delhi High Court was considering a case where the union of workmen sought for modification of the Standing Orders raising their 26 retirement age from 58 to 60 years, which was granted by the Certifying Officer. In a challenge made by the management, the Division Bench held that the proposed modification could be granted even though the Model Standing Order provided for the age of retirement as 58 years.
16.15 In the case of Kennametal India Ltd.,19, upon a request made by the union of the workers, the Certifying Officer allowed the age of retirement to be enhanced from 58 to 60 years in the CSO of the company, which order was upheld by the Appellate Authority. However, the same was set aside by a learned Single Judge of this Court on the ground that an application for amendment of a clause of CSO was made before expiry of a settlement period. However a Division of this Court, remanded the matter to the competent authority. The Certifying Officer once again allowed the amendment enhancing the retirement age to 60 years which was upheld by the appellate authority. In the subsequent 27 challenge, the learned Single Judge of this Court rejected the contention of the Management that though the settlement period has expired, the same would continue to operate until a new settlement is signed and upheld the orders passed by the authorities. The said order of the learned Single Judge was upheld by the Division Bench of this Court in the case of Kennametal India Ltd 20.
16.16 In the case of M/s. United Breweries Ltd., (supra), a learned Single Judge of this Court was considering a case where the union of workers sought for amendment of a clause in the CSO enhancing the age of superannuation/retirement from 58 to 60 years which was allowed by the Certifying Officer and upheld by the Appellate Authority. In a challenge made by the management, a learned Single Judge of this Court, noticing that the settlement was between the period from 8.6.2011 to 31.8.2013 and the application for enhancement of retirement age having been filed on 28.3.2011 rejected the contention of the management that 28 the application for enhancement of retirement age was raised during the period of settlement and having a financial burden.
16.17 In the case of M/s Aditya Auto Products & Engineering India Pvt.Ltd., (supra), a Division Bench of this Court was considering a case where the union of workers filed an application on 18.4.2017 seeking amendment of the Standing Orders for enhancement of the retirement age from 58 to 60 years. The management and the union had entered into a settlement on 26.12.2014 for a period of 3 years from 1.1.2014 to 31.12.2017. The Certifying Officer rejected the application for enhancing the retirement age, which was set aside by the Appellate Authority, who permitted the enhancement of age of retirement, which was upheld by the learned Single Judge of this Court. A Division Bench of this Court upon noticing that the aspect of settlement was not brought before the Certifying Officer or the Appellate Authority and was placed for the first time 29 before the learned Single Judge who refused to accept the same, however, noticing that during the period of settlement the Model Standing Orders having been amended by the State Government, vide Amendment Rules, 2017 which was notified in the gazette on 28.3.2017 and noticing that as on the date of the order of the Appellate Authority the period of settlement had expired, upheld the order passed by the Appellate Authority and the learned Single Judge.
16.18 In the case of Sangram Singh (supra) the Hon'ble Supreme Court was considering the scope and extent of jurisdiction under Article 226 of the Constitution of India to examine the decisions of Tribunals and held as follows:
" 14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless 30 substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."
(emphasis supplied) 16.19 A Constitution Bench of the Hon'ble Supreme Court in the case of Syed Yakoob (supra) once again dealing with the question as to the limits of jurisdiction of the High court in issuing a writ of certiorari has held as follows:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the 31 party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168] 32
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
(emphasis supplied) 33 16.20 In the case of Management of Federal Mogul Goetze India Pvt. Ltd.,26 this Court was considering a case where the employees formed an association and raised the charter of demands, one of which was relating to revision of age from 58 to 60 years, pursuant to which the management and the employees entered into a settlement on 19.11.2010. Thereafter, on 11.2.2012 the union of the employees submitted an application for amendment of the Standing Orders to re-fix the age of retirement from 58 to 60 years which request was accepted by the Certifying Officer. The order of the Certifying Officer was challenged by the management before the Appellate Authority. The Appeal filed by the management was rejected on 7.11.2012, which was challenged by the management before this Court. During the pendency of the proceedings before this Court, the Notification dated 27.3.2017 whereunder Amendment Rules of 2017 was notified amending the age of retirement from 58 to 60 years in the Model Standing Orders. A Co- ordinate Bench of this Court rejected the challenge made 34 by the management and upheld the order passed by the Certifying Officer and the Appellate Authority. The said order was upheld by a Division Bench of this Court 25. In the order passed by the Co-ordinate Bench as well as by the Division Bench of this Court, a comprehensive discussion of all the case law on the said aspect of the matter has been made while arriving at its decisions.
16.21 In the case of The Management of Grasim Industries Ltd., Unit: Harihar Polyfibers (supra) a Division Bench of this Court was considering a case where upon an application made by the union of employees, the Certifying Officer modified the CSO enhancing the age of retirement from 58 to 60 years, which order was upheld by the Appellate Authority and by a Co-ordinate Bench of this Court. The Division Bench, considering the challenge made by the management, after an elaborate discussion on various factors including the increased life expectancy and global trend of enhancing the retirement age, the prior decisions of the Hon'ble 35 Supreme Court and this Court, the result of the challenge made by the employers to the Industrial Employment (Standing Orders) Act, 1946 and the Central and the State Rules, whether settlement between union and management permits enhancement of retirement age under State Rules, as well as the constitutional imperative on humanizing conditions of service, rejected the challenge made by the management.
16.22 A Co-ordinate Bench of this Court in the case of The Management of M/s. Mersen India Pvt. Ltd., (supra) was considering a case where the union of workers submitted an application to amend the CSO seeking enhancement of age of retirement to 60 years and if need be upto 62 years on satisfaction of service conditions. The original authority allowed the application which was affirmed by the Appellate Authority. In the said case also a Tripartite Wage Settlement was in existence when the application was made by the union of workmen for amendment of the CSO. A Co-ordinate Bench 36 of this Court considering various judgments set aside the order passed by the Appellate Authority as well as the Certifying Officer and remanded the matter to the Certifying Officer to inspect the industrial establishment and to ascertain the manufacturing process and the age and health requirement of the workmen. It is to be noted that the company i.e., M/s Mersen India Pvt. Ltd., was engaged in the business of manufacturing Industrial Carbon and Carbon Brushes and was classified as a hazardous industry as defined under Section 2(cb) of the Factories Act, 1948.
17. Having regard to the settled position of law as laid down in various judgments noticed above, it is necessary now to examine the facts of the case on hand.
18. It is the contention of the learned Senior Counsel for the Petitioner that no Notes were made by the Appellate Authority as well as Sri Ashok C.S.Raj, expert appointed by this Court while inspecting the factory of the Petitioner Company and hence, their report ought not to 37 be considered. The said contention is ex facie liable to be rejected inasmuch as, it is not disputed that the Appellate Authority and both the experts appointed by this Court visited the factory of the Petitioner. The Appellate Authority has, pursuant to the directions issued by this Court, visited the factory on 23.12.2015 and the findings of the same have been recorded in the order dated 2.7.2021. The experts appointed by this Court have visited the factory of the Petitioner and have submitted their report wherein various factual aspects and the manner in which the Petitioner Company carries on business has been placed on record. Hence, the said order of the Appellate Authority and the reports placed by the experts are liable to be considered for the purpose of adjudicating the question that arises for consideration in the present Writ Petition.
19. It is also the contention putforth by the Petitioner that the wages being paid by the Petitioner are higher than the other industries situated at the area and is 38 nearly 4 times the minimum wage and has furnished a chart in the Writ Petition detailing the comparison of the wages and the retirement age prevailing in 18 different factories. It is to be noticed that as per the judgment of the Hon'ble Supreme Court in the case of Guest, Keen, Williams Pvt. Ltd., (supra) one of the factors that is required to be considered while increase in the age of retirement/superannuation is the nature of wage structure, retirement benefits and other amenities available to the workmen. This is the ensure that after the age of retirement/superannuation, the workmen are not financially, adversely prejudiced and the hardship resulting from early retirement is considerably mitigated. There is no material placed by the Petitioner in the present case to satisfy the criteria that the retirement benefits payable to the employees/workmen would considerably mitigate the hardship that will be caused to the workmen upon retirement. In any event, the financial aspect being one of the factors for consideration, sufficient material is available 39 on record to enable the Appellate Authority to fix the age of retirement at 60 years.
20. The fact that the manufacturing process in the Petitioner Company is substantially automated as is forthcoming from the order of the Appellate Authority, which has been recorded consequent to the visit made by the Appellate Authority on 23.12.2015. The manner in which the manufacturing activity is undertaken by the Petitioner Company has also been substantially noticed in the report of the experts appointed by this Court, the salient features of which have already been noticed at paragraphs 12 and 13 above. The Petitioner is not registered as a hazardous industry under the Factories Act, 1948.
21. The Appellate Authority has also considered various other aspects and has recorded findings with regard to the physical, mental and health condition of the workmen. The Petitioner has not pointed out any material to demonstrate that the said findings are perverse. 40
22. It is forthcoming from the judgments of the Hon'ble Supreme Court as well as this Court that taking into consideration the general improvement in the standard of health in the country and considering that the longevity has increased, the Hon'ble Supreme Court, in the case of British Paints (I) Ltd., (supra) itself, has increased the age of retirement from 58 to 60 years. This has been consistently followed and reiterated by the Hon'ble Supreme Court and this Court in various subsequent judgments as noticed above. Various other factors have also been taken into consideration in the judgments noticed above including the global trend of enhancing the retirement age, the amendment made to the Model Standing Orders, etc.
23. While it is sought to be contended by the learned Senior Counsel for the Petitioner that various judgments cited by both the parties are a general statement of law, however each case has to be looked at from the peculiar facts arising there from, it is to be noticed that even in the findings of the Appellate Authority which are recorded after visiting the factory of the 41 Petitioner and the reports of the two experts appointed by this Court, there is no ground out made by the Petitioner to make a departure from the interpretation as made in the various judgments, as noticed above.
24. Having regard to the practical unanimity in judicial opinion as noticed from the various judgments above and the limited scope of interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India in interfering with the order of the Appellate Authority, the Petitioner has not made out any ground to warrant interference with the order dated 4.3.2016 passed by the Appellate Authority in the present Writ Petition. Accordingly, the question framed for consideration is answered in the negative.
25. In view of the aforementioned, the Writ Petition is dismissed as being devoid of merits.
No costs.
Sd/-
JUDGE nd