Karnataka High Court
The General Secretary Karnataka Karya ... vs The General Manager The Printers ... on 4 November, 2010
Bench: V.G.Sabhahit, B.V.Nagarathna
IN TH E HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4"" DAY OF NOVEMBER, 20170-___
PRESENT
THE HON'BLE MR. JUSTICE V.G.SABHAjHI'T.:'L
AND -
THE HON'BLE MRS. JUSTICE;'E.V{_NAGARATHN
WRIT APPEAL No.'34'1.4/2005{1rREsj
BETWEEN:
THE GENERAL SECRETARY ITARNATAKA
KARYA NIRATHA. V "
PATHRAKARTHARA SANGHA' . _ ., _
TALUK OFFICE RREA/I~ISES:; KK ROAD
BANGALORE ' APPELLANT
[By Sm: & K."B;I\iARAYAN SWAMY 8:
V.SHNA R.EDDY,VADVS..E)_ _ « '
AND:
THETVGVENERAL IVIANAO-ER
THE:'«:PR1NTERS [MYSORE] LTD.,
* PRAJAVANI AND DECCAN HERALD
9- 1. EAA\IGA.r;Omg*I, V ... RESPONDENT
{By---Sr-I:V_.PRAiDEEP.S.SAwKAR, ADV. FOR
M/S.S.UNDARASWAMY RAMDAS & ANAND, AG]
**>i<**
1 THIS WRIT APPEAL IS EILED U/S 4 OF THE
I_<:ARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
"THE ORDER PASSED IN THE WRIT PETITION
NO..14398/ 1999 DATED 9/8/2005.
Q,»
THIS APPEAL BEING RESERVED AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
NAGARATHNA J ., DELIVERED THE F OLLOWING:-
JUDGMENT
The petitioner who had filed W.P.N0.1.4.3:$§8./Q9"
filed this Writ appeal by challenging::A'theI"«_gorder:: of learned Single Judge dated 9/gs_/2005.'
2. In the 'the had Challenged the award passed by the Industrial 'l'rib'u.nal to as the Tribunal') had sought quashing Single Judge has Being aggrieved by the said order, VVpetitionerA:.}'1ggII5;'prelerred this appeal. 'f'hexpetitioner, which is a Union of Working raised a dispute \m'th regard to the age of 'promotion and other benefits. It was their I _ contention the Working Journalists had to retire at _.Iti2eitageVVoI 60 years and not on attaining the age of 58 In addition, a dispute was raised on behalf of Sri
-»N*.:Arjuna Deva, K.S.Ramaehandra, B.Shankar, N.S.Gopal and P.Seetharam, apart from the common grievance that L» all the workmen had to retire on completion of 60 years of age. The grievance of Sri Arjuna Deva was that he had been denied prornotioli which he was entitled to on_thez._ ground that he was the office bearer of the U11ion3V_:«and:.'t'he' _ grievance of Sri K.S.Ramachandra was that" 'i1e.:had"9:11ot it been paid monetary" benefits such 3i11'teri.rri'- reiief, educational allowance, promotion as I51'-Q01'Reade'1i_'etc., in M terms of the Memora11durr1k"«.of Settlernent vvfgdated 21 /4/ 1994. Since the grieva1:§_ce 1-of i't1E.e»i/ifo.rkmen were not satisfied, the matter was...t:aken *thei"Conciiiation Officer and cit}:/c_i1iat§onproceedings-----having failed, the matter was to which was registered as reiferellce was made for adjudicati_o1*1.A "translation of the subject rnatterof h'1dustriai"Dispute is as followstw 7(1) Whether the Management of Printers if _(1t4;;s5§rej"Lin11red was justified in retiring Sn' Arjuna ";K;S.Ramachandra and B.Shankar on 39/4/1994, 91/10/1993 and 30/11/1994 "respectively on the ground that they have attained it the age of 58 years though they could have been continued on the producing of medical certtftcates? 'k/F [2}Whether the Management was justified in note granting promotional benefits to Sn' Arjuna Deva in the years 1979, 1983 and 1991 white granting such. benefits to his juniors?
[3)Whether the Management was "
refusing the benefits of Mernorandurn"of"Setttement signed on 21/ 4/ 1994 which ciarne force 21 /8/1994 such as pintertnr relief, 'evdueatior.1'a'i~.pv"
allowance. promotion to_LPVroof Ajfieaoierie_t'c';',;V"'io»V Sri K.S.Ramachand.ra on the aro,ttrid_ that'he_ had. retired 0n31/10/1993? V " d H 'A
4. The claim statement and :eounte1f_'staten1ent were filed and partied'a_d'duc;ed or-ail a'11d'd'ocu_rnentary evidence before .t1'xeevTri'ounaE.; and on t.he~'aasis of the material on record award dated 9/ 12/ 1998 rejecting i3veir1g:.aggrieVed by the said order, the petitioner preI'er1*e.d____W.P.No.14398/99 and on its being ~dismissed.pthiswrit Appeal has been fiied. 'V'«.'Wep'p:=.have heard the learned Senior Counsel Sri'.u"M.Cl:N.arasimhan appearing for Sri K.B.Narayan 'A k_z:Swarnyvvfor the appellant and Sri.Pradeep Sawkar learned . 'counsel appearing for M/s.Sundaraswamy, Ramadas and " "Associates for the respondent.
6. it is submitted on behalf of the appellant that the issues raised in this case are with regard to the Working Journalists and therefore the Worlririg Journalists Act applies as also the industrial A' [Standing Orders] Act. That as per Standing Orders, the age of 1'eti1'erne1'itl'i's«.v Y€ar:s--whe'n_ discretion is exercised on a ratiorialxbasis rega'rd';to"a V the medical fitness of the emlployees. Wage Board has held that 6O.yea'1'sljisTa.i'easonable age of retirement and the said' has also not been disputed.ebycy:the that a large number of Journalisltslflhai/e VVbeen'--.contiim,ed beyond 58 years by the resj3ondent;ilv"'lfl:at 'Shinde Wage Board made the 1'ecommen"d.atioVn,l .an,_ has been passed by the Central Gover'nme_nt. with modification but no l1'1}1'O~FlVlVl'lCe-bl[lQ11A:Vl'"'l'l_aS been made with regard to the reeon1I}:V1.enjclati'on on the age of retirement. That when the Wage Beardllmakes a recommendation, it should normally besaccepted as a reasonable recommendation and when a _' "disbpute arises, weightage should be given to the "reconirnendation. That fixation of age of retirement is also part and parcel of the recommendation with regard to wages and since a representation was made on that aspect. the Wage Board had recommended on the age___of retirement. When a recommendation is made by~._the'~. Wage Board, the Standing Orders cannot even within the scope of reference m'ad'e'---:byl'-the Government to the Tribunal, it could h:ave:'adjudicated:'0n"= incidental mattes such as age'lof~..retirementasithe powers l of the Tribunal are wider than the officer, as the Tribunal question of reasonableness of the iitlland that the age of questions referred to had made a recom1'i1endlat'i'oi_iV be accepted by the respondent." Thereftirei:_lthe"learned Single Judge was not right in holdirig that the remedy available to the petitioner S"-wads" to the Standing Orders amended. Learned Senior on certain decisions, submitted that the..4'_orde.i°.lo'i}..-- the Tribunal as well as that of the learned Single' .,iu~dge are to be set aside and the point of dispute 1,/.l'_"r€ferred for adjudication has to be reconsidered in the ifght of the contentions raised in this writ appeal. 'i W),/"'
7. Per contra, learned counsel for the respondent submitted that the Union was espousing the case of only three workmen and the reference was not with regard_"--«to' the general dispute seeking the age of retirement ' to 60 years. Therefore, the Tribunalmras right in frvejectilng V the issue with regard to the en.han_cernent. ' superannuation; that the standing orders. the parties, and any change in thye__fiSltand_ing only be after the amendrnentlrnade certified with an application mod'1'fileatio1:__;of" Order. That in the employees have Worked not on account of extent.ion__ but fresh contracts were enteredllinto. Wage Board had no power to go "into the other conditions of service such as age of I'§3V.l;l1"3IIEs1l.€§11J[:v'.l[?}.'1t hadmlto confine itself only to wages and .al1'ov¢avnlces. .TA.tv"any rate, the recommendations made by Wage.VfA.I3oard regarding the age of superannuation being. years was not accepted by the Government and l' thelearned counsel contended that the decisions referred if .. by the senior counsel are not applicable to the present case. He therefore, submitted that the order of the Z,» Tribunal and the learned Single Judge are in accordance with law and which do not call for any interference in this appeal.
8. Learned Single Judge had raised tr:e_:"roe1idjmlrige:.'_'"_j "
points for his consideration and after 'h.eari_ng_both sides, has dismissed the Writ Petiti0n:--
{1} Whether t'he.._vp:l'te.orkrnen_ are continuation of service to.:tt;e_age.'Qf years notwithstanding' Standing Orders? H l I it :3} ' "«.i/ifi--ietl"ter was wrongly denied ltae--nefit'.Zofprornotton on the ground that andlléecretary of the Union *{3_}l1rVh.e'the'r Ramachandra was entitled the mo'ri.e.t_cm_;v benefits under the settlement dd:ed:j2.1 /4/1994?
9'. heard the learned counsel appearing on both sidesand on perusal of the material on record, the only point that arises for our consideration is, as to ljivhcther, the order of the learned Single Judgepcalls for " -any interference in this appeal.
10. At. the outset, it is necessary to note that the subject matter of reference before the Tribunal Wasiivith regard to the retirement of Sri Arjunal' V. K.S.Ram.achandra and B.Shankar and grjanting' promotional benefits to Sri Arjuna:-D"eVa« in 'the, year, _1 1983 and 1991 and not g1'ai1tii'.g intégiln». I-e'1iéi',._° educational allowance, promotionpto flroof \ "£0 Sri K.S.Ramachandra, in term--slll:ogf.the. mernoraridlum of settlement, which canriel"inht*o 8/ 1994 on the ground that he4_i"i3._F3l retired The age of retirement of not a subject matter of ptVhe*~lnl"cl ust_rial V .
ll, Before the rival contentions, it is necessary to"advert",-tot't_he'~'Working Journalists and other ~'"~._Neu.T'f¥Paper.,,_ [Conditions of Service] and lvfiscellganpeous:ProVisions Act, 1955 (hereinafter, referred to'as'*thel The said Act was enacted to regulate j certairiconditions of service of Working Journalists News '}}i:>aip'+er..._ Establishments, which applies to Working
-.ff.«Jourlnalists as Well as Nonwworking Journalists or News Paper Employees, which are defined under Section 2H) t and Section 2{d)[d] respectively. Section 3 states that the {Z} fix' provisions of the Industrial Disputes Act, 1947, subject to modification specified in Section. 3(2) would apply___ in relation to Working Journalists as t.hey apply in to other workmen within the meaning of t.he * 4 to 8 deal with condit.ions o_f,....service"lloi"?f§'t7oI'ki"r1g Journalists such as ret.renc1*1rnent2, paymentor _g1'ate£iitIyl,l7.A hours of work, leave, fixation*--..or revision of_wage.sHVeitc. Section 9 deals with proceyiyvefig._ilor..__fixiijg..ialnd Jrefixing rates of wages by the AEl.oaI;_d1l. 10 deals with recommendation._by Boa.rd.:_ to powers and 12 is with regard to to enforce the recon1};nend.atViov:'1VOllthe' Board, Section 13 speaks of the en1-,Aftl.1?_.pIlIl"1E'.11tl. rates not less than those specified in the, order passed under Section 12 viswawvis SS"'lworkinlgf:Joiirnaiist,smand Section I3--A speaks of power of l(}o'.r.ei=nnile11t:.:~to fix interim rates of wages. Section 14 states vt:l1~a_it}*t.he provisions of Industrial Employment ll."-'««___l'-~.(St.and1ng§'Orders} Act, 1946 (herein after referred to as i,,.lyfA':3t.andi11g Orders Act") shall apply to every News Paper Efstiablishment;s wherein, twenty or more News Paper Employees are employed or were employed on any day of 3' ;!/A the preceding twelve months as if such News Paper Establishment is an Industrial Es'tablishment. Section 15 states that; the Employees Provident Fund Act, shall' to a News Paper Elstablishment as stated ab0V,€-:---- . 16 states that the provisions of the sh_.all"l1a_velleifect notwithstanding anything incgonsisteintlie » . _' :1;_' contained in any other law or in the terms oiv'Variya_ward, agreement or contract of before or commencement of tl1§A..y/Ar;t_.A __a News Paper employee is entitled tovA,be.n_efitsl--_l any matter which are CS8 to which he would be shall continue to be e11titled henefits in respect of any matter he receives any benefit in respect", of other r'nta'tt,e.r-s tinder the Act. It also states that notllirlg'-areCdnfgainedvlllllih the Act shail be construed to Paper Employee from entering into an agr.eement: an employer for granting him rights of privileges in respect of any matter which are more favotrrrable to him than those to which he would be entitled to under this Act.
it ,w»'"
12. In the instant case, since one of the issues raised is with regard to the age of retirernent as recommended by the Wage Board, it is necessary«..y_tovv advert to the specific provisions _y A . recommendations made by the Wage bBoard'.l"'Sedction v8,of the Act deals with fixation and revisirm ratesjlof 'u}ag¢s:;;_t in respect of Working Jo=1ri1alist:s.'-.. 'WhiiejSevcction3 9b prescribes the procedure for and re'i"i;A(in:g the rates of Wages by the Central_xiiovorntnerrtQconstituting a Wage Board consisting of the employees in relationdiv Establishment, representa V goof' . K1 Journalists and four independent' shall be a person who is, or been', High Court or the Supreme Court. and shall be appointed by that Government as a"'vs1.chrnrman thefébf. Section 10 deals with the by the Wage Board, which has to be done bVy.'tir.stV' calling for representations from the News Paperiistablishments and Working Journalists and after i:aki'ng into account the representations and examining the materials placed before it, the Wage Board has to make such recommendations as it thinks fit to Central 2 EM-
Government for the fixation of the revision and Wage Board in respect of the Working Journalists by forwarding the wage recommendation prospective or retrospective and the date from which the recommendation shouldhtalievv effect. In making the recommendation to Government, the Wage Board has to have"rega:r_d. to the cost of living, the prevalent rates wages for compar:able:;_' employment, circumstances.relatingatoll the cVNlevvs..._hPaperl industry in different regions of other circumstance which ' relevant.
Section 1 1 defines the of the Industrial T the industrial "proj visions of the Act. Section 12 deals thlell the Central Government to enforce grecolmvrnendatilons of the Wage Board. After the G"-Wage. E3"oard.&makelslllits recommendations to the Central
-..Govern.,rn--en"t, fitV.}has to issue an order in terms of the recornrnendlgjitions or subject to such modifications if any Hwhich'; the opinion of the Central Government would "«_l2no_t_ 'amount to effect important alterations in the character of the recommendations. Before making the modifications. the Central Government can also refer the 5}' £'fl,/ recommendations or part thereof to the Board which can make further recommendations and the same can___be considered in the aforesaid manner. Every ordergof Central Government made under Section 12__-has ~ published in the Official Ga2:etteWtogeth_er"'"*~.:§#,i:itl§"» the recommendation of the Board re1a:ting+;"eto' the 'order the order comes into operatil-)n'«--on the-.date oi7pLib1§.ga:ion or of any prospective or retros'pectiVe dated as may be specified in the order. V
13. In the insta:1t_ '=case.~~_ i1i"'.pii;9s'1iance of the powers conf.erreid',_V _tl1eVCer_itral" llilovernxnent had consfituted_iaj.Wage«.Board caliegivlshjnde Wage Board. consisti--ng'-- of seVcn~'E5y order dated 12.11.1963 which regard to refixation of Pay Scaleaslvof Worliixigvvdoitmalists. The Wage Board while »rr:1'ak_ingAitsureeornrnendation also dealt with the age of relevant portion of which has been V . extracted hj/the learned Single J udge, which reads thuszw "Age of Retirement:
3.40. The Board is fullu conscious of the food that the proposal reqardino the aqe of retirement is likely to be challenged on the around / E» that it does not strictly fall within the purview of the Board. The evidence recorded by the Board indicates that there is no uniform practice respect of age of retirement'. This disparity_"
given rise to some dissatisfaction anio..j'iysi' 3 employees. Besides as the "wage been formulated for a periodznranyiingjrom he it years. there is apprehensionin the minds of the--,.*.. V' employees that in order-._to avoid. pa;;irig"*vth.e*':
maximum pay of scale, ne'wspaper establishments V may " of desperate practihce" T I and ernployees earlier. This is U!C€c_y::EO Vcause':qreat,.'hardship to those emplp.yees:l«_wli.o"'haveservedvifor a number of yearbif o tithes.-:'epresentatives of thelyemployetsyi and .ernploy_ees were unanimously pf theeopinion«.th'a,t"there should be uniformity in rxespect ~I:éiiIf€;'tTl€I'll in the industry and that'>the.age_ qf_vretiren1ent' should be 58 years. :1 T However, allworlciing journalist shall be continued 'service upotomthe age of6O years on production it _of certificate from the District Medical order to give full and uniform effect to the proposed wage scales the Board decided to "include this provision in its proposals. It may, A however, be mentioned that if need be the A Government may incorporate this provision in the Working Journalists [Conditions of Service) and % ...«-*"".K Miscellaneous Provisions Act bu undertakinq the necessart: amendment.
14. When the recommendations of V. Wage Board were made, the Central Go\re1"nn1ei1;t accepted some of them. subject to certairi"'11¢QdifiCat»i6h,5. afidV published it in the Official Gaiettepon /~1.o~./iéj'5:7i"
[EX.M.5). The modification were"*.vith. regard. of Paragraphs 4.34 andv-"L oi7'then._rep'or_t pertaining to age of retirement being 58 Jy'_e'ars...l7b:ut_:"th.e»mecommendatior}. made with reg:«irdv--.to in i.3aragraphs 3.40 was not éentral Government. The relevaritportion the order' is as follows: _ _ in exercise of the powers coi':_f_ert'redV"' Section 12 of the Working 1 ' 'V «Journalists "!Conditions of Service)and :,_Miscetianeo'u's*"Promsions Act, 1955 (45 of .1955),
--._theCen1:_rat Government hereby~ an order in terms of the 3 recommendations of the Board contained in Chapter IV of its report which is reproduced in the schedule hereto annexed subject to the modifications, that: paragraphs 4.34 and 4.35 of the report shall be omitted; Q?
f:.,,.,«=»°""'-' [b} directs that the said order shall come into operation in respect of the recommendations of the Board on the dates specified.
paragraph 4.32 read with paragraph__'§t»,3:tSt"~gt. of th.e said Chapter IV.
4.34. The age of retirement ;,qf._a1'tu<§n:c:ng_"',__iT Journalist shall be 538 yea__rs;;_ Hoa;_eoer,'~ Working Journalist shattfge con'trTnuect:in se'r'oice": up to the age of 60 yearshuasb prgoduct£o.ni_ of fitness certificate from Q[ficer'." V 4.35 Re--enqjtogjrzientjfoi'hhthewsahrrie kind of work shatéifib-eg .of'the------Iast pay drawn by the dtfftg-he 'tingteihcf retirement"
1earned"«.Seniorwtlounsel has contended that thKe--.C'entVra} given effect to Para 3.40 of the recornrnend-ationh"'and hence, the petitioners are " _ envtiijthiedg-.tto be continued in service till they attain 60 years L' in" the said contention, a ju.dgmer1t of the I.)'i\rision_&.1~v3hench of the Orissa High Court in OJC No.100i/_l989 in case of The Sarnaj, Represented by its it r~:ij".EAidiitor ~vs.-- State of Orissa & Others. has been cited .' wherein, it has been stated that the exclusion of WParagraph 4.34 would not by implication mean that the is 3 provision as to age of retirement contained in Paragraph 3.40 has not been intended to be given effect to by____the Governrnent. In view of Section 16 of the Act, stated that the provisions of the Act has over--r_i*d--ing:teiflgectf" ~ on the provisions of any other lavv,....avvard_;tagreuenientof contract of service which are i11cO;Tisisten'it tlierevfitgh hence, it was stated that thepirovisions co11ta_ined...in the Standing Order were the recommendation of has been accepted by the 12 of the Act. Hence," ought to have applied' High Court as well as the_reci;rnrriend.ett'ion of 'the Wage Board contained V in Paragraph '3,_3l0--:.'--avnd__l"give1'1 benefit of the age of retire-'merit.
The aforesaid contention can be answered at by stating that Sections 9 to 13[A) of Act deaiingvwitliifixation of wages or revision of wages in respectltof Working Journalists whether prospective or 1'e_t_ro3pective and the said wages have to be fixed having regard to the cost of iiving, the prevalent rates of wages for comparabie employment, the circumstances relating to fzfjw --: 19 :- the News Paper Industry in different. regions of the country and to any other circumstance which to ___the Board may seen relevant. Therefore, the prirnaryu of the Wage Board is to fix or reftx the Working Journalists. Therefore, the rec.o'm'rne'ndat.ioris made by the Wage Board is only:'»tvitl3"a:fe'gardf and refixation or revision.7 of pay, scales'V'"q;:vyvagles assuming, that the Wage Boardl"h.aci.Vthe tolfgo into the question of making;t_._a<-- on age of retirement and accordin,gly',_ it it's'vrecornfmendation at Paragraphs is is that the Central order in terms of the to such modification as it thinks 'fit: 4' :_4thfe"recommendations which are accerted or 'modified the Central Government and find . -a ;5iace3-in ano1'derHt5assed to be by it and which has to be have to be taken into consideration as the accepted.. . l " Erefcomniendations. If a harticular "-.,1'econ1"mei1dation made by the Wage Board does not find a in the order of the Central government it loses its efficacy and remains a mere "recommendation. Hence. it is only those recomniendations and modifications of the xii' recommendations, accepted by the Central Government and transferred into an order under section 12 of the_Act and which are published in the Oflicial Gazettes binding on the parties as well as on government. The fact that there_..i.s,__an ta particular recommendation regarding 'of retiren2eri.t"-.in' 1;' the order passed by the 'Central AGoverm'ner;.t'wundierA Section 12 of the Act the said recommendation has the Central government. Insother Vrecolrnmendations are accepted or which are modifiegippbj;/..jt:V avliplace in the order to be passed by under Section 12 of the Act and published in the Official Gazfattec in t-hel'G}aze'tte.: publication of the order of the Ceritrqyt/,(}i*J€1'nment accepting the recommendations, tl1erei'reference to the age of retirement being raised to *-50 infact, it is observed by the wage board that in order' to give full and uniform effect to the proposed scales, the Board decided to include provision regarding retirement age in its proposals. It was also observed that it was for the Government to consider the need to incorporate the provision regarding age of retirement in the working Journalists (Conditions_,__Of Service] and Misc. Provisions Act by making amendment. Therefore the recommendation.*i¢egard.i'i'1g°*--*.e * age of retirement at 60 years couldhave bec:na'ccevpt'e'dby the Central Government by making fctn.'Varnendrnentfasll'V.A stated above. There is no rnateriallhoili 1'ecord Central Government resorted the other hand, the mere 4.34 & 4.35 from the Government that. age of retirement all working by the Central Goverfl{1i6iV1t.Ai' the contention of the learrzed' that the recommendation regarding the ageof retirement had been accepted by the °-Central3--f"Goveriimentll is not correct. Hence, reliance thee-jvudgnient of the Orissa High Court is in no wayaof assistance to the petitioners. In fact, if the Wage Board in its . i-ecornmeiidation has touched upon certain aspects which C "are beyond the scope of the Act and even if such recommendations were to be accepted by the Central Government. they would be ultra vires the Act and cannot confer any right on any person. In the instant case, a reading of the recommendation of the Wage contained in Paragraph 3.40 reveals that the _ was conscious of the fact that_Athe rec"on'virrlend'ati~on regarding age of retirement WouldV'».not;p'fall' :'_» it corners of the Act and coiiisideringtliat tl;1'ere&:was Enoll uniform norm regarding the retirelmentl they} stated that the Working Jo1irr1_a'.istsy _continiied until they attain the age of are mentally and physica1l_yllii:;s:l:. 3.40 does not find a p1aCl€f_inf_ C'e11tra.l.V'c_floverninelnt order would mean that the Central..govern:ment_ did not think it fit to accept the prolposlalty made the__l:Wage Board regarding the age of retir;'e1nent',.ll other hand it really the Central .C}overrin1entlphad accepted the uniform age of retirement at the standing orders would have been arr1_ended_vltjolbring it on par with the recommendation Aaccepteti by the Central Government. However that is not ':;h_er.~case and the standing order applicable continues to __i)e the same.
E}
17. As far as the age of retirement with regard to the respondent M News Paper Establishment is concerned, the same is stipulated under the Working Standing Order, which is produced as * deals with superannuation and reads as fo1lo\'2'xdrs,":---hi.
"32. Superannuat1'on:~ _ p p 32.1. The com3)c;u_'iy sItiC!.l_l""rei'ir(:»'\"}Vd"'.*'or'r:f1_V'its:
service any employee wtto. attained of 58 years. No ernployyee jjavedddangi claim whatsoever in vcontinuiing%.j_p'ivn'4'service of the Company thereqfter._Vy may, h.owevevr":dt':'.its IA_s0I:_e subject to S . extension of seruiee_jbr1'}q writing"
'A. 'said clause would make it apparent't_hat for an employee to retire from service at age of 58 years and he cannot have .' cdlaiinid'awhatsoever on the company thereafter.
" _Howeyer','_~a_ discretion has been given to the respondent to consider the case of an individual employee and give an it Amztension of service for a specific period subject to his "'._I5r'1edical fitness and the said extension has to be made in d ' v---writing. Therefore, extension. of service of an employee for 3'3 5/ a specific period at the discretion of the employment is by way of exception rather than a rule and no employee can contend that he would have to be given an beyond the age of 58 years much less up to * extension has to be given in exceptional cas"e's'=rath'er'_'than it as a rule with an intention of 1"€:':J'LE1lI:,'1'l'I'1§"-5: enzployees whose services could be made useof by the companfy«--provided 2 L' they are medically fit. The.1EeVfore,--.r_the of the learned Senior 'th'¢;.lA'A:"W_age board had recornmendedthe years and the same orders of the 1-espondeintlp for the reasons stated for the reason that the wordingsofd :t'h"e standing orders also does not mandate usuch~a" proposition. In fact, the use of the A phrase 'sole discretion' in Clause 32 would mean that reven_i'f--.ari employee is medically fit, unless the discretion is €Xel7CiS_E:d in his favour, his services cannot be extended. No doubt, when discretion is conferred on the V V.ma;:1ageme11t, it has to be exercised in a judicious manner but non-exercise of discretion in favour of an employee would not result in judicial review as the discretion vested £ 3%?
with the management is sole discretion and is not in the nature of a judicial discretion.
19. As far as sanctity of the Standing Orders"
concerned, it is necessary to advert to the pro':visio.ns'i-'of. "
the Standing Orders Act "Standi-ng' »Qrders"S_i defined by Section 2(g) of the Act t¢i«me};n*~ 7f matters set out in the Section mandates the employer. of an:esta'b1ishn1erit"tosiildmit to the Certifying Officer Orders proposed by bun fvfiiig industrial establishment; it Section 4 of Orders shall be certifiedif ' the are in conformity with the provisionsllioff the Acting' said Section empowers the Ce:fti'fyin_g (__)fficer'«t0.___.d'ea1 with an appiication made for the Standing Orders or to deai with an apoiicatiolnfamendment of the Certifying Officer is far andllllwide. .fSection 4 of the Act clearly states that the Standing Orders are not certifiable unless they are in "accordance with the provisions of the Act. It is the duty of if "the Certifying Officer to go into "reasonableness and fairness" of the Standing Orders before he certifies the .»-er"
same. While doing so, he has to adjudicate the age of superannuation is neither reasonable nor fair.
20. Since as of today, there has amendment made to Clause 32 of the Standing with regard to superannuation, the same "is binudingvvgongg the employees as well as the managerrient. 'alWa'ys"u it open to the Union of Eniployee--sTTto. rnoxve authority under the seeking'; the alteration of the concerned authority is vqv§'gif1"eyance of the employees, iithe Standing Orders could ;S;'1iI,{:t.Ve.is«jtsuhmit*tedv"§at the Bar that the petit.ioners'-- to get the certified Sl;E1I1CT1II1g'()IT_!_('Z1€I7S niodi,flied:oi~'altered for fixing of the age of supyerfianri1,zation"a.tvtheage of 60 years, and the same is ins' accordance with law. But the Standing Order presentl'yidlincorpiolrated at clause 32 has a binding effect. In fact, v--.,l'ea-rned Single Judge has noted that the Wage gVp.'B.oaprd suggested amendment to be carried out to the _S'AVct~or to the Industrial Employment {Standing Orders) 1946 or to seek modification of the Standing Orders it and has also observed that Without the Act lqeing --: 27 :- amended by merely making a recommeridatioii regarding the age of retirement or the certified Standing orders not being amended with regard to the age of retirement'-.the same cannot be adjudged to be 60 years. _ Tribunal was also right in holding that tl1e.--.p:e.titio11«ersl' were not entitled to retire at the agefof lyears»,_aL-5t.' claimed by them.
21. In this context, it tolfrefer to the contention that persons, the management had contini_:.e:d--their yxhile in respect were sirnilarlyggplacfed. "'3n"*respoi1se'lto the said contention, counsel for tl1Cll1'li'i'S{)'O'£1el€I1:l" had stated that it was not a case of extension of service of the employees by exercise of discliretigoii u but "th_a_t;; subsequent to retirement fresh ' iappoiiitmentfon contract basis of specialised category of Joui'i1alis--ts---- was made for a limited period and that in some cases even persons who had retired from other if establislhments had been taken on contract. Therefore, the submission regarding discrirnination is without if "substance and is accordingly rejected. /,,.««:*
22. At this stage, it is necessary to Consider the decisions relied upon at the Bar. The following decisions were referred to by the learned Senior Counsel appellants: --
[a). in the case of A ManagementBai¢gi1£o_re Woollen, Cotton 82. Silk Mitts'-,cof.ie~i;td;,, Workmen 82. Anr. [ {1968) ,',_ T' has-..be--en held that "the Standing Orders"».Ac't.__vWhi.en:l_has_fiio1' its object, defining with conditions of employment, under and to make the said workmen, has provided to the workmen for the pu:rpo_seA order modified or for having to the application, or inteijpretation of V E11 standing order, referred to a labour BiutV"the1'e warrant for holding that merely Standing Orders Act is a self contained statute _withf.rega1'd to the matters mentioned therein, the V'-~.jurisdiC.1;ion of the Industrial Tribunal under the Act to V."Viadjbud.ieate upon the matters covered by the standing _ orders, has been in any manner abridged or taken away. it will always be open in a proper ease, for the union or § ..s;4--;%"""
workmen to raise an 'industrial dispute' as that expression is defined in S.2(k} of the Industrial Disputes Act and if such a dispute is referred by the CrOVE:,¥T'[li:'l'":1.E3«I_"i.t"-_ concerned for adjudication the Industrial Labour court as the case may be will have_--jurisd_icti'o:1'_'to adjudicate upon the same."
{b}. In the case of _Manag_ement,1.§:¢!iai"ida;ra'l (Delhi) Saharanpur Light Rai'iioagJ_ Railway Workers i.t has been held that the given a duai remedy to the Industrial and under the Industri_a1" context of the right of the workmento_Vdcorite~stAdVraft=1Standing Orders or to apply for the'ir,niodificatiori«inaddition to the existing right to raise ' an"i.ndu_Vstrial 'dispute.
I [c]i 'III; case of Rohtak Hissar District Electricity Supuplyiuaico. Ltd. --vs.-- State of Uttar Pradesh and I Others [ (1996) 2 S.C.R. 863], in the context of Uttar Alfiradesh Industrial Disputes Act, 1947 and the Standing WC)rders Act, it. is held that the scope of the provisions of fix
--s..»3"
-: 30 :-
the two acts and the fields covered by them are not the same. While the Industrial Employment [Standing Orders) Act purports to secure to industrial emp'loyees--VV clear and "unambiguous conditions of their T * the scheme of the U.P.Act is to deaLw_ith by Industrial Disputes which haveiiyactfuallyttiarisen orT"arei'?1.i_' apprehended. It is therefor:e;'--.._stated. that no conflict between the Standing'-.LGrcders..'Act ariicl the Industrial Disputes _ it .
[d]. In Hindustan.:Antib»iotios;"1i§td., ~vs.-- The Workman , the award by the Invdu'st'ri.al-jg Tri1:3'unaly&"**Jtras« touejstioned both by the management as well.ais,4tfie':workmen as the Tribunal had fixed waget'--..scales -_and having regard to the company's financial'"sositio1'1',«.its_,rroductive ca acit , a com arative P 'study of its:wag.e structure in the neighbouring industries and'--similaf:--ret1eVant factors. The fixation wage rates were j accetptedltthe Supreme Court and the question of age of .,rett1'rement adjudicated by the Tribunal by raising the age Tretirernent' from 55 to 58 years and by giving a it ""d1'sci'etion to the company to continue an empioyee after the age as stated by the Tribunal was also considered. ,' ?
The Supreme Court held that giving a discret.ion t.o t.he company to raise the age of retirement or not to do so in t.he employment. would lead to manipulation' victimisation and following the trend of ji1dic_i'ci--l l i- observed that the retirement age o_yfi..th_e the company should be raised to 60 yelarsfiic ~ it {e}. In the case of Ris;i§V;V'1",c. ..lsu'---- Dayal Sharma [2010'A.1_Zl2 sc'W'a1olS), ._ it hlas'beén held that the Standing Orders and are not in the nature ljof legislation.
However, making reference to the case pf """ SC 17/'15] that the standing accordance with the Standing Orders Act-..are sta__tu'f_olri1.y" imposed conditions of service g_ and~;are__x'iiindinghothyupon the employers and employees 'and._any'~violatiion of the standing orders entities an lerr1p1oyeel.".t§o 'appropriate relief either before the forum crea't.edl"l.hyl the Industrial Disputes Act. or the civil court llwlieyre recourse to civil court is open according to the 'principles indicated therein.
5%?
(I). In Rohtas Industries Ltd. -vs.-- Brij Mohan Pandey and Others (AIR 1957 SC 1), it has been held that there is a distinction between the commercial'--ai'1d"'..A industrial arbitration. Industrial arbitration V' the extension of an existing agreeI_n.e»nt_,' or fthel_l_of a new one or in general the creationaof obligationsnllorltflA modifications of old ones, generally concerns itself . eristing obligations and dispute's.xre1ai=ingbto agreements.
A Court of law p.rQC€e(:j.s--,[0fi' no power exists in tor people, and the parties The Courts reach their lin1iE_oAI'A_' enforce contracts which the parties have :_4l'A:n"industrial Tribunal is not so fet;ter.ed panda inayl' create new obligations or modify .i"'con't.racts"i,n' the interest.s of industrial peace, to protect I-l.egitirnate=._trafilefunion activities and to prevent unfair practice .or_V4jicAtirnisation and the Tribunal cannot ignore 1"~'~___l'~altogethe_r:' an existing agreement. or existing obligations f_or_nofrhyme or reason whatsoever.
[g]. Guest, Keen, Williams Private Limited --vs.~ P.J.Sterling and Others [1960 [1] S.C.R. 348), was "J"
cited to contend that the question about the proper age of superannuation for industrial workers is one of general importance as it affected a large number of employees-.a'n_d""..A involved question of industrial policy and * was a substantial question of law__urider of Industrial Disputes [Appellate Tri:bu11'al]*~ 'VAct~,. t.hat if an industrial dispute_i's._raised hy. _tlie'Até{o'rkmen questioning the propriety and____{falidity ofhlthegsystem. of forced retirement, the sarn"e_m«1isei;p'be" on merits. [h]. A judgment erthe-D:v1stpn"13en-e,fi'i'er this Court in case of otltérs --vs.-- State of Kama.t'alca W';P;l§lo.3801 t.o 3804/2009 and connected of on 16/1 1/2009 has been cit.ed*»tho .een1;en.;i" 'that the State Government has rai_<3e'd age lof"re_t.iitevment to 60 years and it should be ' i,inifor1nly~nf1ade.. applicable to all the departments. [i).A elm',/.-i'.Agra Electric Company --vs.- Workman {(1983)} sec 436], has been cited to contend that the A {*Tribupnal was competent to consider a reference made with regard to age of retirement.
/I?
(j} Reliance was also placed on a decision of the Supreme Court in the case of Kays Constructionspco. (Private) Ltd. -vs.- Its Workmen (AIR 1959 so 2t9t&?},.d:t.o.l'vv.y contend that in dealing with industrial disp':utes..s:' "
Tribunal should not be unduly inil'uenced'_:
questions of law and they should it with the merits of each casel._a"ccVordin'g:_'to circumstances. The 'industrial._gtribunals while adjudicating them for adjudication aregiquire arbitration tribunal thatdeal;1:Eiii_._vrn~a,tters__of dispute. tollhthevflvarious dicta of the Suprerne lC.ourt,ll passed by the Industrial Tribunal held learned Single Judge in the instant has «considered. As already stated, the 'reiereneelinavd:e' to the Industrial Tribunal was with regard to Sri Arjuna Deva, K.S.Rarnachandra and B.Shla:(1}{ar.Vand the individual grievance of Sri Arjuna K.S.Ramachandra. There was no specific * reference made with regard to the age of retirement being raised to 60 years as such. The reference was as to whether the aforesaid three employees could have been 2» continued even after attaining the age of 58 years on the production of medical certificates. It is in the said context that Clause 32 which deals with the superannuation and the Standing Orders V' respondent ~»» company was considered.' ' "I'l51erefo"re, there was no reference or any general"-reference"-made_ regard to the age of retiremeritLVi.sga-yis bf the respondent M company. pideeisiolnys by the learned Senior Counsel the appellant would in no wayassist-t'he.*ease In the case of ":53; it is always open to" raise an industrial dispute matter contained in the Standing in the instant case, the reference made tolthe {Tribunal does not speak about the Vilagexlof retireiiient of the employees in general. A specific AS'"referenced"*vy_as.f'p'm'ade with regard to the three employees and..the.__'adju*dication by the Tribunal has been made only "with regard to the correctness of the non exercise of if --dis»cretion in the case of the said three employees under if .,,_Clause 32 of the Standing Orders. In the absence of there being any modification to the existing Standing Orders with regard to the age of superannuation, the contention of the iearned Senior Counsel that the age of retirement is not restricted to 58 years even as per the Clause 32 of the Standing Orders in View of the provision for extensicirof service. cannot be accepted as a general proposition..."A's V. already stated, the Standing Order mandates S' of retirement is 58 years and in e::rcepti'oI1ai cases" byuthe exercise of the sole discretionvvested.__in:the ma~nagvement',*~.y S' the age of retirement can be exteridyed for a lc'ert:_1i1'i*Vperiod. Under the circumstaiiceg, in ,the absence of there being any amendment or certi;flcatio511'l Lihder " the Standing Orders Act, regard' 'Boil the Standing orders;_: it cann5o_t .conte"nded that the age of retirement has been 'fixed On the basis of the 1'ecommendati9,v1'i 'ovf7the' Shinde Wage Board. iirthe case of Hindustan Antibiotics Ltd., ~ 82, 0rs., supra, while dealing with U'l€u2lfiX;3[--il;p1'a()r.1'l.VOf the age of retirement of employees and Vs.y:whil.e considering the Tribunals award which stated that . lthelmlanagemeiit has a discretion to extend the service of it ''''those empioyees who were suitable and who were medicaily fit and mentally alert, the Supreme court held ,4 ../ M --: 37 :- that it was not proper on the part of the Tribunal to give such a discretion to the company as it might lead-.__to victimization and opined that the age of retirement A' be raised at 60 years. In the instant case,"
Clause 32 of the Standing Orders -i_tself'l discretion with regard to continuancetofl the serlviees't_i"*ofl7f_A the employees for a specificlperiopd years. The fact that such a order has been enforced is both on the management aswell as" llIf at all, the workmen or_the with regard to the Clause C:l):3rdlers, it is for them to take -seek.' modification of the said clause, Albypllrelyiizrgl decisions of the Supreme Court rendered on the peculiar facts and circumstances of blefore cannot be held that the age of A'--~ret.irepmer1t_'Vof:th.--e Working Journalists should be fixed at 6(A)"-years; fact, in the absence of there being any specific. reference made, the Tribunal rightly did not ' --.adj_u_dicate upon the said issue.
25. In the case of R.S.R.T.C. 82. Ors. --vs.- Deen Daya! Sharma, supra, the Supreme Court has stated 5» that the Standing Orders framed in accordance with the Standing Orders Act which statutorily impose conditions of service are binding both upon the emp1oyers"VLa_'n_d"-_' employees. No doubt, the Industrial Tribunalfhasii powers in the matter of granting _reI.ief to;'the"
while considering a reference and it ca1ir1A.inoul_d"~iihc ref1ief°€.i for the benefit of the workmen} byefofé do so, there has to be a 1*efereri4ce-.y:nlade lon«--l:a:vfiparticuiar grievance raised by tl'i§:a..rl:r:r_1'iril1:e1~:,V;_b_a 'absence of there being any reference reference made pertainyirlgltoicertailn uthe': same cannot be widened of the reference to grant 'rxelieffn -considering the same as incidentalv.questions"jto th'e.':yreference made. In fact, in the case goi' _Guexst-,» _ Keen and Williams Private Limited, Vtherle was specific reference made to the Tribunal in the , /.fOfl«O'VfIig' "rnattergfi if the system of forced retirement of Laorfcrnen at the age of 55 as introduced by the if 'T management in May .1954 tsjustrfied? 2} To what relief the workmen are entitled on retirement? and ....«--"'"'/
3) If the forced retirement of the workmen named in the attached list is justyied? M To what relief including reinstatement and/ or a.
compensation are they entitled?"
26. The reference made in the instantjdcaseiis not on the aforesaid terms. It is not ahgeneiai"refe'rence}yith:_ regard to the retirement of workrnend'-at the't."_a§§'e' of it years. The reference is in respteet of retirernent Working Journalists and beendariswered by the Tribunal which 'V the learned Single Judge. the petitioner on the aforesaid.
227. _T-7fayIn;,:§..regar'dyjtothe .contentions/ issues raised, it is necessary to. c'onsi_d'er the actual reference made to the Tribunaltd '-With: regard to the grievance of Sri Arjuna ,_,9¢{r'a diffig ficted he had worked for about 27 years that he was entitled for promotion as chief Repoijterdin the year 1979 but one Sri Raghurama 9"-Shetty", who was junior to him was appointed and again xidifjrir year 1980 another junior, by name Sri Sridhar Hftehar, was promoted to the post of Senior Reporter and in the year 1981, one P.Ramanna was appointed? as Assistant Editor and he was ignored. In the year 1983. he was promoted as Senior Reporter and transferred-'--.__to Mysore with the promise that he would be Special Correspondent, which is equivalent it Editor's post and though he Bangalore in the year 1981, he was and at the age of 57 years V_prornot__ed Editor. According to if been given to him at the relevant or have retired as Editor and he'-\2vould"i1ave::consequential monetary ijwasl mentally fit, he was not whereas, other members placed were promoted and therefoii.tphet1'el has " 'discli'imination. 5 Learned 'counsel for the respondent relied upon Vdecision oiythe Supreme Court reported in case of Agra co. Ltd. -vs.- Sn' Alladin and Others
512) supra, to contend that Standing V'-».Orders.a:§ter certification bind all the employees presently as 'Well as those employed thereafter and that in the said case, it was held that the retirement of employees under Order 32 which fixed the date of superannuation to y 55 years was Valid although {he employees were appointed long before the standing orders were certified_._
29. He has also placed reliance on the the Division Bench of this Court in3'~l RFA.No.1053/2001 disposed of >6/8/2009; g_ one of the eniployees who had filed7.original selelfinlgg l' damages and which had beenl"d:ecreedl.Was_ ch.a11a':;gaa lby the management by filing point that was raised for the plaintiff i.e., eniployeejwas'1-entitled» in service till the age of recornmendations of ShindeivVv'age:Eioard:.;as 'cjontainedii1'1lParagraph 3.40 in the report and the decision of the learned Single Juldigel this appeal and reported in l3'9;'«h§:ldv that the standing order and the ~appoint:rnen«t._lorder clearly mentioned that the retirement lag:e'--Wasl and that it was for the Government to pass" requisite resolution enhancing the age of retirement it the recommendation made by the Wage Board . outside the scope of the recommendation and the Act "and Without jurisdiction was unenforceable and accordingly, the decree was set aside as the suit was held to be not maintainable. He submits that since the judgment impugned in this appeal has been relied upon by the Division Bench of this Court while disposing:
appeal relating to another similarly placed em.«pl'oye:eg; 1 V' same has a binding effect. ._
30. It is the main grievance oi'..A]unaIIDeval' thjatt because he was the Secretary"'ot:the 'very active particularly in hellvvasllvvvdeiiied promotion and consequentilal On a perusal of at Ex.l\/1.4, which wasgthe learned Single Judge has was not by way of seniority' but selection. It is also relevant to note that~..as»ar1d_ Wlfien, his claims were not considered or denied by the«.nf1_a11agement, he did not raise any dis'pute.. yol'.yadjij1vdicate his right to promotion while he was in-As.e1"vice.. Th'euTribunal on appreciation of the material
--V eviduence"von.'record held that Sri Arjuna Deva had failed to promotion and the learned Single Judge has .' observed that since the said finding is based on legal "evidence the said did not call for any interference. Having regard to what is stated above, we are also of the /(J! >21 ,.:/ considered View that no relief can be granted to Sri Arjuna Deva as his claim is without merit.
31. As far as Sri K.S.Ramachandra is he joined the service as a Proof Reader and.--A4'retirejdn'onit'":l ' 31/1o/ 1993 on attaining 58 years .bu«t.he w'a§f;'oA£.';gr;in:¢;a any benefits under the settlement /3}'! if had retired by then andmthye ...riot retrospective and he was noAtf__'l'iiI';i.,yg_;_e:<\,r_gio§'/m«1._t;vhe_date of settlement. The learned' that under the terms of the settlein-ent,b-- mandatory benefits who are on the rolls ' the"*cl'élte of signing of the settlernent jrvho had retired prior to the said date.l*--.._V Under Athsez,circumstances, the contention g_ regarding his forced___rctirement at 58 years and denying entivtlexri-ant to retire at the age of 60 years was raised 'anc.:I'--.theV declined to grant relief on the ground .g thatllfhtlégemlloloyee had retired on the date of settlement carne into force and the same has been accepted by the lezabrned Single Judge, which conclusion does not call for it "any interference in this appeal.
--: 44 :~
32. Under the circumstances, there is no merit in this appeal. The appeal fails and is aceordingiy, dismissed.
Parties to bear their own costs.
1171"
:u&ge Sd/'=1 Judge *mvs H 55" _ _ i