Madhya Pradesh High Court
Birla Gram Nagda Employers Association ... vs The State Of Madhya Pradesh on 15 July, 2014
W.P. No.4979/2014
15.07.2014
Shri Kuldeep Bhargava, learned counsel for the
petitioner.
Heard.
This writ petition has been filed by the petitioner
under Article 226 of the Constitution of India aggrieved of
the order dated 28.06.2014 and 30.06.2014 passed by the
first respondent.
According to the learned counsel for the petitioner, the aforesaid two orders are neither legal nor valid. He is also questioning the legal susceptibility of amendment made in Standing Order No.14-A of Annexure appended to Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 (for short "Rules 1963") vide gazette notification dated 28th and 30th June, 2014 published in the MP Rajpatra (Asadharan) dated 28th and 30th June, 2014 whereby, the age of retirement of employees employed in private industries have been enhanced to 60 years. The members of petitioner Association being employer is aggrieved by the Amendment under challenge. The Standing Order No.14-A inserted in Annexure of Rules 1963 itself is without authority of law and jurisdiction and therefore, the amendment made too is also without authority and is not tenable in the eye of lay. The provision under challenge has been made by way of amendment in clear excess of the legal authority conferred on respondent and therefore, same is ultra vires to the provisions of Madhya Pradesh Industrial Employment (Standing Orders) Act 1961 (for short "Act 1961"). In addition to lack of authority the amendment made is clearly violative of Article 14 of the Constitution of India because it creates arbitrary and wholly unjustified discrimination between industries established by private employers and industries owned by the State Government. That the State Government vide Gazette Publication dated 28th June, 2014 has increased date of retirement of all employees from 58 to 60 working in private sectors to which the provisions of standard standing orders are applicable excluding the Govt. Departments, Corporations etc. despite State Govt. having no power to amend Standard Standing Orders, even otherwise the amendment has been done without considering objections made be petitioner and others and also without considering impact of amendment on undertaking at large. Thus, the impugned Amendment is unsustainable in law and is being challenged as such in this writ petition.
We have heard the learned counsel for the parties and we find that the impugned notification dated 28.06.2014 and 30.06.2014 have been passed by the State of MP in the light of the power available with them under Rule 21 Sub- clause 1 and 2 of the Madhya Pradesh Audyogik Niyojan (Sthai Aadesh) Adhiniyam, 1961. It is not in dispute that by virtue of the aforesaid power, the State had decided the age of retirement as 58. By the aforesaid amendment, the word 58 has been replaced to 60. The amendment is reproduced here as under:-
AMENDMENT In the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 in the Annexure, in serial number 14-A, the words "An employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services are necessary in the interest of the undertaking," shall be replaced by the words "An employee shall retire from the service of the employer on the date he attains the age of 60 years, and in the first proviso the words "if the age of the retirement is not less than 58 years" shall be replaced by the words "if the age of retirement is not less than 60 years" and at the end of this proviso the words "provided further that this amendment shall not apply to the employees of Corporations. Boards and Undertakings of the State Government." shall be added.
The same is the position with respect to the amendment published on 30.06.2014. According to the learned counsel for the petitioner, the said amendment amounts to amendment of standing orders, which can be made only with the consent of the employer.
The petitioner has also relied upon the judgment delivered by the Division Bench of this Court in the case of Heavy Electrical Mazdoor Trade Union Vs. State of MP and others reported in 2006 MPLSR 86 (FB).
We have gone through the aforesaid judgment and find that the judgment has no application on the facts of this case.
We are of the view that if, the State has power to fix the age of retirement to 58, they can certainly increase the age by amendment as has been done in this case. We, therefore, dismissed the writ petition with no order as to costs.
C.c. as per rules.
(Shantanu Kemkar) (M.C. Garg)
Judge Judge
Kratika/