Gujarat High Court
Atira Employees Union vs Ahmedabad Textile Industries Research ... on 7 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1962
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/63/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 63 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 1407 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 63 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
ATIRA EMPLOYEES UNION
Versus
AHMEDABAD TEXTILE INDUSTRIES RESEARCH ASSOCIATION
==========================================================
Appearance:
MR K R MISHRA(6312) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR KEYUR GANDHI FOR NANAVATI ASSOCIATES(1375) for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM
NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Page 1 of 22
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C/LPA/63/2020 CAV JUDGMENT
Date : 07/09/2020
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. Present Letters Patent Appeal is filed by ATIRA Employees Union assailing the correctness of the judgment and order passed by learned Single Judge dated 6.8.2019 in Special Civil Application No.1407 of 2006.
2. Brief facts which have given rise to the present Letters Patent Appeal are that Ahmedabad Textile Industries Research Association (referred to as 'ATIRA') was established and registered in 1947. As per ATIRA Service Manual, the retirement age of employees of Grade-I to VII (Scientific & Research staff) was fixed as 60 years whereas for other categories employees, the retirement age was fixed as 58 years. In some cases, the retirement age was extended for a period from six months to one year for other grade employees looking to their efficiency and the availability as well as requirement of employees. The issue of prescription of age of retirement appears to be a subject matter of controversy, which has resulted into the conciliation proceedings before the Deputy Labour Commissioner, Ahmedabad, who ultimately vide order dated 5.5.1993 referred the matter to the Industrial Tribunal in view of Section 10(1) of the Industrial Disputes Act, 1947, which was registered as Reference (IT) No.110 of 1993. The Industrial Tribunal, vide its award dated 19.9.2005 partly allowed the reference by determining the age of employees working in ATIRA at 60 years from the date of publication of the award and this award was made the subject matter of the writ petition before this Court under Articles 226 and 227 of the Constitution of India being Special Civil Application No.1407 of Page 2 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT 2006. One cross petition being Special Civil Application No.4623 of 2006 with Civil Application No.1 of 2018 was filed by the employees. Learned Single Judge allowed the main petition being Special Civil Application No.1407 of 2006 filed by ATIRA whereas the proceedings initiated by the employees Union came to be dismissed vide judgment and order dated 6.8.2019, which is made the subject matter of the present Letters Patent Appeal under Clause 15 of the Letters Patent before us.
3. Before analyzing and examining the correctness of the order impugned passed by the learned Single Judge, relevant provisions and the proposition of law deserve to be analyzed first in point of time.
3.1 It is a well-established proposition that every industrial establishment is under a statutory obligation to abide by its Statute regarding recruitment, disciplinary action, holidays, leave, etc. in respect of its employees to minimize the friction between the management and the workers. In the Tri-parte Indian Labour Conference, a conscious opinion was formed for a legislation and accordingly, a Bill was presented to provide for framing of "Standing Orders" in all industrial establishments employing hundred and more workers. This exercise has resulted into a legislation known as The Industrial Employment (Standing Orders) Act, 1946 (referred to as "the Act of 1946"). This Act was enacted to provide for defining with sufficient precision the service conditions of employees in industrial establishment in State of Bombay and undisputedly, on bifurcation of Gujarat from Bombay State, same was being applied to every industrial establishment situated within the State of Gujarat.
3.2 The Act of 1946 extended to whole of India and applied to Page 3 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT every industrial establishment wherein hundred or more workmen are employed or were employed on any day of preceding 12 months.
3.3 Section 2 is a definition clause and Section 2-A is an applicability provision, which reads as under:-
"2-A. Application of model standing orders to every industrial establishment. -
(1) Where this Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf.
Provided that nothing in this section shall be deemed to affect any Standing Orders which are finally certified under this Act and have come into operation under this Act in respect of any industrial establishment before the date of the coming into force of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957."
3.4 Section 3 deals with submission of draft Standing Orders by the employer requiring a statutory obligation upon the employer/ industrial establishment to submit within six months from the date on which the Act of 1946 became applicable five copies of the draft Standing Orders proposed by the employer for adoption in its industrial establishment to the Certifying Officer. Since this provision is also relevant to this issue, the same is reproduced hereinafter:-
"3. Submission of draft standing orders.--
(1) Within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft Page 4 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT standing orders proposed by him for adoption in his industrial establishment.
(2) Provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model.
(3) The draft standing orders submitted under this section shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong.
(4) Subject to such conditions as may be prescribed, a group of employers in similar industrial establishments may submit a joint draft of standing orders under this section."
3.5 Section 4 of the Act deals with the condition for certification of the Standing Order, which is clearly prescribing that the Standing Orders shall be certifiable under this Act if provisions made therein for every matter set out in the Schedule which is applicable to the industrial establishment and such Standing Orders are otherwise in conformity with the provisions of this Act and these conditions are to be examined by the certifying officer or the Appellate Authority, which is a condition precedent for certification. Appeal provision is also made upon certification of the standing orders if any grievance is left out.
3.6 Section 7 deals with the date of operation of the Standing Orders, whereas Section 8 provides that such Standing Orders which are finally certified under this Act, shall be entered in a register to be maintained for the purpose by supplying a copy thereof to the certifying Page 5 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT officer. Section 9 is related to posting of the Standing Orders, which indicates that texts of Standing Orders as finally certified under this Act shall be prominently posted by the employer in English as well as in the language understood by majority of the workmen. Section 10 deals with duration and modification of the standing orders, which also requires specific procedure to be adopted for any such modification. Section 12 of the Act is indicating that no oral evidence having effect of adding, varying or contradicting Standing Orders as finally certified under the Act of 1946 shall be admitted in any Court. This Section 12 is also amended later on by insertion of Section 12A, which deals with temporary application of Model Standing Orders. Section 13 is a penal provision, which reads as under:-
"13. Penalties and procedure.-
(1) An employer who fails to submit draft standing orders as required by section 3, or who modifies his standing orders otherwise than in accordance with section 10, shall be punishable with fine which may extend to five thousand rupees, and in the case of a continuing offence with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues.
(2) An employer who does any act in contravention of the standing orders finally certified under this Act or his industrial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence with a further fine which may extend to twenty-five rupees for every day after the first during which the offence continues.
(3) No prosecution for an offence punishable under this section shall be instituted except with the previous sanction of the appropriate Government.
(4) No Court inferior to that of 5[a Metropolitan Magistrate or Judicial Magistrate of the second class] class] shall try any offence under this section."Page 6 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT
Section 13A is related to interpretation, etc. of Standing Orders, whereas Section 13B deals with the issue that Act of 1946 not to apply to certain industrial establishments. Section 14 is related to the power of exemption whereas Section 15 is related to the power to make Rules.
3.7 In furtherance to the aforesaid statutory provisions, the Rules have been framed which are known as "Bombay Industrial Employment Standing Orders Rules 1959" (further referred to as "the Rules of 1959"). The Schedule-I attached to the Rules known as 'Model Standing Orders', prescribes the broad conditions of employment. Present controversy relates to the age of retirement/ superannuation. Hence, without discussing or analyzing the Rules, only applicable provision from the Standing Order is reproduced hereinafter:-
"27. The age of retirement or superannuation of the workman may be sixty years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award, which may be binding on the employer and the workmen under any law for the time being in force."
So, to regulate the conditions of employment and to minimize the conflict between the employer and employees in any industrial establishment, present legislation with penal provision appears to have been enacted.
3.8 The scheme of the Act of 1946 would show that the industrial establishment is under a statutory obligation to draw up and submit to the Certifying Officer five copies of the Draft Standing Orders for adoption in the industrial establishment and such Certified Standing Orders looking to other provisions of the Act have more or less a Page 7 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT statutory flavor and as such, ordinary cannons of construction of the Statute would be attracted where a dispute arises about construction or interpretation of a Certified Standing Order and the provisions are indirectly suggesting that in absence of any Certified Standing Orders, the Model Standing Order will have a predominance. Of-course, if the employer is not observing the statutory obligation to draw up and submit Draft Standing Orders, then penal provisions are also mentioned under the Act. Conjoint reading of the aforesaid provisions would suggest that even Draft Standing Orders must be in consonance and in conformity with the Model Standing Orders and it is well established proposition that penal provisions must receive a strict construction.
3.9 With the aforesaid relevant provisions of the Statute, which is undisputedly applicable to the respondent No.1-ATIRA, we deem it proper to postulate even the role of the Industrial Tribunal in case of controversy amongst the parties referred to it for adjudication.
3.10 If we recollect that in the case of Bharat Bank Ltd. Vs. Employees of Bharat Bank Ltd, the Apex Court has propounded its decision reported in 1950(1) LLJ 928 (948) and speaking for the Court, Justice Mukherja has observed, which we deem it proper to quote hereinafter:-
"In settling the dispute between the employees and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and Page 8 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT obligations between them which it considers essential for keeping industrial peace."
Even in another case of Rohtas Industries Ltd. Vs. Brijnandan Pandey, reported in 1956(2) LLJ 444 (449 SC), speaking for the Supreme Court, Justice S.K. Das also observed about the power of the Industrial Tribunal. The said observations we deem it proper to reproduce hereinafter:-
"A court of law proceeds on the footing that no power exists in the Courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An industrial tribunal in not so fettered and may create new obli8gations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization."
So, from the aforesaid observations, the powers of the Industrial Tribunals are not so much circumscribed that it cannot do anything in case of conflict.
4. From the aforesaid preface to the present controversy, while examining the order passed by the learned Single Judge, we have noticed certain facts from the record which are touching to the root of the controversy.
4.1 In the Claim Statement filed by the Employees Union in the reference, a categorical stand is taken that the provisions of the Bombay Industrial Employees Standing Rules, 1959 are applicable and the schedule attached to the same is prescribing the normal age of retirement/ superannuation as 60 years. A reference is made to Rules 25 and 27 and thereby a claim is generated. To substantiate the claim of increase of Page 9 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT retirement age, some few examples are given in para 6 of the Claim Statement and it has been pointed out specifically that in the institutions like the present one, the Bombay Textile Research Institute has prescribed the age of retirement as 60 years and therefore, the claim appears to have been generated to determine the age of superannuation. The record further reveals that in the Industrial Tribunal itself, a specific pursis has been given by ATIRA on 5.3.1993, categorically declaring that ATIRA is not raising any issue about the applicability of the Act of 1946 and the provisions of the Model Standing Orders. This specific pursis is reflecting on page 139 of the appeal compilation.
4.2 In addition to this, if we peruse the deposition Mr. Jaiwant Shantilal Parajia, who was the Assistant Director of ATIRA right from 1991, certain revelations would clearly appear touching to the root controversy. In his chief-examination at Exh.33 on page 108/A, this management witness has indicated that staff strength in the institute was more than 260 in the year 1990-91 and the employees are governed by ATIRA Service Manual, which is produced at Exh.31/1. According to him, retirement age of Scientific staff is 60 years whereas retirement age of other staff is 58 years. He further asserted that there is some economic crunch on account of closure of the mills and as such, if retirement age is to be increased from 58 years to 60 years, serious financial complications might be faced by ATIRA. This management witness has clearly admitted in his cross-examination that ATIRA had given their standing orders for certification before the Labour Commissioner at a relevant point of time but the said application is withdrawn. He has further clearly admitted that ATIRA has got no certified rules as required under the Act of 1946. It is also admitted that no compromise has taken place with the Union in respect of the age of retirement. It is also admitted that such Page 10 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT rules related to conditions of service including age of retirement are not got certified as required under the Act and even the Service Manual of ATIRA is also not got certified.
4.3 In later part of the cross-examination, he also admitted that for the purpose of total project, there was a planning of new building. It has also been asserted that the institute is having its own medical scheme and about the working hours and leave of the employees, ATIRA is following the norms of the Gujarat Government. It has also been admitted that certain employees as per the requirement of ATIRA have been given extension beyond the age of 58 years. Now, this background of the deposition is clearly revealing that ATIRA has blatantly not observed the mandate of the Statute and has got no Certified Standing Orders of its own and as such, has failed in performing its statutory obligation, if we closely read the applicable provisions.
4.4 From the record, it further appears that certain appointment orders have been attached to the present compilation, to point out that the employees are bound by all the Rules and Regulations framed from time to time and which are applicable to staff members of ATIRA. It appears from a close look at these appointment terms that nowhere the age of retirement/ superannuation is provided and as such, these appointment orders are silent on the issue of age of retirement. Now, in a situation like this, on the one hand, the ATIRA is not raising any plea about non- applicability of the Model Standing Orders and on the other hand, it has clearly admitted that the Service Manual is not got certified in the manner as required under the Act of 1946. From the aforesaid relevant situation on record, it is to be seen whether the conclusion arrived at by the Page 11 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT Industrial Tribunal while determining the age of superannuation at 60 years is justified or not.
5. We have heard Mr. K.R. Mishra, learned counsel for the appellant and Mr. Keyur Gandhi, learned counsel for M/s Nanavati Associates for the respondent No.1 at length.
6. Mr. K.R. Mishra, learned counsel appearing on behalf of ATIRA Employees Union, i.e. the appellant before us in the present Letters Patent Appeal, has vehemently contended that the ATIRA establishment is undisputedly an industrial establishment, to which the Act of 1946 is applicable. Mr. Mishra has also contended that it is an admitted position by ATIRA that the Service Manual or the Rules governing the conditions of employees have not been certified by them as required under Section 3 onwards of the Act and since ATIRA has failed in its statutory obligation to draw up the certified Standing Orders or the Manual, they are bound by the Model Standing Orders. Mr. Mishra has submitted that in absence of any such Certified Standing Orders, ATIRA will have to observe the Model Standing Orders. According to him, Clause 27 of the Model Standing Order is clearly prescribing the workman's retirement age as 60 years and as such, in absence of any valid agreement or settlement or award, this Clause 27 of the Model Standing Order is to be observed by them. Hence, there is no error committed by the Industrial Tribunal in prescribing the retirement age as 60 years. Mr. Mishra has also drawn our attention to the deposition of the Management Witness, who is an Assistant Director, at Exh.33 and also specific pursis reflecting on page 139 of the appeal compilation and thereby contended that the conclusion arrived at by the Tribunal is perfectly in consonance with the record and it was not open for the Page 12 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT learned Single Judge to substitute the findings in absence of any perversity or material irregularity. Accordingly, the learned Single Judge has committed an error in passing the impugned order.
6.1 Mr. Mishra has further contended that it is a settled position of law that there cannot be any discrimination amongst the employees but, even if class of employees is permissible to be prescribed, then also, there were comparable examples given before the Tribunal that in similar such institutes numbering 5 to 6, age of retirement/superannuation is prescribed at 60 years and as such, while arriving at a conclusion, the Industrial Tribunal has clearly not only examined the evidence on record but while determining and adjudicating the dispute, has also taken the similar instances so as to arrive at a just decision. Therefore, when such detailed adjudication has been undertaken and the conclusion ultimately is well supported by cogent reasons, it is not possible to brand the order of the Tribunal as suffers from the vice of any non-application of mind or perversity. On the contrary, the conclusion is perfectly in consonance with the material on record. Hence, in absence of any material illegality or irregularity, it was not open for learned Single Judge to exercise the extraordinary jurisdiction to set at naught the detailed adjudication undertaken by the Tribunal. Apart from this, it has also been contended that even if it is open for the management to differentiate the category of employees and to prescribe the particular age, then also, looking to Clause 27 of the Model Standing Order, which is undisputedly governing the field, the age for retirement of employees should have been 60 years and no agreement contrary to the Statute is enforceable or to be given any predominance. It has further been contended that undisputedly, there is neither any settlement nor valid agreement or award in respect of the age of retirement. Hence, Clause 27 of the Model Standing Order will have to Page 13 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT be given a full effect. When that has been considered by the Tribunal at length, the order of the learned Single Judge is not sustainable in the eye of law and hence, requested to set aside the same.
7. As against the aforesaid submissions, Mr. Keyur Gandhi learned counsel appearing for and on behalf of Nanavati Associates, for the respondent No.1-ATIRA has vehemently contended that once the employees have accepted the employment on particular terms and conditions prescribed in the Service Manual of ATIRA, it is not open for the employees to agitate on the said issue. It has further been contended that the Service Manual has clearly prescribed the age of retirement/superannuation as 60 years for Scientific and Research Officers whereas for other category of employees, retirement age is prescribed as 58 years. Mr. Gandhi has drawn the attention of this Court to Clause 8 of the ATIRA Service Manual reflecting on page 38 and thereby contended that when the age of retirement of these categories are specifically prescribed, it is not open for the appellant to raise any issue of equality as the same is impermissible. The other staff members, being represented by the appellant, cannot equate themselves with Scientific and Research officers whose age of retirement is 60 years and therefore, no differential treatment can be agitated. Mr. Gandhi has further contended that the Tribunal has clearly transgressed its jurisdiction by determining the age of retirement. The Service Manual is clearly suggesting a particular age and it is not the function of the Tribunal to determine the age of superannuation/retirement. Said Service Regulations are very much produced on record at page 31/1 and same are consistently being observed right from 1982 and as such, at this stage, the Tribunal ought not to have ignored the effect of Service Manual. Mr. Gandhi has further contended that if this is allowed to be operated, then there will be Page 14 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT serious financial crisis created and ATIRA would be on the verge of closure and as such, on the issue of hardship also, when the learned Single Judge has passed a detailed order, no interference is warranted in the Letters Patent Appeal. The order of the learned Single Judge is a well- reasoned order and passed after giving full opportunity to the parties to the proceedings and as such, in absence of any irregularity of any nature, no interference be made. Mr. Gandhi has further contended that the point of comparison which has been canvased before the Tribunal is also per-se not permissible since those establishments were on different footings, where the circumstances were altogether different and dissimilar and each employer is entitled to determine its own Service Regulation and simply because the other industrial establishments have prescribed a particular age of retirement, on the basis of those instances, the Tribunal cannot exercise its jurisdiction to reframe the service conditions of employees and therefore, as the order of the Tribunal is without jurisdiction, the same has rightly been set aside by the learned Single Judge. Mr. Gandhi has further submitted that the learned Single Judge has also rightly come to the conclusion that there cannot be reverse discrimination and as such, the conclusion of the Tribunal was rightly set aside by the learned Single Judge.
7.1 Learned advocate Mr. Gandhi has contended that a categorical conclusion is arrived at by the learned Single Judge keeping in view the clause contained in the agreement and has clearly opined that it was not open for the Tribunal to exercise the jurisdiction for raising the age of superannuation. The Standing Orders shall not cause prejudice to the contractual right of service or usage or custom or agreement and particularly when the employees have accepted the terms of employment, the learned Single Judge has rightly not allowed such increase in the age Page 15 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT of superannuation. Such a well-reasoned order in the submission of learned advocate Mr. Gandhi may not be interfered with. The learned Single Judge has also relied upon few decisions to arrive at a conclusion and as such, in the Letters Patent Appeal, no interference be made. Hence, a request is made to dismiss the Letters Patent Appeal filed by ATIRA Employees Union.
8. Having heard the learned advocates appearing for the parties and having gone through the material on record, upon careful scrutiny of the material on record and detailed analysis of the conclusion of the learned Single Judge, we may not unnotice certain factual backdrops of the record, as indicated above. As stated earlier, there was a specific pursis given by the management itself that ATIRA is not disputing the applicability of the Act of 1946 and the provisions of the Model Standing Orders which have a statutory flavor. Further, there are clear admissions in the deposition of the management witness at Exh.33 that the Service Manuals have not been got certified under the Act as required. Further, no settlement or agreement took place or award passed with respect to the issue in controversy about the age of retirement. Additionally, there is a conspicuous silence in the appointment letters which are part of the record about the age of retirement. Hence, we are of the clear opinion that when there is a clear conflict between the uncertified Service Manual and the statutory flavored Clause 27 of the Model Standing Orders of Schedule-I under the Rules, which is undisputedly applicable, the exercise undertaken by the Tribunal appears to be just and proper. We may again refer to Clause 27 in the aforesaid factual backdrops on record, which clearly indicates that the age of retirement or superannuation of the workmen may be 60 years or such other age as may be agreed upon by any agreement, settlement or award which may be binding. But, here, as Page 16 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT stated earlier, undisputedly, there is no binding agreement or settlement nor any award on the issue on the age of retirement. So, normal age which is prescribed in this Model Standing Order will have to be given a full effect.
9. One surprising thing is that though ATIRA is manged by its own Council of Administration, headed by its Chairman, still blatantly, it did not think it fit to observe the intent and spirit of law applicable to it.
9.1 From the record, it appears that ATIRA is well aware about applicability of the Statute and in furtherance of it also applied for certification but then for undisclosed reasons, same was withdrawn on 30.6.1989 from the office of Assistant Labour Commissioner, which was also at Exh.15 considered by the Tribunal.
9.2 Further, the Tribunal has also considered the fact that at one point of time, it was principally agreed to have retirement age at 60 years in communication dated 2.5.1992 and fund was also to be generated but then it appears to be a strategic move by ATIRA in allowing this litigation to be generated.
9.3 Additionally, we cannot unnotice one material fact that though in the reply the point was raised that ATIRA is not an industrial establishment, but later on, same did not appear to have been precipitated further and instead a pursis was given that it did not want to raise an issue about non-applicability of Model Standing Orders.
Page 17 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT9.4 All these circumstances from the record cannot be ignored by us and we find that the conclusion arrived at by the Tribunal appears to be just and proper.
9.5 As stated earlier, economic crisis also appears to have been considered for passing of the award from the date of publication of the award. We are therefore completely satisfied that the award of the Tribunal is in accordance with law.
10. We are also of the opinion that the ATIRA has miserably failed in its statutory obligation to draw up and frame the certified Standing Orders and in absence thereof, ordinary cannons of construction of Statute would be attracted. We also recollect that the Act of 1946, which is a welfare legislation, is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them which are available under the Act.
11. The provisions of the Statute having a clear statutory force cannot be superseded by any agreement, which has no force of law. So, keeping this salutary principle in mind, we are of the opinion that the order passed by the Tribunal is in complete consonance with the relevant record of the case and also in consonance with the object for which the Statute is enacted. The Tribunal has rightly given effect to the Model Standing Orders in absence of any certified Standing Orders of the ATIRA.
12. The relationship of employer and employee is of utmost faith and as such, it falls under the ambit of fiduciary relationship. In order to regulate the relationship, the legislature has come out with the Page 18 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT Statute, as indicated above, which is undisputedly applicable and binding to the respondent No.1 as well. We are surprised as to why despite the penal provision, the ATIRA has blatantly failed in performing its statutory obligation to observe the provisions of the Act of 1946. We have also not been posted with the facts at length that whether the Service Manual of ATIRA is completely in conformity with the Model Standing Orders or not, in which the provisions are to be made by the employer akin to the provisions contained in the Model Standing Orders. Be that as it may, the record of the case clearly indicates the above peculiar situation where we are satisfied that no error appears to have been committed by the Industrial Tribunal. On the contrary, we are of the opinion that a very balanced order is passed looking to the economic structure posted before the Tribunal since the effect of the award has been given from the date of its publication. This aspect also ought to have been taken into consideration by the learned Single Judge. The manner and method in which the ATIRA has allowed its Service Manual, to be operated without getting it certified, on the contrary, is an attempt to undermine the intent and object of the legislature. Since the age of superannuation is an integral part of the service condition of the employees, the employees could not have been deprived of the privilege which has been provided under the Model Standing Order, which has a statutory flavor in absence of any Certified Standing Order of ATIRA. We are also of the opinion that economic crunch would not give license to the establishment to act in contravention of law since everyone is expected to act as per the mandate of the Statute.
13. At this stage, we are mindful of a decision of the Apex Court in the case of Western India Match Co. Ltd. Vs. Workmen reported in AIR 1973 SC 2650, in which it was observed clearly Page 19 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT that if there is a conflict about the age of retirement, stated in the appointment order and the Model Standing Order, then the age mentioned in the Model Standing Order would prevail. Whereas, here in the instant case, the appointment order itself is silent on the issue of age of retirement and uncertified Service Manual is tried to be pressed into service, which is contrary to the Model Standing Order, which in no circumstance is permissible. The relevant observations contained in paras 6 and 9 of the said judgment are reproduced hereinafter:-
"6. The terms of employment specified in the Standing Order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the Standing Order. It was in effect so held in the Agra Electric Supply Co. Ltd. v. Shri Alladin. (1) Avery India Ltd. v. Second Industrial Tribunal West Bengal.(2) and the United Provides Electric Supply Co. Ltd. Allahabad v. Their Workmen. (3). While the Standing Orders are in force, it is not permissible to the employer to seek statutory modification of them so that there may be one set of Standing Orders for some employees and another (1) [1970] 1 S. C. R. 808 (3) [1972] 2 S. C. C 54 (2) A. I. R. 1972 S. C, 1926 set for the rest of the employees. In Salem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union(1), Gajendragadkar C. J. said:
" (T) here is no scope for having two separate Standing Orders in respect to any one of them. Take the case of classification of workmen. It is inconceivable that there can be two separate Standing Orders in respect of this matter.
What we have said about classification is equally true about each one of the other said clauses; and so, the conclusion appears to be irresistible that the object of the Act is to certify Standing Orders in respect of the matters covered by he Schedule; and having regard to these matters, Standing Orders so certified would be uniform and would apply to all workmen alike who are employed in any industrial establishment."
Page 20 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENTIf a prior agreement, inconsistent with the Standing Orders will not survive, an agreement posterior to and inconsistent with the Standing Order should also not prevail. Again, as the employer cannot enforce two sets of Standing Orders governing the classification of workmen, it is also not open to him to enforce simultaneously the Standing Order regulating the classification of workmen and a special agreement between him an and individual workman settling his categorisation.
xxx xxx xxx
9. The special agreement, in so far as it provides for additional four months of probation, is an act in contravention of the Standing Order. We have already held that. It plainly follows from sections 4, 10 and 13(2) that the inconsistent part of the special agreement cannot prevail over the Standing Order. As long as the Standing Order is in force, it is binding on the Company as well as the workmen. To uphold the special agreement would mean giving a go by to the Acts principle of three party participation in the settlement of terms of employment. So we are of opinion that the inconsistent part of the special agreement is ineffective and unenforceable."
14. In light of aforesaid factual matrix, we have examined the impugned order and we are quite satisfied that an error appears to have been committed by the learned Single Judge in not noticing aforesaid background of facts while passing the order, which we deem it proper to correct by setting aside the same.
15. Accordingly, the present Letters Patent Appeal is allowed. The impugned order passed by the learned Single Judge dated 6.8.2019 in Special Civil Application No.1407 of 2006 is set aside. The order passed by the Industrial Tribunal dated 19.9.2005 in Reference (IT) No.110 of 1993 is confirmed and we direct the establishment to observe the same.
Page 21 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020 C/LPA/63/2020 CAV JUDGMENT16. Since the main Appeal is disposed of, no order on the Civil Application is required to be passed. Hence, the Civil Application stands disposed of.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) Omkar/DRASHTI K. SHUKLA Page 22 of 22 Downloaded on : Tue Sep 08 20:50:00 IST 2020