Bombay High Court
Wasant Sheshrao Kale vs National Textile Corporation ... on 4 February, 2010
Author: S.A. Bobde
Bench: S.A. Bobde, Vasanti A. Naik
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 194 OF 2001
PETITIONER :
Wasant Sheshrao Kale, Model Mill Staff Quarter
No. A-6, Umrer Road, Ganeshpeth, Nagpur
440 018
VERSUS
RESPONDENTS:
1] National Textile Corporation [Maharashtra North]
Limited, a Subsidiary of the National Textile
Corporation - wholly owned by the Government of
India, 15, N.M. Morarji Marg, Mumbai 400 083 -
Through its Chairman - cum - Managing Director.
2] The Model Mills, [A unit of National Textile
Corporation (Maharashtra North Ltd.)], Umrer
Road, Nagpur, Through its General Manager.
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Shri S.D. Thakur, advocate for petitioner
Shri R.B. Puranik, advocate for respondent no.2
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CORAM: S.A. BOBDE & SMT. VASANTI A. NAIK, JJ.
DATE: 4TH FEBRUARY 2010.
ORAL JUDGMENT [PER : S.A. BOBDE, J]
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2
By this petition, the petitioner has challenged the order dated 17.10.2000 of the respondent -
National Textile Corporation, addressed to the petitioner, informing him that he will retire from the services of the National Textile Corporation on 31.1.2001 on attaining the age of 58 years.
2] The petitioner is a pre-nationalization employee who was employed with the Model Mills at Nagpur on 29.5.1962 as a Paid Learner Clerk. Eventually he was promoted as Senior Accountant from the year 1981. There is no dispute that the age of superannuation in force in the Model Mills was 60 years.
3] Shri Thakur, the learned counsel for the petitioner submitted that the petitioner having been employed with the Model Mills with age of 60 years as the age of superannuation and his services being ::: Downloaded on - 09/06/2013 15:34:46 ::: 3 governed by the Bombay Industrial Relations Act, 1946 [hereinafter referred to as BIR Act], he was fully protected by section 14 of the Textile Undertakings [Nationalization] Act, 1995 [hereinafter referred to as Nationalization Act.] which reads as follows:
"14(1) Every person who is a workman within the meaning of the Industrial Disputes Act, 1947, and has been immediately before the appointed day, in the employment of a textile undertaking shall become on and from the appointed day, an employee of the National Textile Corporation, and shall hold office or service in the National Textile Corporation with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if the rights in relation to such textile undertaking had not been transferred to, and vested in, the National Textile Corporation, and shall continue to do so unless and until his employment in the National Textile Corporation is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the National Textile Corporation.
(2) Every person who is not a workman within the meaning of Industrial Disputes Act, 1947, and who has been, immediately ::: Downloaded on - 09/06/2013 15:34:46 ::: 4 before the appointed day, in the employment of a textile undertaking shall, in so far as such person is employed in connection with the textile undertaking which has vested in the National Textile Corporation, become, as from the appointed day, an employee of the National Textile Corporation and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same under the textile undertaking if it had not vested in the National Textile Corporation and shall continue to do so unless and until his employment in the National Textile Corporation is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the National Textile Corporation (3) Notwithstanding anything contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force, the transfer of the services of any officer or other employee of a textile undertaking to the National Textile Corporation shall not entitle such officer or other employee to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority.
(4) Where, under the terms of any contract of service or otherwise, any person ::: Downloaded on - 09/06/2013 15:34:46 ::: 5 whose services become terminated or whose services become transferred to the National Textile Corporation by reason of provisions of this Act is entitled to any arrears of salary or wages or any payment for any leave not availed of or other payment, not being payment by way of gratuity or pension, such person may, except to the extent such liability has been taken over by the Central Government under section 5, enforce his claim against the owner of the textile undertaking but not against the Central Government or the National Textile Corporation."
It is further submitted by Shri Thakur that the age of superannuation of 60 years having been protected by section 14 of the Nationalization Act, that age continued to be so protected until duly altered by the National Textile Corporation. The age of superannuation never having been duly altered, petitioner could not have been superannuated at the age of 58 years, like in the same manner as other employees of National Textile Corporation who were governed by its own Rules & Regulations.
4] Shri Puranik, the learned counsel for the ::: Downloaded on - 09/06/2013 15:34:46 ::: 6 respondent - National Textile Corporation submitted that the petitioner's conditions of service have been duly altered within the meaning of section 14 of the Nationalization Act (supra) by the enactment of Rules & Regulations framed by the National Textile Corporation in the year 1985 called "National Textile Corporation (Maharashtra North) Limited, Recruitment & Promotion Rules 1985" [hereinafter referred to as rules]. According to Shri Puranik these rules have come into force on 6.9.1985 and the petitioner's superannuation being subsequent to these rules, it must be taken to be governed by these rules. There is no dispute that these rules provided that the age of superannuation will be 58 years vide amendment dated 23.8.1988.
5] At this juncture, we may note that it is also an undisputed position that the retirement age of National Textile Corporation employee was at one ::: Downloaded on - 09/06/2013 15:34:46 ::: 7 point of time enhanced to 60 years and thereafter was rolled back to 58 years. This enhancement and rolling back is of no material significance to the present case.
6] So the issue that arises is, whether the petitioner's conditions of service including the age of superannuation of 60 years are protected by section 14 of the Nationalization Act, or whether they have been duly altered by the N.T.C. Rules in accordance with that section, to 58 years.
7] Shri Thakur, the learned counsel for the petitioner strongly relied on Rule 2.3 of the Rules, which reads as follows:
"2.3 These rules shall not apply in respect of any posts for which any industry-wise agreements/ awards / undertakings are applicable from time to time."
According to Shri Thakur, these rules themselves do not apply to a post for which any industry wise ::: Downloaded on - 09/06/2013 15:34:46 ::: 8 agreement or award or understandings are applicable and since there is an award which was applicable to the services of the petitioner in the Model Mills dated 30.10.1962, which provided superannuation at the age of 60 years vide clause 8 thereof, the Rules will not apply in terms of rule 2.3 of the Rules of 1985.
8] Shri Thakur, the learned advocate further relies on clarification issued by the Board of Directors to the effect that for Technical Officers or Administrative Officers not covered by the Bombay Industrial Relations Act, the retirement age be fixed at 58 years. According to learned counsel since petitioner's services were covered by the BIR Act his age of superannuation remained to be 60 years.
9] Shri Puranik, the learned counsel for the respondent, however, submitted that clause 2.3 and ::: Downloaded on - 09/06/2013 15:34:46 ::: 9 the clarification do not have the effect of excluding the petitioner's services from the purview of the Rules framed by the National Textile Corporation.
The learned counsel specifically submitted that clause 2.2 is the only clause which provides for exclusion of certain categories of employees from the rules and that clause reads as follows:
"2.2.
The following categories shall also be excluded from the purview of these Rules:
(a) Workers/Operatives borne on the muster of the mills.
(b) Clerical/Semi Clerical Staff of the mills.
(c) Watch & Ward Personnel of the Mills.
(d) Employees of Retail Outlets/Show-
Rooms and Depots including erstwhile employees of marketing division.
He further submitted that clause 2.3 relied on by the petitioner clearly states that these rules will not apply in respect of any posts for which any industry-
wise agreements / awards / undertakings are applicable from time to time. According to learned counsel the agreement which is relied on by the ::: Downloaded on - 09/06/2013 15:34:46 ::: 10 petitioner between Union and the erstwhile Model Mills is not an industry-wise agreement and therefore, petitioner's services can not be held to be excluded from the operation of the rules.
10] Having considered the matter, we have no hesitation in coming to the conclusion that the rules do not exclude the petitioner's services from the purview of their operation. The rules do not apply vide clause 2.3 only in respect of posts for which there is any industry-wise agreement. The agreement between erstwhile Model Mills and the Union can by no stretch of imagination be held to be an industry-wise agreement as is commonly understood in Industrial Law. It is merely an agreement between the Union and that particular Industrial Establishment i.e. the Model Mills. There is nothing in the agreement which makes it applicable to the entire industry either at the local level, the ::: Downloaded on - 09/06/2013 15:34:46 ::: 11 state level or the national level. In these circumstances, we are of the view that the conditions of services have been duly altered by the rules within the meaning of section 14. There is no material on record to show and indeed in fairness to the petitioner, this point was not argued, that the rules have not been duly enacted. There is also no substance in the submission on behalf of the petitioner that the age of retirement was lowered to 58 only in respect of employees who are not specifically covered at the time of their employment by the BIR Act . The resolution of the Board in its 96th meeting dated 31.1.1986 which provides as aforesaid, appears to have been clearly superseded by the amendment to the Recruitment Rules by the Board of Directors in the 130th Board meeting on 23.8.1988, where the Rule was amended as follows:
"Rule No.18 - Superannuation No person shall ordinarily be retained in the service of the Corporation beyond the ::: Downloaded on - 09/06/2013 15:34:46 ::: 12 age of 58 years. However, extension in a special case may be granted in accordance with the instructions of Government of India and for reasons to be recorded. The date of superannuation shall be the last date of the month in which the person attained the age of 58 years.
Notwithstanding anything contained in Rule, the Competent Authority, shall, if it is of the opinion that it is in Corporation's interest so to do, have the absolute right to retire any employee by giving him notice of one month/ three months in writing one month's / three months' pay and allowances in lieu of such notice, as may be applicable to him as per terms and conditions of service.
11] In these circumstances, we find that the petitioner's conditions of service stood duly altered by virtue of the Rules framed by the N.T.C. The said alteration is a due alteration under section 14 of the Nationalization Act and he was made aware of the same at the time of his promotion to the post of Senior Accountant, in following words:
"1. While in the Services of this Corporation he is liable for transfer anywhere in India at the discretion of Management, and to the Holding Co., ::: Downloaded on - 09/06/2013 15:34:46 ::: 13 viz. N.T.C. Ltd, New Delhi or any of its Subsidiaries or Mill Units.
2. He shall be governed by the Rules and Regulations of the Corporation in supersession of earlier Awards / Agreement under BIR Act."
12] In the result, we see no reason to interfere with the order directing that the petitioner shall be superannuated at the age of 58 years by the impugned communication dated 17.10.2000. Rule is discharged. No order as to costs.
JUDGE JUDGE
smp
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