Bombay High Court
National Textile Corporation ... vs S.M. Tambe And Ors. on 25 October, 1999
Equivalent citations: (2000)IIILLJ555BOM
Author: H.L. Gokhale
Bench: H.L. Gokhale
ORDER H.L. Gokhale, J.
1. All these writ petitions filed under Article 226 of the Constitution of India are concerning the right of the employees in the Cotton Textile Industry in the local area of Mumbai to work upto the age of 63 years. These petitions are filed either by the Textile Mill/Company or by the employees concerned challenging the orders passed by the Industrial Court constituted under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act, for short) on the complaints filed by these employees against these Mill Companies invoking items 1, 5, 9 and 10 of Schedule IV of the said Act. It is, therefore, that all these petitions have been directed to be heard together and are accordingly being decided together.
2. The Bombay Industrial Relations Act, 1946, governs the relationship between the employers and the employees engaged in this Cotton Textile Industry. Under Chapter VII of this Act, Standing Orders are required to be framed governing various industrial matters mentioned in Schedule 1 to that Act. The age of retirement or superannuation is item 13 in that Schedule. As far as Cotton Textile Industry is concerned, there are separate Standing Orders governing separate categories of employees. Thus, there are Standing Orders for a category of employees which is known as "Operatives" and there are separate Standing Orders for another category of employees designated as "Clerks" . The Standing Orders presently in vogue for operatives, have been settled and finalised by the Industrial Court under Section 36(3) of the B.I.R. Act, 1946 . The provision with respect to retirement of operatives is seen in Standing Order 20A. It reads as follows :
"20A. An operative shall retire from service on attaining the age of 60 years, but a male operative shall be retained in service, if he continues to be efficient, upto the age of 63 years, provided that when retirement becomes necessary a person who has completed the age of 60 may be retired in preference to younger men."
3. As far as clerks are concerned, Standing Order 11A governs the age of retirement of clerks. It reads as follows :
"11 A. Any employee shall retire from service on attaining the age of 60 years, but a male employee shall be retained in service, if he continues to be efficient upto the age of 63 years, provided that when retrenchment becomes necessary, an employee who has completed the age of 60 may be retired in preference to younger men."
The Standing Orders for the clerks are also similarly settled by the Industrial Court under Section 36(3) of the said Act, Thus as can be seen, the provisions for retirement of operatives and clerks as settled under the two different Standing Orders under Section 36(3) of the B.I.R. Act, 1946 are identical.
4. The question with respect to interpretation of these Standing Orders first came up before a single Judge of this Court (Honourable Ms. Justice SUJATA MANOHAR, when she was in this Court) in the case of Maharashtra State Textile Corporation Ltd. v. Vasudeo Vinayaka Joshi reported in 1991-II-LLJ-457 (Bom) in that matter, the respondent No. 1 had worked as a jobber (a category specifically amongst the operatives) in a Textile Mill belonging to the petitioner Corporation. He was sought to be retired on attaining the age of 60 years and he, therefore, filed a complaint under the MRTU & PULP Act, 1971 which came to be allowed. It was against that order that the Corporation had approached this Court.
5. The learned single Judge noted that there were three parts of this Standing Order (concerning the operatives) which were as follows :
1. An operative shall retire from service on attaining the age of 60 years.
2. A male operative shall be retained in service after the age of 60 years, if he continues to be efficient upto the age of 63 years.
3. When retrenchment becomes necessary, a person who has completed the age of 60 years, may be retired in preference to younger men.
In that matter, it was contended by the petitioner that rationalization of the work load had been agreed between the management and the representative. Union and the workforce was to be reduced and therefore on completing 60 years of age, it was necessary to retrench the respondent. It was further contended that it was not obligatory for the management to continue an employee upto the age of 63 years and that the adverb "shall" used in 2nd part of the Standing Order has to be read as "may" and not as mandatory.
6. As far as third part of this submission is concerned, the learned Judge noted that the phrase "when retrenchment becomes necessary" does not refer merely to the subjective satisfaction of the management, regarding the need for retrenchment; nor does it refer merely to a settlement or agreement for retrenchment which may be arrived at between the management and the Representative Union. It refers to a further stage when ultimately reduction does take place in the number of workman or the posts as the case may be and hence it becomes necessary for the management to comply with Section 25-N of the Industrial Disputes Act, 1947 before the management can resort to the provisions of the last part of Standing Order 20A. (See para 14 of the judgment). Thus, the learned Judge took the view that apart from the fact that the objective circumstances must exist, employer must comply with whatever are the necessary statutory requirements like Section 25-P of the Industrial Disputes Act, 1947 and thereafter when it comes to actual implementation at that stage a person who has completed the age of 60 years will have to be retrenched first in preference to younger men.
7. As far as the other submission that the adverb "shall" should not be read as laying down a mandatory requirement in the second part of the Standing Order, the learned Judge negatived that by observing that there was no warrant for such an interpretation. The learned Judge went into the historical setting while construing that Standing Order. It was noted that initially the Standing Orders did not contain any such provision regarding the retirement of an employee. Item No. 13 referred to have come to be added in Schedule 1 of the B.I.R. Act in the year 1956. Thereafter, the Mill Owners Association applied to the Commissioner of Labour for insertion of an appropriate provision corresponding to this new item. The Mill Owners Association had initially proposed a Standing Order that every male operative shall retire from service on completion of 55 years of age and every female operative on completion of 50 years of age with a right to the management to give extension if the operative was found medically fit. The Representative Union had pointed out that the retirement benefits were meagre and the proposed age of retirement was very low. After taking all these factors into consideration, the present Standing Order was added by the Industrial Court order dated September 13, 1958., The Industrial Court had also noted the fact that no old age pension scheme as existing in some of the western countries, was available to the employees and that the existing retirement benefits were inadequate.
8. A submission was sought to be advanced before the learned Judge on the basis of the Standing Orders prevalent in Railways as considered by the Supreme Court in the case of Kailash Chandra v. Union of India , but the Court noted that the Standing Orders of the Railway employees were different. The wording thereof was that "the ministerial servant may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years". The learned Judge, therefore, took a view that Standing Order was quite different from the one which was framed for textile industry and held that an employee had a right to go up to the age of 63 years unless he was established to be inefficient. This judgment of the learned single Judge came to be referred to in another matter which went to a Division Bench viz. Tata Textiles Mills (UC) v. Munnilal Nanhoo Yadao, reported in 1990 1 Cur LR 120 and the Division Bench confirmed the view taken by the learned single Judge. These two judgments have been holding the field all these years. It is on the background of these Standing Orders and these two Judgments that one has to see the facts in all these seven cases.
1. WRIT PETITION NO. 2272 OF 1998
9. Mr. Ramaswamy has appeared for the petitioners and Mr. Buch for the respondent No. 1. The Member of the Industrial Court is the second respondent. As far as this writ petitions concerned, the respondent herein was an employee of the petitioner Textile Mill. His date of birth is May 14, 1935 and he would have completed 60 years of age on May 14, 1995. He was working as a junior clerk under the petitioners. He was given a notice on December 3, 1994 that he would be retired on May 14, 1995 under Standing Order 11 A. The respondent-workman sent a reply on April 15, 1995 stating that he was physically and mentally fit and should be given an extension for three years. His reply was not favourably considered and hence he filed a complaint being (ULP) No. 434/95 under the provisions of the MRTU &PULP Act, 1971 on April 27, 1995. That complaint came to be allowed by the judgment and order dated June 9, 1998 rendered by the Industrial Court, Mumbai. Being aggrieved by that judgment and order, the present petition has been filed and was admitted on November 30, 1998.
10. Mr. Ramaswamy, learned counsel appearing for the petitioners, pointed out that the evidence on record was such that it could not be said that the respondent workman was an efficient employee. The management had led evidence in the Industrial Court and had placed necessary documents on record. Those documents pointed out that the workman concerned was all throughout lethargic in his duties. The management had examined one Vasant Jadhav, Deputy Manager. Mr. Jadhav, in his evidence pointed out that there was a strike in the mill in the year 1982: that the affairs of the mill-company were referred to the B.I.F.R and subsequently on nationalization efforts were made to run the mill-company. Mr. Ramaswamy pointed out that there were a number of instances on the part of the respondent workman of absence on duty, sleeping on duty, or being found in a drunken state while on duty.
11. Mr. Ramaswamy tendered a compilation of notes of evidence and the documents tendered in the Industrial Court. It was seen therefrom that the respondent initially joined as a Mazdoor in the year 1972 and later on sometimes around 1981-82 was taken in the clerical cadre. From the documents on record, it was seen that his probation as a clerk was extended by memo dated December 21, 1985 (Exh. C-14) and lastly for a period of three months by a notice dated April 1, 1986 (Exh. C- 11) while informing him that there was no improvement in his performance. Inasmuch as no specific letter of confirmation is tendered on record, it could be said that after passage of three months from that letter, the respondent became permanent. Prior to this notice of April 1, 1986, there are a few memos on record firstly, one dated June 3, 1981 (Exh. C-7) extending the probation period since the work was not satisfactory, then on August 25, 1985 (C-8) that he was not reporting and writing hand summary in attendance books properly and then again on October 2, 1985 (C-9) that he was not attentive in his work, on December 31, 1985 that he was not punctual and attended duty on November 9, 1985 under the influence of liquor (C-13) and lastly on April 9, 1986 (C-10) that he was negligent in his duties. Even if one decides to keep aside all these memos which are given prior to the completion of probationary period, there are not less than eleven memos subsequent thereto which were tendered in the Court below. They are as follows :
S.No. Exh. Mark Date Necessary contents
1.
C-12 6-8-86 Respondent was warned for gross negligence. His absence without permission was also recorded on six days.
2. C-15 with C-16 19-2-89 3-2-1989 Came on duty at wrong time and looked wrong production.
3. C-17 with C-18 26-8-89 13-8-89 Found sleeping on duty.
4. C-19 3-11-90 Paid expenses amount while paying wages and left the place of work early by 1 hr. and 15 minutes on two days, booked wrong production.
5. C-20 2-3-91 Remained absent and reported for duty late.
6. C-21 19-3-91 Remained absent on duty, as a result thereoff annual stock taking work remained pending and it is reported that it is very difficult to take work from him.
7. C-23 1-6-92 Remained absent without prior permission.
8. C-24 16-4-92 Over time is required to be given due to the absence of the employee concerned.
9. C-22 12-3-94 Came late on duty on five days in the month of January 1994.
10. C-26 30-4-95 Remaining on medical leave without giving certificate from25-4-95 to 30-4-95.
11. C-25 5-12-95 A report that the employee concerned may not be sent to the winding department since he always remained on leave and does not take interest in work requiring over time to be given.
Mr. Ramaswamy, in this connection referred to paragraph 5 of the examination-in-chief of Mr. Vasant Jadhav, Deputy Manager, Administration wherein he has stated as follows :-
"We evaluated the work of the complainant before issuing him Exh. U-9 order of superannuation. He was not regular in attendance, he used to remain absent without permission and without sanction, he used to make mistakes in the departmental work. We had issued him memos, show cause notice, warning in this respect. I personally issued memo to him. We have filed the documents on record which are admitted by the complainant and marked Exhibits respectively."
Now, what is important is that there is no effective cross-examination on this aspect and the contents of these 11 memos are not disputed. The only thing which has come in the cross-examination is a statement by Mr. Jadhav that the management has not issued the complainant a charge-sheet after evaluation of his work. Thereafter, it is stated in the cross examination as follows:
"There is a charge of inefficiency in the retirement memo. No enquiry was held against the complainant on allegation of inefficiency."
Thereafter it is stated that the workman has to record the attendance and record the production in the winding department and at Exhibit C-16 was the memo issued to the complainant for recording wrong production in winding department.
12. Mr. Buch, learned counsel appearing for the respondent-workman, on the other hand, submitted that all these entries only show the dark side of the service of the employee concerned. The positive entries are not placed before the Court and, therefore, one should not merely rely upon these entries which are produced by the management. Mr. Buch pressed into service the following observation of Ms. MANOHAR, J. from para 10 of the above cited judgment:
"10. It is argued by Mr. Naik, learned advocate for the petitioners that the Standing Order, if interpreted in this manner would compel the management to continue a male operative if he is efficient but if he is otherwise not a suitable person to be continued in service. But the plain language of Standing Order 20A does not permit any discretion being granted to the management to retire an efficient employee at 60 if he is otherwise unsuitable. In such a situation it is open to the management to take such steps as may be available in law to discontinue him from service."
He, therefore, submitted that the learned Judge of the Industrial Court was right in coming to the conclusion that unfair labour practice had been established and that there was a breach of Standing Orders and thus item No. 9 of Schedule IV of MRTU & PULP Act, 1971 was rightly invoked. Mr. Buch submitted that the management ought to have held a specific enquiry by levelling a charge of inefficiency and then the respondent workman could have been denied the right which he otherwise had, viz., to continue to serve upto the age of 63 years. Mr. Buch submitted that the material produced on record was about conduct and not about efficiency and that the term efficiency had a wider meaning.
13. Now, when one looks at the material on record as seen above, after the completion of probation period there are not less than 11 memos against the respondent in the span of about nine years. They all throughout indicate that the respondent was not punctual on duty, he was found sleeping on occasions, he paid excess amount to the employees which showed inattentiveness, he left his place of work early, he remained absent habitually or even on medical ground without giving certificate. His absence necessitated engaging somebody else on payment of over time and on one occasion he was found drunk while on duty (though prior to completion of probation period). All these memos were tendered in the Court and necessary oral evidence was led by the management. The learned Judge, on the other hand, has observed in his order in para 17 as follows :
"Carefully considering the note Exh. C-30 which is submitted by the Senior Administrative Officer to the General Manager of the respondent, it reveals that the General Manager has not taken any cognizance since there is no remark of the General Manager to whom notice is produced. Throughout the pleadings of the respondents, nowhere specifically pleaded about this Exh. C-30; not only that, there is no suggestion to the complainant. Shri Tambe in the cross- examination as to whether his work is assessed and concluded that he is not efficient, referring to Exh. C-30."
The learned Judge has thereafter observed as follows :
".......it is expected before issuing the retirement memo, the management is in wisdom to assess the periodical work and compare the same to the past working for evaluation of his efficiency. After evaluation, a proper opportunity is to be given to have explanation of the delinquent employee."
As far as these aspects mentioned by the learned Judge are concerned, what is to be noted is that assuming that no such opportunity was given at the departmental level, the entire material has been placed before the Court by the Management. It is not the case of the respondent-workman that these memos are false or an after thought. They are part of his service record and, therefore, Mr. Ramaswamy submits that on this background it could not be said that the respondent-workman was efficient and was entitled to continue up to the age of 63 years and that no reasonable person would have reached the conclusion reached by the learned Judge.
14. In this case, we are concerned with the assessment of efficiency of the employee concerned on attaining the age of 60 years and as to whether he should be continued thereafter. Thus, one has to see "the continued utility of the employee or rather what could be said to be his potential for continuation useful in service". Among others, this is also a factor emphasised by the Hon'ble Supreme Court in All India Judges Association v. Union of India in the matter of continuing the members of Judicial service upto 60 years. The emphasis and interpretation of Mr. Buch of the observation of Ms. MANOHAR, J.. in para 10 in the M.S.T.C. case (supra) is misplaced. Under the relevant Standing Order, the employee concerned is to be continued in service if he continues to be efficient. In this what one has to see is not merely the productive capacity but the continued utility of the employee and the management will be expected to look into all relevant factors in this behalf. The material placed by Mr. Ramaswamy on record concerning this employee cannot be brushed aside by the Court which is deciding the complaint of unfair labour practice lodged by the workman. It would have been desirable had an opportunity been given to the employee at the departmental level and that should be the normal rule but in any event the fact remains that the necessary evidence has been led in the Court. The non-continuation of the employee after attaining the age of 60 years is not an action for any misconduct. Assuming that the management did not hold any inquiry for these 11 memos earlier, it cannot, be blamed if it takes them into consideration while deciding as to whether the employee should be continued beyond the age of 60 years while deciding on his efficiency. The employee concerned had the full opportunity in the Court and he did not dispute the contents of these memos. Thus the action having been justified in Court, the Court ought to have taken cognizance of the material placed on record which clearly established that the employee was not efficient in his service.
15. The second submission of Mr. Ramaswamy has been that the Mill-company has become a sick company. But then as far as that part is concerned, unless an application to retrench the employee is made under Section 25-N, any such circumstance cannot be of much assistance.
16. In the circumstances, in my view, the learned Judge of the Industrial Court has ignored the material on record which is quite substantial It is not a case of one or two instances but 11 instances in a span of about nine years after the confirmation of the employee and they are all relating to absence at the place of work, coming late on duty, not performing the duty properly, sleeping while on duty and being found drunk at the place of duty on an earlier occasion. These cannot be said to be the factors which are alien or unrelated while deciding on efficiency. They could not be ignored while deciding on the issue of efficiency and continued utility as to whether the employee ought to be continued after the age of 60 years. Therefore, in the facts and circumstances of the case, the order passed by Industrial Court is required to be set aside and the complaint will have to be dismissed. Accordingly Rule is made absolute in this matter in terms of prayer Clause (a).
17. Mr. Buch, learned counsel appearing for the respondent-workman, informs that the gratuity and the provident fund of this employee has not been paid, rather he has not received this, since he expected his continuation upto the age of 63 years. The petitioners will, therefore, clear his gratuity, provident fund and all other amounts which are due to him within eight weeks from today with interest as directed herein below. Mr. Buch points out that as far as the amount of provident fund is concerned, the Mill-company was depositing the provident fund with Provident Fund Commissioner and hence the Mill-company is expected to take necessary steps to see to it that the amount of provident fund due to the respondent is paid to him at the earliest. Mr. Buch points out that for non-payment of the amounts to the Provident Fund Commissioner an amount of interest at the rate of 12% is provided under Section 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. In the event the Mill-company has not deposited the amount with the Provident Fund Office, the respondent will be entitled to interest at the rate of 12%. As far as the amount of gratuity is concerned, Mr. Buch points out that for delayed payment under Section 8 of the Payment of Gratuity Act, 1972, interest is payable at the rate to be notified by the Central Government. This rate has been notified at 15% vide the Central Government Notification published in Gazette of India, Entry No. 603 being Notification No. S.O. 1032(E) dated December 1, 1987. Hence the petitioners will clear the amount of unpaid gratuity with interest at the rate of 15%.
18. Mr. Buch learned counsel appearing for the respondent, states that, if instructed, the respondent may carry this order in Appeal, though he would like to receive the amounts on the aforesaid accounts when paid and such a receipt should be permitted without prejudice. That will certainly be so. Accordingly Rule is made absolute in terms of prayer Clause (a) with the above clarification, though with no order as to costs.
2. WRIT PETITION NO. 1410 OF 1998
19. Mr. Buch appears for the petitioner in this matter and Mr. Naphade appears for the respondent No. 2. The first respondent is the member of Industrial Court who passed the impugned order.
20. The petitioner herein was an employee of the 2nd respondent- Textile Mill. He joined the service in a category known as a sider in the year 1988 and there is no dispute that this category falls in the wider category of employees known as operatives. The petitioner remained a badli employee all throughout. On April 15, 1994 he was given a retirement memo stating that he will retire with effect from July 1, 1994 (on the basis of his year of birth given as 1934). The petitioner wrote back on June 21, 1994 stating that he was an operative and was entitled to work until completion of 63 years of age. On that request not being entertained (since there was no reply to it), he filed a Complaint being (ULP) No. 770 of 1994 before the Industrial Court in Mumbai under MRTU & PULP Act, 1971. The 2nd respondent filed written statement and documents and oral evidence was led by both the parties.
21. The learned Judge of the Industrial Court took a view that the petitioner ought to be given an opportunity to prove his efficiency which had not been permitted. He relied upon the observations of the Division Bench in the case of Tata Textile Mills (U. C.) v. Munnilal N. Yadav (supra) in paragraphs 17 to 19 of that judgment, the Division Bench had taken a view that a periodical evaluation of the work of the employee concerned was desirable since the Standing Order required that the employee concerned "continues to be efficient". Relying upon that dicta and also the requirement of Standing Order 20-A applicable to the operatives, the learned Judge passed an order directing the respondent-company to give an opportunity to the petitioner to prove his efficiency. The Court, however, held that there was no unfair labour practice on the part of the respondent company though the complaint was partly allowed in view of the above direction.
22. Now, what is interesting is that after this order, the petitioner was permitted to join the mill-company and he worked therein for a period of six months from January 2, 1997 to June 30, 1997 that is until the date he would have retired had he been permitted to work until completion of 63 years of age as per Standing Order 20A applicable to the operatives.
23. The petitioner, however, felt aggrieved with respect to the denial of wages for the earlier period and filed an Application for Review of the said order though it has been wrongly shown as Revision Application No. 4/97 in the writ compilation. In this behalf, the learned Judge in his order in review noted in para 10 of his order that in fact there was no prayer in the complaint that the employee was entitled to back wages. In that para, the learned Judge further noted as follows:
"In fact, the status of complainant was of a badli worker and it has also come on record that he was working 20 days in a month but sometimes he was working 10-12 days in a month and badli worker's status is not of a permanent nature. By claiming the back wages in the review application, does not seem to be just and proper."
The learned Judge noted that if he had grievance, then he could have filed a separate case for that but there was no occasion to change the order passed earlier and therefore rejected the review application.
24. This petition seeks to challenge both these two orders, firstly, one passed in Complaint (since the Complaint was allowed only in part) and the later one in Review Application (since the wages for the intervening period were not granted and review rejected). Mr. Buch, learned counsel appearing for the petitioner, submitted that the very fact that the employee concerned worked during the last six months preceding to his completing 63 years, shows that he was efficient enough to work, As against that, Mr. Naphade, learned counsel appearing for the respondent No. 2, had pressed into service the above referred observation of the learned Judge in review which factual part has not been disputed by the petitioner. Mr. Naphade, therefore, submitted that if the petitioner was a badli employee and if the record showed that he worked only for 20 days in a month or 10-12 days in a month and never put in 240 days in a calendar year, the factors for that will have to be looked into. The fact that the petitioner was a Badli employee and the non-availability of the work was, of course, one factor but, over and above that it had come on record that the workman was not keeping well and was sick for quite some time. Thus, as per the respondent-management he was to retire on July 1, 1994 but as recorded in para 20 of the order of the Industrial Court on the Complaint, the workman admitted in his cross-examination that he had availed of sick leave from May 13, 1993 to May 30, 1993, July 1, 1993 to July 7, 1993, July 21, 1993 to July 27, 1993, January 19, 1994 to January 21, 1994, March 15, 1994 to May 19, 1994, April 25, 1994 to April 29, 1994 and June 2, 1994 to June 9, 1994. He also admitted that unless he submitted the medical certificate, he would not be granted leave. He also admitted that he was covered under the E. S. I. Scheme and he had availed of the facility in the year 1994. He was not in a position to state as to how much production he had given. He accepted that he was provided with work only when the regular employee did not come on duty. Thus, during the period May 13, 1993 till June 9, 1994, i.e. during the period of one year prior to attainment of his 60 years of age, he was continuously absent for a very long time. Thus, although the management did not reply the petitioner's representation dated June 21, 1994 (which it ought to have done) it explained its decision before the Court, on the basis of their record, If this was the state of his health and work during the year just preceding to his attaining the age of 60 years, it could not be said that he was efficient in service and had continued utility and that he should have been continued thereafter and also be granted wages during the period of 2 1/2 years, i.e. the period subsequent to July 1, 1994 and upto January 2, 1997 when he was taken back on duty. Mr. Naphade therefore submitted that, the learned Judge was not correct to the extent he passed the order on the complaint against the management directing an opportunity to the employee to prove his efficiency; but in any case that order was accepted and implemented. That, however, cannot, lead to the prayer that the employee be paid wages for the period of 2 years (when he was not given work). In his submission the order rejecting the Review Application was a correct one.
25. This petition seeks to challenge both these orders and also a direction to pay to the employee the wages that would have been earned during the intervening period. This is on the footing that if the petitioner could put in work during January 2, 1997 to June 30, 1997, he would have similarly put in work during the earlier 2 years if he was allowed to work. The submission is that he had been wrongfully denied the opportunity to work during that period. Mr. Naphade, on the other hand, emphasises the continued non-availability of the petitioner employee for a long time on a number of occasions during the period of one preceding year prior to July 1, 1974. He submitted that that was the material before the management when it decided to retire the petitioner on completing 60 years and that it was a correct decision and management could not be faulted for that decision merely because it subsequently accepted the order of the Industrial Court whereby, the petitioner worked for six months.
26. In my view, the submission of Mr. Naphade is correct and the decision of the management to retire the employee, when taken, could not be faulted. At the same time, the management itself has accepted the decision of the Industrial Court on the complaint and. given the opportunity to the petitioner and he has worked for six months. That decision of the Industrial Court is not challenged by the management and has become final. At the same time, the very Industrial Court has declined to give full effect to that order and has denied the wages of 2 1/2 years when the petitioner did not work and in my view rightly so. Apart from the fact that this aspect could not be gone into review, proving of efficiency by subsequently working for six months cannot lead to the inference that the employee was efficient during previous 2 1/2 years,, particularly due to his ill-health over a year prior to July 1, 1974. It is true that the petitioner loses the wages for 2 1/2 years during this period when he was not provided with work, but the decision of the management to retire him could also not be faulted as baseless since they had his record of non-availability for a very long period during the very year preceding their decision to retire him. Besides since he was a Badli employee, the fact that he could be provided with work for six months cannot necessarily mean that he could be provided with work for the prior 2 1/2 years leading to a claim of wages. In the circumstances, it is not possible to accept the prayers of the petitioner. In fact, in the order on the complaint, the Industrial Court has exercised its discretion in favour of the petitioner (though partly) and it is difficult to understand as to how the petitioner could be aggrieved by that order. The part of that order declining to hold the management guilty of unfair labour practice cannot be faulted nor the one declining to review it on the application of the petitioner. In any case, the fact remains that the petitioner has been permitted to work until June 30, 1997 when he would have completed 63 years of age. It has not come on record as to what wages were paid to him during that period but they must have been the wages payable to him at that point of time considering his earlier service on a continuous basis. It has not been stated by the respondent No. 2 anywhere that he was given wages during that period as if he was a new entrant. In the circumstances, though the prayers (a) to (c) in this petition are not being entertained, it would be proper and just that the respondent No. 2 ought to be directed to pay the gratuity and the provident fund of the petitioner as if he had put in continuous service for 63 years ending on June 30, 1997 by way of other relief deemed fit by this Court as prayed in prayer Clause (d). Mr. Naphade has been fair enough to accept that it is something which flows from the continuous service and he has left it to the Court to pass the appropriate order in that behalf. Mr. Buch, learned counsel appearing for the petitioner states that the petitioner has not collected his gratuity and provident fund so far, nor has management offered it to him. In the circumstances, though the petitioner is being disposed of without granting the prayers (a) to (c) as they are worded, there will be a direction to the respondent No. 2 to pay provident fund and the gratuity to the petitioner for the period ending upto June 30, 1997 considering the entire service as a continuous one.
27. The respondent No. 2 will, therefore, clear the gratuity, provident fund and all other amounts which are due to the petitioner (excluding of course the wages for 2 1/2 years) within eight weeks from today with interest as directed herein below. Mr. Buch points out that as far as the amount of provident fund is concerned, the Mill-company was depositing the provident fund with Provident Fund Commissioner and hence the Mill-company is expected to take necessary steps to see to it that the amount of provident fund due to the petitioner is paid to him at the earliest. Mr. Buch points out that for non-payment of the amounts to the Provident Fund Commissioner an interest at the rate of 12% is provided under Section 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. In the event the Mill-company has not deposited the amount with the Provident Fund Office, the respondent will be entitled to interest at the rate of 12% on the particular portion. As far as the provident fund is concerned, the petitioner will be entitled to the amount which is deposited for him in the provident fund office plus provident fund for further three years on which he will be entitled to interest at the rate of 12 per cent as per Section 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. As far as the amount of gratuity is concerned, Mr. Buch points out that for delayed payment under Section 8 of the Payment of Gratuity Act, 1972, interest is payable at the rate to be notified by the Central Government. This rate has been notified at 15% vide the Central Government Notification published in Gazette of India, Entry No. 603 being Notification No. S.O. 1032(E) dated December 1, 1987.
28. Mr. Buch learned counsel appearing for the petitioner, states that, if instructed, the petitioner may carry this order in Appeal, though he would like to receive the amounts on the aforesaid accounts when paid and such a receipt should be permitted without prejudice. That will certainly be so.
3. WRIT PETITION NO. 2378 OF 1998.
29. Mr. Naphade and Mr. Saiyed have appeared for the petitioners and Mr. Buch for the respondents.
30. This petition seeks to challenge the orders of the Industrial Court in Complaint (ULP) Nos. 1276/97, 1277/97 and 1278/97. All these three complaints were filed on behalf of three different groups of employees. Complaint (ULP) No. 1276 of 1997 was filed by one Nandgopal Kalidin Tiwari; Complaint (ULP) No. 1277 of 1997 was filed by one Prabhakar Ramchandra Kudalkar, whereas Complaint (ULP) No. 1278 of 1997 was filed by Rashtriya Mill Mazdoor Sangh on behalf of 12 other employees. The learned Judge of the Industrial Court has decided all the three complaints together by common judgment and order dated June 30, 1998. The petitioner- Mill company have chosen to challenge that common judgment and order by filing this writ petition. The prayers are also to quash and set aside the orders in the three complaints. However, the petitioners have not chosen to join the two complainants in Complaint (ULP) Nos. 1276/97 and 1277/97 as the respondents.
31. In this matter also the case of the employees was that they are covered under Standing Order 20A, that they were operatives who were eligible to work upto completion of 63 years and they were sought to be discontinued on completing 60 years only. The petitioners took a stand before the Industrial Court that retrenchment had become necessary inasmuch as the Mill-company had become sick. The proceeding concerning their Mill Company had gone to BIFR. The petitioners, therefore submitted that in view of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, all legal proceedings and execution of any order creating monetary liability would stand suspended. They are relied upon the statement of Shri Haribhau Naik, the then President of RMMS made before the BIFR that the workmen concerned were paid idle wages. As against this submission of the Mill-company, it was pointed out on behalf of the workmen that the Standing Orders still continue to be in force. They were not suspended and had been specifically preserved for their operation. The workforce had already been reduced substantially and whatever workforce was remaining was entitled to get the benefits under the Standing Orders until completion of 63 years unless the necessary requirement of retrenching the workmen by following the due procedure of law had been gone into. That plea on behalf of the workmen was accepted by the Industrial Court and the complaints were allowed directing the Management to pay the wages. The Industrial Court in its order held that the Mill-company had engaged in unfair labour practice under Item 9 of Schedule IV and it directed the employees involved in these three complaints to continue with their duties till they attain the age of 63 years.
32. Being aggrieved by that order, the present petition has been filed. Though the petition was admitted, no interim relief was granted. In fact, the Industrial Court had earlier granted an ad interim order on December 22, 1997 restraining the petitioners from retiring the employees on completion of 60 years of age and against that order Writ Petition No. 645 of 1998 had been filed. My brother REBELLO, J. who heard the matter directed the Industrial Court to dispose of the complaint within six months. Accordingly, the complaint has come to be disposed of and hence though this petition was subsequently admitted, no interim relief was granted by this Court.
33. Mr. Naphade, learned counsel appearing for the petitioners, repeated the submissions which were advanced in the Industrial Court. He submitted that the sickness of the Mill-company was writ large and hence the provision which was made in the Standing Order 20A ought to be properly construed so that the management is not required to continue with this workforce beyond the age of 60 years. As stated above, he drew attention of the Court to the statement of the President, RMMS, made before the BIFR that the workers were sitting idle. As against that Mr. Buch pointed out that the Standing Orders were not suspended and he placed on record the order dated September 9, 1998 passed by the Appellate Authority on the specific application by the RMMS in that behalf wherein it was clarified that the Standing Orders were not suspended. Mr. Buch also drew my attention to the judgment of my brother SRIKRISHNA, J. in the case of Baburao P. Tawade v. Hes Ltd., Bombay reported in (1997-III-LLJ(Suppl)-265) (Bom) wherein the learned Judge has held that the bar under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 could not be applicable to the claim made by the workmen under Section 33-C(2) of the Industrial Disputes Act. Mr. Buch, therefore, submitted on the same analogy that as far as the present group of employees are concerned, they are entitled to continue to work and receive wages and other benefits until they complete 63 years of age under the Standing Order and which is an enforceable right.
34. Mr. Buch, alternatively, submitted that since a voluntary retirement scheme has been framed and a number of employees had opted for voluntary retirement scheme, this group of employees was also prepared to go for the same. However, Mr. Naphade, on instruction, declined to accept this offer of Mr. Buch. In the circumstances, the controversy in this matter would stand squarely covered under the observations by Mrs. sUJATA MANOHAR, J. (as she then was in this Court), in the case of Maharashtra State Textile Corporation Ltd. v. Vasudeo Vinayak Joshi, (supra) wherein in para 14 the learned Judge has, in terms, stated that "this phrase "when retrenchment becomes necessary", (appearing in Standing Order 20A) does not refer merely to the subjective satisfaction of the management regarding the need for retrenchment: nor does it refer merely to a settlement or agreement for retrenchment which may be arrived at between the management and the Representative Union. It refers to a further stage when ultimately reduction does take place in the number of workmen or the posts as the case may be. And hence it becomes necessary for the management to comply with Section 25-N of the Industrial Disputes Act before it resorts to the provision of the last part of Standing Order 20A". In the present case, the petitioner management has not done any of these things. The aforesaid judgment of the learned single Judge has been subsequently confirmed by the Division Bench and there is no reason for me to make any exception when similar facts are squarely covered under the judgment. In the circumstances, this petition fails and the same is accordingly dismissed. Rule is discharged, though with no order as to costs.
4. WRIT PETITION NO. 1115 OF 1997.
35. Mr. Vaidya has appeared for the petitioner in this matter and Mr. Dharap for the respondent No. 1. The second respondent is a member of the Industrial Court.
36. The respondent No. 1 in this matter joined the petitioner-company in the year 1995 in its Time Office as a clerk. He was promoted as a senior clerk in the year 1980. On November 1, 1993 he was promoted as a Head Time Keeper in the supervisory technical grade of Rs. 695-40-895-50-1195. In the year 1994 he attained the age of 60 years on August 31, 1994. He was initially granted one extension until February 28, 1995, i.e. for a period of six months. Thereafter, he was given a further extension for six months until August 31, 1995 and thereafter for three months until November 30, 1995. Thus, he was given an extension of one year and three months, over and above, the period when he ought to have retired after completing the age of 60 years. The stand of the management has been that he is governed under Standing Order 26A of the Standing Orders applicable to employees other than operatives. These are a third set of Standing Orders than those applicable to operatives and clerks which have been referred earlier. This Standing Order reads as follows :
"26A. The date of compulsory retirement of an employee other than an operative shall be the date on which he attains the age of 60 years, or such other age as may be agreed upon between the employer and the employee by an agreement, settlement or award, which may be binding on the employer and the employee under any law for the time being in force."
37. As against the above stand of the management, the stand of the employee concerned was that he belonged to the clerical cadre and Standing Order 11A from the Standing Orders applicable to clerks, would apply and govern his service conditions.
38. The respondent-workman, therefore, filed a Complaint (ULP) No. 1563 of 1995 in the Industrial Court at Mumbai. The documents were produced and evidence was led by both the sides (The papers and proceedings of the Industrial Court have also been produced before me for perusal by calling them from that Court). After considering the material on record, the learned Judge of the Industrial Court came to the conclusion that the respondent was eligible to be considered under Standing Order 11A only and not Standing Order 26A as contended by the Management. The learned Judge, therefore, held that the management had engaged in an unfair labour practice and by his judgment and order dated January 17, 1997 directed that the employee be reinstated and paid all his back wages with continuity of service.
39. Mr. Vaidya, learned counsel appearing for the petitioner, submitted that the respondent-workman had been promoted as a Head Time Keeper on November 1, 1993 and worked in that capacity until he completed the age of 60 years on August 31, 1994. Prior thereto he was working as a senior clerk right from 1980. The submission of Mr. Vaidya was that the pay scale which was made available to the respondent-employee was that of supervisory staff. As far as the technical and supervisory staff are concerned, their pay scales and service conditions were governed by the Award of the Industrial Court in Reference (1C) 91 of 1954 and as per the subsequent agreement arrived at between the Representative Union and the Mill Owners Association modifying it on October 6, 1970. Those pay scales were available to the technical and supervisory staff which was specifically classified under the clause "Classification" therein. The clause reads as follows:
"Classification.
The existing Technical & Supervisory Staff including Assistant Engineers shall be classified in the categories of:
(a) Assistant Masters,
(b) Departmental Assistants,
(c) Departmental Assistants who are Technical and Engineering graduates,
(d) Foremen and Assistant Foremen; and
(e) Apprentices.
The respondent was given dearness allowance of the supervisory staff and his pay scale was also of that cadre. As a Head Time Keeper, he was all throughout considered as a Junior Assistant as can be seen from the management's letter including one dated August 1, 1994 (at Annexure-A to the petition) informing initially to the employee that he will retire from September 1, 1994. His pay slip produced on record described him as Junior Assistant. Mr. Vaidya, therefore, submitted that when totality of these factors are considered, having received the benefits in the cadre of supervisory and technical category, the respondent could not turn back and say that he was not a departmental assistant and that he was a clerk. He was admittedly a Head Time Keeper and classified as a Junior Assistant and hence the Standing Order which was applicable to employees other than operatives or clerks, will apply. Mr. Vaidya submitted that undoubtedly the respondent was not an operative, nor was that his case. As far as clerks are concerned, Standing Order 11A of the Standing Orders applicable to clerks permitted them to work up to the completion of 63 years but a clerk has not been as such defined under those Standing Orders except by stating in Standing Order 2(a) that an "employee" means a clerk which is a meaning provided for the purpose of reading those Standing Orders. Mr. Vaidya, therefore, submits that we will have to look into the document laying down the pay scales and service conditions of Technical and Supervisory Staff and if those benefits are made available to the respondent-employee (who had received the same), he could not later on say that he did not fall in their category.
40. Mr. Dharap, on the other hand, pointed out that whatever may be the stand of the management, when the Standing Orders for persons other than operatives and clerks did not provide for extension beyond 60 years, the management did give an extension for one year and three months to the respondent No. 1. He submitted that the first respondent did not have a disciplinary power nor was any such material placed on record. The submission of Mr. Dharap was that essentially the duties of the respondent No. 1 were clerical duties and merely because he was designated as a Head time Keeper, he could not be taken out of the Standing Orders applicable to clerks.
41. As far as oral evidence is concerned, the employee concerned stated that he used to assist other clerks in preparation of pay sheets and did not have any right to take any disciplinary action or to sanction any leave. He however accepted that he was getting the benefit of overtime and also that the scale given to him was that of Junior Assistant Master. He further accepted that the supervisory and technical staff were not entitled to get extension up to the age of 63 years. The management examined one Mohan Narayan Acharya, General Manager, who stated that the employee was getting dearness allowance applicable to technical and supervisory category. He accepted in his cross-examination that there was no allegation of inefficiency against the respondent. On the basis of this evidence and the Standing Orders the question to be considered before the Industrial Court was as to whether the employee was governed under Standing Order 26A (for employees other than operatives and clerks) or under Standing Order 11A (applicable to clerks). That depended on deciding as to whether he fell in the clerical category or in the category of technical and supervisory staff. Now undoubtedly as recorded above, although the respondent did not have any disciplinary power or to sanction leave etc. he was given the pay and dearness allowance of the category known as technical and supervisory staff which he would not have been given if he was only a clerk. In their correspondence, the petitioner has described him as junior assistant (Head Time Keeper). Hence when he was otherwise getting the benefits of a higher cadre, it could not be permissible for him to say that for other purposes he would not be governed by the Standing Orders which apply to that category in which he was paid salary. The Standing Orders will have to be construed in their entirety. It cannot be said that for one purpose, i.e. for pay and salary, the employee would be in the category of technical and supervisory staff and for other purpose he would be in the category of clerks. Hence, in my view, the submission of Mr. Vaidya is well justified that the respondent was wording in the technical and supervisory category and hence the Standing Order 26A would apply to him. It is true that the respondent was given extension for one year and three months. But that, by itself, could not lead to the conclusion that he was entitled to extension for a period of three years. The finding of the Industrial Court in that behalf is erroneous.
42. In the circumstances, this petition will have to be allowed. The order of the Industrial Court will have to be quashed and is accordingly set aside. It has not been executed in the meanwhile in view of the direction given by my brother REBELLO J. while admitting this petition. Accordingly Rule is made absolute in terms of prayer Clause (a).
43. Though, the petition is thus allowed, It is, however, clarified that the] petitioner-management had itself given an extension to the respondent-employee on their own until November 30, 1995. He will, therefore, have to be given all his benefits including those concerning provident fund and gratuity and all other benefits on the footing that he had put in continuous service until that date. The petitioner will clear all those dues (in case they have not been paid or received so far) viz., gratuity, provident fund and all other amounts which are due to the respondent No. 1, within eight weeks from today with interest as directed in the earlier matters. The respondent No. 1 will be entitled to collect those amounts without prejudice in case he wants to file an appeal. Rule is made absolute with clarification as above, though without any order as to costs.
5. WRIT PETITION NO. 1481 OF 1996
44. Mr. Buch appears for the petitioner in this matter and Mr. Naik appears for the respondent No. 1.
45. The petitioner herein joined as a Badli Doffer boy under the respondent No. 1 /mill company on February 20, 1959. He became permanent in Spinning Department on November 1, 1963. On February 1, 1972 he became a doffer jobber. On February 17, 1979 he became an assistant foreman, then a foreman on January 1, 1988 and a departmental assistant on January 1, 1990. He also earned a merit increment on January 1, 1992. On November 27, 1996 he was given a retirement memo that he will retire on December 31, 1996 on completing 60 years of age. He replied on December 7, 1996 stating that he was eligible to work until completing 63 years of age. That reply not having been accepted, he filed a complaint bearing Complaint (ULP) No. 1400 of 1996. After considering the documentary material and oral evidence, the complaint was rejected by an order dated July 5, 1997. Hence this petition.
46. Mr. Buch, learned counsel appearing for the petitioner submitted that at the time of retirement of the petitioner, the petitioner's basic wage was Rs. 925/- per month, i.e. less than Rs. 1000/-. It is his submission that he was essentially doing technical work and was an operative. His submission was that the definition of an "Operative" in the Standing Orders applicable to the operatives, includes all work people. Now for ready reference, definition of operatives under these Standing Orders reads as under:
"Operatives means all work-people, male or female, employed in the mill or in the mill premises, whose names and ticket numbers are included in' the departmental musters, and includes, Overseers, Jobbers, Muccadams, Watch & Ward Staff, Motor Vehicle Staff and Cartmen."
47. The submission of Mr. Buch was that the petitioner was amongst the work-people and was an operative, he was doing technical work, his salary was less than Rs. 1000/- basic and hence he was an employee under the definition of an employee provided in Section 3(13) of the B.I.R. Act, 1946. He, therefore, submitted that the Industrial Court was wrong in applying Standing Order 26A from the Standing Orders for employees other than the operatives to the petitioner. It was the Standing Order 20A from the Standing Orders for operatives which will apply and he ought to have continued until completion of 63 years of age.
48. As against the submission of Mr. Buch, Mr. Naik submitted that pay scales which were made available to the technical and supervisory staff specifically covered the categories of foreman and assistant foremen and departmental assistants. Admittedly, the petitioner became an assistant foreman on February 17, 1979, a foreman on January 1, 1988 and then a departmental assistant on January 1, 1990. Mr. Naik submitted that even by looking at para 3 (c) of the complaint, it would be seen that the petitioner accepted that it was a part of his responsibility to see to it that the machines in the department were in proper condition. It is no doubt true that the petitioner stated in his affidavit that he did not allot work to workers and that he attended to repairing only minor faults and also that he did not sanction leave of workers. In the complaint, he has stated that he has studied up to 4th standard. Mr. Naik submitted that the petitioner was given leave and medical assistance as can be seen from his cross-examination. He was not given any ticket number (which is given to the operatives) and was in fact not doing any manual work. The question is as to which Standing Order will govern and in that connection the totality of the factors will have to be considered including his pay, the category in which he is placed, designation given to him and the work that was expected from him. Mr. Naik therefore submitted that the Industrial Court was right in coming to the conclusion that the petitioner did not fall in the category of operatives and that the Standing Order 26A applicable to the employees other than operatives, would apply.
49. I have given my anxious thoughts to the submissions of rival parties. In my view, the submission of Mr. Naik is well founded. One will have to take an overall view and one cannot ignore the fact that the petitioner was working as an assistant foreman and thereafter in the promoted category for a very longer time and got all the benefits of salary and other benefits of those categories. He cannot therefore be permitted to say that he was an operative for other purposes and he should be allowed to work until completion of 63 years. That is a benefit made available to the employees whose salaries are less as referred in the historical background in the judgment of Ms. sUJATA MANOHAR, J. referred to above, Mr. Naik relied upon the Judgment of Industrial Court, Nagpur in the case of Central India Spinning Weaving & Mfg. Co. Ltd. v. Bansilal, reported in 1959 ICR 715 wherein similar Standing Orders were under consideration and while dealing with the case of a Foreman, the Industrial Court had referred to the salary structure and dearness allowance which was paid to the employees concerned who were designated as foremen. The Court observed that dearness allowance was an important constituent of the total wages paid to the employees and held in para 7 that the respondent could not be regarded merely as an operative or a clerk in view of the nature of his work and emoluments received, though he would otherwise be an "employee" under B.I.R, Act. That was a different aspect.
50. In the circumstances, this petition fails and is accordingly dismissed though with no order as to costs.
6. WRIT PETITION NO. 1248 OF 1999 WITH WRIT PETITION NO. 1006 OF 1999
51. Writ Petition No. 1248 of 1999 is filed by the petitioner/Mill-company against one Vinayak Eknath Dadpe who has filed the cross petition being Writ Petition No. 1006 of 1999. Mr. Bapat has appeared for the Mill-company whereas Mr. Deshpande has appeared for the workman.
52. The facts leading to this petition are as follows:
The employee Mr. Dadpe joined as a senior assistant in the Spinning Department of the Mill on July 15, 1983. He is holding a Diploma in Textile Technology from M.S. University, Baroda, obtained in the year 1958. In the hierarchy of officers in his department, the only person above him was the Spinning Master. He had been signing the documents for the head of the department for granting leave etc. On being given a retirement memo that he will retire on January 20, 1994, on completing the age of 60 years, he filed a complaint being Complaint (ULP) No. 41/94 in the Industrial Court at Mumbai contending that he was entitled to be continued in service until completion of 63 years under the Standing Order 20A applicable to operatives and could not be retired on completing 60 years as per Standing Order 26A applicable to the technical and supervisory staff. The Industrial Court accepted the contention of the employee. In para 37 of the judgment, it is recorded that it has come on record that similar category of employees have been continued after completion of 60 years. This was one of the factors which weighed on the Court and the Court allowed the complaint but directed payment of 75% back wages in lieu of reinstatement to the employee. Being aggrieved by the Award of grant of 75% back wages, the Mill-company has filed Writ Petition No. 1248 of 1999, whereas the employee has filed Writ Petition No. 1006 of 1999 since he is aggrieved by denial of 25% back wages.
53. Now, it has come on record that the basic wage of the employee concerned at the time of his joining was Rs. 1305/- which is much more than the basic wage for being, covered under the definition of an "employee" under the B.I.R. Act, 1946. As against that, the basic wage of the operatives has been all around Rs. 400/- per month. The educational qualification of the employee concerned, his designation and placement in the category of senior assistant throughout and his signing by the documents as head of the Department were the factors which were pressed into service by Mr. Bapat. On the other hand, Mr. Deshpande, learned counsel appearing for the employee submitted that the basic pay of the employee concerned could not be the governing factor in the instant case. He was also an operative like any other operatives. He referred to the definition of operatives and pointed out that many other categories including that of an overseer are covered in the definition of operatives. All work-people including overseer are covered in that definition. Mr. Deshpande, therefore, submitted that at the highest the employee could be considered as an overseer and would still be governed under the Standing Orders which apply to the operatives.
54. Mr. Bapat, on the other hand, relied upon the documents which were tendered in the Industrial Court and the copies whereof were made available as also oral evidence which showed signing of the employee for the head of the department on leave applications of the other employees. It also showed that the employee concerned got privilege leave of 30 days whereas operatives would get privilege leave for only 12 days. The employee concerned got medical reimbursement to the extent of Rs. 2000/-per year which was not the facility available to the operatives who were covered under the E.S.I. Scheme. The employee concerned accepted that he had signed the documents for the Head of the Department whenever required. The Industrial Court has relied upon the fact of two other employees being continued beyond the age of 60 years, i.e, one Mr. R. G. Darbari and one Mr. V. K. Motiwale. Mr. Bapat has produced the orders of injunction passed by the Industrial Court and pointed out that they were so continued because of the Court orders and there was no intention of discriminating against the present employee. Obeying of the orders in those two matters does not mean that the management is required to follow same policy contrary to the Standing Orders with respect to other employees.
55. Mr. Deshpande relied upon a judgment of Calcutta High Court reported in 1986 Lab IC 1668 in the case of Guest Keen Williams Ltd. v. Asstt. Labour Commissioner, Govt. of West Bengal, to contend that the Standing Orders are determinative. There is no quarrel with the proposition. The question in the present matter is which Standing Order is to apply. Then he relied upon a judgment of this Court in 1990-I-LLJ-98 (Bom-DB) in the case of Bombay Dyeing and Manufacturing Co. Ltd. v. R.A. Bidoo, holding that the designation is not relevant. The question before the Court was in the context of a reinstatement application as to whether the employee concerned could be excluded from the definition of "employee" on the assertion of the management that he was engaged in Technical or Supervisory capacity and was drawing salary exceeding Rs. 1,000/-per month. In para 26 of its judgment, the Court held "in any case in the absence of basic material relating to the nature of work performed by the respondent, it has not been possible for us to differ with the concurrent findings given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity. In the present case, we are concerned with the question as to which set of Standing Orders will apply. Admittedly the employee is receiving all the benefits under the Standing Order applicable to technical and supervisory staff including salary and D.A., privilege leave and medical benefits The management has also produced documents showing that this employee was signing for the head of department on leave applications of others. In the circumstances, the controversy and facts of the present case are different from the Bombay Dyeing Case. The employee cannot pick and choose favourite part of the Standing Orders of the operative. Mr. Deshpande lastly relied upon the judgment reported in (1955-I-LLJ-371) (Bom-DB) in the case of K. N. Joglekar v. Barsi Light Railway Co. Ltd., to contend that a term ought to be construed according to the language used by legislature. This was to canvass that the employee herein was an "overseer" and, therefore, an operative. In our case, we have ample material on record right from the appointment of the employee concerned, his pay scales and the work that he had done and on that footing in the present case, there is no alternative but to hold that the employee concerned will be governed by the Standing Orders for employees other than those for the operatives.
56. All these factors will have to be considered in their totality. The pay and the various benefits received by the employee concerned are far superior to those of operatives. His appointment letter designated him as senior assistant. In view of all these circumstances, it could not be said that the employee concerned was an operative so as to avail of the benefit of extended service under the Standing Orders which govern the Service Conditions of the operatives when he was otherwise receiving the pay scales and all other service conditions of the technical and supervisory category. He has functioned as such in a supervisory category by signing various documents. In the circumstances, in my view, the learned Member of the Industrial Court has erred in coming to the conclusion that clause 20A would be available to employee Mr. Dadpe. The employee concerned would be governed under Standing Order 26A arid the management was right in retiring him on completing the age of 60 years. In the circumstances, Writ Petition No. 1248 of 1999 filed by the Management succeeds. Rule issued therein is made absolute though with no order as to costs. Writ Petition No. 1006 of 1999 filed by the workman fails. The rule issued therein will stand discharged, without any order as to costs.
Mr. Bapat prayed for refund of the amount which has been deposited in this Court. The Prothonotary will release the amount deposited by the Mill company in this Court with accrued interest within four weeks from today. Mr. Deshpande prays for stay of this order. The Mill company will not withdraw the said amount for a period of six weeks from today.
7. WRIT PETITION NO. 365 OF 1996
57. Heard Mr. Saiyed for the petitioners and Mr. Chaudhary for the respondent No. 1. In this matter, the respondent-workman joined the Mill-company in the year 1982 as a Sweeper in Wring Wrap Department and was to be retired after completing 60 years of age. There is no dispute that he fell in the category of operatives and in the subordinate staff. He contended that he was efficient in his work and that he was entitled to work until completion of 63 years under Standing Order 20A and filed a complaint being Complaint (ULP) No. 659 of 1994 before the Industrial Court, Mumbai. The respondent examined their Senior Security Officer. In his cross-examination he accepted that except his words there was no evidence to show that the employee was inefficient. He also admitted that his past record was very good. That complaint came to be allowed. Being aggrieved by that judgment and order, the present petition has been filed.
58. Mr. Saiyed who appeared for the petitioner, raised only one point and submitted that the management suffered from a number of financial difficulties and referred to me to the fact that the Mill-company was before BIFR. He referred me to various provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 and submitted that the requirement of retrenchment was writ large. In his submission, therefore, the workman could not be extended beyond 60 years of age and the Industrial Court could not have allowed the complaint.
59. As far as the above submission of Mr. Saiyed is concerned it cannot be accepted for the simple reason that as held by Ms. sUMTA MANOHAR, J. in the above cited case of M.S.T.C., (supra) on the Standing Orders applicable to operatives and clerks, the requirement of retrenchment has to be assessed when actual occasion arises. It cannot depend upon the subjective satisfaction of the management and as held by the Hon'ble Judge, the requirement of Section 25-N of Industrial Disputes Act, 1947, has got to be followed by the management. Inasmuch as it has not been followed, the Industrial Court was right in awarding reinstatement with full back wages and holding that there was unfair labour practice and that the workman was entitled to work up to completing 63 years of age.
60. There is no error in the order passed by the Industrial Court. The petition, therefore, fails and is dismissed though with no order as to costs. The petitioner will pay the respondent back wages for three years, gratuity on the basis of 63 years service (with interest at 15% as directed earlier) and provident fund (with interest at 12% for the portion not contributed) as directed in the earlier part of this judgment within 12 weeks from today.
61. Certified copy of this order is expedited. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary of this Court.