Decided on July 30,1993

All India Nhpc Foremen Association Appellant
UNION OF INDIA Respondents


- (1.)HEARD learned counsel for the parties.
(2.)VIDE his reference dated 12.3.1993, the Regional Labour Commissioner (Central) -cum -Certifying Officer, directed the modification of item No. 24 of standing order No. 51/3/88 -EF dated 12.3.1993 by reducing the retirement age or superannuation of the workmen from 60 to 58 years. Aggrieved by the said orders the petitioners herein are stated to have filed an appeal before the Chief Labour Commissioner (Central), Govt. of India, which is still pending. Consequently a circular was issued by the respondents on 15.4.1993 against which the present petition has been filed praying for the quashment of the said circular and a direction to the respondents not to retire the petitioners before the attainment of the age of 60 years.
In the objections filed on behalf of the respondents, it is submitted that "In view of the petitioners having availed of the statutory remedy provide under Sec. 6 of the Industrial Employment (Standing Orders) Act, 1946, extra -ordinary jurisdiction of this Honble Court cannot be invoked by the petitioners." The filing of the appeal and availing of the alternate remedy is not disputed but an attempt has been tried to be made to show that as the petitioners are aggrieved of the consequent circular issued, the writ petition is maintained.,

(3.)IT has not been disputed that the Circular has been issued by (be respondents consequent upon the certification of the Regional Labour Commissioner (Central) and the petitioners have already availed of the alternate remedy of filing and appeal before the appellate authority. It is, however, contended that as appellate authority has no power to pass the interim direction and despite the presentation of an application, have, in fact, not passed any orders, the respondents are obliged not to implement the order of certification and the consequential order of the Certifying Officer. It has been contended on behalf of the respondents that the appeal itself is not maintainable besides being barred by time, Sec. 7 of Industrial Employment (Standing orders) Act, 1946, provides that the standing orders shall, unless an appeal is preferred under Sec. 6, come into operation on the expiry of 30 days from the date on which authenticated copies thereof are sent under sub -sec, (3) of Sec. 5 of where an appeals as aforesaid is preferred, on the expiry of 7 days from date on which copies of the orders of the appellate authority are sent under sub -sec. (2) of Sec. 6. The phraseology of Sec. 7 clearly shows that the filing of the appeal operate as a study of the order appealed against and the respondents cannot implement it till the appeal is disposed of Otherwise also the purpose and object of the filing of appeal would be defeated it the respondents are permitted to implement the orders against which an appeal is filed and also argue that the appellate authority has no power to direct the stay of the order impugned. The respondents cannot be permitted to blow hot aid cold in the same breath by taking contrary pleas and thereby frustrate the appeal filed against an order by which the service conditions of the petitioners have prima facie been altered to their detriment. The respondents are well within their rights to approach the appellate authority and get the appeal adjudicated by raising of such pleas as are permissible under law including the plea of limitation, but, cannot frustrate the effort of the petitioner to get the standing order modified and the circular quashed by having recourse to the provisions of law,
Under the circumstances this petition is disposed of by holding that as the petitioners have already approached the appellate forum regarding the illegality of the order passed by the Certifying Officer and the Circular issued thereafter, their petition that of extent is not maintainable. The appellate authority is empowered to adjudicate upon the appeal on its merits and decide according to Law. It is, however directed that in view of the provisions of Sec. 7 of the Act, the respondents shall not implement the orders challenged before the appellate, authority until and unless -the said appeal is adjudicated on its merits and accordance with the provisions of law. C.M.P. No. No. 1175/93 shall also stand disposed of accordingly.

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