DAS GUPTA, J. - (1.) THE short and simple question raised in this appeal is as regards the age of compulsory retirement for some employees of the respondent-company. Rules regarding the age of retirement appear to have been introduced by the company in 1947. Fresh rules were also framed in 1951. The age of retirement under the 1947 rules as well as 1951 rules was fixed at 55. There was a provision that the company might grant special extension to a particular employee for exceptional reasons. Tarapada Singha, an employee of the company, in connexion with whose retirement the present dispute has been raised, was born on 3 April 1905 and so he completed 55 years of age on 2 April 1960. On 31 August 1960 he received a letter from the company's management stating that it had been decided to retire him from the service of the company on and from 1 January 1961. The workman wrote back stating that his retirement was not due on 1 January 1961. In reply to this letter the company wrote to Tarapada Singha requesting information for what reason his retirement was not due on 1 January 1961. To this Terapada Singha replied on 24 December. He pointed out that the company's letter of 31 August gave no reason whatsoever for his proposed retirement. Ultimately, on 29 December 1960 the company wrote stating that as per office rule the age of retirement had been fixed at 55 years and since he had already completed 55 years of age he was being retired from the service with effect from 1 January 1961. In replying to this letter the workman stressed the point that the system of retirement at the age of 55 applied only to employees entering the service of the company after the rules fixing this age came into force. He insisted that this new system could not apply retrospectively to affect employees like him, who had been in the service of the company without any limitation as to the age of retirement. The management however removed his name from the attendance register.The union took up his case and ultimately on 27 December 1961, the Government of West Bengal referred to the second industrial tribunal, West Bengal, the following dispute : "Whether the forced retirement of Tarapada Singha as justified ? To what relief, if any, is he entitled ?"
(2.) BEFORE the tribunal the union pressed its contention that the rules of compulsory retirement that were framed in 1947 or 1951 did not apply to persons who were employed by the company at an earlier date when no such rule existed. In the very written statement of the union reliance was placed in support of this contention on the decision of this Court in Guest. Keen, Williams (Private). Ltd. v. P. J. Sterling and others [1959 - II L.L.J. 405]. The company, on the other hand, contended that the rules applied, and stated that the case of Guest, Keen, Williams (Private), Ltd. (vide supra), was irrelevant. The tribunal was impressed by the fact that though rules providing for compulsory retirement at 55 had been framed as far back as 1947 the union had not made any protest about this. He accepted the company's argument that long silence on the part of the employees indicated acceptance of the new rules and acquiescence therein. After stating that the union had raised this dispute as a test case for the benefit of the old employees in general and have been encouraged to do this by the decision of this Court in Guest, Keen, Williams (Private), Ltd. (vide supra), the tribunal observed that such a dispute should not be allowed to succeed and the union's case must necessarily fail. Against this decision the workmen have appealed. In support of the appeal strong reliance is naturally placed on the decision of this Court in Guest, Keen, Williams (Private), Ltd. (vide supra). In that case the Court had to consider the impact of certain standing orders fixing the age of superannuation at 55 on persons who had joined the company's service before the date of the standing orders. This Court decided that the age of retirement as fixed by the standing orders did not apply to the prior employees. In that case the Court however proceeded to fix the age of retirement for certain prior employees and considering the different circumstances held that the rule of retirement for the previous employees should be 60 instead of 55 and that the rule of retirement at 55 would apply to all employees who entered the employment of the company after the relevant standing orders came into force. On the authority of this decision we are bound to hold that where rules of retirement are framed by the company it would have no application to its prior employees unless it is shown that such employees accepted the new rules as part of their conditions of service. The tribunal found such acceptance proved by the mere fact that no dispute had been raised earlier. That is in our opinion not justified. In the first place there is nothing to show that after the new rules for retirement at 55 came into force they were actually applied by the company to its older employees. The union in its written statement mentioned the case of a large number of employees who had continued in the service of the company till they were well above 55. As regards these the company stated in the written statement that these persons were retired in 1948 and 1951. The company made no specific averment, however, that at any time after the new rules were framed in 1947 and in 1951 the prior employees were invariably or even generally retired when they were 55 years of age. In the absence of any satisfactory evidence that the rule of retirement at 55 was actually enforced as against prior employees, the fact that no dispute was earlier raised cannot poosibly show that the prior employees accepted this new rule as applicable to themselves or acquiesced in it.It is also pertinent to note that the decision of this Court in Guest, Keen, Williams (Private), Ltd. [1959 - II L.L.J. 405] (vide supra), was pronounced in May 1959. It may even be that before this decision was given the workmen were not fully aware of the correct legal position that such rules were not applicable to prior employees. It seems to us therefore that the inaction of the workmen, if any, may be due to their unawareness of the correct legal position and would not show acquiescence.
(3.) THE tribunal itself has expressed its view that this Court's decision in Guest, Keen, Williams (Private), Ltd. (vide supra), has encouraged the union in raising this dispute.;