M.M. Ismail, J. - (1.) These cases raise a question regarding the applicability of the Industrial Employment (Standing Orders) Act, 1946, (Central Act XX of 1946), hereinafter referred to as the Standing Orders Act and in particular Or. 21 of the Model Standing Orders, framed by the Province of Madras in exercise of its powers conferred by S.15 of the Standing Orders Act, to the employees of the Municipal Councils constituted under the Madras District Municipalities Act (Madras Act V of 1920), hereinafter referred to as the Municipalities Act. Though the writ appeal itself has become infructuous by efflux of time, it is necessary to refer to the judgment which is the subject matter of the appeal, since practically every one of the petitioners in the connected writ petitions relies upon the said judgment in the affidavits filed in support of the respective writ petitions for claiming the reliefs they have prayed for. The appellant in W.A. 503 of 1967 is the Coimbatore Municipality represented by its Commissioner. The respondent therein was an employee of the said Municipality working in the electricity department of the same. He was working at the relevant time as a wireman and he attained the age of 55 years on 26th December 1966. It was proposed to retire him from service in terms of the rules framed by the Province of Madras in exercise of the powers conferred on it by S.74 of the Municipalities Act, since the age of superannuation for the municipal employees under R.14 of the said rules was attainment of 55 years of age. The respondent in the writ appeal put forward the contention that Standing Or. 21 of the Model Standing Orders which prescribed the age of superannuation as the attainment of 58 years applied to him, and therefore he ought not to be retired on his attaining the age of 55. It is the correctness of that contention which was considered by Kailasam, J. in W.P. 2746 of 1966. This judgment of Kailasam, J. is reported in Thiruvenkataswami v/s. Coimbatore Municipality by its Commissioner, 1968 1 L.L.J. 361. The learned Judge posed for consideration the question whether the Electricity Department of the Coimbatore Municipality was an 'industrial establishment' falling within the scope of the Standing Orders Act and answered the same in favour of the petitioner in the writ petition. For the purpose of understanding the conclusion of the learned Judge, it is necessary to refer to certain statutory provision. The Municipalities Act was passed in the year 1920 and S.74 of that Act provided: 74. Subject to the provisions of this Act and any rules which the State Government may make in this behalf the council may frame regulations in respect of officers and servants on the municipal staff - -(a) fixing the amount and nature of security to be furnished; (b) prescribing educational or other qualifications; (c) regulating the grant of leave, leave allowances, acting allowances and travelling allowances; (d) regulating the grant of pensions and gratuities,(e) establishing and maintaining provident funds and making contribution thereto compulsory; (f) regulating conduct; and (g) generally prescribing conditions of service. There is a proviso to this section, but it is unnecessary to extract the same for the purpose of these cases.
(2.) The preamble to the Standing Orders Act states: - Whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. S.1 (3) provides that the Act applies to every industrial establishment wherein 100 or more workmen are employed or were employed on any day of the preceding 12 months. There is a proviso to this sub -section which confers power on the appropriate Government to apply the provisions of this Act to any industrial establishment employing such number of persons less than 100 as may be specified in the notification, after giving not less than two months' notice of its intention so to do. This proviso has no relevancy to the present cases because no such notification has been issued by the appropriate Government.
(3.) S. 2(b) defines 'appropriate Government' as meaning, in respect of industrial establishments under the control of the Central Government or a railway administration or in a major port, mine or oil field, the Central Government, and in all other cases, the State Government. The definition of 'industrial establishment' in S. 2 (e) is important and the same is as follows: - Industrial establishments means: - (i) an industrial establishment as defined in Cl. (ii) of S. 2 of the Payment of Wages Act, 1936 (IV of 1935), or (ii) a factory as defined in Cl. (m) of S.20 of the Factories Act, 1948, or (iii) a railway as defined in Cl (4) of S.20 of the Indian Railways Act, 1890 (Act IX of 1890, or (iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen. One other term which has been defined and to which attention must be drawn is 'workman' defined in S.2 (1) and the same is as follows: 'workman' means any person (including an apprentice) employed in any industrial establishment to do any skilled or unskilled manual, supervisory, technical or clerical work for hire, or reward whether the terms of employment be express or implied, but does not include any such person i. who is subject to the Army Act, 1950 or the Air force Act, 1950, or the Navy Act 1957; or ii. who is employed in the police service or as an officer or other employee of a prison; or iii. who is employed mainly in a managerial or administrative capacity; or iv. who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. The Standing Orders Act makes provision for an employer of an industrial establishment preparing a draft Standing Orders for the matters set out in the schedule to the Act and submitting the same for certification to the Certifying Officer and the Certifying Officer considering the same and certifying the same after hearing the employees' representatives and also provides for appeal against the orders of the Certifying Officers. There is also a provision for the duration of the Standing Orders so certified and modifications thereof. We are not referring to these provisions in detail since they are not material for the purpose of deciding these cases.;