A.B.Srivastava - (1.) IN this writ petition counter and rejoinder affidavits have been exchanged, therefore, it is being finally disposed of after hearing both the sides, according to the Rules of the Court.
(2.) THE petitioner who is holding the post of Supervisor in the Ware House Department of respondent no. 1 M/s. Swadeshi Cotton Mills, Juhi. Kanpur Nagar. has by means of this writ petition prayed for a writ of certiorari quashing the order of respondent no 1 dated 29-5-91 (Annexure 1 to the writ petition) retiring him from the post of Supervisor on attaining the age of superannuation (58 years) with effect from 1-7-1991 and for a mandamus commanding the respondents not to interfere in the petitioner's holding the said post with usual salary and other benefits. According to the petitioner, prior to 1962 there was no age of retirement for the employees of Textile Mills of Kanpur. In the year 1962 by means of Dr Sampurnanand Award the age of superannuation was fixed as 60 years applicable to all classes of employees including the Supervisors. The management of the respondent mills was taken over by the Union of India in the year 1978 and vide Act no. 30 of 1936 known as "The Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertaking) Act 1986" it vested in respondent no. 2, the National Textile Corporation, Kanpur. The respondents have not framed Standing Orders for the supervisory staff, hence the Model Standing Orders framed by the Government, would govern the service conditions, as per which the age of retirement has been fixed at 60 years. According to the Provident Fund record, the year of birth of the petitioner has been shown as 1933, hence he would attain the age of superannuation on 1-7-1993. The respondents, however, have adopted discriminatory attitude in issuing the order of superannuation of the supervisory staff at the age of 58 years. One such person Phool Chand Gupta challenged the said order in a writ petition and was granted interim stay order by this Court. The respondent no 1 by letter dated 25-1-1991 (Annexure 2 to the writ petition), published in 'Dainik Jagran', gave notice of retirement to one Sultan Ahmad, a weaving Supervisor, to retire after attaining the age of 60 years and one A B. Singh, Assistant Labour Officer has also been given notice (Annexure 3 to the writ petition) dated 29-5-1991 to retire after attaining 60 years of age. The petitionee made a representation to the General Manager of respondent no. 1 in this regard but to no avail. In all other Textile Mills of Kanpur similarly taken over by the Union of India also the age of superannuation of the supervisory staff is 60 years. The action of the respondents, therefore, in ordering retirement of the petitioner on attaining the age of 58 years is arbitrary discriminatory and violative of Jaw and fundamental rights off the petitioner. The respondents in their counter affidavit have contended that the age of superannuation of the petitioner is 58 years and upon bis completing the said age has been rightly given notice of superannuation with effect from 1-7-1991. The petitioner is not a workman. Rather being a Supervisor he comes under the managerial category. He was incharge of maintaining discipline in a section, had power to sanction leave etc to the workmen and as such was given N.T.C. pay scale as admissible to Officers category. The age of retirement 60 years under Dr. Sampuruanad Award has always been and is still admissible only to the workmen within the meaning of section 2-Z of the U. P. Industrial Disputes Act. No Standing Orders are required nor are they framed governing the conditions of service of the supervisory staff who are not covered either under the Industrial Disputes Act or the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1947. The Swadeshi Cotton Mills has keen nationalised by Act no 30 of 1986 with effect from 1-4-1985 Prior to that under section 3 of the Sick Textile Mills Undertaking (Nationalisation) Act, 1974 such sick mills as were lying closed including the respondent no 1 had been taken over and vested in the Central Government which transferred the same to N.T C The N T.C has been empowered to lay down terms and conditions of the employees, who by operation of law became its employees, and it introduced new pay scales applicable to the Officers, Supervisors etc. not falling under the scope of definition of "Workman,'. The new pay scales were duly circulated and option of willing employees invited making it clear that those accepting higher pay scales than the old one will have to accept the entire terms and conditions which included uniform age of superannuation. 58 years of supervisory staff The present petitioner accepted in writing the said terms and conditions vide Annexure CA 1 and is accordingly bound by it. By office orders dated 27-8-1975 (Annexure CA 2) and 10-8-1988 (Annexure CA 3). The NT C. reiterated the said provision of retirement at the age of 58 years. In fact the age of superannuation of the supervisory staff in all the 11 mills under the NT.C situate in the State of Uttar Pradesh is 58 years in accordance with clause 33 of the N T.C. U. P. Limited (Recruitment and Promotion) Rules. There has been no discrimination in the matter of the petitioner nor there has been any breach of the rules or principles of natural justice Similar petitions in which the age of retirement of the supervisory staff had been challenged in the past: had also been dismissed. In the alternative, if the petitioner claims to be a Workman entitled to the benefit of Dr Sampurnanand award he can raise an Industrial dispute and approach the Tribunal. A similar view had been taken by 'this Court in writ petition No. 6177 of 1984 (Jagat Narain Shukla v. N.T.C. and another, decided on 16-4-1985 (Annexure CA 4).
(3.) THE petitioner in his rejoinder affidavit has reiterated the averments made in the petition and has pleaded that the Supervisors have not been given any managerial powers and the duties are mainly of technical nature. According to the own case of the petitioner, prior to 1962 there was no fixed retirement age of the employees of the Mills at Kanpur. It was for the first time in 1962 that by means of Sapurnanand Award the retirement age, 60 years was fixed. It is admitted case of the parties that the retirement age fixed by Sampurnanand Award was in respect of 'Workmen'. The petitioner contends that despite being designated as Supervisor, he is a workman and thus within the purview of the said award.;