SINHA, C.J. - (1.) This is an appeal against the judgment and order of B.C. Mitra, J. dated the 18th July, 1966. The facts are briefly as follows: The appellant is a company incorporated under the Indian Companies Act. The respondent No.2 Ganapati Santra was appointed by the appellant in 1946 as a clerk in the service department. On or about the 23rd of April 1946 was passed the Industrial Employment (Standing Orders) Act, 1946 (Central Act 20 of 1946) (hereinafter referred to as 'the Act').
(2.) Prior to the said Act of 1946, there was no rule as to superannuation of workers. The 1946 Act laid down provisions for the drawing up of standing orders and certification thereof by the certifying officer. Sometime in 1952, the appellant submitted draft standing orders under the provisions of the 1946 Act, and the same were duly certified in November 1952. By and under the said standing orders, the age of superannuation of workmen was fixed at 55 years. On or about the 17th September, 1956 the 1946 Act was amended by Act XXXVI of 1956. Under Section 4 of the Act as it stood before the amendment, it written statement provided that it should not be the function of the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions contained in any standing orders. Therefore, the certifying officer was not required to go into the question as to whether the standing orders were fair or reasonable. After the amendment, however, the certifying officer or the appellate authority is required to adjudicate upon the fairness or reasonableness of the provisions of the standing orders. Under Section 10(2) as it stood before the amendment, only the employer could ask for modification of the standing orders but after the amendment, both the employer and the employee could ask for such amendment. No workman, including the respondent Santra, asked for any modification of the standing orders, including the question of age of retirement. In May 961 the certified standing orders were modified but the age of superannuation was not touched and remained at 55 years. On 27th of November, 1961 notice was given to Santra by the appellate that he was due to retire on 31st August, 1962 as on that date he would complete his 55th year. On the 11th August, 1962 the respondent no.3, the Avery Company Limited Employees' Union submitted a charter of demands. One of the demands was to raise the retirement age from 55 to 60 years. On 30th October, 1962 Santra wrote to the appellant requesting that the question of his superannuation might be deferred until a decision is arrived at on the charter of demands, but the appellant rejected this proposal and on 31st August, 1962 informed both Santra and the Union that the standing orders will be followed and Santra would retire upon his attaining 55 years age. Thereafter, the Government referred an industrial dispute between the appellant and their workmen including Santra under Section 10 of the Industrial Disputes Act, 1947. the disputes that were referred were as follows: (1) Grades and scales of different categories of workmen. (2) Is the superannuation of Sri Ganapati Santra justified? What relief, if any, is he entitled to? What should be age of retirement for the workmen of the factory?
(3.) Meanwhile, Santra had been made to retire from the 1st day of September, 1962. The Industrial dispute was contested and on the 6th of May 1964 an award was made by the Second Industrial Tribunal. It may be stated here that all parties including Santra have accepted the award of the tribunal on issue no.1 and the last part of issue no.2. In other words, the only dispute that remains is as regards the superannuation of Sri Santra, and the relief, if any, to which he was entitled. In this appeal, therefore, we are not concerned with any other question. On 6th May 1964, the tribunal made an award holding that, as Santra had joined service prior to the coming into operation of the standing order of 1952, he was not bound by the age of superannuation fixed by it at 55, and as Santra joined in 1946, he could not take advantage of an agreement said to have been arrived at between the employers and the employees in 1944, regarding extension of the period of service. It was therefore ordered that Santra should be reinstated and should be paid full wages from the date of retirement to the date of re-instatement. On the 16th of July, 1964 the appellants made an application to this Court challenging the findings in the award in favour of Santra on this issue and a Rule was issued and further operation of the award was stayed. The matter came up for hearing before Mitra, J. and the learned Judge in his judgment dated the 18th of July, 1966 has dealt with the arguments advanced on behalf of the parties and has considered a number of authorities. He has relied on a decision of the Supreme Court in (1) Guest Keen, Williams (P) Ltd. v. P. J. Sterling & Ors., A.I.R. (1959) S.C. 1279 and has come to the conclusion that since the respondent No.2 Ganapati Santra was appointed prior to the framing of the Standing Orders in 1952, he was not bound by the age fixed thereby for superannuation, namely 55 years. The facts of that case were as follows: The appellant was a company incorporated under the Indian Companies Act. It had a factory at Howrah where about 5000 workmen were employed. After the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946) came into force on 23.4.46 the appellant submitted its draft standing orders for certification to the certifying officer. On 19.12.53 the certifying officer duly certified the said orders after giving the trade unions of the appellant's workmen an opportunity to be heard and after considering their objections. Against this no appeal was preferred and so it became final and operative as conditions of service between the parties. The standing order in regard to retirement of the appellant's employees provided that "a workman shall retire from the service of the company on reaching the age of 55 years but the company may at its sole discretion offer an extension of service beyond this age to anybody". In pursuance of this age to anybody". In pursuance of this standing order, the appellant examined the cases of 56 of its employees who according to their service records appeared to have attained the age of superannuation. 47 workmen who were over the age of 55 years were retired with effect from 31.5.54, after giving them requisite notice. An industrial dispute was referred with regard to these 47 workmen. The tribunal held in favour of the company, namely that the retiring age of 55, as fixed by the Standing Orders was binding on the workmen concerned. The Appellant Tribunal, however, disagreed with this view and held that prior to the coming into operation of the Standing Orders there was no age of superannuation and it was not unreasonable to assume that all workmen who joined the appellant's service prior to the framing of the Standing Orders had naturally and legitimately expected that they should be allowed to continue in service as long as they remained physically fit. Thus, it would not be fair to make then bound by the age of superannuation fixed by the Standing Orders. Against this finding of the appellant tribunal, the company appealed to the Supreme Court. Gajendragadkar, J., (as he then was) pointed out that under the Act of 1946 it was intended to require employers in industrial establishment to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. When the draft Standing Orders submitted to the certifying officer under the 1946 Act as originally passed, all that he had to do was to satisfy that it made provision for every mater set out in the schedule which contains 11 items and that it was otherwise in conformity with the provisions of the 1946 Act. Neither the certifying officer nor the appellate authority could adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders. Under Section 7, the Standing Orders when certified came into operation subject to the other provisions. Section 10 lays down that Standing Orders finally certified shall not except by an agreement between the workmen and the employer, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation but it was the employer only who could apply for such modification and not the workmen. By the amendment of 1956 (Act 36 of 1956) both these positions were altered. By the amendment, it was made the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. Now after the amendment, under Section 10, both the employer as well as the workmen can apply for the modification of a Standing Order. The learned Judge proceeded to say as follows: "There can be no doubt that before the amendment of 1956, if, the employees wanted to challenge the reasonableness or fairness of any of the Standing Orders the only course open to them was to raise an industrial dispute in that matter. This position has been substantially altered by the two amendments to which we have just referred; but we are concerned in the present appeal with the State of law as it prevailed prior to the said amendments, and so it cannot be denied that the employees had a right to claim a modification of the Standing Orders on the ground that they were unreasonable or unfair by raising an industrial dispute in that behalf. Subsequent to the amendment of the Act the employees can raise the same dispute before the certifying officer or before the appellate tribunal and nay in a proper case apply for its modification under sec. 10(2) of the Act. The position then is that though the relevant Standing Orders about the age of superannuation came into operation under S. 7 and was binding thereafter upon the employer and all his employees the right of the respondent to challenge the validity or propriety of the Standing Order and to claim a suitable modification in it cannot be disputed. The Standing Orders certified under the Act no doubt become part of the terms of employment by operation of S. 7; but if an industrial dispute arises in respect of such orders and it is referred to the tribunal by the appropriate government, the tribunal has jurisdiction to deal with it on the merits. This position is not, and cannot be, disputed.";