Protik Prakash Banerjee, J. - (1.) This petition under Article 226 of the Constitution of India is at the instance of a trade union. It challenges a notice at page 114 of the writ petition as procedurally ultra vires. The said notice dated December 20, 2014, stated as follows: - "NOTICE" In view of the directive received from Department of Heavy Industries, Ministry of Heavy Industries & Public Enterprises, Government of India, the retirement age of non-executive employees of Rupnarainpur Unit is fixed at 58 years. In view of above, 60 days notice is hereby given to all the non-executive employees of the Rupnarainpur Unit of HCL to cover statutory compliance if any." This was signed by the Deputy General Manager (Personnel and Administration) for Deputy General Manager (Unit Head) of the Hindustan Cables Ltd, Rupnarainpur Unit. It was expressed to be to all trade unions of the said unit and was displayed on the Notice Board for the information of all concerned. It was served, and this is of material importance, as courtesy copies to the M(P & A), M(W)-I, M(W)-II, M(W)-III, CM, DGM(UH), M(P & A & Legal)/Corp. Officer, and CMD. These copies were stated to be served "for kind information".
(2.) Perhaps the factual matrix of the case ought to be briefly noted. It is an admitted position that the employer Hindustan Cables Limited, Rupnarainpur units published its standing orders on July 06, 1964. This was duly certified by the Certifying Officer and Labour Commissioner of West Bengal. Clause 20 (i) of the said standing orders deals with superannuation. It has been provided in the standing orders that every employee shall retire from service on attaining the age of 58 years with the provision for extension of service of two (02) years in all, but not more than one (01) year at a time may be given at the discretion of the management. Admittedly, a tripartite settlement was entered into on July 07, 1974 between the management duly represented by its Managing Director, Chief Commercial and Administration Manager, Financial Manager, Joint Personal Manager as then in-charge of the said unit and four unions represented by their respective General Secretaries, as the then were, and in presence of H. M. Ghosh the then Additional Labour Commissioner and Conciliation Officer, Government of West Bengal. Clause no. 12 of the said tripartite settlement provided as follows: "Subject to the approval of the Board of Directors the employees will retire on attending the age of 60 years instead of attending 58 years of age." Subsequently, the Government of India wanted to enhance the age of retirement from 58 to 60 years. In case, any administrative ministry or public sector undertaking did not want to increase this age of superannuation specific exemption from the operation of the aforesaid decision was provided to be necessary by and under a Memo dated August 21, 1998. However, the employer by a Resolution at the 276th Meeting of its Board of Directors held on March 28, 2001 resolved to reduce the age of retirement of its employees from 60 to 58 years which the Government of India by the Government Order dated April 18, 2001 said it had approved of and further directed that the reduction for the age of superannuation be implemented immediately after amending the standing orders in consultation with the Labour Department. The writ petitioner refers to a bipartite settlement and the conduct of the employer in allowing the payment of salaries to employees even under the aegis of the Board for Industrial and Financial Reconstruction considering the age of superannuation as 60 years without granting any extension from fifty eight years. Ultimately, the decision of the Union of India to reduce the age of retirement to 58 years travelled to the concerned Assistant Labour Commissioner (Central Government) at the instance of the employer by its letter dated March 11, 2011 seeking intervention by way of conciliation over the said issue. However, the conciliation proceedings failed and no reference was made by the Union of India (the appropriate Government) to any industrial forum. This has not been challenged by the writ petitioners.
(3.) Instead, on the basis of several representations made by the petitioners and/or employees' union the respondent no.1 by a letter dated September 22, 2014 clearly reiterated that the reduction of the age of retirement from 60 to 58 years and payment of gratuity/provident fund as well as issue of pay slip to the employees beyond 58 years is "the administrative matter prerogative of the management. Hence, the dispute raised cannot be construed as an Industrial dispute. On the above premises, the company is advised to immediately take appropriate steps for roll back of retirement age from 60 years to 58 years at par with other employees of the company by way of issuance of Notice under The Industrial Disputes Act, 1947 and Industrial Disputes Rules made thereunder for making necessary change of the Conditions of Service of the concerned employees of the Unit with immediate effect. Compliance Report may please be sent to the Department in this regard." On the basis of this the Memo as in paragraph no.1 dated December 20, 2014 was issued.;