Vikramaditya Prasad, J. - (1.) THE petitioner has filed this writ application for quashing the order dated 29.2.2000 passed by the Presiding Officer, Labour Court, Jam -shedpur, Annexure 6, whereby the complaint filed by the petitioner under Section 26(2) of the Bihar Shops and Establishments Act, 1953 (hereinafter as the Act for short) was rejected and also for a declaration that the petitioner has not been legally superannuated on 1.1.1996 and for a further declaration that the petitioner has not attained the age of 60 years as on 1.1.1996 in view of the service records maintained by the respondents,
(2.) ADMITTEDLY , the petitioner was working as a Bearer in the respondent No. 2, Golmuri Club, Jamshedpur, of which the respondent No. 3 Honorary Secretary of the respondent No. 2. This club is an establishment under the Act and this fact has not been controverted by the respondent Nos. 2 and 3 in the counter affidavit that they have filed. This fact has also not been controverted that the petitioner was in employment of the respondents within the meaning of Section 2(b) of the Act. According to the petitioner, he was forcefully removed from the service on 1.1.1996 on the ground that he had attained the age of superannuation. Thereafter the petitioner filed a complaint under Section 26(2) of the Act before the Respondent No. 1. the President Officer, Labour Court, Jamshedpur and challenged the superannuation on the ground that the establishment has no service condition to the effect that an employee would superannuate at a particular age and so many employees have been allowed to continue beyond the age of 65 years or more and the petitioner has been wrongly, illegally and prematurely removed from the service, Annexure 1. Then the respondent Nos. 2 and 3, on notice by the respondent No. 1, denied the allegations and it was asserted by the respondent Nos. 2 and 3 that it was a case of superannuation at the age of 60 years as per the term of employment. They also filed their show cause, Annexure 2 asserting that the age of superannuation in the establishment is 60 years. The petitioner filed rejoinder to the show cause in the Labour Court, asserting that there was no service rule that an employee should superannuate on attaining the age of superannuation, vide Annexure 3. The matter was examined by the Labour Court and the deposition of the petitioner and the Treasurer of the respondent. No. 2 was recorded, vide Annexure 4 and the Treasurer in para 9 of his deposition stated that in the rule, there is no age of retirement mentioned and the respondents failed to produce the service rule, showing that the employee will superannuate on the date of attaining the age of 60 years. The petitioner has also asserted that he has also not attained the age of 60 years and therefore, he should not have been removed. The petitioner has also produced the Service Card maintained under Section 12(a) of the Rules (Rules made under the Act and in short as the Rules) and the service card showed that the date of appointment of the petitioner was 1st January, 1960, and his age was 25 years on that date, vide Annexure 5. Thereafter, the impugned order was passed and the complaint of the petitioner was dismissed by the respondents.
(3.) IN their counter affidavit, the respondents averred that the award is justified and the petitioner was superannuated at the prescribed age and therefore, he cannot be treated to have been discharged or terminated and therefore, his case is beyond the purview of Section 26 of the Act. It was asserted that the petitioner was given an advance notice through Annexure A with regard to his superannuation at the age of 60 years with effect from 1.1.1996, but despite that the petitioner had not made any grievance. It was also denied that there was no service condition to superannuate an employee at any particular age and it was also denied that many employees were allowed to continue beyond the age of 60 years or the petitioner had prematurely been removed. It was also averred that the petitioner has already been confirmed as permanent employee with effect from 1.1.1986 and in that letter, the age of retirement had been mentioned as 60 years and that has been made Annexure B to the counter affidavit.;