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SCL EMPLOYEES UNION (REGISTERED) versus UNION OF INDIA & ORS

High Court of Punjab and Haryana, Chandigarh

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SCL EMPLOYEES UNION (REGISTERED) v. UNION OF INDIA & Ors - CWP-16487-2005 [2005] RD-P&H 257 (12 December 2005)

CWP NO.16487 OF 2005 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CWP NO.16487 OF 2005

DATE OF DECISION: 22.11.2005

SCL Employees Union (Registered) ...Petitioner.

VERSUS

Union of India & others ..Respondents.

CORAM: HON'BLE MR.JUSTICE J.S. KHEHAR
HON'BLE MR.JUSTICE S.N. AGGARWAL

PRESENT: Mr. J.S. Bhatti, Advocate for the petitioner.

Mr. Arun Nehra, Advocate, as caveator, for respondent No.3.

J.S. Khehar, J.

The present controversy relates to the determination of the Management of Messrs Semi Conductors Complex Limited (hereinafter referred to as 'SCL') to role back the age of retirement of its employees from 60 years to 58 years. In order to appreciate the controversy raised in the instant writ petition, it would be necessary to delve into the prescribed age of retirement for employees of the SCL from time to time. The impugned order dated 17.1.12005 (Annexure P37), expressly notices that the age of CWP NO.16487 OF 2005 2

retirement of employees of the SCL right from the beginning was 58 years.

On 15.12.1989 a letter was issued by the Chairman-cum-Managing Director of the SCL clearly specifying that the date of superannuation of employees of the SCL will be the last working day of the month in which the employee attains the age of 58 years. The age of retirement came to be changed on 30.5.1998 with the supersession of the earlier letter dated 15.12.1989. By the instant order, the age of retirement of employees of the SCL was enhanced from 58 years to 60 years.

The terms and conditions of retirement of employees of the SCL including their age of retirement are expressed in the Certified Standing Orders of Messrs Semi Conductors Complex Limited (hereinafter referred to as the Certified Standing Orders). Clause 17-B of the Certified Standing Orders wherein the age of retirement has been laid down is being extracted hereunder:-

" The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workmen under an agreement or as specified in settlement or award which is binding on both the workman and the employer. Where there is no such agreed age, retirement or superannuation shall be on completion of 60 years of age by CWP NO.16487 OF 2005 3

workman."

A perusal of the relevant clause of the Certified Standing Orders, clearly reveals that the age of retirement on attaining the age of superannuation would be, as had been expressed in the individual agreement executed by the SCL with the concerned employee, and in the absence of such an individual agreement, the age of retirement would be 60 years.

The pleadings of the instant case coupled with the annexures appended thereto reveal that clause 17B of the Certified Standing Orders did not require any modification when all employees of the SCL were engaged with the condition that their age of retirement on attaining the age of superannuation would be 58 years, since in the said situation, the individual contract executed with the employee had an over-riding effect.

Likewise, when the age of retirement was enhanced from 58 years to 60 years on 30.5.1998, no change was called for in clause 17B of the Certified Standing Order, extracted above.

It would be relevant and pertinent to mention, that it was specifically pointed out by the learned counsel for the petitioner-Union that a separate agreement was executed by the management of the SCL with the petitioner Union when the age of retirement was enhanced from 58 years to 60 years, on the basis of the decision of the SCL dated 30.5.1998.

CWP NO.16487 OF 2005 4

The Ministry of Heavy Industry and Public Enterprises Government of India, issued a memorandum dated 5.5.2000, whereby, it circulated a revised voluntary retirement scheme. The aforesaid revised voluntary retirement scheme is stated to have been adopted and circulated by the management of the SCL through a memorandum dated 21.12.2001.

Those accepting voluntary retirement under the aforesaid scheme were to be given benefits of retirement as if they had continued in the employment of the SCL upto the age of 60 years.

On 9.5.2000 the Ministry of Heavy Industry and Public Enterprises, Government of India, issued another memorandum proposing to role back the age of retirement from 60 years to 58 years, in case of sick and financially unviable public sector undertakings. It is the case of the petitioner Union that on the basis of the aforesaid communication, it was resolved by the SCL to role back the age of retirement from 60 years to 58 years. Having taken the aforesaid decision, an application was filed by the SCL, before the Certifying Officer (under the Industrial Employment (Standing Orders) Act, 1946), seeking a modification of clause 17B of the Certified Standing Orders. The modification sought through the aforesaid application was to the following effect:- "17B Age of retirement The age of retirement shall be 58 CWP NO.16487 OF 2005 5

years and the workman shall retire from service on the afternoon of the last date of month in which he/she attains the age of 58 years."

The Certifying Officer by an order dated 9.6.2003, rejected the claim of the management of the SCL, by disallowing the role back in the age of retirement from 60 years to 58 years. Dissatisfied with the order passed by the Certifying Officer, SCL preferred an appeal under section 6 of the Industrial Employment (Standing Orders) Act, 1946, read with rule 7A of the Industrial Employment (Standing Orders) Central Rules, 1946. The Deputy Chief Labour Commissioner ( C), Ministry of Labour, as the appellate authority, accepted the appeal preferred by the SCL on 17.1.2005 by accepting the modification of clause 17B of the Certified Standing Order, as had been proposed by the SCL. In sum and substance, the contention of the SCL for a role back in the age of retirement from 60 years to 58 years was accepted by the appellate authority.

The order passed by the appellate authority is subject matter of challenge through in the instant writ petition.

It would be necessary to highlight, the primary difference between the order passed by the Certifying Officer dated 9.6.2003 and the order dated 17.1.2005. While rejecting the claim of the SCL for a rolling CWP NO.16487 OF 2005 6

back of the age of retirement from 60 years to 58 years, the Certifying Officer had relied on the circular issued by the Ministry of Heavy Industries and Public Enterprises dated 9.5.2000, and thereupon concluded, that the recommendation made by the said Ministry was applicable only to sick and financially unviable public sector undertakings. In the opinion of the Certifying Officer, the aforesaid recommendation had been made for the purposes of rehabilitation of the sick and financially unviable public sector undertakings as a revival package. In so far as the appellate authority is concerned, it took into consideration a memorandum issued by the Ministry of Heavy Industries and Public Enterprises, Government of India, dated 22.8.2001, which proposed the implementation of the role back in the age of retirement from 60 years to 58 years of all public sector undertakings, by extending the proposal earlier mooted through the memorandum dated 9.5.2000, which was originally applicable only to sick and financially unviable public sector undertakings, to all public sector undertakings. The appellate authority arrived at the conclusion, that on the issuance of the memorandum dated 22.8.2001, the issue whether a public sector undertaking was sick or financially unviable, ceased to be significant. The appellate authority, therefore, arrived at the conclusion that the action of the SCL in rolling back the age of retirement from 60 years to 58 years, was CWP NO.16487 OF 2005 7

based on the recommendation of the Ministry of Heavy Industries and Public Enterprises and as such, was fully justified.

The first contention of the learned counsel for the petitioner is, that the SCL had resolved to role back the age of retirement from 60 years to 58 years, on the basis of the memorandum dated 9.5.2000. Since the determination of the SCL, based on the memorandum dated 9.5.2000, had neither been withdrawn nor superseded, it should be accepted that the SCL had determined the issue of role back on the basis of the memorandum dated 9.5.2000 and not on the basis of the memorandum dated 22.8.2001. It is not possible for us to accept the instant contention of the learned counsel for the petitioner, as there is no basis or foundation for the same either in the pleadings in the instant petition or in the various documents appended thereto. The Board of Directors of the SCL resolved to role back the age of retirement on 15.6.2002, on which date both the memoranda dated 9.5.2000 and 22.8.2001 were in existence. As such, it would only be just and appropriate to conclude that the resolution dated 15.6.2002 was based on the memorandum dated 22.8.2001 and even if (though this is not the case of the petitioner) reference has wrongly been made to the memorandum dated 9.5.2000, that would have no effect whatsoever in determining the validity o the action taken by the SCL. For the reasons recorded above, it is CWP NO.16487 OF 2005 8

not possible for us to accept that the memorandum dated 9.5.2000 was the basis of the determination of the SCL.

The second contention of the learned counsel for the petitioner is that the role back of the age of retirement from 60 years to 58 years has adversely affected the civil rights of the members of the petitioner Union, inasmuch as, they will attain the age of retirement two years before the age of retirement earlier stipulated by the SCL. It is the vehement contention of the learned counsel for the petitioner, that after the SCL's decision dated 30.5.1998 the employees of the SCL started to retire on attaining the age of superannuation at 60 years, however, by this role back finally adjudicated upon by the appellate authority which allowed the amendment of clause 17B of the Certified Standing Orders, all the employees of the SCL will now retire two years prior to the age, at which they would superannuate on the basis of the decision dated 30.5.1998. It is the contention of the learned counsel for the petitioner, that before such a decision was taken by the SCL, which adversely affected their civil rights, it was imperative for the SCL to follow the rules of natural justice, inasmuch as the members of the petitioner Union should have been informed the reason of the role back, as well as, afforded an opportunity of hearing to repudiate the said determination. It is not possible for us to accept the instant contention of CWP NO.16487 OF 2005 9

the learned counsel for the petitioner. The Apex Court in K. Nagraj and others V. State of Andhra Pradesh and others, 1985(2) Service Law Reporter 337, has clearly arrived at the conclusion, that it is open to the competent authority to enhance or reduce the age of retirement. In the aforesaid determination, the Apex Court concluded, that if the policy adopted by the authority enhancing or reducing the age of retirement, is shown to violate the recognised norms of employment planning, it would be possible to say that the policy is irrational, and in that event, it would be possible to challenge the validity thereof. The Apex Court also recorded in its conclusions that the reduction of the age of retirement, did not amount to compulsory retirement, in the sense that employees who could earlier continue in employment till a higher age, will have to retire at a lower age.

It also arrived at the conclusion that the action of reducing the age of retirement did not violate the provisions of Articles 16 and 22 of the Constitution of India, so as to deprive the concerned employees the right of livelihood for shorting their term of employment. In sum and substance, in the controversy adjudicated upon by the Apex Court in K. Nagraj's case (supra) the reduction in the age of retirement from 58 years to 55 years, was upheld as valid. In view of the decision rendered in K. Nagraj's case B (supra), it is not possible for us to accept that it was imperative for the CWP NO.16487 OF 2005 10

respondents to follow the rules of natural justice before enforcing the recommendation made by the Ministry of Heavy Industries and Public Enterprises for a role back in the age of retirement.

Coupled with the contention noticed above, it is submitted that the members of the petitioner union are gradually moving into the evening of their lives. It is also pointed out that their children are now grown up, and therefore, higher financial inputs are needed for their educational and other needs. It is sought to be contended on the basis of the aforesaid facts, that the instant action of the SCL, whereby, the age of superannuation has been reduced to 58 years, adversely affects the guarantee to life enshrined in Article 21 of the Constitution of India. It is pointed out that the constitutional guarantee contained in Article 21, includes the right to an appropriate enjoyment of life as well. This action of the SCL, according to learned counsel, will lead the petitioners to destitution, in the evening of their lives. If one was to accept the instant contention it would not be possible to ever retire any employee from service because the submission advanced in reference to retirement at the age of 58 years, will be ever more forceful at the age of 60 years, and likewise at 62 years and 64 years etc.. For the reasons recorded above, as well as, those recorded by the Supreme Court in K. Nagaraj's case (supra), it is not CWP NO.16487 OF 2005 11

possible for us to accept the instant submission advanced on behalf of the petitioner Union.

It is also the vehement contention of the learned counsel for the petitioner, as was the case projected before the Certifying Officer, that the memorandum dated 9.5.2000 was applicable only to sick and financially unviable public sector undertakings, and since SCL was neither a sick nor an unviable public sector undertaking, it could not rely on the memorandum dated 9.5.2000, for the purpose of role back of the age of retirement. The instant contention is clearly misconceived. As already noticed above, the memorandum dated 9.5.2000 issued by the Ministry of Heavy Industries and Public Enterprises, which was applicable only to sick and financially unviable public sector undertakings, was extended to all public sector undertakings through the memorandum dated 22.8.2001 (Annexure P32).

In view of the above, it is not possible for us to accept the contention of the learned counsel for the petitioner that the action taken by the SCL was based on the memorandum dated 9.5.2000.

It is also contended by the learned counsel for the petitioner that a determination at the hands of the appellate authority under section 6 of the Industrial Employment (Standing Orders) Act, 1946, is limited to, setting aside or confirming an order passed by the Certifying Officer. In CWP NO.16487 OF 2005 12

sum and substance, the instant contention of the learned counsel for the petitioner is to the effect, that it was not open to the appellate authority to pass an order substituting clause 17B of the Certified Standing Order, as it earlier existed, by clause 17B, which was proposed to be introduced as an amendment to the earlier clause. Section 6 of the Industrial Employment (Standing Orders) Act, 1946, is being extracted hereunder:- "6. Appeals.- (1) Any employer, workman, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Order under sub-section (2) of Section 5 may, within thirty days from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act.

(2) The appellate authority shall, within seven days of its order under sub-section (1), send copies thereof of the CWP NO.16487 OF 2005 13

Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the Certifying Officer, by copies of the standing orders as certified by it and authenticated in the prescribed manner." It is not possible for us to accept the instant contention of the learned counsel for the petitioner that the appellate authority could have only set aside or confirm the order passed by the Certifying Officer. In fact, section 6 of the Act envisages that the appellate authority has the right of "making such modifications thereof or additions thereto as it thinks necessary" (with reference to the order passed by the Certifying Officer). In view of the above, we are satisfied that the appellate authority had the jurisdiction as well as the authority to pass the order dated 17.1.2005 (Annexure P37) by which it substituted the earlier clause 17B with clause 17B as proposed by the SCL.

No other contention was advanced on behalf of the petitioner.

Dismissed.

( J.S. Khehar )

Judge

( S.N. Aggarwal)

November 22, 2005. Judge

vig


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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