UNITED PROVINCES ELECTRIC. SUPPLY CO. LTD., ALLAHABAD versus T. N. CHATTERJEE

UNITED PROVINCES ELECTRIC. SUPPLY CO. LTD., ALLAHABAD

T. N. CHATTERJEE

March 13, 1972 [S. M. S1KRI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR AND M. H. BEG, JJ.]

Industrial Employmen~ (Standing Orders) A.ct, 1946, s. 4 and $che-dule items 8, 9 and 'UC and U.P. Industrial Employment (Standing Orders) Rules, 1946-Model S/llnding Orders, para 13-A.pp/icability of Standing Order re : age of retirement to emp/oYees 1'n service before the · certifying of St~mding Orders--Framing .of Standing Order regarding re-tirement before amendment, of Schf!dule--Certifying Officer, J' could -certify the standirig ·order a.s• fair or reasonable before ame men~ of s. 4-High Court der:iding question and remanding-When operates as res judicata. ·

Employm~nt

·In accordance with the provisions of the . Industrial Employm~nt (Standing Orders) Act, 1946, and the U.P. Industrial Employment-(Siand-ing Orders) Rules, 1946, the appellant submitted draft standing orders. defining the conditions. Qf employment of its employees and they W'!re certified by (he Certifying Offirer in 1951. Clause 32 of the Standing Orders provided that an employee who b~s served 30 years or who has · reached the age of 55 years will be retired, but, exemption from t):iis may be granted by the company in special case. In 1959, notices were served on the respondent-workmen that they were retired by- reason of their bav· ing attained the age of superannuation ..s per cl.· 32. The workmen con-tended that the clause was not binding or enfor"'iable as far as tbev were concerned, because, they bad entered the 9'rvice of the appellant prior to the c~rtification of the Standing Orders '3Dd there was no condition that they would be liable to retirement after attaining any prescribed age or any fixed period of service, and that they were entitled to continue in service as long as they were physically fit. TOO industrial dispute was referred to the Industrial Tnbu!l'.li and the Tribunal held in favoulr of the appellant. The respondents filed writ petition in the High Court. They also applied in 1960, under s. 10(2) of the Industrial Employment (Standing Orders) Act, 1946, for amendment and modification of cl. 32 claiming fixation of retirement age at 60. The Certifying Offil:er modi· tied the clause and fixed the age of retirement <1t 58, but the appellate authority refixed it at 55. ·

The High Cour~ in the writ petition, on the basis, of the decision of this Court in Guest Keen WU/iams Pvt. Ltd., [1%0) 1 S.C.R. 348 bd<I that Cl. 32 was not applicable to the employees and directed the Tribunal to rehear the case. The Tribunal thereafter held that the respondent· workmen were wrongfully and unjustifiably retired.

In appeal to this Court,

HELD : (1) It was not intended by the Legislature that .dill'eblnt sets of conditiol)s should apply to employees depending on whether workman was employed before the Standink Ord~ were ·cer!ified or after, as t!:iat would defeat the object of the legislation. "The obi:<\t an<!

U.P. E,J.ECTRIC co. v. T. N. CHATTERJEE (Grover, J.) !755

s~heme of the Act is that the employers must define precisely too con-d111ons of employment of '111 the employees and have tlx:m certified by the Certifyi":g Officer. The right given to be workmen to e<press their views, to raise ObJect1ons, to appeal to the appellate authority and to ask for modification of the Standing Orders under s. 10 of the Act, show that every possible safeguard has teen provided in the interests of the workmen. Moreover, the individual items in the Schedule to the Act show that there cannot be different conditions for different employees depending upon the point of time when ,they came to be employed, f<lr that would result in great deal of hesrt burning between the employees inter se. [762 R-H; 763 A-DJSalem Erode El<etriclty Distrlburion Co. Ltd. v. Its Workers; [1966] 2 S.C.R. 498, and Agra Elecl'ric Supply Co. Ltd., v. Sri Al/adin 4c Ors. [1970] I S.C.R. 808, followed. · • (2) The decision in Guest Keen Williams Pvt. Ltd. that the Industrial

(2) The decision in Guest Keen Williams Pvt. Ltd. that the Industrial Tribunal had to consider not only the propriety, reasonableness and fair-ness of Standing Order but that it had also to deal with the question as to whether particular Standing Order could be made applicable to employees who had already been employed without any limit as to age of retirement Was delivered under the unamended s. 4 of the Act, under which the Certifying Officer or the appellate authority could · not go into the reasonableness or fairness of the Standing Orders. But after the amendment of the section in 1956, the Certifying Officer and the appellate authority are bound to examine the question of fairness of the standing orders, and therefore, there o:m· be no justifica~ioil now for not giving effect to the p<inciple of uniforniity of conditions of servic,; which is clearly contemplated by the provisions of the Act. [763 D-F]

(3) But d. 32 of th Standing Ord!rs as certified in 1951 _,)as not valid and could not be binding on~ respondents, because, there was then no item in the Schedule to the ct covering cases of superannua-tion or retirement, with respect to w "ch Standing Orders col,lld be made. [766 E-F, G-.li]

Item 8 and 9 of the Schedule deal with the termination of employ-ment and _notice thereof, and suspension or dismi~al for miscpnduct. The language of item 8 shows that it does not cover the case of [1 ]superannua-F tion \\'hich does not depend· on any notice and which covers an e\-ent whi~h ·is automatic and which must be given effect to without aliy volition on the part of the employer or workmen. If tennination is to be read in widC:-sense as meaning 'employment coming to an end' there Was no neces-sity to have item 3, because,• dismissal would then be covered by termina-tion. From paragraph 13 of the Model Standing Orders contained· in the Schedule to the Rules it is apparent that item 8 is confined to termination of employment by notice in writing and does not refer to superannuation or retirement. It was only in 1959 that item 11 (C) wa• introduced in the Schedule enabling the framing of Standing Orders in relation to the age of retirement and superannuation. [765 F-H; 766 A-CJ

Saro; Kumar v. Orissa State Electricity B()ard, A.I.R. 1970 Orissa, 126, approved.

Management of the 'Hindu' v. Secretary Hindu O{fici! 4c National Press Employees Union, A.LR. 1961 Mad. 107, disapproved.

(4) No assistance can be derived by the rise of the woi'd 'retire!llent' in para, 16 of the Model Standing Orders, because, it may well refer to

retirement under the terms of the contract of employment entered into between the employer and the employees, [765 A-B, El

(5) Sine>,, before !he amendment of s, 4 the Certifying Officer and the app,llate auhority were debarred from adjudicating upon the fairness or reasonableness of the Standing Order., the Certifying Officer at, that time, could not certify any Standing Order on the ground that it was reasonable or fair, Therefo're, in 1951, when the Standing Orders were certified, cl, 32 could not have been framed becau"" there was no irem in the Schedule relating to superannuation and the Certifying Offic'~r could not certify it on the ground it was fair and reasonable because he hail no power to do so, [766 D-F]

(6)• The Certifying Officer, however, when he modified cl, 32 and fixed the retirement age at 58 (after s, 4 was amended) could have validly certified such clause as modified , by him, This Court could also give an appropriate difection with regard to fixing the age of superan-nuation. In the circumstances of this case the age of superannuation should be 58 years, Therefore, the concerned workman should be deemed to have cbntinued in service of the appellant till they had attain-ed the age of 58 yearn, [767 A-C, G-HJ( 7) The order of the High Court in the writ petition did not finally terminal•' the proceedings ~t all, The proceedings were terminated only by the award of the Industrial Tribunal after remand, Therefore, the order of the High Court following Guest Keen William's case did not debar fresh consideration of too question by virtue of the rule or principle of res ;udicata, [768 A-B, E-FJ

Satyadhyan Ghosal v, Smt, Deorajan Devi, ~1960], 3 S,C,R, 590, followed,

Management, of N. Railwll)I ~o-operative Society v, Industrial Tribu-nal, [,1967] 2 S,C,R, 476, explained,

CIVIL APPELLATE JURISDICTION : Civil Appeal No, 1734 of 1967. ,

Appeal by Special Leave from the Award dated the May 19, 1967 of the Industrial Tribunal (I) at Allahabad in Adjudication . Case No. 15 of 1960. ·

s, V. Gupte, D. N. Mukherjee and Gautam Banerjee, for the

appellant.

G. C. Bhattacharya and M. V, Goswami, for respolldpnts Nos. 1 and 3 to 8.

0. P. Rana, for respondent No. 9.

The Judgment of the Court was delivered by

Grover, J, This is an appeal by special leave from an award of the Industrial Tribunal, Allahabad, dated May 19, 1967. I

U.P. ELECTRIC co. v. T. N. CHATTERJEE (Grover,/.) 757

The material facts may be stated. The appellant, which is limited liability company and which later on went ill!to volun-tary !iquidatio)l, was carrying on the business or undertaking of generation, di&tribution and supply of electricity. One of such undertakings was 1the Electric Supply Undertaking at Allahabad in the State of Uttar Pradesh. Its affairs and business were being looked after and managed by Martin Bum & Co. lJtd., Calcuttlt. Some of the appellant's workmen in Allahabad and its surround-ing area were members of Biili Mazdoor Sangh-a trade union registered under the Indian Trade Union Act, J 926. The U.P. State Electricity Board compulsorily acquired and took over the assets of the appellanot's aforesaid undertaking or business with effect from 16/17th September 1964.

In accordance with otpe provisions of the Industrial Employ-ment (Standing Orders) Act 1946, hereinafter called the 'Aot' and the U.P. Industrial Employment (Standing Orders) Rules 1946 the appellant submitted draft Standing Orders defining the condi-tions of employment of its employees. On July 14, 1951 these Orders' were certified by the Certifying Officer. Clause 32 of the -Standing Orders was in the following terms :-·

"32. RETIREMENT-An employee who has served

30 years or who has reached tile age of 55 will be re-tired, but exemption to thls may be granted by the Com-pany in.special cases".

The workmen through the Bijli Mazdoor Sangh preferred an appeal under s. 6 of the Act from the order of the Certifying Officer to the State Industrial Tribunal which was the appellate jjuthority under the Act. Thait appeal, however, was dismissed. The Agra Electric Supply Co. Ltd., Agra and Benaras Electric Light & Power Co. Ltd., Varanasi, which is the appellant in the connected appeal (C.A. i64/6&) also got certified Standing Orders in similar terms. These electric undertakings were also under the management of Martin Bum & Co. Ltd. On July 16, 1959 notices were served on seven workme11 with effect from September 1, 1959 on the ground that they had attained 'the age of superannuation or completed 30 years of service and they were retired by reason of their having attained the age of super-annuation. Out of these workmen one of them Haider Ali died .during the pendency of proceedings. The other six employees have been impleaded as respond.ents Nos. 1 to 6 m the present appeal.

According to the appellant these respondents accepted all the accumulations due to them in respeot of Provident Fund contri-butions made by the appellant in respeot of .them and by them-selves and were also paid gratuities credited to them in 1their res-

pective Provident Fund aqcounts for their services prior to their becoming members of the Provident Fund.

By an order dated February 22, 1960 made under s. 4-K of the U.P. Industrial Disputes Act 1946 the Government of U.P. ref.erred to the Industrial Tribunal (I) at Allahabad for adjudi-cation ari industrial dispute alleged to exist between the appel-!ant and its workmen on the following issues :

"Wheither the employers have wrongfully and/ or un-justifiably retired their workmen, mentioned in the Annexure, with effect from 1st August, 1959 ? If so, to what relief are the workmen entitled ?"

Respo11dents I to 6 and Haider Ali (since deceased) were the workmen mentioned in the Annexure. The case of the work-men before the Industrial Tribunal was that they had entered service of the appellant prior to the certification of the Standing Orders. At the time of their appointment there was no condition ~hat they would be liable to retirement after attaining any pres-D cribed age or after putting in any fixed period of service. practice was in vogue that the workmen would continue in service till he was physically fit. Accordingly clause 32 of the certified Standin_g Orders was neither bindin_g nor enforce.able. The In-dustrial Tribunal made an award on May 2, 1960 finding, inter-·alia, (a) the employers were within their rights in retiring the workmen concerned. (b) The act of the emPJoyers in compul-sorily retiring the concerned workmen from service could not be characterised as wrongful, illegal or un.iustified and ( c) the work-men were entitled to no relief.

On June 14, 1960 the Biili Mazdoor Sangh moved an appli-cation under s. 10 (2) of the Act for amendment and modifica-tion of clause 32 claiming fixation of retirement age at 60 years. On September 20, 1960 the Union also filed writ petition in the Allahabad High Court for quashing the award. On April 22. 1961 the Certifying Officer modified clause 32 and fixed the age of retirement at 58 years. On September 10, 1961 ithe appellate authority refixed the age of retirement at 55 years. Similarly appeals were filed by the Agra Electric Co. and the Banaras Electric Light and Power Co. Lid. in which similar orders were · · made. On July 12, 1966 the High Court recorded an order quashing the award. It was held that Standing Order 32 was not applicable to the employees who had entered service before the certification of the Standing Orders. The Industrial Tribunal was directed to rehear the case and after giving an opportunity to the parties of being heard give an award in accordance with law. Finally the award against which the appeal has been brought

U.P. ELECTRIC co. v. T. N. CHATTERJEE (Grover, 1.) 75'9

was given on May 19, 1967. It was held in the award that al! the seven workmen had been wrongfully and uJijustifiably retired and that they should be deemed to have continued in service till Sep· tember 16, 1964 from which date they would be taken to have been retrenched. The appellant having been taken over by the U.P. Staite Electricity Board, it was directed that-the employers I should pay full wages from the' period August 1, 1959 to Septem· ber 16, 1964 and retrenchment compensation within s. 25-F read with s, 25-FF and s. 25· J of the Industrial Disputes Act, 194 7.While deciding the writ petition the High Court relied on three decisions of this Court for holding that where there is no aj!,'e of superannuation prescribed for the employees of concem provision in the Standing Orders certified subsequent to the d!ite of employment regarding compulsory retirement will not be applicable to them. The first decision is in Guest Keen, Williams Private Ltd. v. P. 1. Sterling & Others('). In that case after the enlorcement of the Act the industrial concem submitted its draft Standing Orders for cevtification to the Certifying Officer. That Officer certified the Standing Orders after giving the trade union of workmen an opportunity to be heard and ;ifter consider· ing their objections. The Standing Orders relating to_ retirement provided that the workmen shall retire from the service of tlie company on reaching the age of 55 years. The company gave notice to forty-seven of its workmen who were over the age of 55 years retiring them and dispute was raised about their retirement which was ~ferred to the Tribunal for adjudication. It was ulti· mate1y held by. the Labour Appellate Tribunal that those work-men who were in employmellt. prior to !he date of certification of the Standing Orders would not be governed by it and their retire-ment was illegal. This Court examined the scheme of the Act including tb.e relevant provisions. Notice was taken, in particu· Jar, of the fact that when· the Standing Orders were submitted to the Certifving Officer all that ·he could do was to. satisfy himself that they made provision.for other matters set out in the schedule to the Act and that they were; otherwise in conformity · with its provisions. Under s. 4, as it was originally enacto..,d the Certify-ing Officer could not adjudicate upon the fairness or reasonable· ne~s of the provisions of the Standing Orders. This section was subsequell'tly amended-in 1956 and the effect of the amendment was that the Certifying Officer was enabled to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. It was pointed out by the couit that the scope for en-quiry before the Certifying Offi'cer prior to the amendment of s. 4 was extremely limited. The only way in which the employees could claim modification of the Standing Orders J21ior to the amendment of s. 4 was by raising an industrial dispute in that

(I) [1960] l S.C.R. 348.

behalf. Subsequent to the amendment the employees could raise the same displl'le before 1the Certifying Officer and in proper case they cauld apply for its modification under s. 10(2) of the Act. It was observed that the Standing Orders certified under the Acit became part of the terms of the employment by operation of s. 7 but if an industrial dispute arose in respect of such Orders and it was referred to the Tribunal by the appropriate Government· , the Tribunal had the jurisdiction to deal with rt on ,the merits. It was, therefore,· held that the Tribunal had to consider not only the propriety, reasonableness and fairne~s of the rule but it had also to deal with the question as to whether the said rule could and should be made applicable to employees who had already been employed without any limit as to age of retirement. The decision in J]ljs case was fo!lo\\ed in Workmen of Kettlewell Bullen & Co .. Ltd. v. Kettlewell Bullen & Co. Ltd. ( '). The next case in which similar q11.estion &rose in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Empleyees Union('). It was claimed by the company which was the employer there that the urgent need for increased production and supply of electrical energy could be met if the existing rules embooi.ed in two of its certified Standing Orders relating to holidays and leave were suitably amended. The · amendments proposed sought to introduce different rules relating to holidays and leave for employees wh<>. were appointed before specified date and those who joined service after that date. Both the Certifying Officer and the appellate authority disallowed the amendments. The company appealed to this Court and th~ scheme of the AcJ_was examined once again. It was emphasised that after the amendment of s. 4 of the Act made in 1956 juris-diotion had been conferred on the Certifying Officer as well as the appellate authority to adjudicate upon the fairness or reason-ableness of lhe provisions of the Standing Orders. Thus the p jurisdiction had been widened. Moreover under s. 10(2) as originally· enacted it 'was only the employer who could make an application to the Certifying Officer to have the Standing Orders modified. By the amendment made in 1956 even workmen were enabled to exercise that right. Addressing itself to the . questiqn whether it was permissible for an industrial establishment to have two sets of Standing Orders to goveni the relevant terms and conditions of its employees it was laid down after an examination of !he scheme of the relevant provisions of the Act in the light of the matters specified in the Schedule that there was no scope for having separate Standing Orders in respect of any one of them, It was said :-

........ the conclusion appears to be irresistible that !be object of the Act is to certify Standing Orders in

(I) [1964] 2 L.L.J. 146.

(2) [1966] 2 S.C.R. 498.

respect o.f all the matters covered by the schedule and having regard to these maMers Standing Orders so certi-fied would be uniform and would apply to all workmen alike who are employed in any industrial establish-ment".

It was considered that Guest Keen Williams Pvt. Ltd.(') could afford no assistance because that matter came to this Court from an industrial dispute which was the subject matter of industrial adjudication and all that this Cclllrt did was to fixe the age of super-annuation for workmen who had been employed prior to the date of the certification of the relevant Standing Orders. That course was· adopted in the special and unusual circumstances of that case.

In the next decision Agra Electric Supply Co, Ltd. v. Sri Alladin & Ors.([2 ]) one of the main questions was whether three workmen who had been employed long before 1951 when the com-pany's St;mding Orders were certified could be retired undet Standing Order which prescribed the age of superannuation as 5 5 years. This Court took view which seemingly runs counter -to Guest Keen Williams Pvt. Ltd.([1]). lt was held that the ·Standing Orders when certified would be binding on the em-ployers as well as all the workmen who were in ernployment at the time the Standing Orders came into force and those employed thereafter as uniform conditions of service. The process of reasoning which prevailed was ( 1 ) the Act is beneficient piece of legislation, its object being to require employers in industrial establishments to define with sufficient precision the condtions of employment of workmen employed therein and to make them known to such workmen. ( 2) Before .the passing of the Act there F. was nothing in law to prevent an employer having diffnferent cond-tracts of employment with workmen which led to co usion an made possible discriminatory treatment. This was also clearly incompatible with the principles of collective bargaining. (3) Section 3 of the Act was enacted to do away with such diversity and. bargaining with each individual workman. ( 4) Section 4 indicates that particulars of workmen in the employment on the date of the submission of the draft Standing Orders or certifica-tion and not of those only who could be employed in future after certification were" to be given. ( 5) Sections 4 and 5 show that draft orders are certifiable if they provide for all matters set out in the schedule and are otherwi11e in conformity with the Act and if they are adjudicated as fair and reason~ble by the Certifying Officer· or the appellate authoriiy. The Certifying Officer has also to forward copy .of the draft Standing Orders to the Union (!) (1960] I S.C.R. 348. (2) [1970] I S.C.R. 808.

or to the workmen in the prescribed manner and bas to decide . whether or not any modification or addition should be made after bearing the Union or the workmen concerned. Sections 6, 7, 9 and 10 contain provisions for appeal by aggrieved person> as also for sending of authenticated copies by Jtbe Certifying Officer to the parties where no appeal is filed and further the employer bas to post !he Standing Orders ·as finally certified it1. the manner prescribe<!. The employer or the workmen can even apply for modification after expiry of six months from the date on which the Standing Orders or the last !modification thereof comes into operation. (7) The schedule sets out the matters which the Standing Orders must provide for.

For the reasons given above this Court held that the Act was meant to enable Standing Orders to be made to bind not only those who were employed subsequent to their certification bu1 also those who were already in employment. If any other result were to follow there would be different conditions of employmen1 for different ~.Jsses of workmen which would render the condi-tions of their service as indefini'te and diversified as before the enactment of the Act. Support was derived from the decision in Salem Erode Electricity Distribution case(') in which departure was made from the view previously taken in the case of 'Guest Keen Williams P~t. Ltd.(')It has been. urged before us on behalf of the respondents that the decision in Guest Keen Williams Pvt. Ltd.(2) still holds the field and the point which was decided there and which arises in the present case did not come up for consideration in Salem Erode Electricity Distribution Co. Ltd. ([1]). In our opinion the principle applied in the latter case is fully supported by the scheme of the Act and was rightly extended and applied in Agra Electric Supply Co. Ltd. ([3]). We concur with the view expressed therein that it was not intended by 'the legislature that different sets of conditions should apply to employees depending on whether workman was employed before the Standing Orders were -certified or after, which would defeat the very object of the legislation. In the preamble it .is ~tated in categorical terms "whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them". Not only the object but the scheme of the Act is such that the employers must define preCisely Jtbe conditions of em-ployment of all the employees and have the same certified by the Certifying Officer against whose ·orders an appeal lies to the appellate authority. The right given to workmen to express their (I) [1966] 2 S.C.R. 498. (2) (1960] I S.C.R. 348. (3) (1970] I S.C.R. 808.

View and tQ. raise objections is of great significance. They can even ask for modification of the Standing Orders in accordance with s. 10 qf the Act. Every possible safeguard has been pro-vided for keeping the workmen informpd about their conditions of service SQ ithat they can take whatever steps they desire or ar~ ad~ to !ake in: their interest before the Certifying Officer •Or othe appellate authority. It is also very difficult to conceive tak· ing each individual item in the schedule how there can be diffe· rent conditions for different employees depending upon the point of time when they came to be employed; for instance item 3 relates to shift working. It is possible to sugge~t that for the same kind of work employees who were in employment before the Standing Orders were certified would have· different hours of shift from the other employees who were employed subsequently. In -Ole very nature of things great deal of irritation and annoy· ance between employees inter se would result if any such dis-crimination is made in any of the items in the schedule. It has been rightly pointed out in Agra Electric Supply Co. Ltd. that this would only lead to' industrial unrest and not industrial pea~e,

the latter being the principal object of legislation.

It must be remembered that in Guest Keen Williams Pvt. Ltd. the Certifying Officer could not gci into the reasonableness or fairness of the Standing Orders according to s. 4 of the Act as it stood at the material time. The law was changed only in 1956. Perhaps that was one of the main reasons which prompted the court in takine; the view it did. But after the amendment of the law in 1956 the Certifying Officer and the appellate authority are dutv bound to examine the question of fairness of ithe Standing Orders and there can be no justification now not to give effect to the principk of uniformity of conditions of service which is clearly .contemplated by the provisions of the Act.

The next question for determination is whether clause 32 of the Standing Orders relating to age of retirement could be certi· fied in July 1951. On behalf of the respondents it has been pointed out that there is no item in the schedule which covers the case of retirement or superannuation. Items 8 and 9 are in

these terms :-

"8. Termination of employment and the notice there-of to be given by employer and workmen,

9. Suspension or dismissal for misconduct, and acts

or omissions which con:stitute misconduct."

The model Standing Orders framed by the Central Government and by !he Government of the \State of Uttar Pradesh did not contain any clause relating to retirement or superannuation. It was for the first time that on November 17, 1959 item 11-C

relating to superannuation and retirement was introduced by the State of U.P. in exercise of the.rule-making powers conferred by s. 15 of the Act. In other States the item relating to age of re-tirement or superannuation was introduced either by legislation or by the exercise of rule making power. In 1the State of Bombay s. 19 of the Industrial Employment (Standing Order~) (Bombay Amendment) Act 1957 provided for insertion of item 10-A in the Schedule which was "age for retirement or superannuation". According to counsel for 1he respondents there was no item until the introduction of item 11-C in Nove!llber 1959 in the schedule under which any Standing Orders could be framed and got certi-fied relating to the age of retirement and superannuation. It has been maintained that items 8 and 9 cannot possibly include retire-ment and superannuation and therefore till item 11 ·C was added in the schedule so far as the State of U.P. was collcemed in November 1959 no Standing Orders could be legally or validly framed and· certified providing for age of retirement and super-annuation. In Saroj Kumar Ghosh v. Orissa State Electricity Board (1) the Orissa High Court considered this question some length and expressed the view that where Standing Order .has been certified by the Certifying Officer coll'taining clause relating to superannuation not coveted. by the schedule of the Act nor by . the model Standing Orders such certification- cannot be valid under s. 4 of the Act. The clause ltenitlnation of employment' in item 8 of the schedule cannot be equated with the word "super-annuation". According to the Orissa High Court, superannua· tion is an event which comes more or less in an automatic pro-cess. An age is fixed on the reaching of which the holder of office has no option but to go out of office. There is no volition involved in that act. The employer and the employee have notice of the matter long before the event is to occur and the event is such that it cannot be arrested by either one of them if the rule is to be followed. On the other hand tetmination is positive act by which one party even against the desire of the other can bring about the end of employment. The judgment of the learned single judge in Management of the "HINDU'', Madras v. Secre-tary Hindu Office & National Press Employees Union and t111-other(') was dissented from. In that case the expression "tenni-nation· of employment" in item 8 was considered to be wide enough to include retirement of an employee at the age of super-annuation. The learned Madras Judge sought support from para 16 of t\le model Standing Orders which is as follows :-

"Every permanent workman shall be entitled to service certificate at the time of his dismissal discharge or retirement from service".

(2) A.l.R. 1961 Mad. 107.

(I) A.l.R. 1970 Orissa 126.

In the model Standing Orc!ers there was no clause providing for superannuation or re1irement on attaining cettain age.

In our judgment much assistance or help cannot be derived from para 16 of 1he model Standing Orders as contained in sche-dule I to the Industrial Employment (Standing Orders) Central Rules 1946. Retirem.~nt which is .J)lentioned there may be ur.der tl;e ,terms of contract of employment entered into between the employer and the employees. Section 2 ( oo) of the Industrial Disputes Act 194 7 throws a· certain amount of light on the matter. It is reproduced below·:-

"Retrenchment" means !he termination by the em-c ployer Qf the service of workman for any reason whatsoever, oth-;rwise than as punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of llhe workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment bet-ween the employer and llhe workman conc.emed con-tains stipulation in that behalf;"

It shows, firstly, that termination of service of workman is dis-tinct from retirement on. reaching the age of' superannuation; secondly, retirement can take place on reachin.1 the age of super-annuation uncler the terms of the contract of employment entered into between the employer and the workman. Therefore, the word "retirement" in para 16 cannot te regarded as conclusive of the question whether termination of employment includes retirement and superannuation. In the schedule to llhe Act i.em 8 covers termination of employment and the notice to be ~iven either by the employer or the workman and i'lem 9 relates to sus-pension or dismissal for misconduct etc. ' Item 8 by virtue of the language employed does not al)pear to cover the case of super-annuation which does not depend on any notice and which covers an evel!t which is automatic and which must be gh'!n effect to without any volition on the part of the employer or the workmen as pointed out in the Orissa judgment. If termination is to be read in wide sense as meaning employment coming to· an end there was necessity to have i~;m 9 because dismissal would then be covered by termination. In the context in which the word "termination" is used in item 8 it cannot mean each and everv. form of termination or c".s<ation of employment. From u para 13 of the Model S'andin~ Orders contain•;d in schedule I to the Indu~trial Emolovment (Standing Orders) Central Rules 1946, it is aooarent that item 8 is confined to termination of em· plovment bv notice in writing and does not contain any mentien 3-Ll06I S"P· Cl/72

of superannuation or re.irement. It Was perhaps this difficulty wn1c11 prouwieo me :State of U.P. to introouce item 11-C in exerc1;e oi tne ru1e maKing powers conterred by s. l:i ot tho Act ana tne bomoay legmaiu;e to make similar amendmen. by 1eg1s-lat10n. 1t would 1011ow that unless an employer can inc1u.Je a· clause reiatmg to 'the age of retirement and superannuation and the Cer.ifymg Officer Cdn cerri•Y it even thou?,h no >U~h itom appears in the schedule to the Act clause 32 as certified in 1 \I~ l, ir1 the pre>·~nt ca~e. cou.d not be regarded to be valid. The Madras High Court in the case of Managemenl of the 'Hindu', Mauras\•) maae some oo>ervations to the ertect that the~e was no bar to the Standin11; Orders making provision for m1tters other than those specifically m~ntioned in the schedule so long us the Certifying Officer certifies mem on .he ground that 'they a. fair and reasonable. The Orissa High Com t, however, in Sarojkumar Ghosh's(') case did not subscribe to thi> view. Learned counsel for the appellant, apart from rolying on ·•he Madras decision, has not addressed any arguments on 1h:-hlrger and wider question as to whether even in the absenoo of any item in the schedule Standing Orders can be framed on certain matlcrs which may be re11;arded as fair and reasonable and which may oo so certified by the Cer.ifying Officer. It is, however, unnecessary to decide this point in the present case because clau~ 32 of the Standing Ord~i s on which the appellant has relied was certifi.:d in July 1951 when according to the express language of s. 4 of 'ihe Act the Cenitylnit Officer or the appellate all'thority was de-E barr~ from adJudicatine uoon the fairness or reasonableness of the provisions of any Standing Orders. It is difficult to under-stand how •he Certifyin~ Offi:er at that Point of ime and before the amendment of s. 4 in 1956 could have possiblv certified ony S•anding Order which did not relate to any item in the schedule on the eround that it was fair or reasonable. IncJeed the lunC'io11 of the Certifying Officer, before the amendment of 1956, was very limi ed as is clear from s. 3(2) of the Act which says :

"Provision shall be made in such draft for every matt.~r set out in the <chedule which may be aool;c"ble to the indmtrial establishment and where model Stand-ing_ Orders have been prescribed, shall be, so far is prac-ticable, in conformity wi.h such model".

We must, therefore, hold that clause 32 of the Standing Orders as certifod in July 1951 was not valid and cannot be binding on the resoond.~nts. However, after i'em 11-C was intrncluced in the schedu'e so far as the State of U.P. was concerned an item was added provic1ing for the age of retirement and super~nnua-tion. The Certifying Officer, whe.n he modified clause 32 and

(2) AIR 1970 Orrissa 126.

fixed the re.iring age.at 58 on April 22, 1961 coµJd·have validly certiried such clause as modified by him. The necessary come-quence will be that the respondents could not have been re.ired on the JI.round of sup~rannuation in July 1959 and they could be validly reti~ only on or after Ap1il 22, 1961 in accordance with clause 32 as modified by lhe Certifying Officer. In other words, ~hose out of the present respondent' who had attained the Bl!;e of 58 years on April 22, 1961, could be regarded as hJving been validly retired having reached the age of superannuation on that da,e under fhat c\ause. In view of the previous decisions of this Court and in particu-c lar that o( Guest Keen Wl/liamv Pvt. Ltd.(') it has n,t been dist puled ,hat in the industrial dispute which was referred it was optln to the Industrial 'tribunal or the Labour Court to dete,mm~ me age of re.irement or superannuation notwifhstanding that clause 32 of the. Sta11dinl!; Orders as certilied in 1961 had been legally and validly certified. Indeed in Guest Keen Williams _Pvt. Ltd. ( [1]) it was not disputed that even this Court could give an appropriate direction which might be considered reasonable with regard to fixin.e; the aee of superannuation. As sta.ed before, according 10 clause 32 of <the Standing Orders, as certified in April 1961, the age of superannuation wall. jixed at 58. The appellant filed an appears that in the case of Agra Electric Supply.Co.(') also appears that in the care of Agra Electric Supply' Co.(') also similar Standinl!; Order had been certified and on appeal th~ age of retirement was reduced from 58 to 55 years by the appellate authority. This Court in fhat case held the Standing Order fixing the age at 55 ~~ars applicable not only to 1hose employees who were emP.lo.ved subsequently. but also to all workmen who were in employment at the time when the Standing Orders became ' legally applicable. argument was raised fhat It does th•! not ·appear in matter should be remitted tha1 case that anv such eith~r to the Indus~rial Tiibunal or the Labour Court to fix the age of superannuation or that this Court itself might do so as was · fhe course followed in the case of Guert Keen Williams Pvt. Ltd.([1]) in which the age was fixed at 60 years with regard to those em-ployees who had raised the disoute on th.~ ground that the s· and-G ing Orders could not go''~m them as thev h~d been employed be-fore the Standing Orders became aoplicable. After considering the entire material and keeoinq in mind 'the fact that according to the appellate authority even the aee of retirement ~t 55 was fair and reasonable we are of the vi•!w that 'the a~e of superannu1-tion of the responde~ts, in the present case. should be 58 vears. In other words. it will be the same as was fixed by the Certifying Officer bv modifying clause 32 on April 22, 1961.

<2> [1970J 1 s.c.R. 808

Lastly we must c!eal with the contention raised on behalf of the respondents tha• the order of the Allahabad High Court made on Ju1y 12, 1966 quashing the award after following the decision of tms Court in Guest Keen Williams Pvt. Ltd.(1) should be deem· ed to oe linal and should debar any fresh consideration or decision of that point by virtue of the rule or principle of res-judicata. It is noteworthy that the order of fr,~ Allahabad High Court was not R final against which the matder could have been taken in appeal either to divis10n bench of the High Court or to this Court. Reliance has been placed on decision of. this Court in Manage-ment of Northern Railway Cooperative Society Ltd. v. Industrial Tribunal Rajasthan, Jaipur and Another('), where reference had been mac!·~ bv the State Government to the Industrial Tribunal on the RailwayWorkers' Union having raised an industrial dispute againfll the Management of the Northern Railway Cooperative Society Lid. The society filed writ petition on •the ground that the dispute having been rai&~d by the Railway Workers' Union and not by th~ Society's own employees the reference to the Tri· bunal was not competent. The High Court diSmissed ihe peti· lion. Th{lreafter the Tribunal heard •the matter and gave its deci· I> sion in favour of the workman concerned. The society appealed to this Court by special leave. It was held that the order of the Hi~h Court was not interlocutory but was final order in regard to tb.e proceedings under Art. 226. The appropriate remedy for the appellant in that case was to appeal against the High Court's order and that not having been done the appellant's plea rclatin2 to the compe~~ncy of the reference was barred by res judica·a as the same had been raised before the High Court and had been rejected. The present case is clearly distinguishable inasmuch as the order made by the High Court was not final and remand hud been direc~ed presumably under Art. 227 of the Constitution. That order in fact did not finally terminate any proceedings at all. y The proceedin11s were terminated only by the award against which the present anneal has been brought by special leave. Wt; are un-able to see liow tb~ decision in the aforesaid case can afford any assistance to the respondents before us. Indeed the case which is :nore apposite in Satya(ihyan Ghnsa/ & Ors. v. Smt. Deoraiin Debi & Another([3]). There an order of remand had been made by the Hiizh Court while exercisin2 Powers under s. 115 of the Code of Civil Procedure. I•t was observed, af'er referring to the various deci<ions of the Privy Council, that the order of remand was in1erlocutorv and did not nurnort to disno<e of the case. n~rtv is not bound to appeal aizainst e''~ry in'ter!ocutorv order which is step in the procedure that leads up to final decision or award.

('J {1967] 2 S.C.R. 476.

The followin_g observations from this case may be reproduced with advanta_g.e :-

"In1erlocutory judgments which have the force of decree must be distin_guished from other interlocutory iudgm~nts which are step towards the decision of the dispute be•ween parties by way of decree or final order"

We are unable, therefore, 10 accede to th.~ contention that the rule of res-judicara could be invoked by the respondent in the pre-sent case.

In the result the appeal is allow~d and the order of the Indus-trial Tribunal is hereby set aside. Ac:ordin_g to our decision 'lhe workmen concerned could not have been retired on the ground of supi:rannuation in accordance with clause 32 of the Standing OrcJ.~rs till It was certified after necessary modifica1ion on April 22, 1961. Even otherwise it has been held by us that rthe prope~ age of retirement in 1he case of those employees. who joined ser-D vice prior to April 22, 1961 should be 58 years. The award, therefore, will be that the concerned workmen should be deemed to have co!lij,uued in service of !\le appellarit.till they had a• ained the age of 58 years. It is declared that they shall be entilled to be paid full wages and all other dues to which they are entit!~d under \he terms of ildr employmen't till they attained the age of 58 years. As regards any payments received by the workmen pursuant to the award or after the notice of termination those shall also be adjusted accordingly and the appellant undertakes not to claim refund_ of any amounts which have already be·~n re-ceived by them in excess of the amounts du.~. No order as to costs.

Appeal allowed.