COCHIN SHIPYARD LTD Vs. IQBAL

JUDGEMENT

(1.) Employer of the respondent-workman is the appellant. Respondent workman contended that going by Ext. P-2 certified Standing Orders as applicable to the employees of the appellant, he was entitled to continue in service until he attained the age of 60 years. On the other hand, he was sent out on attaining the age of 58 years, relying on Ext. P-1 settlement. It was in the above circumstances, the respondent approached this Court with the writ petition seeking a declaration that, going by Clause 34 of Ext. P-2 certified Standing Order, which prevails over Ext. P-l settlement, he is entitled to continue in service, until he attains the age of 60 years. The learned Single Judge, in the impugned judgment, found that while 1978 settlement was in force, Ext. P-2 Standing Order was certified on 19-1-1980 and it did provide for the age of retirement as 60 years. When the settlement was followed by Ext. P-2 Standing Orders, he was entitled for a declaration for continuance in service until he attains the age of 60 years. According to the learned Single Judge, the subsequent settlement, which came into effect on 31-8-1981, could not have modified Ext. P-2 to alter the age of retirement to 58 years. This judgment is impugned in this Writ Appeal by the employer.

(2.) The prime contention urged by the appellant is that the provision regarding the age of retirement contained in Ext. P-2 certified Standing Orders cannot have any application in the wake of the subsequent settlement-Annexure B. While the matter was argued, it was also brought to our notice that when Ext. P-2 was certified, there was no provision in the Industrial Employees (Standing Orders) Act, 1946 (hereinafter referred to as the Act) or the Rules framed thereunder, requiring superannuation as an item to be included in the Standing Orders, nor was it an item finding place in the model Standing Order contained in Schedule to the Act at the relevant point of time. It is contended by the appellant that 1978 settlement Annexure A provided that the age of retirement of the workmen in the service of the appellant--Company, as on the date of the said settlement, shall be 60 years and in cases of employees or workmen recruited thereafter, it shall be 58 years. It was, thereafter, Ext. P-2 Standing Order was certified on 19-1-1980. Even though age of retirement was not an item to be included in the Standing Order in terms of the Act and the Rules, it was included therein, providing 60 years as the age of superannuation. Later, at the time of subsequent settlement-Annexure B (Ext. P-l) the provisions in Annexure A settlement of the year 1978 were carried over as per Clause 36 of Annexure B which, reads as follows:

(3.) Amplifying this situation, it is further submitted that going by Schedule to the Act, the age of superannuation or the age of retirement was not a matter to be provided in the Standing Orders at the relevant time. Item No. 11 therein provided for "any other matter" which may be prescribed by the Rules. But the Rules, as on the date of certification viz., 19-1-1980, also did not contain any prescription as to further items that have to be provided for in the Standing Orders. Our attention is drawn to Rule 2A whereby item 10-B is specifically introduced to the Schedule. One among the items in item 10-B is regarding the age of retirement. This was introduced as an item in the Schedule only by notification dated 17-1-1983. Citing the decision of the Apex Court reported in Workmen of Lakheri Cement Works Ltd. v. The Associated Cement Companies Ltd., 1969 (2) SCWR 237, it is submitted that there was no authority to include any matter in the Standing Orders other than the items mentioned in the Schedule to the Act in the absence of any further prescription by the Rules made under the Act.