DIGVIJAY CEMENT COMPANY LIMITED Vs. HIRASINGH JAMNADAS

JUDGEMENT

(1.) This Special Civil Application is directed against the order dated 18-10-1989 passed by the Assistant Labour Commissioner, Jamnagar making a Reference to the Labour Court at Rajkot for decision of an industrial dispute.

(2.) The respondent No. 1 - workman had been appointed as a Foreman with the petitioner-Company on 1-1-1974. At that time the respondent-workman in his bio-data had given his date of birth as 30-11-1920. It is the common case of the parties that in the Standing Orders, which had been certified by the Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946, no age of superannuation was fixed, but age of superannuation was prescribed, in the Model Standing Orders, to be 60 years. According to the date of birth of 30- 11-1920, which was given out by the respondent-workman in his bio-data, the respondentworkman could have been made to retire on attaining the age of 60 years, i.e., in the end of November, 1980, but in fact the respondent-workman was not retired and he continued in the services even after November, 1980. It has been submitted by the learned Counsel for the petitioner that amendments were made in the Standing Orders in the year 1984 and the same was certified on 21-5-1984 and by this amendment in the Standing Orders, the age of superannuation was prescribed to be 60 years. Against this certification of the Standing Orders in 1984, the Union of the workmen preferred Appeal before the Industrial Court and this Appeal was dismissed by the Industrial Court. The Union preferred Special Civil Application No. 3975 of 1985 and this Special Civil Application, challenging the certification of the Standing Orders prescribing the age of superannuation to be 60 years, was dismissed by the High Court on 8-8-1985 and the Standing Orders thus became applicable from the date they were certified.

(3.) In the meanwhile, the respondent-workman was made to retire on 31-5-1985 although according to the petitioner he should have been retired in the year 1980 itself. The respondent-workman preferred a Civil Suit No. 500 of 1985 in the Court of Civil Judge (J.D.), Jamnagar and on the strength of the injunction order passed by the Civil Court (J.D.), Jamnagar, the petitioner had to pay salary to the respondent-workman upto April, 1986. Thereafter, the main suit was dismissed on 3-5-1986. It is also the common case of the parties that the Court had examined the question of jurisdiction and found that the Civil Court had no jurisdiction to entertain this dispute although the merits of the case had also been gone into. The controversy raised by the respondent-workman in this Civil suit was that his date of birth should be taken as 15-11-1930 instead of 30-11-1920 and he should be made to retire accordingly. Thus, according to the respondent-workman, had his date of birth been taken as 15-11-1930 he could not be retired before November, 1990. The respondentworkman also preferred an Appeal before the District Court, Jamnagar and this Appeal was also dismissed by the District Court on 30-9-1988. Thus, having failed before the Civil Courts in the litigation, the respondent-workman now sought to invoke the provisions of the Industrial Disputes Act, 1947 and sought to raise the dispute about his date of retirement to be computed on the basis the date of birth is 15-11-1930 instead of 30-11-1920 and in this regard, the impugned order has been passed by the Assistant Labor Commissioner at Jamnagar on 18-10-1989 making a Reference for adjudication under Sec. 10(1) of the Industrial Disputes Act, 1947.