GOPINATH DAULAT DALVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was employed with the respondent No. 3 as a Driver. He joined the service of Marubeni Corporation, Tokyo with effect from 1st May, 1981. The petitioner's admitted date of birth is 30th June, 1947. While the petitioner was in service Marubeni Corporation which was taken over by respondent No. 3 on 21st May, 1996. On 21st May, 1996 Marubeni corporation, Tokyo, Japan issued a letter that it had decided to close down its office in India. However, the respondent No. 3 a subsidiary Company had been incorporated on 21st May, 1996 for the purpose of carrying out the business activities in India and the respondent No. 3 had agreed to take over the service of all employees in India of Marubeni Corporation including the petitioner in the same position and on same terms and conditions of service. In view of that the petitioner's services were transferred from Marubeni Corporation to Respondent no. 3 in the same position and on the same terms and conditions of service with continuity of service with effect from 1st June, 1996. It is the case of the petitioner that during the employment with the respondent No. 3 company the company introduced Employees Service Rules in respect of employees employed by them in the month of April, 2000. In spite of specific understanding between the employees employed by the respondent No. 3 Company and the Respondent no. 3 company that the employee will continue the terms and conditions of service prior to incorporation of the respondent No. 3 company, the service Rules framed provided that the age of retirement would be on attaining the age of 56 years and the date or superannuation will be the last date of that month. The petitioner addressed a letter dated 7th April, 2003 setting out that he was not accepting the Employees Service Rules which included age of superannuation. The respondent No. 3 company replied, pointing out that the provisions of the Industrial Employment Standing Order Act, 1948 and Model standing Orders are not applicable to the establishment of respondent No. 3 company. It is the case of the petitioner that the service Rules of the respondent no. 3 cannot supersede the Employment Standing Order Act, 1948 and Model standing Order. It was the contention of the petitioner that he was entitled to be employed till he reached the age of superannuation i. e. 60 years as per the Shops and Establishment Act read with and Industrial Employment Standing Order Act, 1948 and the Model Standing Order framed thereunder. The respondent No. 3 instead of allowing the petitioner to continue till the age of 60 years allowed the petitioner to work upto 30th June, 2003 and on 1st July, 2003 when he reported for work the respondent No. 3 compelled him to sign Form "h". The same is not applicable as the appropriate Government for Respondent No. 3 company is the state Government and not the Central Government. Form H is prescribed under the Industrial Disputes (Central) Rules 1957. The petitioner was offered lump sum of Rs. 50,000/- by way of ex-gratia from which a sum of Rs. 14,046/- has been deducted as TDS amount and thereby he has received ex-gratia amount of rs. 35,954/- on 1st July, 2003. Against his termination the petitioner raised a demand for reinstatement with continuity of service and full backwages with effect from 1st July, 2003 and also filed justification in support of the demand to the Deputy Commissioner of labour. The Respondent No. 2 fixed a meeting. The respondent No. 3 filed a reply. During the pendency of the proceedings with the Conciliation Officer one smt. Sangeeta Bharti, Sole Arbitrator appointed by the respondent No. 3 issued a notice. It is the grievance of the petitioner that instead of admitting the present dispute in conciliation under section 2 (A) and submitting a failure report the respondent No. 2 addressed a letter dated 5th June, 2004 declining to intervene. It is this order which is the subject-matter of the present petition.

(2.) THE respondent No. 3 has filed their affidavit through one Sanjay Arora, manager, Administration Department. It is contended that the petitioner had arrived at a settlement dated 1st July, 2003 and had received, accepted and encashed the benefits payable to him on superannuation and is now estopped from raising any dispute on his being superannuated. It is pointed out that when the petitioner was employed with effect from 1st May, 1981 by Marubeni corporation as Driver the provisions for retirement: read as under: "the employees will retire from the Company on attaining age of fifty-six (56) years. " the respondent No. 3 has framed Service Rules. There is also service rules for superannuation which reads as under : "an employee will be superannuated on attaining the age of Fifty Six (56 ). The date of superannuation will be last day of the month. " the petitioner was accordingly superannuated in terms of the Service rules. As the petitioner raised some disputes pursuant to discussion and negotiations a settlement was arrived at on 1st July, 2003 and the Petitioner accepted the retirement as effected at the age of 56 years as legal, valid and binding and agreed to accept the amount payable under the settlement in full and final settlement of all his claims. Petitioner was accordingly paid his dues and also terminal benefits which he has received. After encashment of the cheque on 7th July, 2003 petitioner made a demand for reinstatement. It is submitted that in these circumstances the respondent No. 2 was right in refusing to entertain the frivolous dispute and as such no case has been made out for entertaining the present petition under Article 226 of the Constitution of India.

(3.) AT the hearing of the petition on behalf of the petitioner his learned counsel has formulated the following points :