MAHESHWAR JHA Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) HEARD leametl counsel for the petitioner and the learned counsel for Bihar State Electricity Board.

(2.) THIS writ application has been filed for quashing the order contained in letter No. 90 dated 16.8.2007 whereby the petitioner has been informed about his superannuation on 28.2.2008 having completed 42 years of service in the Board. Further prayer is for quashing the Board 'sStanding Order No. XI/ -1188/97 -787/EB dated 9.9.1997 whereby the Board changed the service condition of its workmen and employees of and resolved to retire the workmen of Board Who have completed service of 42 years under the Board or attained the age of 60 years, whichever is earlier. Petitioner 'sgrievance is that the Standing Order No. 787 dated 9.9.1997 is contrary to the previous Standing Order dated 5th April, 1965 prepared and certified under Industrial Employment (Standing Orders) Act, 1946. Admittedly, the petitioner is a workman as per Section 2(1) of the Industrial Employment (Standing Orders) Act, 1946. The service condition of the employees of the Board is governed by Standing Orders passed under the Industrial -Employment (Standing Orders) Act, 1946. The Standing Order dated 5.4.1965 dealt with the age of retirement of a workman whereby the casual workmen will ordinarily retire on attaining the age of 60 years. But the Board may, as its sole discretion offer extension of service beyond this age to any workmen for a period not exceeding one year at a time unless he attains the age of 62 years subject to his being mentally and physically capable to discharge the duties expected to him. In subsequent Standing Orders of 1987 also, the age of the retirement of workmen was 60 years. No condition such as to the length of service was given in the Standing Orders for the purposes of retirement of a workman. For the first time, vide Standing Order No. 770/ EB dated 31.1.1996, the Board resolved that such workmen who have completed service of 38 years under the orders or attained the age of 60 years, whichever is earlier should be made to retire compulsorily. The operation of this Standing Order was stayed. Again, vide Standing Order No. 787/EB dated 9.9.97 it was resolved that workman who has completed service of 42 years under the Board or attained the age of 60 years should make to retire from the Board service including the service period prior to the creation of the Board. This Standing Order has been challenged by the petitioner on the ground that as per the Industrial Employment (Standing Orders) Act, 1946, any management in the Standing Order needs to be certified by the Certifying Officer neither the employer nor the employee unions have right to modify the Standing Order even on the basis of the agreement. The Standing Order dated 9.9.1997 has been issued without moving before the Certifying Officer for management of the Standing Order dated 5.4.1965.

(3.) COUNSEL for the Bihar State Electricity Board submits that this point was raised earlier by the petitioner of CWJC No. 4220 of 1999 (Gopaljee Sahay V/s.tate Electricity Board & Ors) The Standing Order dated 9.9.1997 was challenged specially on the ground that it has not been published in the official gazette. The challenge was considered by the court and thus subsequent notification of the Board was produced and finally it was held that the rules have been framed in exercise of powers conferred u/s 79C of the Electricity Supply Act, 1948. As such, the rules are statutory in nature. No vested right of the petitioners have been infringed and the writ application was dismissed. The petitioner has challenged the order contained in Letter No. 90 dated 16.8.2007 on the ground that the order of retirement is not in accordance with the date of birth as recorded in the service book/record. The petitioner has right to continue in service up to 60 years of age as per his date of birth. It has also been contended that there is no minimum age provided for entering into the service but the age for superannuation is 60 years. As such, the petitioner should be allowed to continue in service till his due date of retirement i.e. 31.12.2009 on which date he is completing 60 years of age. The petitioner has placed reliance on decisions reported in 1995(1) PLJR 183 and 1995(2) PLJR 441.