Appeal No 1734 of 1967
Appeal by Special Leave from the Award dated the May 19 1967 of the Industrial Tribunal 1 at Allahabad in Adjudication Case No 15 of 1960
section V Gupte D N Mukherjee and Gautam Banerjee for the appellant
G C Bhattacharyaand M V Goswami for respondents Nos 1 and 3 to 8
O 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
757 The material facts May be stated The appellant which is a limited liability company and which later on went into voluntary liquidation was carrying on the business or undertaking of generation distribution and supply of electricity
One of such undertakings was the 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 I Ad Calcutta
Some of the appellant s workmen in Allahabad and its surrounding area were members of Bijli Mazdoor Sangh a trade union registered under the Indian Trade Union Act 1926
The UP State Electricity Board compulsorily acquired and took over the assets of the appellant s aforesaid undertaking or business with effect from 1617th September 1964
In accordance with the provisions of the  hereinafter called the Act and the UP Industrial Employment Standing Orders Rules 1946 the appellant submitted draft Standing Orders defining the conditions 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 the age of 55 will be retired but exemption to this may be granted by the Company in special cases
The workmen through the Bijli Mazdoor Sangh preferred an appeal under section 6 of the Act from the order of the Certifying Officer to the State Industrial Tribunal which was the
appellate authority under the Act
That 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 CA 16468 also got certified Standing Orders in similar terms
These electric undertakings were also under the management of Martin Burn  Co Ltd On July 16 1959 notices were served on seven worlen 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 superannuation
Out of these workmen one of them Haider Ali died during the pendency of proceedings
The other six employees have been impleaded as respondents Nos 1 to 6 in the present appeal
According to the appellant these respondents accepted all the accumulations due to them in respect of Provident Fund contributions made by the appellant in respect of them and by themselves and were also paid gratuities credited to them in their res 758 pective Provident Fund accounts for their services prior to their becoming members of the Provident Fund
By an order dated February 22 1960 made under section 4 K of the UP Industrial Disputes Act 1946 the Government of UP referred to the Industrial Tribunal 1 at Allahabad for adjudication an industrial dispute alleged to exist between the appellant and its workmen on the following issues  Whether the employers have wrongfully aridor unjustifiably retired their workmen mentioned in the Annexure with effect from 1st August 1959  If so to what relief are the workmen entitled  Respondents 1 to 6 and Haidcr Ali since deceased were the workmen mentioned in the Annexute
The case of the workmen 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 that they would be liable to retirement after attaining any prescribed age or after putting in any fixed period of service
A practice was in vogue that the workmen would continue in service till he was physically fit
Accordingly clause 32 of the certified Standing Orders was neither binding nor enforceable
The Industrial Tribunal made an award on May 2 1960 finding interalia a the employers were within their rights in retiring the workmen concerned
b The act of the employers in compulsorily retiring the concerned workmen from service could not be characterised as wrongful illegal or unjustified and c the workmen were entitled to no relief
On June 14 1960 the Bijli Mazdoor Sangh moved an appli cation under section 102 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 a writ petition in the Allahabad High Court for quashing the award
On April 22 1961 the Certifying Officer modified clause 32 and fixed the ago of retirement at 58 years
On September 10 1961 the 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 Ltd 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 reheat 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 759 was given on May 19 1967
It was held in the award that all the seven workmen had been wrongfully and unjustifiably retired and that they should be deemed to have continued in service till September 16 1964 from which date they would be taken to Wave been retrenched
The appellant having been taken over by the UP State Electricity Board it was directed that the employers should pay full wages from the period August 1 1959 to September 16 1964 and retrenchment compensation within section 25 F read with section 25 FF and section 25 J of the 
While deciding the writ petition the High Court relied on three decisions of this Court for holding that where there is no age of superannuation prescribed for the employees of a concern a provision in the Standing Orders certified subsequent to the date of employment regarding compulsory retirement will not be applicable to them
The first decision is in Guest Keen Williams Private Ltd vs P J Sterling  Others1
In that case after the enforcement of the Act the industrial concern submitted its draft Standing Orders for certification to the Certifying Officer
That Officer certified the Standing Orders after giving the trade union of workmen an opportunity to be heard and after considering their objections
The Standing Orders relating to retirement provided that the workmen shall retire from the service of the 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 a dispute was raised about their retirement which was referred to the Tribunal for adjudication It was ultimately held by the Labour Appellate Tribunal that those workmen who were in employment prior to the date of certification of the Standing Orders would not be governed by it and their retirement was illegal
This Court examined the scheme of the Act including the relevant provisions
Notice wag taken in particular 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 section 4 as it was orignally enacted the Certifying Officer could not adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders
This section was subsequently 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 court that the scope for enquiry before the Certifying Officer prior to the amendment of section 4 was extremely limited
The only way in which the employees could claim modification of the standing Orders prior to the amendment of section 4 was by raising an industrial dispute in that 1  760 behalf
Subsequent to the amendment the employees could raise the same dispute before the Certifying Officer and in a proper case they could apply for its modification under section 102 of the Act
It was observed that the Standing Orders certified under the Act became part of the terms of the employment by operation of section 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 it on the merits
It was therefore held that the Tribunal had to consider not only the propriety reasonableness and fairness 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 this case was followed in Workmen of Kettlewell Bullen  Co Ltd vs Kettlewell Bullen  Co Ltd1
The next case in which a similar question arose in Salem Erode Electricity Distribution Co Ltd vs Salem Erode Electricity Distribution Co Ltd Employees Union2
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 embodied 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 who were appointed before a 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 the scheme of the Act was examined once again
It was emphasised that after the amendment of section 4 of the Act made in 1956 jurisdiction had been conferred on the Certifying Officer as well as the appellate authority to adjudicate upon the fairness or easonableness of the provisions of the Standing Orders
Thus the jurisdiction had been widened
Moreover under section 102 as originally enacted it was only the employer who could make an application to the Certifying Officer to I have the Standing Orders modified
By the amendment made in 1956 even workmen were enabled to exercise that right
Addressing itself to the question whether it was permissible for an industrial establishment to have two sets of Standing Orders to govern the relevant terms and conditions of its employees it was laid down after an examination of the 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 the object of the Act is to certify Standing Orders in 1 2  761 respect of all the matters covered by the schedule and having regard to these matters Standing Orders so certified would be uniform and would apply to all Workmen alike who are employed in any industrial establishment
It was considered that Guest Keen Williams Pvt
Ltd1 could afford no asistance because that matter came to this Court from an industrial dispute which was the subject matter of industrial adjudication and all that this Court did was to fixed the age of superannuation 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 vs Sri Alladin  Ors2 one of the main questions was whether three workmen who had been employed long before 1951 when the cornpany s Standing Orders were certified could be retired under Standing Orderwhich prescribed the age of superannuation as 55 years
ThisCourt took a view which seemingly runs counter to Guest KeenWilliams Pvt
Ltd1
It was held that the Standing Orders when certified would be binding on the employers as well as all the workmen who were in employment 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 a 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 workman
2 Before the passing of the Act there was nothing in law to prevent an employer having different con tracts of employment with workmen which led to confusion and 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 certification 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 otherwise in conformity with the Act and if they are adjudicated as fair and reasonable by the Certifying Officer or the appellate authority
The Certifying Officer has also to forward a copy of the draft Standing Orders to the Union 1  2  762 or to the workmen in the prescribed manner and has to decide whether or not any modification or addition should be made after hearing the Union or the workmen concerned
Sections 6 7 9 and 10 contain provisions for appeal by aggrieved persons as also for sending of authenticated copies by the Certifying Officer to the parties where no appeal is filed and further the employer has to post the Standing Orders as finally certified in the manner prescribed
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 but also those who were already in employment
If any other result were to follow there would be different conditions of employment for different classes of workmen which would render the conditions of their service as indefinite and diversified as befoe the enactment of the Act
Support was derived from the decision in Salem Erode Electricity Distribution case1 in which departure was made from the view previously taken in the case of Guest Keen Williams Pvt
Ltd2 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 Ltd1
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 a 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 stated 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 the ponditions of employment 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 1  3  2  763 view and to raise objections is of great significance
They can even ask for modification of the Standing Orders in accordance with section 10 of the Act
Every possible safeguard has been provided for keeping the workmen informed about their conditions of service so that they can take whatever steps they desire or are advised to take in their interest before the Certifying Officer or the appellate authority
It is also very difficult to conceive taking each individual item in the schedule how there can be different 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 suggest 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 the very nature of things a great deal of irritation and annoyance between employees inter se would result if any such discrimination 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 peace the latter being the principal object of legislation
It must be remembered that in Guest Keen Williams Pvt
Ltd the Certifying Officer could not go into the reasonableness or fairness of the Standing Orders according to section 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 taking the view it did
But after the amendment of the law in 1956 the Certifying Officer and the appellate authority are duty bound to examine the question of fairness of the Standing Orders and there can be no justification now not to give effect to the principle of uniformity of conditions of service which is clearly conte mplated 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 certifled 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 thereof to be given by employer and workmen 9
Suspension or dismissal for misconduct and acts or omissions which constitute misconduct
 The model Standing Orders framed by the Central Government and by the 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 171959 item 11 C 764 relating to superannuation and retirement was introduced by the State of UP in exercise of the rule making powers conferred by section 15 of the Act
In other States the item relating to age of retirement or superannuation was introduced either by legislation or by the exercise of rule making power
In the State of Bombay section 19 of the Industrial Employment Standing Orders Bombay Amendment Act 1957 provided for insertion of item 10 A in the Schdule which was age for retirement or superannuation
According to counsel for the respondents there was no item until the introduction of item 11 C in November 1959 in the schedule under which any Standing Orders could be framed and got certified relating to the age of retirement and superannuation
It has been maintained that items 8 and 9 cannot possibly include retirement and superannuation and therefore till item 11 C was added in the schedule so far as the State of UP was concerned in November 1959 no Standing Orders could be legally or validly framed and certified providing for age of retirement and superannuation
In Saroj Kumar Ghosh vs Orissa State Electricity Board1 the Orissa High Court considered this question a some length and expressed the view that where a Standing Order has been certified by the Certifying Officer containing a clause relating to superannuation not covered by the schedule of the Act norr by the model Standing Orders such certification cannot be valid under section 4 of the Act
The clause termination of employment  in item 8 of the schedule cannot be equated with the word superannuation
According to the Orissa High Court superannuation is an event which comes more or less in an automatic process
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 termination is a 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 vs Secretary Hindu Office  National Press Employees Union and another2 was dissented from
In that case the expression termination of employment in item 8 was considered to be wide enough to include retirement of an employee at the age of superannuation
The learned Madras Judge sought support from para 16 of the model Standing Orders which is as follows Every permanent workman shall be entitled to a service certificate at the time of his dismissal discharge  or retirement from service
 1 AIR 1970 Orissa 126
2 765 In the model Standing Orders there was no clause providing for superannuation or retirement on attaining a certain age
In our judgment much assistance or help cannot be derived from para 16 of the model Standing Orders as contained in schedule 1 to the Industrial Employment Standing Orders Central Rules 1946
Retirement which is mentioned there may be under the terms of contract of employment entered into between the employer and the employees
Section 2oo of the throws a certain amount of light on the matter
It is reproduced below  Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but does not include a voluntary retirement of the workman or b retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf It shows firstly that termination of service of a workman is distinct from retirement on reaching the age of superannuation secondly retirement can take place on resch  the age of superannuation under the terms of the contract of employment entered into between the employer and the workman
Therefore the word retirement in para 16 cannot be regarded as conclusive of the question whether termination of employment includes retirement and superannuation
In the schedule to the Act item 8 covers termination of employment and the notice to be given either by the employer or the workman and item 9 relates to sus pension or dismissal for misconduct etc
Item 8 by virtue of the language employed does not appear to cover the case of superannution which does not depend on any notice and which covers an event which is automatic and which must be given 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 a wide sense as meaning employment coming to an end there was a necessity to have item 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 every form of termination or cessation of employment
From para 13 of the Model Slanding Orders contained in schedule 1 to the Industrial Emtployment Standing Orders Central Rules 1946 it is apparent that item 8 is confined to termination of employment by notice in writing and does not contain any mention L1061 Sup
CI72 766 of superannuation or retirement
It was perhaps this difficulty which prompted the state or UP to introduce item 11 C in exercise of the rule making powers conferred by section 15 of the Act and the bombay legislature to make similar amendment by legislation
it would follow that unless an employer can include a clause relating to the age of retirement and superannuation and the Certifying Officer can certify it even though no such item appears in the schedule to the Act clause 32 as certified in 1951 in the present case could not be regarded to be valid
The Madras High Court in the case of Management of the Hindu  Madras1 made some observations to the effect that there was no bar to the Standing Orders making a provision for matters other than those specifically mentioned in the schedule so long as the Certifying Officer certifies them on he ground that they are fair and reasonable
The Orissa High Court however in Sarojkumar Ghosh s2 case did not subscribe to this view
Learned counsel for the appellant apart from relying on the Madras decision has not addressed any arguments on the larger and wider question as to whether even in the absence of any item in the schedule Standing Orders can be framed on certain matters which may be regarded as fair and reasonable and which may be so certified by the Certifying Officer
it is however unnecessary to decide this point in the present case because clause 32 of the Standing Orders on which the appellant has relied was certified in July 1951 when according to the express language of section 4 of the Act the Certifying Officer or the appellate authority was debareed from adjudicating upon the fairness or reasonableness of the provisions of any Standing Orders
It is difficult to understand how the Certifying Officer at that point of time and before the amendment of section 4 in 1956 could have possibly certified my Standing Order which did not relate to any item in the schedule on the ground that it was fair or reasonable Indeed the function of the Certifying Officer before the amendment of 1956 was very limited as is clear from section 3 2 of the Act which says  Provision shall be made in such draft for every matter set out in this schedule which may be applicable to the industrial establishment and were model Standing Orders have been prescribed shall be so far is practicable in conformity with such model
We must therefore hold that clause 32 of the Standing Orders as certified in July 1951 was not valid and cannot be binding on the respondents
However after item 11 C was introduced in the schedule so far as the State of UP was concerned an item was added providing for the age of retirement and superannuation
The Certifying Officer when lie modified clause 32 and 1 2 AIR 1970 Orrissa 126
767 fixed theretiring age at 58 on April 22 1961 could have validly certified such clause as modified by him
The necessary consequence will be that the respondents could not have been relied on the ground of superannuation in July 1959 and they could be validly retired only on or after April 22 1961 in accordance with clause 32 as modified by the Certifying Officer
In other words those out of the present respondent who had attained the age of 58 years on April 22 1961 could be regarded as having been validly retired having reached the age of superannuation on that date under that clause
In view of the previous decisions of this Court and in particulaw that of Guest Keen Williams Pvt
Ltd1 it has not been disputed that in the industrial dispute which was referred it was open  to the Industrial Tribunal or the Labour Court to determine the age of retirement or superannuation notwithstanding that clause 32 of the Standing Orders as certified in 1961 had been legally And validly certified indeed in Guest keen Williams Pvt
Ltd1 It was not disputed that even this
Court could give an appropriate direction which might be considered reasonable with regard to the age of superannuartion as stated before according to clause 32 of the Standing Orders as certified in April 1961 the age of superannuation was fixed at 58
The appellant filed an appears that in the cage of Agra Electric Supply Co2 also a appears that in the case of Agra Electric supply Co4 also a similar Standing order had been certified and on appeal the age of retirement was reduced from 58 to 55 years by the appellate authority
This Court in that case held the Standing Order fixing the age at 55 years applicable not only to those employees who were employed subsequently but also to all workmen who were in employment at the time when the Standing Orders became legally applicable
It does not appear in that case that any such argument was raised that the matter should be remitted either to the Industrial Tribunal or the Labour Court to fix the age of superannuation or that this Court itself might do so as was the course followed in the case of Guest keen Williams Pvt
Ltd1 in which the age was fixed at 60 years with regard to those employees who had raised the dispute on the ground that the Sanding Orders could not govern them as they had been employed before the Standing Orders became applicable
After considering the entire material and keeping in mind the fact that according to the appellate authority even the age of retirement at 55 was fair and reasonable we are of the view that the age of superannuation of the respondents in the present case should be 58 years
In other words
it will be the same as was fixed by the Certifying Officer by modifying clause 32 on April 22 1961
1  2  768 Lastly we must deal with the contention raised on behalf of the respondents that the order of the Allahabad High Court made on July 12 1966 quashing the award after following the decision of this Court in Guest Keen Williams Pvt
Ltd1 should be deemed to be final 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 the Allahabad High Court was not final against which the matter could have been taken in appeal either to a division bench of the High Court or to this Court
Reliance has been placed on a decision of this Court in Management of Northern Railway Cooperative Society Ltd vs Industrial Tribunal Rajasthan Jaipur and Another2 where reference had been made by the State Government to the Industrial Tribunal on the Railway Workers  Union having raised an industrial dispute against the Management of the Northern Railway Cooperative Society Ltd The society filed a writ petition on the ground that the dispute having been raised by the Railway Workers  Union and not by the Society s own employees the reference to the Tribunal was not competent
The High Court dismissed the petition
thereafter the Tribunal heard the matter and gave its deci sion in favour of the workman concerned
The society appealed to this Court by special leave
It was held that the order of the High Court was not interlocutory but was a final order in regard to the proceedings under article 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 relating to the competency of the reference was barred by res judicata 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 a remand had been directed presumably under article 227 of the Constitution
That order in fact did not finally terminate any proceedings at all
The proceedings were terminated only by the award against which the present appeal has been brought by special leave
We are unable to see how the decision in the aforesaid case can afford any assistance to the respondents before us
Indeed the case which is more apposite in Satyadhyan Ghosal  Ors
vs Smt
Deorajin Debi  Another  3  
There an order of remand had been made by the High Court while exercising powers under section 115 of the Code of Civil Procedure
It was observed after referring to the various decisions of the Privy Council that the order of remand was interlocutory and did not pumort to dispose of the case
A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision or award
1  3  2  769 The following observations from this case may be reproduced with advantage Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order
We are unable therefore to accede to the contention that the rule of res judicata could be invoked by the respondent in the present case
In the result the appeal is allowed and the order of the Industrial Tribunal is hereby set aside
According to our decision the workmen concerned could not have been retired on the ground of superannuation in accordance with clause 32 of the Standing Orders till it was certified after necessary modification on April 22 1961
Even otherwise it has been held by us that the proper age of retirement in he case of those employees who joined service prior to April 22 1961 should be 58 years
The award therefore will be that the concerned workmen should be deemed to have continued in service of the appellant till they had at attained the age of 58 years
It is declared that they shall be entitled to be paid full wages and all other dues to which they are entitled under the terms of their employment 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 between received by them in excess of the amounts due
No order as to costs
VPS Appeal allowed


Summary:
In accordance with the provisions of the  and the UP Industrial Employment Standing Orders Rules 1946 the appellant substituted draft standing defining the conditions of employment of its employees and they were certified bythe Certifying Officer in 1951
Clause 32 of the Standing Orders provided that an employee who has served 30 years or who has reached the age of 55 years will be retired but exemption from this 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 having attained the age of superannuation as per cl 32
The workmen contended that the clause was not binding or enforceable as far as they were concerned because they had entered the service of the appellant prior to the certification of the Standing Orders and 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
The industrial dispute was referred to the Industrial Tribunal and the Tribunal held in favour of the appellant
The respondents filed a writ petition in the High Court They also applied in 1960 under s  102 of the  for amendment and motification of cl 32 claiming fixation of retirement age at 60
The Certifying Officer modified the clause and fixed the age of retirement at 58 but the appellate authority refixed it at 55
The High Court in the writ petition on the basis of the decision or this Court in Guest Keen Williams Pvt Ltd  her 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 different sets of conditions should apply to employees depending on whether workman was employed before the Standing Orders were certified by after as that would defeat the object of the legislation
The objection and 755 scheme of the Act is that the employers must define precisely the conditions of employment of all the employees and have them certified by the Certifying Officer
The right given to be workmen to express their views to raise objections to appeal to the appellate authority and to ask for modification of the Standing Orders under section 10 of the Act show that every possible safeguard has 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 for that would result in a great deal of heart burning between the employees inter se
762 F H 763 A D Salem Erode Electricity Distribution Co Ltd vs Its Workers   and Agra Electric Supply Co Ltd vs Sri Alladin  Ors   followed
2 The decision in Guest Keen Williams Pvt
Ltd that the Industrial Tribunal had to consider not only the propriety reasonableness and fairness of a Standing Order but that it had also to deal with the question as to whether a 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 section 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 can be no justification now for not giving effect to the principle of uniformity of conditions of service which is clearly contemplated by the provisions of the Act
763 D F 3 But cl 32 of the Standing Orders as certified in 1951 was not valid and could not be binding on the respondents because there was then no item in the Schedule to the Act covering cases of superannuation or retiretirement with respect to which Standing Orders could be made
766 E F G H Item 8 and 9 of the Schedule deal with the termination of employment and notice thereof and suspension or dismissal for misconduct
The language of item 8 shows that it does not cover the case of superannuation which does not depend on any notice and which covers an event which is automatic and which must be given effect to without any volition on the Part of the employer or workmen
If termination is to be read in a wide sense as meaning employment coming to an end  there was no necessity to have item 3 because dismissal would then be covered by termination
From the paragraph 13 of the Model Standing Orders contained in the Schedule to 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 959 that item 11C was introduced in the Schedule enabling the framing of Standing Orders in relation to the age of retirement and superannuation
765 F H 766 A C Saroj Kumar vs Orissa State Electricity Board AIR 1970 Orissa 126 approved
Management of the Windu  vs Secretary Hindu Office  National Press Employees Union  disapproved
4 No assistance can be derived by the use of the word retirement  in para 16 of the Model Standing Orders because it may well refer to 756 retirement under the terms of the contract of employment entered into between the employer and the employees
765 A B E 5 Since before the amendment of section 4 the Certifying Officer and the appellate auhority were debarred from adjudicating upon the fairness or reasonableness of the Standing Orders the Certifying Officer at that time could not certify any Standing Order on the ground that it was reasonable or fair
Therefore in 1951 when the Standing Orders were certified cl 32 could not have been framed because there was no item in the Schedule relating to superannuation and the Certifying Officer could not certify it on the ground it was fair and reasonable because he bad no power to do so
766 D F 6 The Certifying Officer however when be modified cl 32 and fixed the retirement age at 58 after section 4 was amended could have validly certified such clause as modified by him
This Court could also give an appropriate direction 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 continued in service of the appellant till they had attained the age of 58 years
767 A C G H 7 The order of the High Court in the writ petition did not finally termingte the proceedings at 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 a fresh consideration of the question by virtue of the rule or principle of res judicata
768 A B E F Satyadhyan Ghosal vs Smt
Deorajan Devi 1960 3 SCR 590 followed
Management of N Railway Co operative Society vs Industrial Tribunal   explained