1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 406 OF 2005 IN WRIT PETITION NO. 2797 OF 2001 Shri Vithal Bakula Kokate Municipal Colony Building No.16, Room No. 9, Rawali Camp, Sion-Koliwada, Mumbai – 400 022 ..Appellant (Org.Petitioner) Vs. 1. M/s. Podar Mills Unit of National Textile Corporation Ltd. N.M. Joshi Marg, Mumbai 400 011. 2. Shri A.A. Lad Hon’ble Iind Labour Court, Government Administrative Bldg., Bandra, Mumbai. 3. Shri R.U. Ingule Hon’ble Member, Industrial Court, Govt. Administrative Bldg., Bandra, Mumbai. ..Respondents Mr. S.N. Deshpande a/w Mrs. S.P. Munshi for appellant. Mrs. Meena Doshi for respondent no.1. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. February 24, 2010. 2 ORAL JUDGMENT: (Per B.H. Marlapalle,J.) 1. This intra court appeal arises from the Judgment and Order dated 9/2/2005 rendered by the learned Single Judge, thereby dismissing Writ Petition No. 2797 of 2001. The findings recorded by the Labour Court and the Industrial Court holding that the petitioner is not an employee within the meaning of Section 3(13) of the Bombay Industrial Relations Act, 1946 (the BIR Act for short) have been confirmed by the learned Single Judge. 2. The petitioner came to be appointed as a Learner by the erstwhile Podar Mills sometimes in the year 1966. He was promoted to the post of Investigator in the year 1970 and was fitted on the basic salary of Rs.205/- per month. He was subsequently promoted to the post of Departmental Assistant, Junior Assistant, Senior Assistant and lastly to the post of Super Senior Assistant Master with effect from 15/7/1997 and was fitted in the pay-scale of Rs.1305-50-1605 EB-50-1905. On 16/2/1998 M/s. Podar Mills which by then had become a unit of National Textile Corporation Ltd. (a Government of India undertaking) informed the 3 appellant that he would be attaining the age of 60 years on 14/3/1998 and, therefore, he would stand retired on 15/3/1998 under Model Standing Orders No. 26-A as applicable to him. The appellant, therefore, approached this court in Writ Petition No. 483 of 1998. The employer opposed the petition by filing a reply and considering the same, the learned counsel for the petitioner sought leave to withdraw the petition so as to approach the Industrial Court by raising a dispute under the BIR Act. This court by its order dated 17/3/1998 granted leave to withdraw the petition with liberty and all contentions of the parties were left open. The employer had stated before this court that the appellant was not governed by the BIR Act. Obviously, this claim was also left to be decided by the appropriate forum. After the petition was disposed as withdrawn, the appellant issued an approach notice under Section 42 of the BIR Act to the employer and prayed for reinstatement with full back-wages. As there was no response from the employer, the appellant filed Application (BIR) No. 84 of 1998 under Section 42 read with Sections 78 and 79 of the BIR Act. In the said application, he prayed for the letter dated 16/2/1998 be quashed and set aside, directions to reinstate him in service with full back-wages and other consequential benefits till the date of retirement, directions to continue the appellant in service till he remained physically and mentally fit, directions 4 to continue him in service till 63 years of his age if he continues to be efficient. The employer filed Written Statement and raised preliminary issues that the appellant was not an employee within the meaning of Section 3(13) of the BIR Act and, therefore, the application was not maintainable. The application was also opposed by the employer on merits pointing out that the applicant was not an operative as defined under the BIR Act and, therefore, could not claim the benefit of Standing Order No. 20A of the Certified Standing Orders applicable to the operatives. It was also alleged by the employer that even otherwise the applicant was not fit to be retained in service beyond the age of 60 years on account of his ill- health. 3. The learned Judge of the Labour Court by his judgment and order dated 1/2/2000 held that the applicant was not an employee and the employer was not estopped from raising the issue of his status. The Labour Court also proceeded to decide the application on merits and recorded that the applicant was not fit to be retained in service beyond the age of 60 years. The appellant, therefore, approached the Industrial Court in Appeal (IC) No. 14 of 2000, which came to be dismissed on 10/9/2001. These orders passed by the Labour Court and the Industrial Court were 5 challenged in Writ Petition No. 2797 of 2001, which came to be dismissed as noted herebinabove. 4. Before the Labour Court the appellant had prayed for the following reliefs:- (A) It be held and declared that the Retirement Order dated 16/2/1998 issued to applicant by the Opponent under Standing Order 26-A wall illegal and improper. (B) The Retirement memo issued to Applicant dated 16/2/1998 be quashed and set aside. (C) Opponents be directed to re-instate the Applicant with full back-wages and other benefits and continuity of service with effect from the date of retirement/termination i.e. 15/3/1998. (D) Opponent be directed to continue the Applicant in service till he remains physically and mentally fit. 6 (E) Opponents be directed to continue the Applicant in service till 63 years of his age if continues to be efficient. However, in Writ Petition No. 2797 of 2001, the substantial relief prayed for read as under:- “The Hon’ble Court be pleased to exercise the powers under Article 226 of the Constitution of India to issue the Writ of Certitorari or any other appropriate Writ, order or directions by calling for record of cases namely Application (BIR) No. 84 of 1998 and Appeal (ID) No. 14 of 2000 and after looking into propriety and legality of the impugned orders to quash and set aside the impugned orders dated 1/2/2000 and 10/9/2001 respectively and grant the reliefs as prayed in Application (BIR) No. 84 of 1998 and Respondent No.1 be directed to pay 3 years back-wages to the petitioner with interest.” (Emphasis supplied) The underlined portion of the prayer made in the Writ Petition 7 goes to show that the appellant sought directions to continue in service till the age of 63 years under Standing Order No. 20-A as applicable to the operatives and settled under the BIR Act. However, during his oral arguments advanced before us, Mr. Deshpande, the learned counsel for the appellant submitted that as the appellant was held to be not an employee under the BIR Act, the Standing Orders were not applicable to him (whether Settled or Model Standing Orders) and, therefore, he could not have been retired till he was medically and mentally fit and there could not be any age of retirement for the appellant. Mr. Deshpande, therefore, submitted that the impugned letter dated 16/2/1998 was required to be quashed and set aside and the appellant was required to be paid back-wages for the entire period. In support of these contentions, he has relied upon the following decisions of this court: (i) Mst. Dewli Bakaram and ors. vs. State Industrial Court and others [1959 I L.L.J. 475]. (ii) Universal Transport Co., Mumbai vs. Siraj Kadarbhai China and anr. [2005 III CLR 912]. He also relied upon a Division Bench judgment of the 8 Allahabad High Court in the case of Abdul Rehman vs. National Textile Corporation Ltd. [1989 (58) F.L.R. 462] and more particularly the following observations made therein:- “In the absence of any provision in the contract or conditions of service, we are clearly of the opinion that so long as artisans, or skilled and highly skilled workmen or labourers who, during their tenure, have acquired the expertise in various trades, are physically and mentally fit and capable of working on the machines or in their trades, they have to continue in services.” 5. In the case of Universal Transport Company (Supra), the learned Single Judge of this Court held that if the workman was not covered under the Standing Orders, where the establishment had less than 50 workmen, there cannot be any obstacle to the workman continuing in service till he is either physically or mentally fit. Based on these observations, it was submitted by Mr. Deshpande that if the appellant is not an employee as defined under the BIR Act, he would not be covered either under the settled Standing Orders applicable to the operatives or the Model 9 Standing Orders applicable to the Technical and Supervisory staff which prescribe the age of retirement and, therefore, the appellant ought to be allowed to continue in service till he is physically and mentally fit. By referring to the impugned judgment rendered by the learned Single Judge, Mr. Deshpande submitted that the findings recorded therein, by referring to the earlier two decisions in the case of S.A. Sarang vs. W.G. Forge and Allied Industries Ltd. [1995 I CLR 837] and Cricket Club of India vs. Baljit Shyam [1998 I CLR 570], are erroneous. 6. It is clear from the record that in support of his application the applicant examined himself and the employer had examined Mr. Shashikant Vasant Tirodkar who was holding post of Administrative Officer with the Podar Mills from 1990. In the Written Statement submitted by the Company, it was pointed out that the appellant was In- charge of a section in his capacity as Super Senior Assistant when the impugned letter dated 16/2/1998 was served on him and there were about 346 employees under him in the said section. His basic salary was in excess of Rs.1000/- per month and he was discharging mainly the duties of a Manager/Supervisor. Mr. Tirodkar in his examination-in-chief stated before the Labour Court that the appellant was a Senior Assistant in the 10 Spinning Department and on his promotion he became In-charge of the said department with about 450 workers under him. It was further pointed out that under the appellant, there was a Senior Assistant, Junior Assistant and their under other supervisory staff in the post of Department Assistant, Foreman and Assistant Foreman working under him, in addition to about 5-7 Clerks and other operative class employees. It was also stated in his oral depositions that the appellant was the punishing authority in respect of the employees working under him. The appellant who was present before the Labour Court, declined to cross-examine this witness as is clear from the record. In his oral depositions, the appellant did not bring out any material to defeat the contentions of the management that he was not an employee as defined under the BIR Act. On the contrary, he admitted that he joined as a worker on 21/11/1965 and retired on 15/3/1998 as a Super Senior Assistant. He also admitted that he was promoted to the post of Departmental Assistant from the post of Apprentise and thereafter was promoted as Junior Assistant, Senior Assistant and thereafter as Super Senior Assistant. However, he went on to state that while he was working in the post of Super Senior Assistant, the said post was called as operative and, therefore, he was entitled to be continued till the age of 63 years, as was given to other employees. The evidence so placed before the Labour 11 Court clearly supported the case of the Management and more particularly the cross-examination of the appellant himself that he was working in Supervisory/Managerial category. Consequently, the findings recorded by the Labour Court and confirmed by the Industrial Court in this regard have been rightly upheld by the learned Single Judge. We do not find any error in these concurrent findings regarding the status of the appellant, as not being an employee within the meaning of Section 3(13) of the BIR Act and, therefore, the findings recorded by the Labour Court on Issue No.1 deserve to be confirmed. 7. So far as the findings on Issue No.2 recorded by the Labour Court are concerned, the order passed by the Division Bench of this Court on 17/3/1998 and as referred to hereinabove clearly left all the contentions open while recording the contentions of the employer that the appellant was not governed by the BIR Act. The Labour Court, therefore, rightly held that there was no estoppel which would operate against the Management so as to challenge his status as an employee as defined under the BIR Act. Hence, the findings on Issue No.2 as recorded by the Labour Court and confirmed by the Industrial Court as well as the learned Single Judge are required to be upheld. Having recorded the findings on Issue Nos.1 and 2 12 against the appellant, it was not required for the Labour Court to consider the appellant’s claim on merits and proceed to decide whether he was otherwise physically fit for being continued till the age of 63 years. 8. Mr. Deshpande submitted that if the appellant is not covered under any of the Standing Orders, as he was not an employee as defined under Section 3(13) of the BIR Act, the impugned letter dated 16/2/1998 invoking the powers under Standing Order No.26-A of the Model Standing Orders applicable to the Technical and Supervisory staff could not have been issued and the same was required to be quashed and set aside by the learned Single Judge under Article 226 of the Constitution and the appellant ought to have been reinstated with full back-wages and consequential benefits. It was further submitted by Mr. Deshpande that the appellant ought to be continued in service till he is physically and mentally fit, even as of now. These arguments of Mr.Deshpande imply that the employees working under the respondent-Mills in the categories other than the covered by the Standing Orders are required to be continued till they are physically and mentally fit and there could not be any age of superannuation. Even the judgments relied upon by Mr. Deshpande do not imply these conclusions. In all the judgments relied upon by 13 Mr.Deshpande and as noted hereinabove, the cases of workman as defined under the Industrial Disputes Act, 1947 or the employee as defined under the BIR Act were under consideration. Section 35 of the BIR Act provides for settlement of Standing Orders in respect of industrial matters mentioned in Schedule – I thereto and in Schedule – I there are 14 matters listed and at Sr.No.13 the age of retirement or superannuation finds its place. Thus there is a statutory mandate that the age of retirement or superannuation is required to be prescribed under the Standing Orders and in any establishment if the Standing Orders are not applicable, the age of retirement or superannuation may be prescribed by way of settlements or the employment contracts. This, however, does not mean that an officer or a supervisor or a manager working in a Textile Mills does not have an age of retirement or superannuation and he is required to be continued till he is physically and mentally fit. The submissions of Mr.Deshpande are, therefore, far-fetched and without any legal support. 9. Once the appellant was held to be out of the purview of the BIR Act, his remedy to challenge the notice dated 16/2/1998 was either before the Civil Court in a suit for declaration or by approaching this Court in a fresh Writ Petition. The Labour Court or the Industrial Court could not 14 have considered the challenge to the said notice once it was held that the appellant could not be governed by BIR Act. The appellant has not chosen to challenge the said notice either before a Civil Court by filing a suit or before this court by filing a Writ Petition and such a relief to quash and set aside that notice on the grounds advanced by Mr. Deshpande cannot be considered in an intra court appeal. 10. In the premises, this appeal must fail and the same is hereby dismissed. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE, J.)