ssp 1 LPA 77 of 2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.77 OF 2005 1. Balmer Lawrie & Co. Ltd., Having its registered Office at 21, Netaji Subhash Road, Calcutta 700 001 and has its Bombay Office at 5, J.N.Heredia Marg, Ballard Estate, Bombay – 400 038. 2. Mr.Rajendra Lal Dhawan, Executive Director, Balmer Lawrie & Co. Ltd., having his Office at 5, J.N.Heredia Marg, Ballard Estate, Bombay – 400 038. .....Appellants versus 1. Engineering Workers Association, having its registered office at Siddharth Chambers, Gamdevi Maidain, Thane and Its Bombay Office at Tel Rasayan Bhavan, Tilak Road, Dadar, Bombay 400 014. 2. Mr.J.D.Jamdar, Member, Industrial Court, Respondent No.2, Bombay, having his Office at 7th Floor, Arun Chambers, Tardeo, Bombay – 400 034. ..... Respondents WITH CROSS OBJECTIONS (ST) NO.16071 OF 2005 IN LETTERS PATENAT APPEAL NO.77 OF 2005 ssp 2 LPA 77 of 2005 1. Balmer Lawrie & Co. Ltd., Having its registered Office at 21, Netaji Subhash Road, Calcutta 700 001 and has its Bombay Office at 5, J.N.Heredia Marg, Ballard Estate, Bombay – 400 038. 2. Mr.Rajendra Lal Dhawan, Executive Director, Balmer Lawrie & Co. Ltd., having his Office at 5, J.N.Heredia Marg, Ballard Estate, Bombay – 400 038. .....Appellants versus 1. Engineering Workers Association, having its registered office at Siddharth Chambers, Gamdevi Maidain, Thane and Its Bombay Office at Tel Rasayan Bhavan, Tilak Road, Dadar, Bombay 400 014. 2. Mr.J.D.Jamdar, Member, Industrial Court, Respondent No.2, Bombay, having his Office at 7th Floor, Arun Chambers, Tardeo, Bombay – 400 034. ..... Respondents Mr.J.P.Cama, Senior Advocate with Mr.G.S.Shetty i/by Crawford Bayley & Co., for the appellants in LPA No.77 of 2005. Ms.Nayana Buch with Mr.Shailesh More, for the respondents in LPA No.77 of 2005 and for the appellants in Cross Objection (St) No.16071 of 2005. CORAM: P.B.MAJMUDAR & A.A.SAYED, JJ. DATE: 06th JUNE, 2011 ssp 3 LPA 77 of 2005 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) : - 1. The present Letters Patent Appeal and Cross Objection are directed against the judgment and order delivered by the learned Single Judge in Writ Petition No.5247 of 1990 dated 09-06-2004. By the impugned judgment and order, the learned Single Judge allowed the writ petition filed by the respondents Union, by holding that the age of retirement is to be treated as 60 years, as provided in the Model Standing Orders. Consequently, the learned Single Judge set aside the order passed by the Industrial Court by holding that the appellant company has committed unfair labour practice under Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971. 2. On behalf of the respondent Union, a complaint bearing (ULP) No.914 of 1989 was filed under Items 5 and 9 of Schedule IV of the Act, against the present appellant company. It is the case of the respondent Union that as per the provisions of the Model Standing Orders which are applicable to the workmen of the Container Division of the company, prescribed the age of retirement as 60 years, which can be extended by an agreement or by settlement between the parties. Since the company continued to retire the workmen of Container Division at the age of 58 years in view of the Settlement dated 03-06-1964, a complaint was ssp 4 LPA 77 of 2005 filed by the respondent-Union on the ground that the said action of the company amounts to unfair labour practice as envisaged under Items 5 and 9 of Schedule IV of the said Act. The concerned workmen on whose behalf the Union has filed a complaint, were working in the Container Division of the appellant Company at the relevant time. On behalf of the recognized Trade Union, an industrial dispute was raised in connection with the employees serving in Grease Division in respect of extending the age of superannuation upto 60 years. The retirement age, which according to the Union, should be 60 years. The Industrial Tribunal, Bombay, decided the said Reference (IT) No.304 of 1977, by holding that the age of retirement shall be 60 years. It is the grievance of the petitioner Union that the said benefit is given to the workmen of the Grease Division and it is not given to the workmen who were discharging duties in Container Division. It is the case of the respondent Union that even though a demand was made before the Management to increase the retirement age from 58 to 60 years so far as the workmen engaged in the employment of Container Division is concerned, yet the said demand was not considered by the Management. The Management did not agree to increase the retirement age from 58 to 60 years, which ultimately resulted into filing of the aforesaid complaint. 3. The said complaint was resisted on behalf of the appellant ssp 5 LPA 77 of 2005 on various grounds. It is the say of the appellant that the company is having various divisions out of which Grease and Container Divisions are located in the same premises. The said complaint was adjudicated by the Industrial Court, Bombay and by its order dated 05-10-1990, dismissed the said complaint. Against the said order, respondent-Union filed a writ petition before the learned Single Judge of this Court. The learned Single Judge allowed the writ petition by holding that as per the Model Standing Orders, the age of retirement is 60 years and same shall prevail over the agreement which fixes a lower age of retirement. The learned Single Judge held that the age of retirement should be fixed at 60 years as per the Model Standing Orders and accordingly allowed the writ petition. The aforesaid order is challenged by the appellant company by way of this Letters Patent Appeal. 4. On behalf of the respondents, Cross-objections are also filed, challenging the findings of the learned Single Judge to the effect that the service conditions of the workmen employed in two divisions were separate and remained different. The cross objections have been filed by the respondent Union on the ground that the learned Single Judge erred in holding that the Grease and Container Division are different and not integrated and amalgamated division. 5. On behalf of the appellant Company, Mr.Cama, the learned ssp 6 LPA 77 of 2005 Senior Advocate, vehemently submitted that the point in issue is covered by the judgment of the Division Bench of this Court in Tulsiram K. Gathad V/s. The Superintendent, Mahatma Gandhi Memorial Hospital and Anr., 1 wherein the Division Bench has held that the agreement between the parties shall govern the field and that the view expressed by the learned Single Judge in the present matter, is overruled by the Division Bench in the aforesaid case. The learned counsel for the appellant further submitted that a complaint was filed on the ground of discrimination. It is submitted that the employees working in Container Division have already raised various demands, out of which certain demands were accepted by the Management and this very demand of increase in the age in connection with the employees serving in Container Division was already withdrawn by the Union. It is submitted by Mr.Cama that even after the Award in favour of employees serving in Grease Division, the age of retirement for the employees serving in containers division was treated as 58 years and the employees serving in the containers division were asked to retire on completing the age of 58 years and no grievance was made by the present employees in this behalf for a considerable period and therefore, the Award given in favour of Grease Division, is not applicable so far as employees serving in Container Division are concerned. It is 1. 2007 III CLR 718, ssp 7 LPA 77 of 2005 submitted that in any case, the point in issue is already decided by the Division Bench of this Court in the aforesaid case. It is submitted that the learned Single Judge has gravely erred in holding that the agreement can be arrived at between the Management and the employees only for increasing the age of 60 years and not for reducing the age from 60 years. 6. Learned counsel for the respondent-Union submitted that benefit given to the workmen serving in Grease Division should be made available to the employees working in the Container Division also, especially when the Award given in favour of the workmen serving in Grease Division, is an Award in favour of all the employees. It is submitted that there is no reason to discriminate the employees by the management between workmen serving in the same management so far as the superannuation age is concerned. It is submitted that when the age of superannuation is prescribed as 60 years as per Model Standing Orders, even by agreement such age cannot be reduced and such agreement will be contrary to the Model Standing Orders. The learned counsel for the respondents further submitted that even if there is an agreement contrary to the Model Standing Orders, the latter shall prevail and such agreement by which the age is reduced from 60 to 58 years is contrary to the Model Standing Orders and such agreement is required to be ignored. 7. During the course of hearing, it is pointed out to the Court ssp 8 LPA 77 of 2005 that even in respect of the Container Division, a settlement has taken place between the Management and Workmen, by which in the year 1994, now the age of 60 years has been prescribed for superannuation of employees serving in the said Division. The dispute now relates to few employees who were asked to retire on completion of 58 years of age at the relevant time. The Division Bench of this Court, while admitting the appeal, passed following order at interim stage. 1. Heard Mr.Cama and Mr.Talsania in support of this civil application. Ms.Buch appears for respondent No.1 Union. 2. It appears that only four or five employees are concerned with the benefit under the order of the Single Judge. Mr.Cama has stated that the Applicant Company is willing to deposit the amount meant for these employees in the Court. It is also informed to the Court that from 1994 onwards the age of retirement is now revised to 60 years for the concerned Division. This being the position, we do not think that there is any occasion to grant stay. The civil application is therefore, disposed of by permitting the applicants to deposit the amount in Court which the employees concerned may withdraw by giving security to the satisfaction of the Registrar. In the event any other prior employee make any application to the management for claiming on the same footing, it will be open to the applicant-Management to file appropriate civil application in which case a prayer for stay of the order will be considered. Respondent No.1 Union may furnish the list of workmen who are covered under the order of learned Single Judge. 3. Civil application is disposed of. 8. We have heard learned counsel for the parties at length ssp 9 LPA 77 of 2005 and have gone through the order passed by the Industrial Court as well as of the learned Single Judge. At this stage, a reference is required to be made to the Model Standing Orders 27 and 32, which are reproduced as under : - 27. The age for retirement or superannuation of the workmen may be sixty years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award which may be binding on the employer and the workmen under any law for the time being in force. 32. Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force or to the prejudice of any right under a contract of service, custom or usage or an agreement, settlement or award applicable to the establishment. 9. It is submitted by Mr.Cama that in view of Model Standing Order 27, the age of retirement of the workmen is 60 years or such other age as may be agreed between the employer and workmen by an agreement or settlement arrived at between them. It is submitted that when there is an agreement between the workmen and employer, such agreement shall prevail and in the instant case, by an agreement between the parties, the superannuation age is already fixed at 58 years, shall prevail as per the Model Standing Order 27. It is further submitted that Model Standing Order 27 itself provides for an agreement and Model ssp 10 LPA 77 of 2005 Standing Order 32 will have no application. It is further submitted that in any case, as a Co-ordinate Bench, this Court is bound by the view taken by the earlier Division Bench dealing with identical situation. 10. As against this, Ms.Buch submitted that as per Model Standing Order 32, nothing contained in the Standing Order can prejudice the claim in favour of the workmen under any law or under the contract or custom. 11. The Division Bench of this Court while dealing with the aforesaid Standing Orders, in the case of Tulsiram K. Gathod (Supra) has observed in concluding part of para No.3 and in para No.4 as under : - “In our opinion, therefore, it is clear that the learned Single Judge in her judgment in the case of “Engineering Workers’ Association V. J.D.Jamdar, Member, Industrial Court and Ors.” was not right in placing construction on Model Standing Orders No.27 which results in addition of words to that provision. In our opinion, therefore, that judgment does not lay down law which can be called good law. We hereby therefore, overruled that judgment. 4. So far as the Model Standing Order No.32 is concerned, it is not necessary for us to consider that provision because in view of the provisions of Model Standing Order No.27, the position is clear that the age of retirement mentioned in that provision will apply only if there is no other age of retirement mentioned in the agreement between the parties. Perusal of the judgment of the learned Single Judge in the case “Engineer Workers’ Association V. J.D.Jamdar, Member, Industrial Court and Ors., shows that the learned Single Judge has in support of the view that she has taken, relied on the judgment of the learned Single Judge in the case of “The Indian Tobacco ssp 11 LPA 77 of 2005 Company Ltd. V/s. The Industrial Court and Ors. Perusal of that judgment shows that the learned Single Judge in that case was considering the provisions of Model Standing Order No.4-A and not Model Standing Order No.27. In our opinion, this case turns on the language employed in the Model Standing Order No.27 and therefore, the judgment of the learned Single Judge in the case “The Indian Tobacco Company Ltd. Vs., the Industrial Court and Ors., as also the judgment of the Supreme Court in the case between “Western India Match Company Ltd. V. Workmen, 1973 II LLJ 59, are not relevant. We may mention here that in so far as the Model Standing Order No.32 is concerned, our attention was invited by the learned Counsel appearing for respondent No.1 to the judgment of the Division Bench in the case of “Pune Municipal Corporation & Ors. V. Dhananjay Prabhakar Gokhale, 2006 II CLR 105” referred to above, where construction different from the one placed by the learned Single Judge in the case ““The Indian Tobacco Company Ltd. Vs., the Industrial Court and Ors., on Model Standing Order No.32 has been accepted by the Division Bench. However, as observed above, in view of the clear language employed by the Model Standing Order No. 27, it is not necessary for us to consider Model Standing Order No.32. 12. Learned counsel for the respondent further submitted that the present respondents were not parties before the aforesaid Division Bench and this Court may take contrary view or may refer the matter to Larger Bench for reconsidering the said view. We cannot accept the said submission canvassed by the learned counsel for the respondent Union, as being a co-ordinate Bench this Court is bound by the view taken by the earlier Division Bench. Apart from the aforesaid aspect, it is required to be noted that the present respondent Union itself has raised various ssp 12 LPA 77 of 2005 demands in the past, which included a specific demand regarding raising the retirement age in connection with the workmen serving in the Container Division and the said demand was withdrawn while settling the dispute at the time when the Management accepted other demands. As per the Model Standing Order 27, the age of retirement is fixed at 60 years or any other age which may be agreed between employer and the workmen. It is not possible to accept the submission of the learned counsel for the respondents that the agreement can only be arrived at only for the purpose of extending the age beyond 60 years and not for reducing the age from 60 to 58 years or that such agreement will have no effect in the eyes of law. Reading of the Model Standing Order 27, it is clear that the age of retirement would be 60 years, but the same shall be subject to specific agreement between employer and workmen in a given case. It is not the case of respondent Union that in the appointment order, no specific age was mentioned i.e. 58 years and when it is not in dispute that by virtue of settlement under the Industrial Dispute Act, the age of retirement serving in the Container Division was fixed at 58 years, in our view, such agreement cannot be said to be contrary to the Model Standing Order 32, in view of the clear provision in the Model Standing Order 27. When Model Standing Order 27 itself provides for an agreement by which particular age can be fixed, it is not possible to give restrictive meaning to ssp 13 LPA 77 of 2005 Standing Order 27 as contended by the learned counsel for the respondent. In our view, considering the provisions prescribed in the said Model Standing Order, it is clear that in absence of agreement or settlement between Management and workmen, the retirement age shall be 60 years. However, the same shall be subject to any agreement or Award or custom which shall prevail in the field. We agree with the submission of Ms.Buch that in case of conflict between Model Standing Orders and any other agreement, the former shall prevail over any agreement between the parties. However, in the instant case, Model Standing Order 27, itself provides for an agreement between the employer and workmen. In a given case, if by an agreement some better rights are given to the workmen, then such better service conditions or rights provided by the agreement or by any law or contract or custom, the same shall prevail over the Standing Order. But, by reading Model Standing Order 32, it cannot be said that even though Standing Order No.27 itself provides for an agreement, such agreement can be arrived at only for the purpose of increase in the age and not for reducing the age from 60 years. As stated earlier, in the absence of agreement between the parties, as per Model Standing Order 27, the age of retirement is to be considered as 60 years. In any case, since this Court is bound by the Judgment of the earlier Division Bench in the case of Tulsiram K. Gathod (Supra), the ssp 14 LPA 77 of 2005 submission of the learned counsel for the respondent cannot be accepted, as this Court being a Co-ordinate Bench cannot take different view interpretating the same Model Standing Order 27. 13. The learned counsel for the respondent-Union has placed reliance upon a decision of the Supreme Court in the case of Western India Match Co. Ltd. Vs. Workmen, 1 wherein it was held that the employer cannot enter into an agreement with workmen which is inconsistent with the Standing orders of the Company. The terms of the Standing Orders would prevail over the terms in the contract of service. In the instant case, it is not in dispute that the settlement was already prevailing between the parties prescribing the particular age of superannuation. In our view, such settlement can be said to be in consonance with the provisions of Model Standing Order 27. 14. The learned counsel for the respondents has also made a reference to the case of U.P.Electricity Board and Ors., V/s. Hari Shankar Jain and Ors. 2 . The Supreme Court in the aforesaid case, has held that the Industrial Establishments (Standing Orders) Act is a special law in regard to matters enumerated in the Schedule and the Regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under 1. AIR 1973 SC 2650, 2. 1978 II LLJ 399 ssp 15 LPA 77 of 2005 Section 13B or certified by the certifying officer under Section 5 of the Standing Orders Act. It has been observed in para No.18 of the said judgment, as under : - 18. We therefore, hold that the Industrial Establishments (Standing Orders) Act, is a special law in regard to the matters enumerated in the Schedule and the regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under S.13B or certified by the certifying Officer under Section 5 of the Industrial Establishments (Standing Orders) Act. In regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Establishments (Standing Orders) Act shall continue to apply regard to age of superannuation having been duly notified by the Government, the regulation shall have effect notwithstanding the fact that it is a matter which could be the subject matter of standing orders under the Industrial Establishments Standing Orders Act. The respondents were therefore, properly retired when they attained the age of 58 years. The appeal is therefore, allowed. 15. As pointed out earlier, in the present proceedings, the Court is required to find out whether the agreement is in consonance with the Model Standing Order 27. The learned counsel for the respondent placed reliance on the judgment of the Supreme Court in the case of Bajaj Auto Ltd. Vs. Bhojane Gopinath D. and Ors., 1 wherein it was held that “under Section 3, as amended by the State Legislature, it is not imperative either 1 (2004) 9 SCC 488, ssp 16 LPA 77 of 2005 on the employer or the workmen to apply for amendments in the Model Standing Orders, but it is optional and that Model Standing Orders ipso facto apply to the industrial establishment from the date enumerated in the notification issued by the State Government. In para No.10 of the judgment, the Supreme Court has observed thus : - 10. It would be relevant to state that Item 10-C has been incorporated in the Schedule of the 1946 Act by the State Legislature in the year 1974 with effect from 2-10-1977 which enumerates matters to be provided in the Model Standing Orders in relation to “employment or re- employment of probationers or badlis or temporary or casual workmen, and their conditions of service”. By virtue of the Bombay Industrial Employment (Standing Orders) (Amendment) Rules, 1977, which were published in the Bombay Gazette on 28-9-1977 and came into force with immediate effect. Rule 4-C was incorporated in the Model Standing Orders which lays down that a temporary workman who has put in 240 days uninterrupted service in the aggregate in any establishment during a period