KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 132 OF 2011 IN WRIT PETITION NO. 5187 OF 1996 Dudnath Bihari Yadav ... Appellant vs. M/s. New City Textile Mills ..Respondent Mr. S.N. Deshpande for the appellant. None for the respondents. CORAM: P.B. MAJMUDAR & A.A. SAYED , JJ. DATE: JUNE 09, 2011. P.C. This appeal is directed against the order of the learned single Judge dated 29th October, 2010 in Writ Petition No. 5187 of 1996. By the aforesaid order, the learned single Judge dismissed the writ petition filed by the present appellant and confirmed the order of the Industrial Court, Mumbai, in Complaint (ULP) No. 1241 of 1994. (IDA) No. 463 of 2003. 2. The appellant herein had joined the services of the respondent initially as a Sweeper and thereafter he was promoted as Foreman. Since the retirement age prescribed for Supervisory staff/technician is 60 years as per the Model Standing Orders 26(A) and since the post of Foreman falls within the KPP -2- technical category, the appellant was asked to retire by way of superannuation on attaining the age of 60 years. 3. Dissatisfied by the said retirement order, the appellant raised an industrial dispute on the ground that since the appellant is performing manual work, the age of retirement should be treated as 63 years and not 60 years. The Industrial Court and the learned single Judge negatived the said contention of the appellant. The learned counsel for the appellant submitted that the Model Standing Orders are not applicable so far as appellant is concerned. It is required to be noted that the Industrial Court after appreciating the evidence on record held that the Appellant was not employed as an operative but was performing his duties as a Foreman and, therefore, the Model Standing Orders were applicable to the appellant as the same is applicable to technical and supervisory staff. The Industrial Court also found that the appellant being a Foreman, he can be said to be in the technical category. The appellant also took benefits under various settlements treating to be under the technical category. This finding of fact is recorded by the Industrial Court which is confirmed by the learned single Judge. The learned Judge also found that an identical issue is also considered by the Division Bench of this Court and contention raised by the present appellant which is similar to the one raised before the Division Bench has not found favour with the Division Bench. The learned single Judge has observed in paragraph 9 as under: KPP -3- “9. The Division Bench in the case of Vinayak Eknath Dadape vs. The National Textile Corporation (SM) Ltd. and others, in Appeal (L) No. 136 of 2000,has considered the same issue as is raised in the present petition. The Division Bench has held, after considering the evidence on record and the provisions of the Certificated Standing Orders as well as the Model Standing Orders, that the submissions made by Mr. Deshpande in that case which are similar to the submissions made by him in the present petition were fallacious and far-fetched. The Division Bench has held as follows: “7. We have gone through the Certified as well as Model Standing Orders and the contentions of the appellant that he ought to be treated as an operative are fallacious and farfetched. The evidence brought on record by the employer showed that he held the post of Senior Technical Assistant right from the day of his appointment, he enjoyed the service conditions as applicable to the said post, namely, pay-scale, D.A., HRA, City Compensation Allowance, Conveyance Allowance, Acting Allowance and medical allowance etc. The operative category of the employees are paid D.A. At a rate different than it is available to the technical and supervisory staff. Similarly, the payment of additional D.A. is also on different scales. The operative category does not have the pay-scales as are available to the Senior Technical Assistant. The operatives are also not entitled for the benefit of City Compensatory Allowance. The term “overseer” cannot having regard to the evidence placed before the Industrial Court, encompass within its fold, the post of Senior Technical Assistant. It is clear that he was offered the post of Senior Technical Assistant having regard to his technical qualifications and the experience and till he was issued the letter dated 15th December, 1993 informing him that he would retire on attaining the age of 60 years, the appellant, at no point of time had contended that he was not a member of the Technical and Supervisory staff but indeed he was an operative. When the complainant approached the Industrial Court, the onus was mainly on him to prove that he was an operative and he was not a member of KPP -4- the Technical and Supervisory staff. On the contrary, the employer, by adducing the evidence, documentary and oral, proved that the operative category was different than the Technical and Supervisor category, the benefits, monetary as well as other perks were different for both these categories, the nature of duty was different and, in fact, the operatives were working under the Technical and Supervisory staff.” 4. Considering the reasoning of the learned single Judge, in our view this is not a fit case to interfere with the order of the learned single Judge. We accordingly do not find any substance in this appeal. The appeal is accordingly dismissed. P. B. MAJMUDAR, J. A.A. SAYED, J.