WP(C) 1739/2008 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGEMENT AND ORDER (ORAL) Challenge in this writ petition is made to the order dated 15.03.2008 wh ereby and whereunder the Labour Commissioner and Certifying Officer under the In dustrial Employment Standing Orders Act, 1946 (for short ’the Act’) raised the superannuation age of the workers of the company to 58 years with effect from 0 1.01.2008 holding that the company has not opposed to the amendment proposal wh erein the Trade Union workers have moved a proposal to the Certifying Officer of Standing Order of Assam for amending the age of superannuation from 55 ye ars to 58 years. 2. In order to determine the controversy raised in the instant writ petitio n a brief facts of the case is summarized hereinbelow- The petitioner herein is the Management of M/s Steelsworth Pvt. Ltd. Tinsukia Ma kum Road, Tinsukia a Private Ltd. Company registered under the Companies Act, 19 56 having its registered office at Kolkata. The company deals with manufacturing and fabrication of steel items of various descriptions including machineries ha ving the strength of workers at Makum Road, Tinsukia at 54 in total. Out of the workers of 54, a minority trade Union of the Company represented by one Shri B S ingh, General Secretary of the Steelsworth Workers Union vide its letter dated 0 2.04.2004 prayed for modification of the retirement age of the workers from 55 y ears to 58 years in order to get the full benefit of Provident Fund, Pensionary benefit and ESI benefits. 3. The Labour Commissioner-cum-Certifying Officer, Assam Gopinath Nagar who has been arrayed as party respondent No. 2 in the instant writ petition has en tertained the letter dated 02.04.2004 submitted by the aforesaid Trade Union of the Company and issued a communication on 05.08.2004 to the writ petitioner comp any alongwith the letter dated 02.04.2004 stating that the union has submitted a proposal for amending the age of superannuation of the workers fixing the hear ing of the application on 10.08.2004. However, the hearing was adjourned to a l atter date on 27.08.2004. Thereafter the union on 16.09.2004 submitted a photoco py of the order passed on 04.09.2004 wherefrom the company came to know that the respondent No. 2 has passed an order raising the age of superannuation of the workmen from 55 years to 58 years. 4. The order dated 04.09.2004 passed by the respondent No. 2 was under chal lenge before this Court being WP(C) No. 7329 of 2004 and this Court on 08.06.200 6 had set aside the order dated 04.09.2004 with an observation that the responde nt union may proceed with the matter in accordance with the provision of the Act . 5. Thereafter, the company received a notice dated 23.10.2007 from the offi ce of the respondent No. 2 asking the company to be present before the authority with all relevant records wherein it was mentioned that an application has be en filed by the Steelsworth Workers Union for amendment/modification of the sup erannuation clause of the Certified Standing Order of the company. Accordingly, the company filed objection on 29.11.2007 contending inter alia that the procee ding so contemplated to be drawn by the respondent No. 2 is dehors the provision s laid down under Section 10 of the Act. On receipt of the objection the respond ent No. 2 passed an order on 30.11.2007 to the effect that pursuant to the High Court order, the union has to file a fresh application with copy to management. 6. The respondent No. 2 reviewed its own order dated 30.11.2007 and issued a notice to the company on 28.12.2007 fixing the next date of hearing on 18.01.2 008 relating to modification of superannuation age. The representative of the co mpany appeared before the respondent No.2 on 18.01.2008 and on that date for the first time the company received the proposal filed by the Union for modificatio n of retirement age of the standing order. However, the majority of the workers union filed an application on 29.11.2007 before the company praying to raise the retirement age of the workers of the company and the company issued a communica tion on 04.12.2007 conveying that the decision in the matter will be taken in th e month of February 2008 and accordingly, series of bilateral talks took place between the majority of the workers of the company whereby a decision to raise t he retirement age from 55 years to 57 years was adopted wherein 33 workers signe d the memorandum of settlement except the 21 workers led by Shri B Singh. 7. After the settlement arrived at between the management of the company an d majority of the workers union dated 15.02.2008, the company submitted the enti re facts and developments took place on 15.02.2008 before the Certifying Officer and submitted that the proceeding initiated may be closed as the dispute betwee n the workers and the management has been amicably settled out of court and noth ing remains to be adjudicated upon between the parties. However, the respondent No.2 passed an order on 15.03.2008 raising the superannuation age to 58 years w ith retrospective effect from 01.01.2008 holding that the management has not opp osed to the amendment of the Standing Order which is now under challenge before this Court in this writ proceeding. 8. Heard Mr. SN Sharma, learned Senior counsel assisted by Mr. A Jahid, lea rned counsel for the petitioner. Also heard Mr. BC Saikia, learned State counsel appearing for respondent No.1. None appeared on behalf of respondent Nos.2 and 3 despite service of notice. 9. Referring to Section 10 of the Industrial Employment (Standing Orders) A ct, 1946, Mr. Sharma, learned Senior Counsel has contended that standing orders finally certified under this Act shall not, except on agreement between the empl oyer and the workmen be liable for modification until the expiry of six months f rom the date on which the Standing Order or the last modification thereof came i nto operation. However, workmen or trade union or other representative body of t he workmen may apply to the Certifying Officer to have the standing order modif ied and such application shall be accompanied by five copies of the modification proposed to be made and where such modifications are proposed to be made by agreement between employer and the workmen, a certified copy of the agreement shall be filed alongwith the application which is absent in the instant case and therefore, urged that the order dated 15.03.2008 passed by the respondent No. 2 cannot stand being dehors the provision of Section 10 of the Act. 10. Mr. Sharma, learned Senior Counsel would further urge that there being a settlement between the majority of workers and the management raising the a ge of superannuation to 57 years, which was available on the file of the respon dent No. 2 could not have proceeded in the adjudication of the matter holding t hat the management has not opposed the modification of superannuation age of the workmen to 58 years as the same is beyond the record of the case, more so, when the respondent No. 2 has passed the impugned order under challenge statin g that the amendment proposal has been served under Section 20 of the Act on the management where there is no statutory provision regarding the age of superannu ation nor the Act contains Section 20 of the Act which is perverse, requiring in terference under judicial scrutiny. 11. The record of the case reveals that the notices on the respondents were duly served. The respondent Nos.2 and 3 did not contest the case. The respondent No.1 has been represented by the State counsel who has supported the order date d 15.03.2008 passed by the respondent No. 2 contending that raising the age of s uperannuation to 58 years of the workers considering the span of longevity being increased considerably, the age of superannuation to 58 is correct which do not require to be interfered with in the facts and circumstances of the case. 12. Considered the submissions made by the parties. Perused the relevant re cords alongwith the pleadings in the writ petition. The only question requires t o be answered as to whether the respondent No. 2 has acted within the power pr escribed under the Act in amending the proposal of superannuation age to 58 year s and if not, whether the said order requires to be interfered with within the ambit of power under Article 226 of the Constitution of India. 13. In order to answer the question it would be appropriate to quote relevan t portion of Section 10 of the Act which reads as follows: 10. Duration and modification of standing orders- (1) Standing orders finally certified under this Act shall not, except on agreem ent between the employer and the workmen [or a trade union or other representati ve body of the workmen] be liable to modification until the expiry of six month s from the date on which the standing orders or the last modifications thereof came into operation. (2) Subject to the provisions of sub-section (1), an employer or workman [or a trade union or other representative body of the workmen] may apply to the Cert ifying Officer to have the standing orders modified, and such application shall be accompanied by five copies of the modifications proposed to be made, and w here such modifications are proposed to be made by agreement between the emplo yer and the workman [or a trade union or other representative body of the workme n], a certified copy of that agreement shall be filed alongwith the application. 14. Upon a close scrutiny of the above provisions of Section 10 of the Act a longwith the relevant records including the impugned order dated 15.03.2008 pass ed by the respondent No. 2, the following points would emerge- a) The petitioner company has its certified standing order which was certified b y the Certifying Officer-cum-Labour Commissioner, Assam, Shillong on 24.07.1963; b) In the said certified standing order, Section C provides the age of superannu ation for the workmen on attaining the age of 55 years with an option to the ma nagement for extension at its sole discretion; c) This Court in WP (C) No. 7329/04 set aside the order dated 04.09.2004 whereby the respondent No.2 had passed an order raising the age of superannuation of th e workmen from 55 years to 58 years holding that the same, however, would not p reclude the respondent union to proceed in the matter in accordance with the pr ovision of the Act; d) The majority of the workmen of the company submitted an application for revi sion of retirement age of a workman and during the course of bi-lateral discus sion majority of workmen and the management have agreed and arrived at the settl ement of increasing the superannuation age from 55 years to 57 years on 15.02.2 008 which fulfills the provisions of Sub- section 1 of Section 10 of the Act; e) The respondent No. 3 representing 21 workmen moved a proposal for amending the age of superannuation from earlier 55 years to 58 years before the Certif ying Officer of Standing Order of Assam without fulfilling the criteria as laid down under Section 10 of the Act and the respondent No. 2 vide impugned or der dated 15.03.2008 raised the superannuation age further to 58 years with effe ct from 01.01.2008 when the agreement dated 15.02.2008 was made available on t he record holding that the respondent company did not oppose to the amendment proposal which is contrary to record. 15. To sum up the controversy raised, this Court finds that the impugned ord er dated 15.03.2008 passed by the Labour Commissioner and Certifying Officer und er the Act cannot stand in the eye of law in view of violation of the provision of Section 10 of the Act and accordingly, the same is liable to be set aside and quashed. 16. In the result, the writ petition is allowed thereby setting aside and qu ashing the impugned order dated 15.03.2008 passed by the respondent No. 2. The p arties are left to bear their own costs.