1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2087/2004 The Aurangabad District Central Cooperative Bank Ltd. Dr.Rajendra Prasad Road, Aurangabad, Through its Managing Director/Chief General Manager. .. PETITIONER/ [ORIG.RESPONDENT] VERSUS Shri Bapurao Jalam Patil Aged 61 years, Occ-Nil R/o Balajinagar, Aurangabad. .. RESPONDENT/ [ORIG. COMPLAINANT] .... Shri Deelip N.Patil (Bankar),Adv.for petitioner. Shri T.K.Prabhakaran,Adv.for Respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 19/7/2010. ORAL JUDGMENT: 2 1] This Writ Petition challenges the judgment and award dated 24/2/2004 passed by the Industrial Court, Aurangabad in Complaint (ULP) No.20/2001 granting declaration that the petitioner-employer is engaged in an unfair labour practice under Item 9 Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU & PULP Act) and further directed the petitioner to give all statutory and legal benefits to the respondent complainant, as if he had been continued in service till 60 years of age. 2] The facts of the case are as under : The respondent filed a Complaint (ULP) No.20/2001 before the Industrial Court at Aurangabad invoking jurisdiction under Section 28 read with Item 5 and 9 of Schedule IV of the MRTU & PULP Act, challenging the notice of retirement dated 1/12/2001 retiring the petitioner from service on attaining the age of 58 years w.e.f. 28/2/2001 though there was some dispute raised regarding the date of birth of the complainant. The said dispute is not pressed in this petition by the respondent. The main contention of the respondent-employee in the complaint was that his age of superannuation was 60 years, however, he was made to retire by notice dated 1/12/2001 w.e.f. 28/2/2001 on completing age of 58 years. In support of his claim, the complainant produced a copy of 3 identity card, which prescribed the date of his superannuation as 28/2/2001. However, on the backside of the said identity card, an endorsement is made that the age of superannuation has been increased by further period of 2 years. The respondent-employee entered into witness box and examined himself in support of his claim. The identity card was marked as Exh.U-18. The petitioner denied the claim of the complainant by filing its written statement and submitted that age of superannuation was 58 years and accordingly on attaining the age of 58 years, the respondent was retired from service .w.e.f. 28/2/2001. 3] The Industrial Court by its judgment and order dated 24/2/2004, allowed the Complaint filed by the respondent and directed the petitioner-employer, to give the complainant all statutory and legal benefits, as if he had been continued in service till the age of 60 years. The only basis for granting such relief that as per the Provisions of Section 9-A of the Industrial Disputes Act, 1947, a notice of change was not given and it amounts to failure to implement agreement of service. Although there is no reference made to the endorsement in the identity card by the industrial Court while recording the finding, it may have been presumed that the same is an agreement which entitles the respondent-complainant to continue in service for a period of 2 years, more than the date of superannuation which was prescribed as 28/2/2001 in the identity card. 4 4] Shri Dilip Patil Bankar, the learned counsel appearing for the petitioner employer has urged that the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the I.D.Act) are not applicable as the petitioner employer is a Cooperative Bank. According to him, the service conditions are governed by the Bombay Industrial Relations Act, 1946 and the Model Standing Orders framed thereunder and the Service Rules framed by the Bank. It is urged that although Model Standing Orders are framed, no age of superannuation is prescribed therein. However, such age of superannuation was prescribed under the conditions of service rules framed by the bank and it was initially of 58 years. However, such age of superannuation was increased from 58 to 60 years by Resolution dated 31/10/1998 but subsequently, again the Rules were amended on 27/2/2001 reducing the age from 60 years to 58 years, as per the directions, issued on 26/2/1999 by District Deputy Registrar, Cooperative Societies, in exercise of its power under Section 79A and 79AA of the Maharashtra Cooperative Societies Act, 1960. Hence, according to him, the Industrial Court was wrong in applying the Provisions of Section 9-A of the I.D.Act, to hold that the change in the service condition was without giving notice. 5] Shri Prabhakaran, the learned counsel appearing for the respondent employee has urged that although the provisions of 5 I.D.Act were not applicable, similar provision is contained under Section 42 under the Bombay Industrial Relations Act, which is applicable and hence, in effect Industrial Court was right in holding that the age of superannuation could not have been changed without giving a notice as contemplated by Section 42 of the Bombay Industrial Relations Act. 6] With the assistance of the learned counsels of the parties, I have gone through the evidence of the complainant and the findings recorded by the Industrial Court. The only finding is that the provisions of I.D. Act are applicable and as per the Provisions of Section 9A of the I.D.Act, notice of change was not given and the age of superannuation was changed from 60 to 58 years. The only evidence placed on record by the employee in support of the claim of age of superannuation as 60 years, is the identity card. The identity card clearly supports the date of superannuation as 28/2/2001. The endorsement on the backside regarding the enhancement in the age of superannuation by further period of 2 years, is not supported by any evidence on record. There is no date nor any authority by whom such endorsement has been stated in the evidence by the complainant. The Industrial Court has proceeded on wrong presumption that Section 9A of the I.D.Act is applicable, whereas it is conceded by the learned counsel for the respondent employee that the I.D.Act was not applicable but it was the Bombay Industrial Relations Act which was 6 applicable containing the identical provisions of giving of notice of change. The respondent employee has totally failed to establish that there existed any agreement, settlement or award under which he was entitled to continue till the age of 60 years. In view of this, the question of notice of change would not arise. The facts regarding the change of age of superannuation initially from 58 years to 60 years and then it is reduced from 60 to 58 years has not been pleaded. The Service Rules framed by the Bank, as amended, stipulates the age of superannuation as 58 years. The Industrial Court was therefore, wrong in granting relief only on the basis of the Provisions of I.D.Act, without recording any finding as to the settlement of award or agreement under which the employee was entitled to be continued up the age of 60 years. In view of this, the judgment and order passed by the Industrial Court cannot be sustained. 7] The learned counsel Shri Prabhakaran for respondent has relied upon the decision of this Court reported in 2009 I C.L.R. 317 in the case of Ammunication Factory Co-operative Credit Society Ltd. Pune V/s Badrinarayan R. Sharma and another. Relying upon this judgment, he has urged that the matter should be remanded back to the Industrial Court for making an enquiry into the aspects of change in the age of superannuation. However, it is not possible to accept the said request for the reason that it would amount to permitting the 7 complainant to file a fresh case on the facts which were not pleaded in the complaint and hence such a request cannot be accepted. 8] In the result, the instant Writ Petition is allowed. The judgment and order dated 24/2/2004 passed by the Industrial Court, Aurangabad in Complaint (ULP) No.20/2001 is hereby quashed and set aside. Rule made absolute in the above terms. No order as to costs. In view of disposal of Writ Petition, Civil Application no.11680/09 stands disposed of. [R. K. DESHPANDE, J.] umg/wp2087-04