SCA/12390/2006 1/53 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12390 of 2006 With SPECIAL CIVIL APPLICATION No. 12391 of 2006 With SPECIAL CIVIL APPLICATION No. 12395 of 2006 ========================================= For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ASE INFORMATION SERVICE - Petitioner(s) Versus ARVINDKUMAR D PAREKH - Respondent(s) ========================================================= Appearance : NANAVATI ASSOCIATES for Petitioner(s) : 1, MR RAJESH P MANKAD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 26/07/2006 ORAL JUDGMENT 1. Rule. Learned advocate Mr. R.P. Mankad waives service of notice of rule on behalf of the respondents. With consent of the both the learned advocates appearing on behalf of the respective SCA/12390/2006 2/53 JUDGMENT parties, this group of matters have been taken up for hearing and final disposal today. 2. Heard the learned advocate Mr. K.D. Gandhi for Nanavati Associates appearing on behalf of the petitioner – company and learned advocate Mr. R.P. Mankad appearing on behalf of the respondents. 3. In this group of three matters, on behalf of respondents, caveat has been filed by learned advocate Mr. Mankad, therefore, learned advocate Mr. Mankad is appearing on caveat on behalf of respondents. 4. In all the three matters, a different award passed by the Industrial Tribunal, Baroda in complaint under Section 33-A of the Industrial Disputes Act, 1947. This Court is disposing of all the three matters by a common order on the ground that question involved in this petitions are same and therefore, this Court has passed common order while deciding all the three matters. 5. In Special Civil Application No.12390 of 2006, respondent – Shri A.D. Parekh has filed complaint (I.T.) No.235 of 2003 in Reference (I.T.) No.177 of 1998. The case of respondent was before the Industrial Tribunal, Baroda in SCA/12390/2006 3/53 JUDGMENT complaint that respondent has retired from service on 15th October 2003. He made to retire illegally as respondent is entitled to remain in service up to the age of 60 years. According to respondent, he was permanent workman since 32 years and he was a concerned workman in Reference (I.T.) No.177 of 1998 which is pending before the Industrial Tribunal, Baroda. The respondent was appointed on 1st August 1972 as a Panch Operator and there is no certified standing order applicable to the petitioner and therefore, service condition of respondent are governed by provisions of the Industrial Employment Standing Orders Act, 1946 and Gujarat Rules, 1959. Therefore, in absence of agreement, the age of superannuation is 60 years, but petitioner has retired him on 15th October 2003 at the age of 58 years which was challenged before the Industrial Tribunal, Baroda by way of filing Complaint under Section 33-A of the Industrial Disputes Act, 1947. 6. In Special Civil Application No.12391 of 2006, the respondent is Shri R.N. Tapiwla has filed Complaint (I.T.) No.343 of 2000 before the Industrial Tribunal, Baroda. The respondent Tapiwala had worked as a permanent workman and concerned workman in Reference (I.T.) No. 57 of 1999 which is pending before the Tribunal. The respondent Shri Tapiwala was appointed on 21st SCA/12390/2006 4/53 JUDGMENT July 1963 as a Typist-cum-Clerk and confirmed with effect from 21st January 1966. In absence of certified standing order, the service conditions are governed under the Model Standing Order Act and Gujarat Rules 1959 and therefore, according to the respondent, he is entitled to remain in service up to age of 60 years. The petitioner had retired on 20th September 2000 at the age of 58 years. Therefore, this amounts to change in condition of service filed complaint under Section 33-A of the Industrial Disputes Act, 1947. 7. In Special Civil Application No.12395 of 2006, the respondent Shri Taiyab R. Barodawala has filed complaint (I.T.) No.238 of 2000 in Reference (I.T.) No.57 of 1999 under Section 33-A of the Industrial Disputes Act, 1947. The respondent – Barodawala was working as permanent workman since 28 years and he is a concerned workman in Reference No.57 of 1999 which is pending before the Tribunal. The respondent – Barodawala appointed on 1st December 1973 as an Office Assistant and confirmed on 18th June 1974. In absence of certified standing orders, according to him, as the service conditions are governed by Model Standing Order Act, 1946 and Gujarat Rules, 1959. According to him, his age of retirement will be 60 years but he retired from service on 16th June 2000 at the age of 58 years SCA/12390/2006 5/53 JUDGMENT which amounts to change in conditions of service during the pendency of reference a complaint (I.T.) No.238 of 2000 in Reference (I.T.) No. 57 of 1999 filed by the respondent before the Industrial Tribunal, Baroda. 8. The petitioner – Ambalal Sarabhai Enterprise Information Services has challenged the award of Industrial Tribunal, Baroda in aforesaid complaint dated 22nd December 2004, 31st December 2004and 29th December 2004. The Industrial Tribunal, Baroda has allowed the complaint and set aside the retirement order passed by the petitioner against the respondents declaring illegal with a direction to petitioner to pay all the back wages and other consequential benefits to the complainant – present respondents up to his reaching the age of 60 years. 9. Learned advocate Mr. K.D. Gandhi appearing on behalf of the petitioner has submitted that respondent has misrepresented before the Tribunal that the superannuating age is 60 years whereas, as a matter of fact, the superannuating age of workman of the petitioner – company is 58 years. He also submitted that petitioner–company is registered under the provisions of Bombay Shop and Establishment Act and therefore, the provisions of the Model Standing Order Act is not applicable to the petitioner. The dispute which SCA/12390/2006 6/53 JUDGMENT was pending is pertaining to various demand raised by the Union including the increase in the age of superannuation which is still pending wherein demand is raised by making false statement that superannuation age be raised from 60 years to 62 years instead of 58 years to 60 years, therefore, he submitted that the age of retirement is 58 years, not 60 years. He relied upon the decision given by this Court (Coram : Justice K.A. Puj) in Special Civil Application No.6967 of 1997 with Special Civil Application No.8750 of 1997 decided on 22nd February 2006 in the matter of Operation Research Group Vs. J.M. Ghatak has held that the Tribunal was not justified in holding the age of retirement of the respondent workmen is 60 years and not 58 years. The main reference is pending for adjudication before the Tribunal and meanwhile, to pass an award in the complaint filed by the respondent is amounts to granting the full relief to the workmen. The learned advocate Mr. Gandhi also submitted that the age of superannuation of the workmen was 58 years and further submitted that during the 1979, due to recognisation of Sarabhai Group of Companies, ORG become a division of Ambalal Sarabhai Enterprises Ltd., and all the employees of the then ORG including the respondent became the employees of Ambalal Sarabhai Enterprises Ltd., on the same terms and conditions and with continuity of service. He SCA/12390/2006 7/53 JUDGMENT also submitted that complainant under Section 33-A is not maintainable as no service condition has been changed or altered by the petitioner during the pendency of reference. He also submitted that Tribunal has not considered the relevant facts and evidence on record and passed an award granting the relief contrary to the record. 10. Learned advocate Mr. R.P. Mankad appearing on behalf of the respondents submitted by filing the affidavit-in-reply of the respondents that Industrial Tribunal, Baroda has not committed any error which requires interference by this Court. He also submitted that in pursuance to the award passed by the Industrial Tribunal, Baroda, respondent has moved the authority concerned to recover the amount from the petitioner and thereafter, the petitioner has challenged the award in question after considerable delay. He submitted that this Court having limited jurisdiction under Article 227 of the Constitution of India and Tribunal has rightly appreciated the facts and evidence on record and also given cogent reason in support of its conclusion. He also submitted that in an identical case of one Shri D.K. Kshirsagar was superannuated by the petitioner – Management on 20th march 1993 at the age of 58 years, therefore, Shri D.K. Kshirsagar had filed Complainant No.31 SCA/12390/2006 8/53 JUDGMENT of 1993 before the Industrial Tribunal, Baroda. The said complaint came to be allowed by an order dated 10th January 1994 granting benefit in favour of Shri D.K. Kshirsagar for a period of two years. The said award was challenged by the petitioner in Special Civil Application No.12927 of 1994 before this Court. This Court (Coram : Justice R.K. Abichandani) has rejected the petition on 12th December 1994. Therefore, he submitted that similarly in other cases also, one Shri S.C. Panchal, Shri J.J. Harijan, Shri R.K. Mandalik and Shri Natvarlal Gordhandas Mehta, wherein similar benefit has been granted by the Industrial Tribunal, Baroda and ultimately, no further proceedings on behalf of the petitioner have been initiated against the such awards which referred above. Therefore, according to him, in all the cases from Shri Kshirsagar to others mentioned above, petitioner has accepted the award passed by the Industrial Tribunal and granted the benefit to the concerned workmen. Therefore, learned advocate Mr. Mankad submitted that once this Court has examined the same contentions and rejected the petition, on the same grounds other petitions should not have to be entertained by this Court. The decision of this Court on identical issue is binding to this Court not only that but it binds to petitioner also. Therefore, in short, his submission is that the Industrial Tribunal has rightly examined the SCA/12390/2006 9/53 JUDGMENT matter and in absence of certified standing order, the Model Standing Orders are applicable and according to the provisions of Model Standing Orders, the age of retirement is 60 years, for which, rightly benefit has been granted by the Tribunal. For that, no error has been committed by the Industrial Tribunal, Baroda. 11. I have considered the submissions made by both the learned advocates appearing on behalf of the respective parties and I have also considered the contentions raised by the petitioner in his petitions as well as respondent in reply. I have also perused the award passed by Industrial Tribunal, Baroda in each complaint. 12. The question, which has been examined by the Industrial Tribunal in Complaint under Section 33-A of the Industrial Disputes Act, 1947, is whether respondent workmen are entitled the age of retirement/superannuation is 60 years or not? The industrial dispute was pending at the relevant time when each respondents were made to retire at the age of 58 years. Each respondents were the concerned workmen in the industrial dispute. In absences of certified standing orders, the Employment Standing Orders Act, 1946 is applicable to the petitioner as petitioner company is covered by definition of establishment under the provisions of Employment Standing SCA/12390/2006 10/53 JUDGMENT Orders Act, 1946. The Industrial Tribunal, after considering the reply from the petitioner, decided the issue which was raised before the Industrial Tribunal. The Industrial Tribunal has come to the conclusion and it was not challenged by the petitioner before the Tribunal that each respondents are not concerned workmen in the pending reference. The Industrial Tribunal, Baroda has considered the decisions of the Apex Court in case of AIR India Corporation v. V.R. Rebellow and Another and in the matter of Jaipur Jilla Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma and Others reported in 2002(I) LLJ 834. During the pendency of dispute, if service condition has been changed/alter prejudice to having adverse effect to the concerned workmen then it is a legal obligation upon the employer to obtain prior permission from the concerned Tribunal as required under Section 33(1)(a) of the Industrial Disputes Act, 1947. (See : AIR 1977 SC 1229 in case of The Bhavnagar Municipality v. Alibhai Karimbhai and Others) Undisputedly, such permission was not obtained by the petitioner when respondents made to retire at the age of 58 years. Therefore, Industrial Tribunal come to the conclusion that petitioner has violated the provisions of Section 33 of the Industrial Disputes Act, 1947. Therefore, complaint under Section 33-A is maintainable which has to decide as being Reference made under SCA/12390/2006 11/53 JUDGMENT Section 10(1) of the Industrial Disputes Act, 1947. The Industrial Tribunal has considered the provisions of standing orders which is relevant, therefore reproduce here. Rule No.25 which has been discussed by the Industrial Tribunal is relevant, therefore, relevant para 9 is quoted as under : “Para 9 : It is pertinent to re-produce here Rule No.25 of Industrial Employment (Standing Orders) Act, 1946 :- “25.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 an agreement, settlement or award, which may be binding on the employer and the workmen under any law for the time being in force.” Upon perusal of records and papers, it is found that the Complainant is governed by the Model Standing Orders as there are no certified standing orders of the opponent company. Under the Model Standing Orders, age of retirement is fixed at the age of 60 years. It is also found that there are no agreements or settlement regarding the age of superannuation between the parties in the present case. SCA/12390/2006 12/53 JUDGMENT In this connection, the object of Section 33 must be borne in mind. By enacting Section 33, the legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of any Industrial dispute, status-quo should be maintained and no further element of discord should be introduced. That being the object of Section 33, the narrow construction of the material words used in Section 33(1)(a) would tend to defeat the said object. If it is held that the workman concerned in the dispute are only those who are directly or immediately concerned with the dispute, it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly, it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying Section 33 is inconsistent with the narrow SCA/12390/2006 13/53 JUDGMENT construction sought to be placed by the opponent on the material words used in Section 33(1)(a). Even as a matter of construction pure and simple, there is no justification for assuming that the workman concerned in such disputes must be workmen directly or immediately concerned in the said disputes. In dealing with the question as to which workmen can be said to be concerned in an Industrial Dispute, we have to bear in mind the essential condition for the raising of an Industrial Dispute itself, and if, an Industrial dispute can be raised only by a group of workmen acting on their own or through their Union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. This construction that all those who sponsored the dispute are concerned in it. This construction is harmonious with the definition prescribed under Section 2(s) and with the provisions contained in Section 18 of the Act. There is a clear prohibition in Section 33(1)(a) against altering SCA/12390/2006 14/53 JUDGMENT conditions of service by the employer under the circumstances specified except with the written permission of Tribunal or other authority therein described. In order to attract Section 33(1)(a), the following features must be present : (1)There is a proceeding in respect of an industrial dispute pending before the Tribunal. (2)Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered. (3)The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute. (4)The workmen whose conditions of service are altered are concerned in the pending industrial dispute. (5)The alteration of the conditions of service is to the prejudice of the workmen.“ 13. The Industrial Tribunal after considered the object of Section 33 and relevant Rule 25 of Employment Standing Orders Act, 1946, considered SCA/12390/2006 15/53 JUDGMENT all the features which are necessary to be required for violation of Section 33 has been taken into account and discussed in Para 10 by the Tribunal which is quoted as under : “10. In the present case before this Tribunal, the first feature is undisputedly present since the action has been taken by the Opponent of retiring the Complainant during the pendency of the proceeding of Reference (IT) No.177 of 1998. The second feature is also present in this case since conditions of service of the Complainant applicant immediately before the commencement of the proceeding are altered. In the present case, before this Tribunal, the conditions of service of the complainant were governed by Model Standing Orders in which age of retirement is fixed at the age of 60 yeas and the complainant was superannuated by the opponent at he age of 58 years. The third feature is also admittedly present in the present case since the alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute. The forth feature is also admittedly present in the SCA/12390/2006 16/53 JUDGMENT present case since the complainant whose conditions of service are altered is concerned in the pending industrial dispute. The fifth feature is also present in the present case since the alteration of the conditions of service is to the prejudice of the complainant as he has been superannuated at the age of 58 years instead of 60 years. Besides, it is also not in dispute before this Tribunal that the opponent has not filed any permission application in writing before this Tribunal. In this view of the matter, I am of the opinion that the opponent company has committed breach of Section 33 of the Act and therefore, the Act of the opponent of retiring the complainant from 15.10.2003 is required to be declared as illegal as prayed for by the complainant and the complainant is required to be reinstated with full back wages up to his reaching the age of 60 years and other consequential benefits.“ 14. In view of above discussion, it is a pure question of law / interpretation of Employment Standing Orders Act. The petitioner has not raised any contentions about that the company having their own certified standing orders. When SCA/12390/2006 17/53 JUDGMENT establishment is not having its own certified standing order under the provisions of Employment Standing Orders Act, 1946, then model standing orders are applicable to such establishment. These facts are not disputed by the petitioner before the Industrial Tribunal and not come out with the case that company having own certified standing order, therefore, Industrial Tribunal has rightly dealt with the issue that in absence of certified standing orders, the provisions of model standing orders are applicable and it governs the condition of service of workmen working with the company. Therefore, respondent made to retire by company at the age of 58 years is amounts to alteration / change in conditions of service having prejudice effect to the legal right of the workmen concerned. Therefore, Tribunal has granted relief while setting aside the order of retirement of the respondent. 15. Learned advocate Mr. Mankad has rightly relied upon the decisions which based on identical facts and circumstance of the case and it was challenged by the present petitioner before this Court vide Special Civil Application No.12927 of 1994. The petitioner has raised same and similar contention before this Court in the said Special Civil Application. This Court has examined this contention in light of the SCA/12390/2006 18/53 JUDGMENT observations made by Industrial Tribunal, Baroda and decided the petition on 12th December 1994 wherein following order has been passed by this Court (Coram : Justice R.K. Abichandani) : “ The petitioner challenges the order of the Industrial Tribunal, Baroda passed on 10.1.1994 in Reference (IT) No.161/1989 directing that the petitioner should reinstate the respondent employee who was sought to be retired at the age of 58 yeas as there was violation of the provisions of Section 33(2)(a) of the Industrial Disputes Act, with the arrears of wages. Admittedly an Industrial dispute was pending on various matters with which, the dispute which has sought to be raised by the respondent employee was not connected. Therefore, by virtue of Section 33(2) of the Industrial Disputes Act, approval of the Tribunal was required to be taken if the respondent employee was to be retired at the age of 58 years. This is because in his contract of employment, age was not stipulated and therefore, there admittedly not being any standing orders adopted by the petitioner, model standing orders became applicable. According to the model SCA/12390/2006 19/53 JUDGMENT standing orders, the age of retirement was admittedly 60 years. Therefore, the learned Industrial Tribunal in his pithy judgment rightly held that in absence of any lawful agreement, settlement or award, the retirement age prescribed in the model standing orders could not have been reduced to 58 years from 60 years. He was also justified in holding that oral evidence was of no avail in view of the provisions in the model standing orders which prescribed 60 years as the retirement age. The Tribunal has acted in lawful exercise of it's jurisdiction and has not committed any error which may justify interference with it's award. This petition is therefore rejected. Notice discharged.“ 16. In Special Civil Application No.12927 of 2004, petitioner – company – Ambalal Sarabhai Enterprises Limited Information Service had raised all identical questions / contentions before this Court in the aforesaid petition. The petitioner has raised all the identical questions / contentions before this Court in present group of petition except the decision which given by this Court (Coram : Justice K.A. Puj) in his submission. It is also necessary to note one SCA/12390/2006 20/53 JUDGMENT important aspect that this decision given by this Court in Special Civil Application No.12927 of 2004 dated 12th December 1994 is accepted and implemented by the petitioner and not challenged to higher Forum, therefore, this decision is binding to the petitioner and question decided by this Court is also binding to the petitioner – company then same question cannot be allowed to argue or to make submission when decision given by this Court is binding to the petitioner. Not only that this decision of this Court (Coram : Justice R.K. Abichandani) as referred above decided the same question, therefore, it also binding to this Court being an identical matter of same petitioner. 17. Learned advocate Mr. K.D. Gandhi vehemently and seriously submitted that recent decision given by this Court (Coram : Justice K.A. Puj) in Special Civil Application No.6967 of 1997 with Special Civil Application No.8750 of 1997 dated 22nd February 2006. Relying upon this decision, learned advocate Mr. Gandhi submitted that identical award passed by the Industrial Tribunal, Baroda has been set aside by this Court where the same question was involved and examined by this Court, therefore, in this case also, same view is required to be taken by this Court. 18. I have considered the decision which has been