IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.28686 of 2004 T.Anantha Krishnan .. Petitioner Vs. 1. The Management of Madras Purasawalkam Hindu Janopakara Saswatha Nidhi or The Permanent General Benefit Fund Limited, 168, Vellala Street Chennai – 600 084. 2. The Presiding Officer Principal Labour Court Chennai – 600 104. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records connected with the award passed by the second respondent in I.D.No.306 of 1996 on 10.3.2004, to quash the same and to further direct the first respondent to reinstate the petitioner with continuity of service, back-wages and all other attendant benefits from the date of his termination, viz., 7.9.1995. For Petitioner : Mr.K.Doraisamy, Sr.Counsel for M/s.S.Arunachalam For Respondents: Mr.S.Raveendran for M/s.T.S.Gopalan & Co. for 1st respondent ORDER The writ petition is directed against the award of the Principal Labour Court, Chennai dated 10.3.2004 in I.D.No.306 of 1996, by which the Labour Court has rejected the claim of the petitioner seeking reinstatement with continuity of service, back- wages and other attendant benefits. 2.1. The petitioner was employed as an Accountant in the second respondent/Nidhi and has put in 32 years of service drawing a salary of ` 8,600/- as on 7.9.1995. The first respondent, by https://hcservices.ecourts.gov.in/hcservices/ letter dated 31.7.1995, has directed the retirement of the petitioner with effect from 7.9.1995 on the ground of his reaching the age of superannuation, viz., 58 years. However, the petitioner has taken a stand that since under the first respondent/Nidhi there are no service rules, he is entitled to continue as long as he is hale and healthy and therefore, he has raised a dispute. 2.2. It was the case of the petitioner before the Labour Court that there is no Standing Order fixing the age of retirement as 58 years in the first respondent/Nidhi and even if there are rules they are contradictory. To substantiate his contention the petitioner would rely upon the judgment of the Supreme Court in Workmen of Kettlewell Bullen and Co. v. Kettlewell Bullen and Co., 1964-II-LLJ 146 to the effect that in the absence of Rules, he is entitled to serve as long as he is hale and healthy. Therefore, according to the petitioner, the termination is against the provisions of the Industrial Disputes Act (for brevity, "the Act"), without following the procedure contemplated under Section 25F of the Act. 2.3. It has been the case of the first respondent/Nidhi before the Labour Court that it is established practice of the management to superannuate employees on completion of 58 years and therefore, the retirement of the petitioner is valid in law. It is stated that the judgment of the Supreme Court which has been relied upon by the petitioner has been subsequently modified in the subsequent judgment in 1972-II-LLJ-1. It is the case of the first respondent/Nidhi that in the absence of any Rules framed for the first respondent/Nidhi, the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 would apply and that contemplates the age of superannuation as 58 years and that a similar dispute raised by one another employee, viz., R.M.Sriramulu, was rejected by the Labour Court. 2.4. It is also stated by the first respondent/Nidhi that when the petitioner was retired on attaining the age of 58 years and accordingly, he was relieved, there was no question of retrenchment. It is also stated that the petitioner was Secretary of the Union and there was an earlier settlement, which was subsequently dropped, demanding to raise the retirement age from 58 years to 60 years. 2.5. Before the Labour Court, on behalf of the petitioner/workman, he examined himself as W.W.1 and 22 documents were marked as Exx.W1 to W22 and on behalf of the first respondent/Nidhi, the representative of the management was examined as M.W.1 and 21 documents were marked as Exx.M1 to M21. 2.6. Even though the first respondent/Nidhi has raised an objection that the petitioner was not a "workman" since he was https://hcservices.ecourts.gov.in/hcservices/ receiving salary of ` 8,600/- in the managerial category, the Labour Court has found that no evidence has been adduced on the side of the first respondent/Nidhi to show that the petitioner was in supervisory capacity and held that the petitioner was a "workman" within the meaning of Section 2(s) of the Act. 2.7. The first respondent/Nidhi has also raised another issue of non-maintainability of the writ petition under Section 2-A of the Act, since it is a larger issue regarding the age of retirement. However, even on that score the Labour Court has found that the industrial dispute was maintainable. 2.8. Even though the petitioner, as W.W.1, has informed about three candidates, viz., Thiruvengadam Mudaliar, Purushothama Naidu and Seethapathy, to substantiate his contention that those persons were employed beyond 58 years, the Labour Court has analyzed the evidence of W.W.1 and found that the petitioner was unable to give the actual date of birth of those candidates and therefore, that was not sufficient for the purpose of proving that in the first respondent/Nidhi the employees were allowed to work beyond 58 years. 2.9. The Labour Court has relied upon Ex.W21, which is a Trust Deed dated 29.3.1990 in respect of the first respondent/Nidhi, which contains various documents, including Group Gratuity Life Assurance Scheme of the Life Insurance Corporation of India dated 14.3.1990 and as per Clause 9 of the said Scheme, the age of retirement has been stated as 58 years and subsequently, in its further Rules also it has indicated the age of retirement as 58 years. 2.10. The Labour Court has further considered Ex.W17, which is a letter of the Employees Union, and Clause 25 of the said letter has been elicited by the Labour Court as follows: "25. Clause 29 in the place of 58 years, 60 years should be substituted." This was a demand made on behalf of the Union for the purpose of increasing the age of retirement from 58 to 60 years and it was in those circumstances, the Labour Court has come to a conclusion that even as per the documents filed on the side of the petitioner, there is evidence to show that in the first respondent/Nidhi the age of retirement has been followed as 58 years. 2.11. In that view of the matter, accepting the plea of the first respondent/Nidhi that as per the practice in the first respondent/Nidhi the age of retirement is 58 years, the industrial dispute was rejected. It is as against the said award passed by the Labour Court, the present writ petition is filed by the workman. https://hcservices.ecourts.gov.in/hcservices/ 3.1. Mr.K.Doraisamy, learned Senior Counsel for the petitioner would submit by relying upon the judgment in Workmen of Kettlewell Bullen and Co. v. Kettlewell Bullen and Co., 1964-II-LLJ 146, that even if any Rules were framed those rules can be made applicable only from the date of framing of Rules and that cannot be applied to a person already in service. 3.2. It is his further submission that in the absence of any written Service Rules, if the first respondent/Nidhi claims the retirement age as 58 years as per convention and practice, the same has to be proved by them and according to the learned Senior Counsel, such practice of retiring a person at 58 years has not been proved by the first respondent/Nidhi and therefore, it is his submission that when some other similarly situated persons were allowed to work beyond 58 years, the denial of the said right to the petitioner is amounting to arbitrariness on the part of the first respondent/Management, which aspect has not been considered by the Labour Court. 4.1. On the other hand, it is the contention of Mr.S.Raveendran, learned counsel for the first respondent/Nidhi that the stand taken by the petitioner as if he should be permitted to work as long as he is hale and healthy is unreasonable. 4.2. It is his submission that even as per the records produced by the petitioner, there is abundant evidence to show that in the first respondent/Nidhi the practice of retiring the workers at 58 years is available. 4.3. It is his submission that when in respect of the service condition a dispute is raised, the same cannot be maintained under Section 2-A of the Act. 4.4. He also would bring to the notice of this Court, as found by the Labour Court, that the petitioner has failed to prove about the three cases wherein they have been allowed to work beyond 58 years and according to him, in the first respondent/Management, there was no life time employment to anyone, except in one case, where there was two years extension of service to a candidate. By relying upon the judgment in K.G.Mathew v. National Insurance Co. Ltd., Vol.48 FJR 419, he would submit that there can be no life time employment. 5. I have considered the rival submissions and referred to the documents filed. 6. On a reference to the award passed by the Labour Court it is clear that the Labour Court on analysis of the evidence, especially referring to the evidence of the petitioner as W.W.1 has found on fact that he has failed to prove in respect of three https://hcservices.ecourts.gov.in/hcservices/ cases, viz., Thiruvengadam Mudaliar, Purushothama Naidu and Seethapathy, that they have worked for life time. In fact, the Labour Court has found that during the cross-examination the petitioner was unable to even give the date of birth of those individuals. The petitioner, in the cross-examination, has categorically admitted as follows: "rh;tp!; U:y;!py; Xa;t[ bgWk; taJ 58 vd;W Twg;gl;oUf;fpwJ/" He has further stated as follows: "jpUnt';fl Kjypahh;. g[Unc&hj;jk eha[L kw;Wk; rPjhgjp MfpnahUila gpwe;j njjp bjhpahJ/ nkw;brhd;d K:d;W egh;fSk; ve;jj; njjpapy; gzpapy; nrh;e;jhh;fs; ve;jj; njjpapy; Xa;t[ bgw;whh;fs; vd;gJ gw;wp vdf;Fj; bjhpahJ/ ehd; ntiyapy; nrh;e;j gpwF. nkny brhd;d K:d;W ngUk; Xa;t[ bgw;whh;fs;/ rpy egh;fs;. mth;fSila thhpRjhuUf;F ntiy bfhLf;f ntz;Lk; vd;W brhy;yp mth;fSila 58 tajpy; Xa;t [ bgw;whh;fs;/" 7. As per Ex.W17, which is a letter of the employees union, as elicited by the Labour Court in the award, it is clear that the Union to which the petitioner has been one of the office bearers has raised an issue that in the place of 58 years, 60 years should be substituted as age of retirement. 8. Ex.W21, which has also been filed by the petitioner, which is a trust deed, contains the Group Gratuity Life Assurance Scheme of the Life Insurance Corporation of India dated 14.3.1990 and in the form at Column No.9, which contains a question "what is the normal retirement age?", the same is denoted as 58 years and that relates to the master proposal for the Group Assurance Scheme/Superannuation/Gratuity. In the copy of the Rules which are annexed to the said scheme, Clause (xi) defines the term "normal retirement date" shall mean in respect of each member the date of which he completes the age of 58 years. 9. Ex.M11, which is a Government Order in G.O.(D).No.1105, Labour and Employment Department, dated 7.11.1991, relates to an employee – R.M.Sriramulu, who has raised a dispute under Section 2 (k) of the Act, wherein the Government has passed the order: ",e;epWtdj;jpy; jw;nghJ eilKiwapy; cs;s gzp tpjpfspd;go bjhHpyhsp jpU/Mh;/vk;/_uhKYt[f;F gzp Xa;t[ mspf;fg;gl;Ls;sJ/" 10. Ramanujam,J. in K.G.Mathew v. National Insurance Co. Ltd., Vol.48 FJR 419, while considering the plea of a workman to continue in service for life in the absence of rule, has observed as https://hcservices.ecourts.gov.in/hcservices/ follows: "Even assuming that the copy of the service rules shown by the respondents cannot be accepted as genuine, in the absence of the production of the original, the further question for consideration is whether the petitioner can have a declaration from this Court, as it were, to continue in service till his life time. It is common knowledge that in all services either under private managements or under the Government concerns, the age of retirement does not, in any case, exceed 60 years. The question is whether the petitioner can claim to be retained in service contrary to this well established practice or usage. In McClelland v. Northern Ireland General Health Services Board, [1957] 2 All.E.R.129, while dealing with an order of appointment without fixing any time limit Lord Goddard observed: "That an advertisement offers permanent employment does not, in my opinion, mean thereby that employment for life is offered." In the same case, in more emphatic terms Lord Tucker said: "It is, in my view, impossible to hold that these words (permanent and pensionable) conferred on her a contractual right to a 'free-hold' tenure of the post of senior clerk or did anything more than indicate that the post available would have the degree of security of tenure which attaches to the regular as distinct from the purely temporary staff." In Halsbury's Laws of England (Simonds Ed.) volume 25, page 490, it is said: "It seems that the fact that the employment offered to and accepted by an employee is described as permanent employment does not in itself normally create a promise of life employment or disentitle the employers from terminating the employee's contract of service on reasonable notice. A contract for permanent employment will, however, be considered as a contract for employment for life if the terms of the contract are such as to render inevitable the conclusion that a life-time employment was intended." https://hcservices.ecourts.gov.in/hcservices/ 11. Even otherwise, on the merits of the case, as found by the Labour Court, there is abundant evidence culled out even from the documents filed on the side of the petitioner to show that there has been no practice in the first respondent/Nidhi to employ any workman till life time. It is true that there are cases where beyond 58 years certain persons are presumed to have been employed for two/three years, but that does not mean that the practice of employment during life time in the first respondent/Nidhi has been proved by the petitioner. On the other hand, there is clinching evidence to show that the petitioner was the Secretary of the Union and there was an earlier settlement, which was subsequently dropped, demanding to raise the retirement age from 58 years to 60 years. In such view of the matter, looking from any angle, I do not see any reason to interfere with the award passed by the Labour Court, since the award is neither perverse nor illegal or unsustainable. Accordingly, the writ petition fails and the same is dismissed. No costs. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: The Presiding Officer Principal Labour Court Chennai – 600 104. + 1 cc to M/s. T. S. Gopalan & Co, Advocate SR No.82649 + 1 cc to Mr. S. Arunachalam Associates Law Firm, Advocate SR No.83128 MP(CO) SR/3.12.2010 W.P.No.28686 of 2004 https://hcservices.ecourts.gov.in/hcservices/