IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 9707 of 2006(E) ------------------------- PETITIONER(S): --------------- THE GENERAL SECRETARY, K.H.R.W.S. EMPLOYEES FEDERATION (CITU), CITU DISTRICT COMMITTEE, CHITRAKULAM ROAD, STATUE, THIRUVANANTHAPURAM. BY ADV. SRI.K.SASIKUMAR HARIPAD K.R.C. PILLAI SMT. M.R. SREELATHA.S. RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, K.H.R.W. SOCIETY, GENERAL HOSPITAL CAMPUS, RED CROSS ROAD, THIRUVANANTHAPURAM. 2. THE LABOUR COURT, KOLLAM. R1 BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV SRI.T.K.KAMALJITH SMT.C.V.RAJALAKSHMI SRI.M.AJAY,SC,KERALA HEALTH RESEARCH&WE. R2 BY SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9707 of 2006 2 APPENDIX ------------- PETITIONER'S EXHIBITS ------------------------------- P1:- TRUE COPY OF ORDER DTD. 15.2.05 IN I.E.NO. (SO)1/2004 OF THE LABOUR COURT, KOLLAM P2:- TRUE COPY OF THE SERVICE RULES OF KHRWS TRUE COPY PA TO JUDGE THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------------- WP(C) NO. 9707 OF 2006 ----------------------------------------- Dated this the 29th day of March, 2010 JUDGMENT “CR” The petitioner, a Trade Union, filed an application under Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 (for short, the 'Standing Orders Act') seeking relief to the effect that the Model Standing Orders applies to the first respondent society and for an order that the workmen of that society have the right to continue in employment of that society until attaining 58 years of age. The plea was that the society is an establishment, to which provisions of the Standing Orders Act apply, and since there are no approved Standing Orders, the Model Standing Orders shall be deemed to have been adopted by virtue of Section 12-A of that Act. It was contended that, in the absence of any agreement between the employer and workmen, the age of retirement shall be 58 years as per the Model Standing Orders. The workers of the society are, WP(C) NO. 9707 OF 2006 2 therefore, entitled to continue up to the age of 58 years, it was contended. 2. Management contended that the Standing Orders Act is not applicable to the society, which is one registered under the Travancore-Cochin Literary, Scientific and Charitable Societies' Registration Act XII of 1955 and that the employees of the society are governed by service rules made by the governing body, which rules were approved by the Government as per order dated 1-11-1990, inter alia prescribing 55 years as the retirement age of the employees. 3. The Labour Court held that the management is an industrial establishment as defined in the Standing Orders Act, however that the workers are not entitled to continue in service upto the age of 58 years. It was noted that the service rules for the establishment were approved by the Government as per the Government Order dated 1-11-1990 - Exhibit R1 before the Labour Court and that rule 24 WP(C) NO. 9707 OF 2006 3 among those rules relates to the retirement and in clause (a) thereof, it is stated that the age of retirement of the staff shall be 55 years. The Labour Court found that in terms of such service rules, there is an implied agreement between the workers and the management regarding the condition of service as to retirement and that the said provision is binding on the workmen and therefore, there was no question of importing the provisions of the Model Standing Orders. Accordingly, the Labour Court held that the workers of the establishment society are entitled to continue in service only till 55 years of age. 4. In this writ petition by the Trade Union, the finding that the retirement age is 55 years is assailed. Its plea, in sum and substance, is that having regard to the uncontroverted finding of the Labour Court that the society is an industrial establishment as defined in the Standing Orders Act, the Model Standing Orders, including the term prescribing the age of retirement as 58 years, apply in the WP(C) NO. 9707 OF 2006 4 absence of any certified standing order regarding retirement age. In opposition, the establishment pleads that in terms of Section 13-B of the Standing Orders Act, that statute does not apply to the establishment of the society because the retirement age is fixed as per rules/regulations notified by the appropriate Government in the Official Gazette. 5. By G.O.MS.146/73/HD, Government granted sanction for the constitution of the establishment society in terms thereof, as a society registered under the Travancore- Cochin Literary, Scientific and Charitable Societies' Registration Act XII of 1955. As per the Memorandum of Association and Rules as approved by the Government as per that Government Order, the administration and management of the affairs of the society is vested in the governing body of the society. Clause 21 of the Memorandum of Association of the society, enumerates matters which require the approval of the Government. WP(C) NO. 9707 OF 2006 5 This includes the making of rules regarding the conditions of service of the employees of the society in terms of clause 21(viii). In terms of the aforesaid provisions the service rules were issued with effect from 1.11.1990, with prior approval of the Government, as per G.O.(MS)No. 200/90/H & FWD. 6. On the basis of the aforesaid materials, it needs to be noted that there are no Certified Standing Orders for the establishment. Therefore, the Model Standing Orders apply if the establishment society does not escape the net of the Standing Orders Act. 7. The only refuge that the management has taken is the plea that the Standing Orders Act does not apply to the establishment, having regard to Section 13-B of the Act. The contention is that what has been issued by Government as per G.O.(MS).200/90/H & FWD as 'Special Rules' including the specific prescription that the age of retirement of the staff shall be 55 years, amounts to rules WP(C) NO. 9707 OF 2006 6 or regulations notified by appropriate Government in the official gazette. 8. Section 13-B of the Standing Orders Act reads as follows: “13-B.- Act not to apply to certain industrial establishments.- Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.” 9. The aforesaid, among other things, excludes the applicability of the Act to an industrial establishment in so far as the workmen therein are persons to whom rules or regulations that may be notified by the appropriate WP(C) NO. 9707 OF 2006 7 Government in the official gazette in that behalf applies. Firstly, as held by the Apex Court in UP State Electricity Board and Others Vs. Hari Sankar Jain Others (1978 II LLJ 399), the regulations or rules have to be notified by the Government in relation to the establishment. Here, the words “rules” and “regulations” in Section 13-B, not having been defined in the Standing Orders Act, those words have to be understood in terms of clauses 50 and 51 of Section 2 of General Clauses Act, 1897 which are as follows: “ 2(50) “Regulation” shall mean a Regulation made by the President (under article 240 of the Constitution and shall include a Regulation made by the President under article 243 there of and) a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935; 2(51) “Rule” shall mean a rule made in exercise of WP(C) NO. 9707 OF 2006 8 power conferred by any enactment, and shall include a Regulation made as a rule under any enactment.” 10. The Service Rules relied on by the management fall neither under the term regulations or rules as defined in the General Clauses Act. They are not regulations made by the President under the constitutional provisions or regulations made by the Central Government under any of the Government of India Acts as stated in Section 2(50) of the General Clauses Act. They are also not rules made in exercise of any statutory power, i.e., power conferred by any enactment. Therefore, it does not fall under Section 2 (51) of the General Clauses Act. Hence, though approved by the Government in terms of the Memorandum of Association or Regulations of the society and issued in the form of a Government Order and published in the official gazette, the service rules framed by the governing body of the establishment society do not amount to “Rules” or “Regulations” under Section 13-B of the Standing Orders WP(C) NO. 9707 OF 2006 9 Act. Such material is insufficient to be held as a rule or regulation that has been notified by the appropriate Government for the purpose of Section 13-B of the Standing Orders Act. Section 13-B of the Standing Orders Act would not come into operation on the basis of an executive decision of the Government, over-riding the provisions of the Standing Orders Act, that too, in relation to the employees of society, though it is one that is funded by the Government. 11. With the aforesaid, the impugned award of the Labour Court, to the extent it holds that the Model Standing Orders are not applicable to the management of the society does not stand. 12. For the aforesaid reasons, the impugned Exhibit P1 order, to the extent found against above, is set aside and it is declared that the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders, including the prescription of 58 years of age as the age of WP(C) NO. 9707 OF 2006 10 retirement of workmen in its service apply to the first respondent society. Resultantly, the benefit of this declaration would be that the Model Standing Orders would apply to workmen, who are in the service of the first respondent society. This writ petition is allowed as above. No costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE rkc