IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31..01..2008 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. Nos. 17963, 18603 and 22138 of 2007 and M.P.Nos. 1 of 2007 in respective W.Ps. The Handloom Export Promotion Council Employees' Union Rep. by its President INTUC Office 45 Royapettah High Road Chennai .. Petitioner in W.P. No. 17963 of 2007 R. Ellappan .. Petitioner in W.P. No. 18603 of 2007 Lalitha Devi .. Petitioner in W.P. No. 22138 of 2007 Vs. 1. Government of Tamil Nadu Rep. By its Secretary Labour and Employment Department Fort St. George Chennai – 9 .. R1 in W.P. No. 17963 of 2007 2. The Deputy Commissioner of Labour (Conciliation) -1 DMS Compound Teynampet Chennai – 6 .. R2 in WP.Nos.17963, R1 in WP.18603 and 22138 of 2007 3. The Management of Handloom Export Promotion Council rep. By its Executive Director No. 34 Cathedral Garden Road Nungambakkam Chennai .. Respondent No.3 in W.P.No.17963 of 2007 R2 in WP.No.18603 & 22138/07 https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 17963 of 2007 filed under Article 226 of the Constitution of India for the issuance of writ of Mandamus directing the first respondent to refer the Industrial Dispute relating to age of retirement of the employees of the third respondent for adjudication by Industrial Tribunal / Labour Court and consequently to forbear the third respondent until the dispute is adjudicated from retiring its employees at 58 years without express permission under Section 33(1)(a) of the I.D. Act from the competent authority. W.P. No. 18603 of 2007 filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus after calling for the records pertaining to the order in Hepc/VI/Admn/Extn. of service/07 dated 30.4.2007 of the second respondent, quash the same and consequently direct the second respondent to continue the petitioner in service up to 60 years. W.P. Nos. 22138 of 2007 filed under Article 226 of the Constitution of India for the issuance of writ of Declaration declaring Rule 39 of the Service Rules of the Handloom Export Promotion Council insofar as giving option to the second respondent for extension of service beyond 58 years upto 60 years to the employees even if employees are found medically fit as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently to direct the second respondent to continue the petitioner upto 60 years. For Petitioners : Mr. D. Hari Paranthaman in all WPs. For R1 in : Mrs. Bhavani Subbaroyan, AGP 17963 of 2007 For R1 in : Mr. Sadullah Syed W.P. No. 18603 of 2007 For Management : Mr. A.L. Somayaji, SC for Mr. M.R. Raghavan C O M M O N O R D E R Heard Mr. D. Hari Paranthaman, learned counsel appearing for the petitioners in all the writ petitions, Mrs. Bhavani Subbaroyan, learned Additional Government Pleader, representing the State of Tamil Nadu, Mr. Sadullah Syed, learned counsel appearing for the first respondent in W.P. No. 18603 of 2007 and Mr. A.L. Somayaji, learned Senior Counsel leading Mr. M.R. Raghavan, learned counsel appearing for the Management and have perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner in W.P. No. 17963 of 2007 is a registered Trade Union affiliated to Indian National Trade Union Congress [for short, 'INTUC']. The prayer in the said writ petition is for a direction to the first respondent to refer the industrial dispute relating to age of retirement of the employees in the third respondent Handloom Export Promotion Council [for short, 'HEPC'] for adjudication by an appropriate adjudicating machinery and for a consequential direction to prevent the HEPC from retiring any of its employees at the age of 58 years without getting express permission from the adjudicator under Section 33(1)(a) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'] pending adjudication. The writ petition was admitted on 15.5.2007 and pending the writ petition, in M.P. No. 1 of 2007, interim injunction was granted restraining the HEPC from giving effect to the amended Rule 39. 3. In W.P. No. 18603 of 2007, the petitioner R. Ellappan was working as a Junior Accountant and he had challenged the order dated 30.4.2007 in refusing to grant extension of service in the HEPC. The said writ petition was admitted on 30.5.2007 and pending the writ petition, no interim order was granted. 4. In W.P. No. 22138 of 2007, the writ petitioner (Lalitha Devi) was working as a Superintendent in the HEPC and she had sought for a writ of declaration to declare that the refusal to grant the petitioner extention of service till 60 years as illegal and consequentially to continue her in service from 01.7.2007 to 30.6.2008, i.e., the date of which till she completes the age of 60 years. Pending notice on the writ petition, an interim injunction was granted on 29.6.2007 and the same is continuing till date. 5. It is claimed that the HEPC was registered under the Companies Act and it is governed by its Memorandum of Association and Articles of Association. The said Company is under the control of the Government of India, Ministry of Textiles. It is also claimed that the said HEPC, though a registered Company, is having deep and pervasive control by the Government of India and it is an instrumentality of the Government and a "State" within the meaning of Article 12 of the Constitution of India and hence, also amenable to the writ jurisdiction. A typed set of papers have been filed by the petitioner Trade Union to show the nature of control held by the Government of India. 6. However, it is contended by the HEPC that it is not the "State" within the meaning of Article 12 of the Constitution of India and it is not amenable to writ jurisdiction of this Court. Reliance was placed on two judgments of the Supreme Court relating to State Council of Education, Research and Training (SCERT) as well as State Institute of Engineering and Rural Technology (IERT). The Supreme Court vide its https://hcservices.ecourts.gov.in/hcservices/ decision reported in 2007 (10) Scale 41 [Lt. Governor of Delhi v. V.K. Sodhi] held that SCERT is not a State or authority within the meaning of Article 12 of the Constitution of India and normally, it is not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. In the same way, in the case relating to Mohammad Sadiq v. State of U.P. [2007 (11) Scale 361], the Supreme Court held that IERT is not an instrumentality of the State and hence, a writ petition is not maintainable against its actions. 7. Per contra, Mr. D. Hari Paranthaman, learned counsel appearing for the petitioners, relied upon the judgment of the Constitution Bench of the Supreme Court reported in 2002 (5) SCC 111 [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others] to state that HEPC is a State within the meaning of Article 12 of the Constitution of India and, therefore, it is amenable to the writ jurisdiction of this Court. Since the writ petitions can be disposed of on other grounds, it is unnecessary to render any finding about the status of HEPC in the present writ petitions. 8. In the present case, the HEPC had framed the Service Rules for its employees and Rule 39 relating to retirement is as follows: "Every employee shall normally retire on attaining the age of 58 years. The Committee may, however, extend the period of service of an employee beyond the age of 58 years at a time upto the age of 60, provided he continues to remain medically fit." [Emphasis added] 9. Subsequently, the petitioner Union placed a Charter of Demands on the HEPC by a letter dated 16.8.2004 stating that consequent upon the increase in the age of retirement for Central Government servants and in other Export Promotion Councils, the age of retirement should be increased from 58 to 60 years uniformly to all employees. Therefore, the respondent HEPC was directed to notify an uniform retirement age of 60 years with effect from 01.9.2004. Subsequently, this demand was put up in the Executive Committee meeting of the HEPC held on 27.02.2006 as item No. 9. But the said agenda was adjourned to the next meeting proposing to take legal advice. In the meeting held on 16.4.2007 (in item No. 3), the Council, on the basis of the existing Rules, did not recommend the extention of service of Mr. R. Ellappan (petitioner in W.P. No. 18603 of 2007). This prompted the Union in raising a dispute before the Deputy Commissioner of Labour – I, Chennai. Discussions were held before the said Officer and conciliation notice was also issued to the HEPC by a notice dated 24.4.2007. In the meanwhile, in the Executive Committee meeting held on 16.4.2007, it was proposed to amend Rule 39 and it was accordingly amended and the power to grant https://hcservices.ecourts.gov.in/hcservices/ extention of service from 58 to 60 was deleted thereby making the uniform age of retirement as 58 years thereby HEPC cannot grant extension to any employee. Aggrieved by the said action of the HEPC, the first writ petition was filed with the prayer extracted above. 10. Mr. D Hari Paranthaman, learned counsel appearing for the petitioners submitted that the members of the petitioner Union are entitled to have 60 years as their age of retirement on par with the Central Government employees as well as employees of the other Export Promotion Councils and the Rule before amendment, inasmuch as it granted a discretion to the Executive Committee to grant extention of one year at a time subject to a maximum of two years, is arbitrary as it is likely to be applied on a pick and choose method. In any event, since conciliation proceedings have been notified by the second respondent by a communication dated 24.4.2007, the respondent HEPC cannot give effect to the amendment made and in any case, if they want to make any change pending the conciliation, it requires an express permission from the Conciliation Officer in terms of Section 33(1)(a) of the I.D. Act and any contravention of the said action will be void ab initio. Therefore, a direction was sought in terms of the Division Bench judgment of this Court reported in 2006 (3) L.L.J. 245 [Arasu Viraivu Pokkuvarathu Oozhiyar Sangam v. State Express Transport Corporation Ltd.] 11. The learned counsel also submitted that this Court in the exercise of its extraordinary power vested on it under Article 226 of the Constitution of India can grant a declaratory relief. Once the respondents are precluded from amending Rule 39, then as per the un- amended Rule 39, employees are entitled to continue up to 60 years at the discretion of the Executive Committee of the HEPC and such a discretion cannot be permitted in the light of the judgment of the Supreme Court reported in 1981 (4) SCC 335 [Air India v. Nergesh Meerza]. The learned counsel referred to paragraph 120 of the judgment, which reads as follows: Para 120: "For these reasons, therefore, we have no alternative but to strike down as invalid that part of Regulation 47 which gives option to the Managing Director to extend the service of an AH. The effect of striking down this provision would be that an AH, unless the provision is suitably amended to bring it in conformity with the provisions of Article 14 would continue to retire at the age of 45 years and the Managing Director would be bound to grant yearly extensions as a matter of course for a period of ten years if the AH is found to be medically fit. This will prevent the Managing Director from discriminating between one AH and another." https://hcservices.ecourts.gov.in/hcservices/ 12. With reference to the last contention, this Court is unable to go into the said issue because of two reasons. Firstly, that is not an issue raised in W.P. No. 17963 of 2007 and only a prayer for adjudication regarding retirement age is sought for and secondly, in W.P. No. 18603 of 2007, the prayer is only to set aside the refusal to grant extention and in the prayer in W.P. No. 22138 of 2007 was for a declaration that the refusal to grant extention to the petitioner up to 60 years was illegal. 13. It is an admitted fact that the respondent HEPC has removed the discretion in granting extention from 58 to 60 years and fixed a uniform age of retirement as 58 years for all employees vide its resolution dated 16.4.2007. Therefore, the question whether the employees under HEPC are entitled to have 60 years as the age of retirement will be the subject matter of the pending industrial dispute and the same is yet to be referred and adjudicated by a competent adjudicating machinery. Unless the petitioners succeed, the question of any interim relief cannot be granted. Either before the amendment or after the amendment, the retirement age is only 58 years. It was contended that there is no vested right on the employees to demand, as a matter of right, extention up to 60 years. 14. In fact, there is no arbitrariness in the grant of extention and in this context, the judgment of the Supreme Court reported in 1961 (2) L.L.J. 639 [Kailash Chandra v. Union of India] was relied upon. Reliance was placed upon the following passages found at page 642 of the said judgment and the same may be usefully reproduced below: "This intention is made even more clear and beyond doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasizes the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within C1 (a) as soon as he attains the age 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option, the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but what are special circumstances is left https://hcservices.ecourts.gov.in/hcservices/ entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient. Reliance was placed by the learned counsel on an observation of Mukherjea, J. (as he then was), in Jai Ram v. Union of India [AIR 1954 SC 584] when speaking for the Court as regards this rule, his lordship said: "We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of sixty. This is conditional undoubtedly upon his continuing to be efficient. We may assume, therefore, for purposes of this case that the plaintiff had the right to continue in service till sixty and could not be retired before that except on the ground of inefficiency." It would wholly unreasonable however to consider this as a decision on the question of what this rule means. Dealing with an argument that as the plaintiff under this rule has the right to continue in service till sixty and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel's argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule. The correct interpretation of rule 2046(2)(a) of the Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of fifty-five and sixty,the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India. Besant Kumar Pal v. Chief Electrical Engineer [1956- II-L.L.J. 160], Kishan Dayal v. General Manager, https://hcservices.ecourts.gov.in/hcservices/ Northern Railway [A.I.R. 1954 Pun. 245] and Raghunath Narain Mathur v. Union of India [A.I.R. 1953 All. 352 = 1953 A.L.J. 76]. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55." 15. Mr. A.L. Somayaji, learned Senior Counsel appearing for the respondent Management HEPC submitted that the infraction of Section 33 (1)(a) of the I.D. Act does not arise in this case because no service condition of the employees is altered. Even as per the contention of the Trade Union, the power vested on the Executive Committee to extend the service up to 60 years each time with one year at a time by the discretion of the Executive Committee, is likely to result in arbitrariness and, therefore, what is now sought to be achieved by the Committee is to denude itself even the power of discretion. Therefore, the Trade Union must be happy that the discretion has been removed. If for any reason, the Trade Union seeks enhancement of retirement age on par the with other employees in other services, then, that can be done only through an adjudication where necessary materials will have to be placed by both parties about the efficacy of increasing the retirement age. Therefore, it is strongly contended that pending direction to the State Government for referring the dispute, no interim order should be granted by this Court. 16. Insofar as the first portion of the prayer is concerned, there is no difficulty in giving a direction to the respondents 1 and 2 to refer the issue for adjudication by an appropriate Industrial Tribunal / Labour Court. But in the present case, since the conciliation had not ended in failure and unless report is sent by the second respondent, no direction can be given by this Court for referring the dispute for adjudication under Section 10(1) of the I.D. Act. Therefore, at present, this Court can only direct the second respondent to submit his Failure Report to the State Government in terms of Section 12(4) of the I.D. Act within a period of three weeks from the date of receipt of a copy of this order. If such a report under Section 12(4) of the I.D. Act is received, the first respondent is hereby directed to refer the dispute for adjudication by a Labour Court / Industrial Tribunal within a period of four weeks from the date of receipt of a copy of the Failure Report to decide the issue regarding the revision of age of retirement as demanded by the petitioner Union. 17. With reference to the second portion of the prayer, this Court is not inclined to grant any such order. The question of infraction of Section 33(1)(a) of the I.D. Act will arise only if there is any alteration of service condition. In the present case, the age of retirement was only 58 years and it is liable to be extended up to 60 https://hcservices.ecourts.gov.in/hcservices/ years by granting one year extention at a time at the discretion of the Executive Committee. Therefore, when the petitioner Union demanded the removal of the discretion by the Executive Committee, they, in effect, wanted 60 years as the age of retirement. During the pendency of the conciliation proceedings, the third respondent HEPC had removed the discretion and retained the retirement age as 58 years uniformly to all workmen. Therefore, there is no alteration of any service condition of the employees in the matter of their retirement age. 18. The reliance placed by the learned counsel for the petitioner on the Air India case (cited supra) has no relevance because in the present case, there is no discretion vested with the third respondent HEPC to grant extention of service to any person after the amendment whereas in the Air India case, Regulation 47, which gave power to the Managing Director to extend the service of the Air Hostesses, was considered to be arbitrary and the power of the Managing Director to grant such extention was held to be discriminatory from one Air Hostess to another. If the existing service condition is not to have 60 years as age of retirement, then, by the amendment to the service rule, the respondent HEPC had not altered any service condition as projected by the learned counsel for the petitioners. It is not as if when the petitioner Union is seeking for enhancement of age of retirement, as a counter blast, the Management had reduced the age of retirement. Therefore, the request made by the learned counsel for the petitioners with reference to the second prayer is misconceived. Pending adjudication regarding the age of retirement, the petitioners in W.P. Nos. 18603 of 2007 and 22138 of 2007 cannot be continued in service on the basis of the interim orders passed by this Court. 19. In fact, in the case of the petitioner in W.P. No. 18603 of 2007, there was a specific rejection by the Executive Committee from continuing his service. In the case of petitioner in W.P. No. 22138 of 2007, her entire case was based upon the interim order obtained in W.P. No. 17963 of 2007. 20. In view of the above discussion, in W.P. No. 17963 of 2007, there will be a direction to the second respondent to send his Failure Report to the first respondent State Government within a period of three weeks from the date of receipt of a copy of this order, under Section 12 (4) of the I.D. Act and on receipt of such a report, a further direction is issued to the first respondent to refer the dispute relating to enhancement of retirement age for adjudication by appropriate Industrial Tribunal / Labour Court within a period of four weeks thereafter. https://hcservices.ecourts.gov.in/hcservices/ 21. In the light of the above, W.P. Nos. 18603 and 22138 of 2007 must fail and will stand dismissed. Interim orders already granted by this Court will stand vacated. However, the parties are allowed to bear their own costs in all these petitions. Connected Miscellaneous Petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. Secretary Government of Tamil Nadu Labour and Employment Department Fort St. George Chennai – 9 2. The Deputy Commissioner of Labour (Conciliation) -1 DMS Compound Teynampet, Chennai – 6 1 cc To Mr.R.Raghavan, Advocate, SR.4487. 3 cc To Mr.D.Hariparanthaman, Advocate, SR.4516, 4515, 4517. 1 cc To The Government Pleader, SR.4787. W.P. Nos. 17963, 18603 & 22138 of 2007 ASM(CO) RVL 04.02.2008 https://hcservices.ecourts.gov.in/hcservices/