Civil Writ Petition No.2474 of 1982 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.2474 of 1982 Date of Decision:19.11.2008 Management of the Ambala Ex-servicemen Transport Cooperative Society Ltd., Chandigarh .....Petitioner Vs. The Chief Commissioner, Union Territory, Chandigarh and others .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Jagdeep Bains, Advocate for the petitioner. None for the respondents. **** JUDGMENT HARBANS LAL, J. This petition has been moved by the Management of the Ambala Ex-servicemen Transport Cooperative Society Limited, Chandigarh under Articles 226 and 227 of the Constitution of India for setting aside the award dated 24.2.1982 Annexure P.6. The facts giving rise to this petition are that the respondent- Dharam Pal Sharma (hereinafter to be referred as `the workman') was appointed as Commercial Manager of the petitioner- Society to look after the Bank-approved-business of the Society. He joined the said post on 1.7.1975. Thereafter, the Managing committee retired him vide resolution dated 23.11.1978. The Assistant Registrar, Cooperative Societies had issued directions vide Memo No. Cooperative 1 (Transport)-78 dated 25.8.1978 that the age of retirement for an employee of a Cooperative Civil Writ Petition No.2474 of 1982 -2- Society is 60 years and the workman had crossed 60 years even before his appointment. Against the aforesaid order of retirement, the workman made an application to the Registrar, Cooperative Societies, which was dismissed vide order dated 16.2.1979. Thereafter, the workman raised an industrial dispute. The matter was referred to the Additional Labour Court, Chandigarh. The following issues were framed:- 1. Whether the services of Shri Dharam Pal- workman have been illegally terminated as alleged? If so, its effect? OPW 2. Whether the workman deemed to be in continuous employment of the Transport Company? If so, to what benefits he is entitled to? OPW 3. Relief. After hearing the representatives of the parties and examining the evidence on record, the Presiding Officer, Additional Labour Court, Chandigarh passed the impugned award dated 24.2.1982 Annexure P.6. Feeling aggrieved therewith, the petitioner has preferred this petition. None has come forward to argue this petition on behalf of the respondent- workman. I have heard the learned counsel for the petitioner, besides perusing the findings returned by the Additional Labour Court with due care and circumspection. Ms. Jagdeep Bains, Advocate appearing on behalf of the petitioner eloquently urged that the Registrar, Cooperative Societies is entitled to determine the age of retirement of an employee of a Cooperative Society and vide order dated 7.6.1971, the Registrar had prescribed the age Civil Writ Petition No.2474 of 1982 -3- of retirement for employees of Cooperative Consumers Stores. The workman was retired at the age of 68 years and there is nothing wrong in it and now he is more than 70 and is insisting upon reinstatement. He has not been allowed to join as yet. She further argued that in view of the observations rendered in re: Ravi N. Tikoo v. Deputy Commissioner (S.W.) and others, 2006(2) Service Cases Today 35; General Officer Commanding in Chief, Lucknow and others v. R.P. Shukla and others, 2006(3) Service Cases Today 125 (SC), the impugned award is liable to be set aside as the Additional Labour Court cannot order reinstatement of the workman after his becoming overage. She further canvassed at the bar that as per Annexure P.2, an employee of a Society cannot be in service after attaining the age of 60 years. I have well considered these submissions. In paragraph No.8 of the impugned award, the labour court has observed as under:- “However, the second point remains to be that the workman- claimant is now 70 years of age. RW1, Shri Amar Nath Sharma, the Manager of the Respondent concern at present is rather 72 years of age and is still an employee of the respondent and a member of the society. It also remains a fact according to the case of the respondent that the workman- claimant was retired at an age of 68 years by observing that he had crossed the age of 60 years though he was appointed at an age when he had already crossed the age of 60 years of age.” It is crystal clear from these observations that the workman was retired at an age of 68 years. As per Annexure P.2 pertaining to clarification regarding retirement age of an employee working in Cooperative Societies Civil Writ Petition No.2474 of 1982 -4- issued by the Assistant Registrar Cooperative Societies, UT, Chandigarh, an employee of a Society cannot be in service after attaining the age of 60 years. In paragraph No.41 of the judgment rendered in the case of Ravi N. Tikoo (supra), it has been observed as under:- “It is also noteworthy that the workman in his affidavit dated 4th May, 2001 stated that he was about 65 years of age when he deposed the affidavit. The Award was passed about six months later. The workman was obviously beyond the age of superannuation and for this reason as well, no award of reinstatement or back wages could have possibly been made in his favour.” In paragraph No.8 of the judgment passed in the case of R.P. Shukla and others (supra), the Apex Court observed as under:- It is submitted that the existing terms of all the respondents have already expired much before the order of reinstatement was passed by the High Court of Madhya Pradesh vide its judgment dt. 04.01.1996. Since the terms of the engagement of all the three respondents have already expired, they cannot also be reinstated in service. It is stated that the respondents were employed in service on short term basis, their terms of employment expired way back on 25 Sept. 1995 and the High Court Judgment came in 4th January, 1996. On this ground also, the respondents have no case.” Needless to say, the award to which the challenge has been posed was passed on 24.2.1982 whereas Annexure P.2 was issued on 25.8.1978. The operative part of Annexure P.2 reads in the following Civil Writ Petition No.2474 of 1982 -5- terms:- “Normally the appointment in any post in any cooperative society registered under the Punjab Cooperative Societies Act is made according to State Govt. and an employee of a society cannot be in service after attaining the age of sixty. Since the powers of appointments are vested with the Managing Committee, it is for Managing Committee to seek replacement by suitable employee after the age of 60.” Ostensibly, as per Annexure P.2, the workman could not be retained after he attained the age of 60 years. The learned Presiding Officer of the Additional Labour Court has observed in the impugned award that “there are no rules of age of retirement. The Management could not take the advantage of its own mistake that it did not try to get any rule made in this behalf.” In view of Annexure P.2, the Additional Labour Court was not justified in giving direction to the petitioner to reinstate the workman with continuity of service as well as entire back wages, where he had already reached the age of 68 years. The circumstance which all the more tilts against the workman is that he was appointed, when he had already crossed the age of 60 years. The retirement age of the Class III employee in most of the States is still 58 years. If it is assumed that the Management had failed to frame the Rules in relation to the retirement age of the employees, in that, one has to go by common sense. The retirement age of the government employee at the material time, when the award was passed ought to have been taken into consideration. When the Rules with regards to the retirement age have not been framed, the common sense would require to take into consideration the retiral age of employees serving in other Civil Writ Petition No.2474 of 1982 -6- departments as a guiding factor. The Additional Labour Court has observed that RW1 Shri Amar Nath Sharma, the Manager of the respondent- concern at present is rather 72 years of age and is still an employee of the respondent and a Member of the Society. To me, it appears that on this analogy, the impugned award has been passed. In my view, the Additional Labour Court has misdirected itself in deciding the workman's case by keeping in view Amar Nath Sharma's case. He was a member of the Society as well whereas it is not the workman's case that he was also a member of the Society. Nay this, in view of Ravi N. Tikoo (supra), the workman had superannuated and for this reason too, award of reinstatement or backwages could not be passed. On the date of passing of the impugned award, the workman was 70 years of age. In view of the preceding discussion, this petition is accepted and the impugned award is set aside. November 19, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes