Case: Avery India Limited Vs. The Second Industrial Tribunal, West Bengal

In other words, counsel argued that even if the High Court applied the correct law as laid down in the rulings cited above, it could not have quashed that part of the award, for the age of superannuation of all the workmen in the employment of the appellant was raised to 58 by the award and that although the 2nd respondent was not a workmen when the award became operative, the award was binding on him as he was a party to the dispute, under S.18(3) of the Industrial Dispute Act, 1947, hereinafter called the Act. Counsel submitted that the 3rd respondent, the union, was a party to the dispute which means that all the workmen in the establishment were parties to the dispute as regard the age of retirement, and the award, in so far as it raised the age of retirement to 58, would bind all persons who were employed in the establishment to which the dispute related on the date of the dispute. 10. Section18(3) of the Act provides :"18. (3). - A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of Section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on - (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so sommoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part." On the other hand, it was contended on behalf of the appellant, that the only question referred to the Tribunal so far as the 2nd respondent was concerned, was whether his superannuation at the age of 55 was justified and the only case put forward by the union before the Tribunal was whether the provision in the standing orders fixing the age of retirement at 55 would bind him as he was employed before the standing orders came into force in the concern. And as that was the only question raised and considered by the Tribunal and the High Court, it is not open to this Court, in this appeal to enlarge the scope of the controversy and go into the question whether the second respondent could sustain the award on any other ground not decided in his favour by the Tribunal or the High Court. It was further contended on behalf of the appellant that since no date was specified in the award for its coming into operation, it came into operation when it became enforceable as provided in S.17A(1) by virtue of S.17A(4) of the Act and since the 2nd respondent had retired on September 1, 1962, long before the award became operative, even though the award raised the retirement age of all the workmen in the concern to 58, the 2nd respondent cannot get the benefit of the enhanced age of retirement. In other words, the argument was that the award had no retrospective operation and since the award conferred the benefit of the enhanced age of retirement only on the workers in the establishment on the date the award came into operation and since the 2nd respondent was made to retire in accordance with the retirement age as specified in the standing orders of the company and had ceased to be a workman on the date when the award became operative, the award did not confer upon the 2nd respondent any benefit in respect of his age of retirement. 11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act. 12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959 - II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in the counter-affidavit filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The only question which should normally arise in this appeal is whether the view of the High Court, that the provision in the standing orders regarding the age of retirement of the workmen of they would not govern the 2nd respondent who was employed prior to the coming into force of the standing orders, can be sustained.The view of the High Court that the provision in the standing orders regarding retirement age cannot bind the workmen who were employed in the establishment prior to the coming into force of the standing orders cannot stand in the light of the decision of this Court in Agra Electric Supply Co. Ltd. v. Alladin and others, [1969II L.L.J. 540]; (1970)1 S.C.R. 808, Salem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union, [1966I L.L.J. 443]; (1966)2 S.C.R. 498, and The United Provinces Electric Supply Co. Ltd., Allahabad v. T. N. Chatterjee and others, [1972II L.L.J. 9]11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in thet filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based.