Case: PARADEEP PHOSPHATES LIMITED Vs. STATE OF ORISSA

(a) In the year 1981, thewas incorporated as a joint venture between the Government of India and Republic of Nauru with an objective to manufactureb) Later on, in the year 1993, the Republic of Nauru disinvested its entire equity stake to the Government of India and thebecame a wholly owned Public Sector Undertaking of the Government of India having its corporate and registered office at Bhubaneswar.(c) Due to deteriorating financial position of certain Public Sector units, the Government of India on 19.05.1998 decided to temporarily enhance the age of retirement of all Central Public Sector Employees from 58 years to 60 years with a view that the same may help industries to cut down their losses. Pursuant to the said order dated 19.05.1998, theimplemented the said order vide order dated 19.11.1998 in Company with retrospective effect from 27.05.1998.(d) Inspite of the enhancement of retirement age, the financial performance of thestill not improved. As a result, the Government of India issued an Office Memorandum dated 22.08.2001 to all Central Public Undertakings including the appellant intimating its decision to roll back the age of retirement of all the employees of Public Sector Undertaking from 60 years to 58 years. Before this Memorandum, the Government of India, on 08.06.2000, had advised theto review the decision on enhancement of age of retirement. However, thedid not take any decision on the said advisory.(e) In the meanwhile, the Government of India, on 28.02.2002, divested its 74% shareholding in the appellant company in favour of one M/s Zuari Maroc Phosphates Ltd.thereby, keeping only 26% shareholding in its favour. As per the share holding agreements, under Clause 7.2 (j) it was provided that all the decisions taken by the Board of Directors of theprior to the date of the disinvestment, shall be binding on all concerned.(f) On 17.07.2002, theby office order, withdrew the earlier office order dated 19.11.1998 and restored the age of retirement to 58 years in respect of all the employees in terms of Certified Standing Orders and Services Rules of the) Being aggrieved, the Trade Union raised dispute with regard to the above and as a consequence of the same, the Government of Orissa, Labour and Employment Department made Reference under Section 12 read with Section 10 of the Industrial Disputes Act, 1947 (in) to the Industrial Tribunal, Bhubaneswar. The Industrial Tribunal, vide order dated 17.04.2010, disposed off the Reference and invalidated the action of theof rolling back the age of retirement from 60 years to 58 years due to contravention of Section 9A of the Act which says prior notice must be given to the employees by the employer which the employer intentionally omitted to give in the present case.(h) Being dissatisfied, thechallenged the decision of the Industrial Tribunal by way of filing writ petition in the High Court of Orissa. The Division Bench of the High Court, vide order dated 30.08.2016, dismissed the writ petition and held, inter alia, that there was no error apparent in the decision of the Industrial Tribunal. Thereafter, thealso preferred a review petition but the same again got dismissed vide order dated 06.10.2016.(i) Consequently, thehas filed these appeals by way of special leave before this Court.

Reasoning:
At the first sight of the provision, prima facie, it appears that the employer is bound to give minimum 21notice to the employee if employer intends to change any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case,grievance of theTrade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the HighIt is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sectorNo doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of thethen it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the ConstitutionalMoreover, the contention of thethat the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to theto act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate ofTo sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes ofIn view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it.