Case: Dunlop India Ltd Vs. Their Workmen

1. This appeal, by special leave, is directed against the award dated February 29th, 1968 of the 5th Industrial Tribunal, West Bengal, in case No. 334 of 1967, setting aside the order dated August 2, 1966 passed by the appellant directing the retirement of the concerned workman on his attaining the age of 58 years.2. The appellant is a Joint Stock Co. incorporated under the Companies Act, 1956. It carries on business throughout India as manufacturers and dealers of tyres, tubes for motors, trucks and tractors etc. The workman concerned Hari Nath Bhattacharjee, was appointed in 1944. At that time there was no rule regarding the age of superannuation. On April, 26, 1955, the Company framed and brought into force under Section 7 of the Industrial Employment (Standing Orders) Act, 1946, Standing orders relating to its staff employees. Under clause 28 of the Standing Orders a staff employee was to retire on the first January next following the year in which he attains 55 years of age. But it was also provided that if a staff employee desires to remain in service of the Company after the date when he should have been normally retired, the Managing Director had the power to extend the employees service year by year provided the work was found to be satisfactory and the employee was certified by the Chief Medical Officer as of good health.3. In 1956 an agreement was entered into between the appellant and its workmen represented by the Dunlop Rubber Factory Labour Union. Clause 14 of the agreement fixed the age of retirement of a staff employee s the 1st of January next following the year in which he has attained 55 years of age, Notwithstanding this agreement under which the age of retirement of a staff employee was 55 years, the appellant issued a Circular on April 20, 1960 to the effect that the management will not ask any employee to retire before attaining the age of 58 years. In this Circular after referring to the uniform age of retirement in West Bengal of employees in Government and Commercial Establishments as the age of 55 years, it is stated that the Industrial Tribunal throughout the Country have fixed the age of retirement varying from 55 years to 60 years.4. On June 29, 1961, an agreement was entered into between the appellant and the Dunlop Rubber Factory Labour Union regarding the terms of engagement and conditions of employment of staff employees. The agreement deals with various matters. Clause 14 of this agreement provided that the staff employees shall retire at the end of the month in which they attain the age of 58 years. This clause also provides for a staff employee retiring when he is declared unfit on medical grounds. Clause 27 provided that the agreement was to take effect from 1st January, 1961 and was to remain in force for five years from that date. In view of the expiry of the above agreement, the appellant and the same Union entered into a fresh agreement on December 6, 1966 regarding the terms of engagement and conditions of employment for staff employees. This agreement also deals with various matters. Cl.6 dealing with retirement, provided that the staff employees shall retire at the end of the month in which they attain the age of fifty-eight years. Clause 32 provided that the agreement was to have effect from 1st January, 1966, and was to remain in force for five years from that date.5. On August 2, 1966 the Company informed the concerned workman that as per the Companys Regulations, he was due to retire on February 28, 1967 as he will be attaining the age of 58 years on February 15, 1967. The workman replied on September 7, 1966 stating that he was not bound to retire on completion of 58 years as he had entered the service of the Company long before the Standing Order fixing the age of retirement at the age of 55 years were framed. According to the workman, he was entitled to continue in service till he completed 60 years of age. In the reply he had also referred to the minutes of the meeting of the Works Committee held on February 29, March 30 and May 4, 1956, wherein fixing of age of retirement at 55 years was disputed. He had also referred to certain other matters, in his reply.As conciliation proceedings failed, the Government of West Bengal referred to the Industrial Tribunal concerned for adjudication of thethe retirement of Shri H. N. Bhattacharyya is justified?To what relief, if any, is he entitled?8. The appellant relied on the agreement dated June 29, 1961 and Dec. 6, 1966 in support of its stand that the order regarding the retirement of the workman was justified. In fact the Company raised a plea that the concerned workman was bound by the agreement of 1956 entered into between the appellant and the Dunlop Rubber Factory Labour Union fixing the age of retirement of its employees at 55 years on the ground that the workman was a member of the said Union. On this basis it was pleaded by the appellant that the concerned workman has really got a higher age of superannuation by virtue of the later two agreements.9. The Union on the other hand pleaded that as there were no Standing Orders regarding the age of retirement when the workman joined service in 1944, he was entitled to continue in service till he attained the age of 60 years in view of the decision of this Court in Guest, Keen, Williams (P) Ltd. v. P. J. Sterling, (1960) 1 SCR 348   = (AIR 1959 SC 1279  ).The Union further pleaded that the agreement of 1956 had not been given effect to by the appellant as will be seen from its Circular dated April 20, 1966. The Union also contended that the workman was not bound by the agreements either of June 29, 1961 or of December 6, 1966 as the Union, which was a party to those agreements did not represent all the employees of the appellant including the concerned workman. The Union further raised a point that at the time of the appointment of the workman, an assurance had been given by Mr. Edward, Employment Officer of the Company, that the workman can continue in service so long as he was found to be physically fit.10. The Tribunal has recorded the following findings: At the time when the concerned workman joined the service of the Appellant, there were no Standing Orders, Rules or Regulations regarding the age of retirement. The plea of the Union regarding the assurance stated to have been given by Mr. Edward was rejected. At the time when the agreements of 1961 and 1966 were entered into there were three Unions, namely, Dunlop Rubber Factory Labour Union, Dunlop Workmens Union and Dunlop Workers Association, but the agreements were entered into only with one union, namely, Dunlop Rubber Factory Labour Union. The concerned workman as well as several other employees were not the members of the Union. On the other hand, the workman was an active member of the Dunlop Workers Union, which was not a party to either of the agreements, and therefore, the workman was not bound by those agreements. In 1956 there was only one Union, namely, Dunlop Rubber Factory Labour Union, representing all the employees of the Company, and therefore the workman was bound by the agreement of 1956. But the Company did not give effect to the age of retirement of 55 years as provided in Clause 14 of the agreement of 1956. In view of the decision of this court in (1960) 1 SCR 348   = (AIR 1959 SC 1279  ) the concerned workman was entitled to be in service till his attaining the age of 60 years. The Companys plea that as the workman had enjoyed the benefits conferred on all employees under the agreement of 1961 and 1966 he was also bound by the age of retirement provided therein, was rejected on the ground that the workman can raise a dispute or a controversy about the age of retirement only when the provisions regarding the age of superannuation was sought to be enforced. On these findings the Tribunal held that the order dated August 2, 1966 passed by the appellant is illegal and it also declared the right of the concerned workman to be reinstated with all benefits and that he is entitled to continue in service till he attains the age of 60 years.

Reasoning:
27. However, the finding of the Tribunal that the concerned workman was entitled to continue in service till he attained the age of 60 years can be supported on other grounds. We have already referred to the decision of this Court in (1960) 2 SCR 51   = (AIR 1960 SC 207  ) relating to the age of retirement being 60 years in respect of the appellants staff employed in Bombay region. Though that decision related to the employees of the appellant in Bombay region, it should be noted that this Court rejected the contention of the Company that it being an all-India concern, it should have uniform conditions of service throughout the country for its employees. It was further emphasised by this Court that industrial adjudication in India being based on industry-cum-region basis, the Industrial Tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing conditions in the region where the employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service.28. We have also referred to the inter-office letter dated December 6, 1962, which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.29. Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff, Mr. Sen Gupta, also referred us to certain decision in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. But it is not necessary for us to refer to those decisions cited either by Mr. Pai or Mr. Sen Gupta. We will only refer to the decisions of this Court in Messrs. British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523   = (AIR 1966 SC 732  ), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that the uniform age was fixed for the factory workmen also in that case because of the particular nature of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entitled to continue in service till 60 years is justified.