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Allahabad High Court · body

1991 DIGILAW 1025 (ALL)

Bachai Lal v. U. P. S. R. T. C

1991-08-08

M.P.SINGH

body1991
JUDGMENT M.P. Singh, J. - This bunch of writ petitions, filed by the employees belonging to Group 'C' of the U. P. State Road Transport Corporation (hereinafter referred to as the Corporation), primarily is concerned with the age of superannuation. Whether it is 60 years or 58 years. 2. The relevant facts, of each writ petition are substantially similar. They need not be discussed in detail. It will be sufficient if the broad features of terms and conditions of employment and the relevant rules regarding superannuation are considered. 3. Before 1946 the condition of service of industrial employees were invariably ill defined and were hardly ever known with even slight degree of precision to the employees. There was no uniformity in condition of service for employees discharging identical duties even in the same establishment. The conditions of service were in the form of oral arrangement which left the employees at the mercy of the employer. 4. In order to regulate the service, conditions of such employees the Parliament enacted "The industrial Employment (Standing Orders) Act, 1946" (hereinafter referred to-as the Standing Orders Act). The object of this Act was to require the employer to make the condition of employment precise and definite and known to the employees. It further intended to prescribe these conditions in the form of "Standing Orders." 5. The terms 'Standing Order' is defined in Section 2 (g) of the Act to mean rules relating to matters set out in the schedule. 6. The matter of superannuation was not included in the schedule. So the age of retirement could not be prescribed by the standing Orders, certified under the Act or under the Model Standing Orders framed under the Central Rules or the U. P. Rules. 7. The age of retirement was added to the schedule of the Standing Orders Act by the Central Rules vide notification No. CSR 30 (E) dated 17-1-1983. It fixed the age of retirement as 60 years which was subsequently revised in the year 1984 vide notification No. GSR 1040 dated 20th September, 1984. It fixed the age of retirement as 58 years. 8. U. P. Rules added age of retirement' to the schedule vide Item No. II-C Published in the U.P. Gazette dated 10th February, 1978 but the age of superannuation has not been prescribed in the Model Standing Orders framed under the U. P. Rules. It fixed the age of retirement as 58 years. 8. U. P. Rules added age of retirement' to the schedule vide Item No. II-C Published in the U.P. Gazette dated 10th February, 1978 but the age of superannuation has not been prescribed in the Model Standing Orders framed under the U. P. Rules. Thus, the age of superannuation of a workman covered by the Standing Orders Act was 58 years. 9. Standing Orders framed under the Standing Orders Act, were certified in respect of (1) Central Workshop (2) Chunniganj Workshop, and (3) Juhi Workshop, Kanpur in the year 1972. They were applicable to the workman engaged in technical side only. Their application was excluded-to the employees governed by the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules or any other Rules that may be notified by the State Government. 10. These Standing Orders were framed before the Constitution of the Corporation. These Standing Orders became applicable to the workmen engaged on the technical side. They would not apply to those employees who were governed by the Fundamental Rules. These Standing Orders have statutory force and prevail over contrary terms of employment. It provided age of superannuation as 60 years. 11. The Constitution of India took special case of the living wage and service conditions for the workers. Article 43 provides that the State shall endeavour to secure by. suitable legislation to ail workers a living wage, conditions of work ensuring a decent standard of life. The provisions so made aimed at establishing a socialistic State as envisaged by the preamble. It was to secure a good standard of life and economic security to the workers. It also ensured full enjoyment of pleasure and social cultural opportunity. In a sense this article has brought a sort of revolution in labour legislation. 12. Industrial Employment (Amendment and Miscellaneous Provisions) Act, 1956 introduced a new Section i3-B in the Standing Orders Act, with effect from 10-3-1957, which is very material for this bunch whose relevancy will be considered hereinafter. 13. This takes me to another equally relevant Act known as the Road Transport Corporation Act, 1950 (Act No. 64 of 1950). It has been enacted by the Parliament with a view to enable the State Governments to establish Road Transport Corporation with an object of providing efficient adequate; economic and properly coordinated system of Road Transport Service. 13. This takes me to another equally relevant Act known as the Road Transport Corporation Act, 1950 (Act No. 64 of 1950). It has been enacted by the Parliament with a view to enable the State Governments to establish Road Transport Corporation with an object of providing efficient adequate; economic and properly coordinated system of Road Transport Service. Section 3 of tins Act empowers every State to establish Road Transport Corporation. Accordingly the State of U. P. created a Corporation known as U P. State Road Transport .Corporation on 1-6-1972. 14. Prior to the establishment of the Corporation the transport services were provided by the U. P. Government through a department known as Roadways Department. This department was created in 1948. All the employees were Government employees They were governed by the rules and regulations applicable to the Government servants. The retired at the age of 58 years. 15. The Corporation thus created had succeeded into the assets and liabilities of the U.P. Government Roadways. 16. On the creation of the Corporation all the employees of the erstwhile U.P. Government Roadways were sent, on deputation with the Corporation with a specific condition that their service conditions including retirement benefits would not be changed. This was done vide G. O. dated 5-7-1972. The result was, that the employees of the U. P. Government Roadways who were, retiring at the age of 58 years would retire at the same age even after the formation of the Corporation. This was approved by the Supreme Court in the case reported in AIR 1989 SC 374 , Hari Shanker Gaur v. D.D.C. and a Division Bench decision of this Court in Writ Petition No. 3273 of 1982, M. S.A. v. State of U.P. 17. Such a situation was considered by the Supreme Court in the case reported in AIR 1991 SC 276 , S. P. Dubey v. M.P. State Road Transport Corporation. Dubey had joined the services as a junior clerk in a company known as Central Provinces Transport Service Ltd. in the year 1947. He worked therefrom 1947 to 30-8-1955. Admittedly the age of superannuation of the employees of the company was 60 years. 18. The Company was taken over by the State Government on 31-8-1955. While doing so it was specifically mentioned that the existing staff of the Company would not be adversely effected with regard to their condition of service. 19. He worked therefrom 1947 to 30-8-1955. Admittedly the age of superannuation of the employees of the company was 60 years. 18. The Company was taken over by the State Government on 31-8-1955. While doing so it was specifically mentioned that the existing staff of the Company would not be adversely effected with regard to their condition of service. 19. There is no dispute that on the date of taking over according to the Government rules the age of retirement was 58 years but since the Government has given an assurance to the employees of the Company that their service condition will not be changed pre-judicially to their existing right, the Supreme Court took the view that on the date when the Company was taken over the Government has assured the employees that they will retire at the age of 60 years, the Corporation could not frame regulations contrary to the directions issued by the State Government. 20. In the instant matter when the petitioners joined service, they were the employees of the State Government working in the Roadways Department. Even under Fundamental Rule 56 their age of retirement was 58 years and the same has been retained under the regulations. Therefore, the decision oi S. P. Dubey's case is no assistance to the petitioner. 21. The controversy involved in the present bunch of cases was exactly similar to one raised in the case of S.K. Siddiqui v. M.P. State Road Transport Corporation, reported in AIR 1991 SC 310 . In that case S.K. Siddiqui had joined the service in the Transport Department of Madhya Pradesh Government in September, 1960. The age of retirement was 58 years. The Corporation was established in June, 1962. He became an employee of the Corporation. According to the regulations he was to retire on 30-6-1987 on attaining the age of 58 years. He claimed the age of superannuation as 60 years. Hit Supreme Court considering the earlier judment in the case of S. P. Dubey (supra) held :- "We have held that all those employees who had joined service with the Company are entitled to continue in service till they attain the age of 60 years. The petitioner does not belong to that category of employee. Hit Supreme Court considering the earlier judment in the case of S. P. Dubey (supra) held :- "We have held that all those employees who had joined service with the Company are entitled to continue in service till they attain the age of 60 years. The petitioner does not belong to that category of employee. He joined service with the State of Madhya Pradesh in September, 1960 when the age of superannuation was 58 years and had continued to be the same till he retired. His case is, therefore, distinguishable from that of S.P. Dubey's case. The writ petition is, therefore, dismissed without any order as to costs." 22. In this case also when the petitioners joined tire service, their age of retirement was 58 years and under Regulation 37 also they are being retired at the age of 58 years. This decision of the Supreme Court squarely covers the present bunch of cases. 23. Though the Corporation came into existence on 1-6-1972 but the Corporation exercising its power under Section 45 (2) (c) of the Road Transport Corporation Act, 1950 framed regulations known as "Uttar Pradesh State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981" (hereinafter referred to as the Regulations) with the previous sanction of the State Government superseding all existing rules or orders on the subject (emphasis supplied). This regulation was published in the U. P. Gazette vide notification No. 3517/XXX-2-1981 on 19-6-1981. 24. There is no dispute that the Road Transport Corporation Act is a special Act dealing with the establishment and working of the Road Transport Corporation throughout the country. The regulations, framed under the provisions of the said Act, laying down the terms and conditions of the service for its employees, is a special law and it would prevail over the general law contained in the Model Standing Orders or Certified Standing Orders framed for the industrial establishment. 25. The promise made by the Government on 5-7-1972 vide notification No. 3414/302-170-N-77 giving assurance to the employees of the Corporation that the service condition would not be changed, has been given effect to while framing the regulations. The said regulations have made no change in the age of retirement. It remained the same which was prior to its formation. 26. The promise made by the Government on 5-7-1972 vide notification No. 3414/302-170-N-77 giving assurance to the employees of the Corporation that the service condition would not be changed, has been given effect to while framing the regulations. The said regulations have made no change in the age of retirement. It remained the same which was prior to its formation. 26. The final picture which emerges now is that prior to the formation of the Corporation the age of retirement of the employees of Group 'C' was 58 years. The same has been retained under the regulations. 27. The regulations cannot be said to have been framed in any way prejudicial to the petitioners' right which was in existence at the time when the Corporation was _ constituted. They have no cause to make any grievance. 28. While fixing the age of superannuation the Corporation had in its mind the policy and factors guiding the fixation of age as laid down in various cases decided by the Supreme Court. Reference may be made to the following eases :- 1972 (25) FLR 82, Jeevan Lal (1929) Ltd. v. The Workman. 1972 (25) FLR 90, Workmen of Celtlewell Bullen Co. Ltd v. Cettlewell Bullen Co. Ltd. 1975 (30) FLR 18, Dhanbad Flour Mills v. D. M. K. Singh and others. 1985 (51) FLR 166 , K. Nagraj v. State of A. P. 1983 (47) FLR 499 , Workmen of Bharat Petroleum Corporation, Bombay v. Bharat Petroleum Corporation Ltd. 29. From the date of establishment of the Corporation and before the date of the framing of the regulations, the service conditions of the employee-engaged on the technical side only were governed by the Model Standing Orders or Certified Standing Orders framed under the Standing Orders Act. 30. In both the sets of Standing Orders the age of retirement was fixed as 60 years. This has been upheld by a Division Bench of this Court in the case reported in 1978 (37) FLR 191, Central Workshop Karamchari Sangh v Industrial Tribunal. 31. The regulations framed were notified in the Official Gazette on 19-6-1981. At that time the Certified Standing Orders and the Model Standing Orders framed under the Standing Orders Act were occupying the field of superannuation. 31. The regulations framed were notified in the Official Gazette on 19-6-1981. At that time the Certified Standing Orders and the Model Standing Orders framed under the Standing Orders Act were occupying the field of superannuation. In order to supersede the same and exclude their application the notification under Section 13-B of the Standing Orders Act was one of the statutory requirement, which was not done. This omission gave rise to a flood of litigation. 32. Section 13-B of the Standing Orders Act reads as under :- "13-B. Act not to apply to certain Industrial establishments - Nothing in this Act shall apply to an industrial establishment in so far as the workman employed therein are persons. to whom a Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply. (Emphasis supplied). 33. According to the language of this section a rule or regulation, if notified under this provision of the Standing Orders Act will exclude the applicability of the Standing Orders Act to the extent that rule or regulation covers the field. 34. This section has an overriding effect to the exent that once the rules or regulations framed and notified in the Official Gazette under this section, then the provisions of this Act including the Standing Orders will not apply to the workers of that industrial establishment. The regulations so framed will hold the field in supersession of the Certified Standing Orders or any other rules. 35. While holding so I am relying upon a decision reported in AIR 1979 SC 65 , U.P. State Electricity Board, v. Mari Shanker Jain and another. 36. Relying upon Regulation 37, some employees of Group 'C' were made to retire on attaining the age of 58 years. They challenged the said orders by means of different writ petitions. 37. Regulation 37 provides the age of superannuation. 36. Relying upon Regulation 37, some employees of Group 'C' were made to retire on attaining the age of 58 years. They challenged the said orders by means of different writ petitions. 37. Regulation 37 provides the age of superannuation. It runs as follows "An employee of Group 'C' shall retire on attaining the age of 58 years and that of Group 'D' shall retire on attaining the age of 60 years : Provided that if the date of retirement falls on or after the second day of the month, the date of retirement shall be. the last day of the month." Admittedly the said regulation was not notified in the Official Gazette under Section 13-B of the Standing Orders Act. 38. The effect of non-notification was considered by different Benches. Reference may be made to 1986 LIC 2025, Shitla Prasad v. State of U.P. and another ; Writ Petition No. 222 of 1985, Sumer Chand v. U.P. State Road Transport Corporation; Writ Petition No. 3907 of 1986, Gajendra Singh v. U.P. Slate Road Transport Corporation connected with Writ Petition No. 10875 of 1986, Murlidhar v. U.P. State Road Transport Corporation, decided on 20-5-1988. In all these cases it has teen held that since the regulations have not been notified under Section 13-B of the Standing Orders Act, so the Certified Standing Order or the Model Standing Order will hold the field and the age of retirement accordingly was held to be 60 years. 39. On the contrary, some Benches have taken a different view. In Writ Petition No. 10117 of 1986, G.D. Singh v. U.P. State Road Transport Corporation, decided on 11-3-1987, and Writ Petition No. 8428 of 1989, Brij Pal Tiwari v. State of U.P., it was held that the age of retirement was 58 years. 40. In order to remove the existing anamoly and to make the Regulations applicable to the employees of the Corporation the Government has issued the notification No. 858/XXXVI-3-1 (S. O.)-90 dated 19-9-J990 notifying the regulations of 1991 under Section 13-B of the Standing Orders Act but this notification was not very happily worded and could be subjected to various interpretations. There was scope of further litigation. Accordingly another notification No. 222/XXXVI-3-1 (S. O.)-90 dated 12-4-1991 has been issued and it reads as follows :- "No. 222/XXXVI-3-1 (S. O.)-90. dated Lucknow, April 12, 1991. There was scope of further litigation. Accordingly another notification No. 222/XXXVI-3-1 (S. O.)-90 dated 12-4-1991 has been issued and it reads as follows :- "No. 222/XXXVI-3-1 (S. O.)-90. dated Lucknow, April 12, 1991. In exercise of the powers under Section 13-B of the Industrial Employment (Standing Orders) Act, 1946 (Act No. 20 of 1946) read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in supersession of Government notification No. 858/XXXVI-3-1 (S.O.)-90 the Governor is pleased to notify that the Uttar Pradesh Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 framed under clause (c) of sub-section. (2) of Section 45 of the Road Transport Act, 1950 (Act No. 64 of 1950) shall apply to the workmen employed in the Uttar Pradesh State Road Transport Corporation. By order Mohinder Singh Sachiv." 41. The difficulty in applying the provisions of Regulation 37 of the Regulations has now been removed. 42. On account oi the notification under Section 13-B of the Standing Orders Act the effect of the judgments of this Court in the cases of Sumer Chand, Gajendra Singh end Murlidhar have lost their importance. The defect pointed out in those judgments have now been cured. 43. Sri V.K. Burman, learned Counsel for the petitioner contended that the said notification dated 12-4-1991 is not in the strict compliance of Section 13-B of the Standing Orders Act. According to him the language of the notification should have been that the U. P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 is hereby notified under Section 13-B of the Standing Orders Act. This having been not done, it will be deemed that the regulations have not been notified under Section 13-B as yet. The submission thus raised has no substance. 44. It is one of the settled rule of construction of any provision that the real intention has to be ascertained. The language used is to be considered in the light of general purpose and object of the notification. A reading of the notification shows that it was designed to effectuate a particular object and to meet a particular requirement. An interpretation which would defeat the object is to be avoided. The language used is to be considered in the light of general purpose and object of the notification. A reading of the notification shows that it was designed to effectuate a particular object and to meet a particular requirement. An interpretation which would defeat the object is to be avoided. I find support from the judgments reported in AIR 1953 SC 83 , Darshan Singh Balwant Singh and another v. State of Punjab ; AIR 1952 SC 359, Ashwini Kumar Ghosh and another v. Arabinda Bose and another ; AIR 1972 SC 1548 Firm Amur Nath Basheshwar Dass v. Tek Chand and AIR 1959 SC 352 , Commissioner of Income-Tax, Delhi v. Teja Singh. 45. The object of the notification was to make the regulations applicable to the employees of the Corporation. 46. I hold that the notification is a valid one. The consequential effect would be that regulation 37 becomes applicable with full force. 47. Now the question arises whether the notification will operate retrospectively or prospectively. 48. In the case reported in AIR 1985 SC 551 , K. Nagraj v. State of Andhra Pradesh, it has held that the service rules can be amended retrospectively. Applying the same principle in the instant case the notification thus issued on 12-4-1991 will validate the regulations, with effect from 19-6-1981 when the regulation itself was notified in the' Gazette. 49. Even if for the sake of argument it is accepted that the regulations will apply prospectively with effect from 12-4-91, it is not going to change the ultimate result of the writ petitions. There are some employees who attained the age of 58 years before 12-4-1991 but were permitted to continue in service on the basis of the stay order passed by this Court. They will be entitled for their salary till the date of this judgment, similar treatment would be given to those employees who attained the age of 58 years after 12-4-1991. This is being done entirely on equitable considerations. 50. There are some employees who attained the age of 58 years before or after 12-4-1991 and had filed writ petitions in this Court. No stay orders were granted to them as the hearing of this bunch had started. They were not at fault. It was an omission on the part of this Court. They cannot be allowed to suffer on account of our inaction. No stay orders were granted to them as the hearing of this bunch had started. They were not at fault. It was an omission on the part of this Court. They cannot be allowed to suffer on account of our inaction. They will also get a similar benefit and will be entitled to the salary till the date of this judgment. 51. This equitable adjustment will be available to only those petitioners who are governed by the Certified Standing Orders or the Model Standing Orders. It is made clear that those petitioners to whom Fundamental Rules, Supplementary Rules, and C.C.A. Rules were applicable, will not be entitled for this benefit. They constitute a different class. 52. The regulations have been validly notified under Section 13-B of the Standing Orders Act. Under Regulation 37 the age of retirement of the petitioners is 58 years and not 60 years. 53. Another submission raised by the learned Counsel for the petitioners was regarding discrimination, According to him those employees who were governed by the Certified Standing Order or Model Standing Order were to retire on attaining the age of 60 years. Special reference was made to the employees of the Central Workshop, Chunniganj Workshop and Juhi Workshop. There the employees retired at the age of 60 years. Whereas the employees of other units were made to retire on attaining the age of 58 years. This argument was based mainly on the ground that for want of notification under Section 13-B of the Standing Orders Act regulation 37 could not be made applicable to the employees of the Corporation. The Certified Standing Orders and the Model Standing Orders occupied the field of service conditions. 54. Now on account of the Gazette Notification dated 12-4-1991 notifying the regulations under Section 13-B of the Standing Orders Act, this point has lost all its merit. Certified Standing Order and the Model Standing Order now stand superseded by the Regulations. The Regulations will now apply uniformity to all the employees of the Corporation including that of Central Workshop, Chunniganj Workshop and Juki Workshop. 55. The next submission raised by the learned Counsel for the petitioner was that the Certified Standing Order framed through quasi-judicial process under the provisions of the Standing Orders Act could not be superseded by the executive action by issuing notification under Section 13-B of the Standing Orders Act. 55. The next submission raised by the learned Counsel for the petitioner was that the Certified Standing Order framed through quasi-judicial process under the provisions of the Standing Orders Act could not be superseded by the executive action by issuing notification under Section 13-B of the Standing Orders Act. There is no merit in this submission as well. 56. The Corporation has been created by the State Government under Section 3 of the Road Transport Corporation Act, 1950. It is a statutory Corporation. It has been authorised by the statute to make rules and regulations under Section 45 (2) (c) of the Road Transport Corporation Act, 1950. The publication of the said regulations under Section 13-B of the Standing Orders Act was sufficient to exclude the application of the Standing Orders Act as a whole. No opportunity was required to be given. Section 13-B of the Standing Orders Act itself provides the exclusion of the application of the Standing Orders Act on the notification thus issued. 57. The last submission raised by the learned Counsel for the petitioner. is that it will not be proper for the Single Judge to decide the matter finally as different Division Benches have decided the matter in the cases of Shitla Prasad, Sumer Chand, Shyam Bihari and Murlidhar (supra) that the employees of the Corporation will retire at the age of 60 years. I don't agree with the learned Counsel. 58. All those cases were decided by different Division Benches on the ground that since there was no notification under Section 13-B of the Standing Orders Act and,therefore, the field of retirement was covered by the Certified standing Orders which provided the age of superannuation at 60 years. Since the defect now stands cured on account of the notification under Section 13-B of the Standing Orders Act, all those judgments have lost their force. This Court is competent to decide the question on the basis of the changed conditions as to what would be the effect of notification dated 12-4-1991 under Section 13-B of the Standing Orders Act in the application of Regulation 37. 59. Thus all the employees of the Corporation belonging to Group 'C' will retire on attaining the age of 58 years. This Group Consists of Assistant Subordinate, Ministerial posts carrying a scale of pay minimum of which is Rs. 335 (this was substituted in 1985 for Rs. 59. Thus all the employees of the Corporation belonging to Group 'C' will retire on attaining the age of 58 years. This Group Consists of Assistant Subordinate, Ministerial posts carrying a scale of pay minimum of which is Rs. 335 (this was substituted in 1985 for Rs. 200) or more per month, teachers irrespective of their initial pay even if it is less than Rs. 200 per month will also be classified under this group. 60. I hold that the age of superannuation of the petitioners is 58 years and not 60 years. 61. In the result all the writ petitions fail and are dismissed with costs.