JUDGMENT A.B.Srivastava 1. In this writ petition counter and rejoinder affidavits have been exchanged, therefore, it is being finally disposed of after hearing both the sides, according to the Rules of the Court. 2. The petitioner who is holding the post of Supervisor in the Ware House Department of respondent no. 1 M/s. Swadeshi Cotton Mills, Juhi. Kanpur Nagar. has by means of this writ petition prayed for a writ of certiorari quashing the order of respondent no 1 dated 29-5-91 (Annexure 1 to the writ petition) retiring him from the post of Supervisor on attaining the age of superannuation (58 years) with effect from 1-7-1991 and for a mandamus commanding the respondents not to interfere in the petitioner's holding the said post with usual salary and other benefits. According to the petitioner, prior to 1962 there was no age of retirement for the employees of Textile Mills of Kanpur. In the year 1962 by means of Dr Sampurnanand Award the age of superannuation was fixed as 60 years applicable to all classes of employees including the Supervisors. The management of the respondent mills was taken over by the Union of India in the year 1978 and vide Act no. 30 of 1936 known as "The Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertaking) Act 1986" it vested in respondent no. 2, the National Textile Corporation, Kanpur. The respondents have not framed Standing Orders for the supervisory staff, hence the Model Standing Orders framed by the Government, would govern the service conditions, as per which the age of retirement has been fixed at 60 years. According to the Provident Fund record, the year of birth of the petitioner has been shown as 1933, hence he would attain the age of superannuation on 1-7-1993. The respondents, however, have adopted discriminatory attitude in issuing the order of superannuation of the supervisory staff at the age of 58 years. One such person Phool Chand Gupta challenged the said order in a writ petition and was granted interim stay order by this Court. The respondents, however, have adopted discriminatory attitude in issuing the order of superannuation of the supervisory staff at the age of 58 years. One such person Phool Chand Gupta challenged the said order in a writ petition and was granted interim stay order by this Court. The respondent no 1 by letter dated 25-1-1991 (Annexure 2 to the writ petition), published in 'Dainik Jagran', gave notice of retirement to one Sultan Ahmad, a weaving Supervisor, to retire after attaining the age of 60 years and one A B. Singh, Assistant Labour Officer has also been given notice (Annexure 3 to the writ petition) dated 29-5-1991 to retire after attaining 60 years of age. The petitioner made a representation to the General Manager of respondent no. 1 in this regard but to no avail. In all other Textile Mills of Kanpur similarly taken over by the Union of India also the age of superannuation of the supervisory staff is 60 years. The action of the respondents, therefore, in ordering retirement of the petitioner on attaining the age of 58 years is arbitrary discriminatory and violative of Jaw and fundamental rights off the petitioner. 3. The respondents in their counter affidavit have contended that the age of superannuation of the petitioner is 58 years and upon bis completing the said age has been rightly given notice of superannuation with effect from 1-7-1991. The petitioner is not a workman. Rather being a Supervisor he comes under the managerial category. He was incharge of maintaining discipline in a section, had power to sanction leave etc to the workmen and as such was given N.T.C. pay scale as admissible to Officers category. The age of retirement 60 years under Dr. Sampuruanad Award has always been and is still admissible only to the workmen within the meaning of section 2-Z of the U. P. Industrial Disputes Act. No Standing Orders are required nor are they framed governing the conditions of service of the supervisory staff who are not covered either under the Industrial Disputes Act or the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1947. No Standing Orders are required nor are they framed governing the conditions of service of the supervisory staff who are not covered either under the Industrial Disputes Act or the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1947. The Swadeshi Cotton Mills has keen nationalised by Act no 30 of 1986 with effect from 1-4-1985 Prior to that under section 3 of the Sick Textile Mills Undertaking (Nationalisation) Act, 1974 such sick mills as were lying closed including the respondent no 1 had been taken over and vested in the Central Government which transferred the same to N.T C The N T.C has been empowered to lay down terms and conditions of the employees, who by operation of law became its employees, and it introduced new pay scales applicable to the Officers, Supervisors etc. not falling under the scope of definition of "Workman,'. The new pay scales were duly circulated and option of willing employees invited making it clear that those accepting higher pay scales than the old one will have to accept the entire terms and conditions which included uniform age of superannuation. 58 years of supervisory staff The present petitioner accepted in writing the said terms and conditions vide Annexure CA 1 and is accordingly bound by it. By office orders dated 27-8-1975 (Annexure CA 2) and 10-8-1988 (Annexure CA 3). The NT C. reiterated the said provision of retirement at the age of 58 years. In fact the age of superannuation of the supervisory staff in all the 11 mills under the NT.C situate in the State of Uttar Pradesh is 58 years in accordance with clause 33 of the N T.C. U. P. Limited (Recruitment and Promotion) Rules. There has been no discrimination in the matter of the petitioner nor there has been any breach of the rules or principles of natural justice Similar petitions in which the age of retirement of the supervisory staff had been challenged in the past: had also been dismissed. In the alternative, if the petitioner claims to be a Workman entitled to the benefit of Dr Sampurnanand award he can raise an Industrial dispute and approach the Tribunal. A similar view had been taken by 'this Court in writ petition No. 6177 of 1984 (Jagat Narain Shukla v. N.T.C. and another, decided on 16-4-1985 (Annexure CA 4). 4. In the alternative, if the petitioner claims to be a Workman entitled to the benefit of Dr Sampurnanand award he can raise an Industrial dispute and approach the Tribunal. A similar view had been taken by 'this Court in writ petition No. 6177 of 1984 (Jagat Narain Shukla v. N.T.C. and another, decided on 16-4-1985 (Annexure CA 4). 4. The petitioner in his rejoinder affidavit has reiterated the averments made in the petition and has pleaded that the Supervisors have not been given any managerial powers and the duties are mainly of technical nature. According to the own case of the petitioner, prior to 1962 there was no fixed retirement age of the employees of the Mills at Kanpur. It was for the first time in 1962 that by means of Sapurnanand Award the retirement age, 60 years was fixed. It is admitted case of the parties that the retirement age fixed by Sampurnanand Award was in respect of 'Workmen'. The petitioner contends that despite being designated as Supervisor, he is a workman and thus within the purview of the said award. 5. If the contention that the petitioner is a 'workman' is taken to be correct on face value the present writ petition itself would not be maintainable and he would have his remedy under the Industrial law, as also held in Civil Misc. Writ Petition No. 6177 of 1984 Jagat Narain Shukla (Annexure IV to this petition). 6. In Chandra Deo v. The State of U P, LIC 1720, it was a case of a void order against which the writ petition had already been entertained. Writ Petition No. 6177 of 1984 Jagat Narain Shukla (Annexure IV to this petition). 6. In Chandra Deo v. The State of U P, LIC 1720, it was a case of a void order against which the writ petition had already been entertained. This authority does not help the petitioner; The term 'Workman' has been defined in section 2 (Z) of the U. P. Industrial Disputes Act as follows :- 'Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational clerical or supervisory work for hire or reward, whether the terms of employment be express or implied and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute but does not include any such person :- (i) who is subject to Air Force Act, 1950 (45 of 1950), on the Army Act 1950 (46 of 1950), or the Navy Act. 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison: or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who. being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached no the office or by reason of the powers vested in him, functions mainly of a managerial nature. 7. The criterion to determine: whether or not an employee is a workman is not his designation or the higher salary paid to him, but the nature of duties actually performed by him. A person employed in an Industry to do manual or supervisory or clerical or technical work would be a workman, but if such person is employed in 'Supervisory capacity and exercises functions mainly of managerial nature, he would not be a workman. 8. A person employed in an Industry to do manual or supervisory or clerical or technical work would be a workman, but if such person is employed in 'Supervisory capacity and exercises functions mainly of managerial nature, he would not be a workman. 8. Applying the above test to the facts of the present case it would be found that the petitioner does not say that he is in his capacity as Ware House Supervisor has been assigned wholly or substantially manual, clerical, technical or supervisory role not involving functions of managerial nature The contention in Para 5 of the counter affidavit that petitioner was assigned the task of maintaining discipline and sanctioning leave to the labour force under his control is not rebutted. Power to give warning or inflict punishment, such as dismissal etc. is not an essential concomitant of supervisory capacity or managerial functions. The petitioner thus is not a 'workman' within the meaning of section 2 (z) of the U P Industrial Disputes Act, 1947 and cannot claim his retirement age to be 60 years on the strength of Sampurnanand Award 9. It would on the other hand be found from the materials placed on record by the respondents that after taking over the respondent no. 1 Swadeshi Cotton Mills by the respondent no. 2, M/s. National Taxtile Corporation, a scheme was framed to rationalise the pay scales and other service conditions, including fixing of uniform age of superannuation of employees other than workmen at 58 years. The management sought option from the concerned employees. The petitioner vide Annexure C A. 1 accepted the said terms and conditions. He thus is estopped from challenging the same as unilaterally altering service conditions. By office order dated August 10.1988 (Annexure C.A 3) an amendment to the NT C (U.P.) Recruitment and Promotion Rules service regulations was also duly approved and circulated. 10. In fact there being nothing to indicate that the retirement age in respect of the employees of the supervisory category at any point of time was 60 years, no change or alteration was involved. It was merely a case of framing a condition of service as to age of superannuation, and was clearly within the powers of the employer. 10. In fact there being nothing to indicate that the retirement age in respect of the employees of the supervisory category at any point of time was 60 years, no change or alteration was involved. It was merely a case of framing a condition of service as to age of superannuation, and was clearly within the powers of the employer. In M/s. Kanpur Sahkari Mills Board v. Industrial Tribunal (III) UP Kanpur and others cited on behalf of the petitioner it was a case of curtailment of leave and holiday facilities granted to the workmen since long, without complying with section 4-I of the UP Industrial Disputes Act. In the instant case no such curtailment is involved or made. 11. In Hari Shanker Gaur v. D.T.C., (1989) 1 SCC 240 , it was a case of the employees of the Delhi Transport Corporation who were originally employed in the erstwhile Gwalior and Northern India Transport Company prior to October, 1946, when the transport services were taken over by the Government of India, and had a right under Gwalior Civil Service Rules, to remain in service upto 60 years, unless compulsorily retired at 55 years. It was under these circumstances that the Supreme Court held the act of the D.T.C. in retiring those employees on attaining the age of 58 years 12. In H.I. Trehan v. Union of India, (1989) 1 SCC 764 , a circular was issued purporting to rationalise the perquisites and allowances admissible to the managerial staff of the erstwhile Caltex Oil Refinery (India) Ltd. taken over by the Government of INdia under an Act of Parliament, which was detrimental to the interest of the said employees. The Supreme Court struck down the same holding that there can be no curtailment of existing right without complying with provisions of natural justice. This authority also thus does not help the petitioner as no service conditions have been altered. In Dunlop India Ltd. v. Their Workmen, (1972) 3 SCC 616 , relating to a dispute between an employer and their workmen, the Supreme Court held that Standing Orders framed after following the provisions of the relevant Statutes would bind the workman who entered the service before framing those Standing Orders. 13. In Civil Misc. In Dunlop India Ltd. v. Their Workmen, (1972) 3 SCC 616 , relating to a dispute between an employer and their workmen, the Supreme Court held that Standing Orders framed after following the provisions of the relevant Statutes would bind the workman who entered the service before framing those Standing Orders. 13. In Civil Misc. Writ Petition No. 15539 of 1992 Ayodhya Prasad Pandey v. Chairman Cum Managing; Director National Textile Corporation (U.P.) Ltd. a similar question relating to the age of superannuation of the petitioner who was a Printing Supervisor in M/s. Athorton Mill Kanpur being raised, a learned Single Judge (Hon. M L Bhat, J) rejected the contention of the petitioner that he was a workmen entitled to continue in service upto the age of 60 years, and up-held the validity of the condition of service as to the age of superannuation. 58 years of the supervisory staff of the said Textile Mill also under the management of National Textile Corporation. 14. Now as to the plea of the petitioner that the act of the respondents retiring him on superannuation on completing 58 years of age is arbitrary and discriminatory and thus violative of Art. 14 of the Constitution of India, it would be found that the same is also without substance. The petitioner in this regard has sought to rely on Annexure no. 2, a notice dated 25-1-91. relating to Sultan Ahmad Khan. Supervisor in the weaving Department, and Annexure 3, a notice dated 29-5-91 in respect of one A B. Singh. A.L.O of Swadeshi Cotton Mill, Mau Nath Bhanjan, it is contended that since the above two employees also working as Supervisors were directed to retire on superannuation on attaining the age of 60 years, the retirement of the petitioner at the age of 58 years is discriminatory. A perusal of Annexure 2 the notice dated 25-1-91. relating to Sultan Ahmad Khan would go to show that his retirement by means of the said notice was in consequence of orders in some proceedings of this Court as well as the Additional Chief Metropolitan Magistrate, Kanpur Nagar. It does not in any way go to show that the prevalent age of retirement of supervisory staff in the mill in question was 60 years. It does not in any way go to show that the prevalent age of retirement of supervisory staff in the mill in question was 60 years. As far as Annexure 3 is concerned, it does not in any way spell out that the retirement of the said Assistant Labour Officer was effected on his completing 69 years of age. 15. On these facts, therefore, it cannot be held that the act of the respondents in retiring the petitioner on superannuation, on completing 58 years of age is hit by Art 14 of the Constitution. 16. In case of Bharat Petroleum Corporation Ltd v. M/s. Bharat Petroleum Corporation Ltd., AIR 1984 SC 356 , it has been laid down that in the matter of fixation of age of superannuation the most important consideration is the trend in the area in that regard. IN the instant case there has been categorical contention of the respondents in their counter affidavit that not only in Swadeshi Cotton Mill but in all 11 mills under the control of N.T.C. situated in U P the age of superannuation of the supervisory staff is 58 years. This contention has not been specifically rebutted in the rejoinder affidavit in which reliance is placed only in respect of a matter relating to retirement of one Poool Chandra Gupta which is subject matter of a writ petition pending in this Court under these circumstances on the touch stone of the criterion laid down in AIR 1984 SC 356 , also, the fixing of retirement age of the supervisory staff at 58 years by the respondents, is not open to challenge and they did not act illegally or in violation of any rules or principle of natural justice in directing retirement of the petitioner on attaining the age of 58 years. For all these reasons staled above, therefore, I find no force in this writ petition. The same is accordingly dismissed. The interim order dated 3-7-91 is vacated. 17. There shall be no order as to costs. Petition dismissed.