S. RAJENDRA BABU, J. ( 1 ) THE Gokak Mills which is a Division of Gokak Patel Volkart Limited, belgaum District, filed an application for modification of the Standing Orders under Section 10 of the Industrial Employment (Standing Orders) Act, 1946 in respect of Operatives and Clerks. The Certifying Officer issued notices to the different Workmen's Unions in the said Mills and asked them to file objections, if any to the proposed modifications. Some of the Trade Unions filed their objections. In the meanwhile, the Management had represented that they are not pressing their claim for modification of other terms of the Standing Orders, but only one relating to the age of superannuation. An attempt was made by the certifying Officer who is also the Deputy Labour Commissioner, to bring about a settlement in the matter, but was not successful and he had to make an order ultimately. He made two sets of orders one with respect to the Operatives and another in respect of Clerks. Several contentions had been raised before him of preliminary nature as to the competence of authority to deal with the matter. He rejected those objections and thereafter took up the matter for consideration to determine the question of framing Standing Orders in regard to the age of retirement. When these applications were pending, in the year 1982, the Schedule to the Industrial Employment (Standing Orders) Act came to be amended so far as the State of Karnataka is concerned by adding at Item no. 10-A age of retirement or superannuation in respect of which Standing orders could be made. Prior to the amendment of the said Act, the parties were governed by the Standing Orders settled by the Industrial Court under Section 26 (6) of the Bombay Industrial Disputes Act, 1938 both in respect of Clerks and operatives. Those Orders came into force with effect from 12-12-1939. Subsequently, the Bombay Industrial Disputes Act, 1938 was repealed and the bombay Industrial Relations Act, 1946 became applicable to the industry in question and under Section 122 thereof, Proviso- (b), the respective Standing orders for Clerks and Operatives as settled under the Bombay Industrial disputes Act, 1938 continued to be in operation. In the Bombay Industrial disputes Act, 1938 which also dealt with framing of the Standing Orders, in the schedule relating therein, there was no specific provision in relation to superannuation or age of retirement. In the Bombay Industrial disputes Act, 1938 which also dealt with framing of the Standing Orders, in the schedule relating therein, there was no specific provision in relation to superannuation or age of retirement. Such a provision was available only in the bombay Industrial Relations Act, 1946. By virtue of the said provisions, the old standing Orders continued and they were followed though there was no provision in relation to the age of retirement. There is no specific reference in cither of the Standing Orders as to the time upto which a workman could continue in service. By that it should be understood that the workmenclerks or Operatives could continue in service as long as they are mentally and physically fit. On the reorganisation of States, the Bombay District having formed part of the Karnataka State (erstwhile Mysore State), The Bombay industrial Relations Act, 1946 was repealed by the Mysore Act No. 1 of 1960. Under Section 3 of the Mysore Industrial Disputes (Amendment and repealing) Act, The Bombay Industrial Relations Act, 1946 which was in force in the Bombay area of which Belgaum was one of the Districts where the petitioner Mills is situate, stood repealed and Industrial Disputes Act, 1947 for the time being in force, was made applicable to all industries to which the repealed Act applied. Thereafter the Industrial Employment (Standing orders) Act alone governed the framing or continuation or modification of the standing Orders. Under the Mysore General Clauses Act, either under Section 6 thereof or Section 24, a Regulation, Order, Scheme, Rule or Bye-law framed under old enactment would continue in force as if enacted under the Act replaced by it, and in the present case, the Industrial Employment (Standing orders) Act, 1946 governed this aspect. In this background the Management's application has to be considered. After they made an application, during pendency of those applications, the Act came to be amended as stated above. In this background the Management's application has to be considered. After they made an application, during pendency of those applications, the Act came to be amended as stated above. In a situation of this sort, the Supreme Court in Bhilai Steel Project v Steel Works' union, AIR 1964 SC 1333 explained that when Standing Orders are under consideration of the Certifying Officer and in the meanwhile if there is any amendment to the Industrial Employment (Standing Orders) Act, though the certifying Officer had no jurisdiction at the time when he obtained the application to deal with the matter, during pendency of the application if the law is repealed and that law is to deal with such application, he can certainly entertain the same. This is how the Supreme Court stated:"if before the actual date of certification of the draft standing orders the officer before when they were submitted as the Certifying Officer under the central Standing Orders Act had acquired jurisdiction the certification by him cannot be held to be void merely because on the date when the standing orders were submitted before him he had no jurisdiction. The position in law is that the application for certification of the standing orders, though invalid at the time it was made because the officer had no jurisdiction to deal with them, became a valid application when he did acquire jurisdiction. To put the matter in another way, the application should be deemed to have been renewed immediately after the officer acquired jurisdiction in the matter and so, that jurisdiction having continued up to the date of the certification, the certification also would be with jurisdiction and binding. "therefore, in the present case, no objections had been raised by the parties concerned in this regard. It can certainly be stated that the authority concerned had the necessary jurisdiction to deal with the matter on the day, at any rate when he certified the same. Hence it must be held that the application filed by the petitioners could be dealt with by concerned Certifying Officer under the provisions of The Industrial Employment (Standing Orders) Act. Therefore, any objection thereto cannot be sustained. ( 2 ) THE Certifying Officer held that the principles laid down in Guest, Keen, Williams Pr. Hence it must be held that the application filed by the petitioners could be dealt with by concerned Certifying Officer under the provisions of The Industrial Employment (Standing Orders) Act. Therefore, any objection thereto cannot be sustained. ( 2 ) THE Certifying Officer held that the principles laid down in Guest, Keen, Williams Pr. Ltd. v P. J. Sterling and Others, AIR 1959 SC 1279 set out the considerations that go into the question of fixation of age of retirement or superannuation. While assessing such a question, the needs of the workmen, the trend in the particular region, the practice prevailing in the industry, the retirement benefits available and other relevant factors have to be taken into account. He took into consideration also the legal position that under the payment of Gratuity Act, 1972, the age of retirement is 58 years and in the model Standing Orders framed under the Industrial Employment (Standing orders) Act, age of retirement is 58 years and therefore held that it would be justifiable to fix the age of retirement at 58 years rather than 55 years as suggested by the Management. He did not agree with the contention of the workmen that the age of retirement must be 60 and 63 as was prevalent in the contiguous areas lying in the State of Maharashtra. He also held that on account passage of time, as one becomes old, one needs to retire from active life and in addition the employment problem will have to be resolved by providing employment to younger generation and from that angle he considered that the age of superannuation or retirement to be introduced though for the first time in the particular industry was not unreasonable and in several industrial establishments in the State of Karnataka such age of superannuation or age of retirement has been fixed. He took note of the fact that there was such provision in the Binny Limited, and the Mills under the control of National textile Corporation, Sree Chandrodaya Mills and Sree Shankara Textile Mills ltd. , Davangere. On that basis he stated that it was permissible to settle an age of retirement and it was necessary to do so, and in doing so, the test applicable as stated in Guest, Keen, Williams's case cited supra has to be borne in mind. , Davangere. On that basis he stated that it was permissible to settle an age of retirement and it was necessary to do so, and in doing so, the test applicable as stated in Guest, Keen, Williams's case cited supra has to be borne in mind. On that aspect he took into consideration that in most of the industries, the age of retirement varied from 55 to 58 years and he took particular note of the fact as stated by me earlier, the Payment of Gratuity Act and the Model Standing orders under the Industrial Employment (Standing Orders) Act and held that the proper age for retirement would be 58 years. He rejected the other objections raised by the petitioners such as that there was no notice issued under Section 9-A of the Industrial Disputes Act and for want of such notice, any change in the condition of service would be fatal. He held that framing of standing Orders is governed by Industrial Employment (Standing Orders) Act which is a special enactment and that Act authorises framing of a standing order and therefore other considerations need not be looked into. Aggrieved by this order, both the Management as well as the Workmen preferred two sets of appeals. Again the contentions urged before the original authority were reiterated and the Appellate Authority, after traeing the history of the Standing orders applicable to the industry in question, felt that it would be appropriate to allow the workmen in question to adduce additional evidence which they could not inasmuch as their pleading was that the application itself was not maintainable. Therefore the workmen placed certain material before the tribunal in the shape of affidavits and certain other materials. The Tribunal proceeded on the basis that there was no age of retirement in the industry in question and the employees concerned continued to be on the rolls of the Mills until death or physically incapacitated. He took note of the fact that this was a condition of service established by custom or practice and any change thereto did affect the conditions of service and therefore a notice under Section 9-A of the Industrial Disputes Act may be necessary and an adjudication thereto would be after a contest between the parties and it would be in the nature of a judicial verdict while the Certifying Officer cannot indulge in such an exercise. Ultimately the Tribunal concluded that even in such cases all that is necessary is that in settling a Standing Order. In such a matter, the authority should be more "circumspect" than in ordinary circumstances. The Tribunal did not say whether even in the absence of non-compliance of Section 9-A of the Industrial disputes Act, there could have been any modification of the Standing Orders. Thereafter he proceeded to consider the question whether there should be any age of retirement at all. He held that there should be an age of retirement. Taking into consideration that in several industries in and around Gokak Mills the employees are not retiring till the age of 60 years and particularly bearing in mind that the employees in the industry in question not being retired even after the age of 60 years and as such they are losing their right, it would be appropriate to direct that they should be directed to have Standing Orders which enable them to continue in service upto 60 years and extendable upto 63 years. In doing so he took into consideration that in Madhavnagar Textile Mills and some other Textile Mills in Maharashtra, the age of retirement is 60 years extendable upto 63 years and noticed that it would not be proper to take note of the age of retirement in other Mills though it is in the State of Karnataka. The fact that the employees now working in the industry have adjusted their lives in such a manner that they are not going to retire in the near future and if at this juncture they are thrown out to streets, the certification would result in injustice and therefore modified the order made by the original authority and directed that the Operatives and Clerks be retired from service of the Mills on their attaining the age of 60 years. He made a provision that only such operatives or Clerks who are on the rolls as on the date of making of the order shall be continued to be in service until they attain the age of 63 years provided they are found to be physically fit on certification by the District Surgeon for which the Management has to bear the costs. ( 3 ) THE question now is whether non-compliance with Section 9-A of the Industrial Disputes Act would defeat an application of the nature in the present case tendered under law. Section 9-A of the Industrial Disputes Act provides that a notice of change has to be given by the employer who proposes to effect any change in condition of service applicable to any workmen in respect of any matter specified in the Fourth Schedule without giving twenty-one days' notice. Fourth Schedule to the Industrial Disputes Act sets down certain matters and the age of retirement as such is not one of the aspects dealt with nor any general condition of service. It refers to specific items of condition of service such as wages, allowances, hours of work, contributions to be payable to provident fund or pension fund, classification of employees by grades, withdrawal of customary concessions or privileges, change in usage or introduction of new rules of discipline or alteration of some existing rationalisation standards, improvement of plant or technical know-how which may involve retrenchment of workmen or increase or reduction in the number of employees in any occupation or process of department not occasioned by circumstances over which the employers have complaint. That is one aspect of the matter. Another is, even assuming for a moment that Section 9-A of the Industrial Disputes Act is attracted in a case of this nature, all that happens is before giving effect to the particular condition of service concerned, employee will have to comply with condition provided under Section 9-A of the Industrial Disputes Act and thereafter it would be certainly open to the concerned workman as stated in the several decisions of the Supreme Court, to raise an industrial dispute, if necessary. In that view of the matter, non-compliance with Section 9-A of the industrial Disputes Act may not have any significance in this case. ( 4 ) IN the present case, both the Certifying Authority and Tribunal in appeal have concurrently held that there is a need to fix age of retirement or superannuation although in the petitioners' industry such condition of service had not been introduced earlier than now. When the two authorities have concurrently held on the need to have an age of retirement or superannuation, i do not think this Court should upset the same. When the two authorities have concurrently held on the need to have an age of retirement or superannuation, i do not think this Court should upset the same. Further, in Government establishments and Industrial concerns, age of retirement has been prescribed bearing in mind after a certain age keenness and initiation to work is lost. It is also stated in several reports of the Pay Commissions to this aspect of the matter that one cannot be at the peak of efficiency after a certain age. As age advances, it is natural that one's faculties diminish and some time one has to call it a day and retire from active life. Therefore, it cannot be said that there is no need at all to fix an age of retirement, and derive support from the decision in K. Nagraj v State of Andhra Pradesh, AIR 1985 SC 551 wherein the Supreme court observed that there is no substance in the argument that a rule of retirement will deprive a person of his livelihood and an employer cannot have the luxury of allowing its employees to continue in service after having passed the point of peak performance. It was also noticed that rules of retirement do not deprive a person of right to livelihood, but only limits his right to hold employment to stated number of years. This view of the Tribunal and the certifying Officer is affirmed for the reasons stated above. ( 5 ) ALL the same, in fixing the age of super annuation or age of retirement, the necessary tests as incorporated in the decision in G. K. W. v Sterling to which reference has been made by me earlier, will have to be borne in mind. In the present case, neither the Certifying Officer nor the Appellate Authority have given any finding as to in what region the petitioner falls, nature of the wage structure, the retirement benefits, if any or other amenities available to them nor comparison is made in respect of industries to which reference is made. All that has been taken note of is the age of superannuation fixed in the region even without any finding as to in which region the petitioners industry comes. All that has been taken note of is the age of superannuation fixed in the region even without any finding as to in which region the petitioners industry comes. It is submitted on behalf of the parties that in respect of the employees in this industry itself, there are different ages of retirement one set made applicable to those in the Head Office at Bombay and another two sets of rules made applicable to those working in the Mills, some to teher at 58 years and others at 60 years. But no material has been placed before the two authorities nor any investigation in that regard has been made. ( 6 ) THE Supreme Court in Dunlop Rubber Co. (India) Ltd. v The Workmen (Clerical Staff) and Others, AIR 1960 SC 207 has held:"if therefore any scheme, which may be uniformly in force throughout India in the case of an all-India concern, appears to be unfair and not in accord with the prevailing conditions in such matters, it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters, particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place, out of the many where the all-India concern carries on business. " (emphasis supplied) ( 7 ) IN French Motor Car Co. Ltd. v The Workmen, AIR 1963 SC 1327 , the Supreme Court has held as follows:"it is now well-settled that the principle of industry-cum-region has to be applied by an industrial court, when it proceeds to consider questions like wage structure, dearness allowance and similar conditions of service. In applying that principle industrial courts have to compare wage scales prevailing in similar concerns in the region with which it is dealing, and generally speaking similar concerns would be those in the same line of business as the concern with respect to which the dispute is under consideration. " (emphasis supplied) ( 8 ) HOWEVER, the learned counsel appearing for the workmen pointed outthat in M/s. Swastik Cashew Industries (P) Ltd. , Mangalore and Others v industrial Tribunal in Mysore, Bangalore and Others, 1966 (1) Mys. " (emphasis supplied) ( 8 ) HOWEVER, the learned counsel appearing for the workmen pointed outthat in M/s. Swastik Cashew Industries (P) Ltd. , Mangalore and Others v industrial Tribunal in Mysore, Bangalore and Others, 1966 (1) Mys. L. J. 373 this court took into consideration these aspects and held that though the industry in that case was situate in South Kanara (now Dakshina Kannada), it was clubbed with other industries in Malabar Region in the State of Kerala and they would together form one region for purposes of considering the wages. It was submitted that though Malabar was not one of the regions with which the tribunal in question was concerned, still this Court held that the two should be taken together and therefore it may not be appropriate for the tribunal in the present case to have taken into consideration the situation available in the state of Maharashtra, considering the historical link and the geographical contiguity of the industry. However, it must be noticed first that in M/s. Cashew industries' case referred to supra, the question whether the tribunal should consider the conditions of service prevailing in similar concerns in the region with which it was dealing, was not specifically considered. In spelling out what the 'region' could be, the tribunal relied upon a report of the Government of india on the conditions of Labour in Cashewnut Processing Industries in India where the South Kanara and Malabar regions were referred to as Region No. 3. Therefore, on facts the tribunal came to the conclusion that the two should be taken together and when question should be one of fact, the High Court did not disturb the same in a proceeding arising under Article 226 of the Constitution. But the tribunal in the present case has not approached the matter from that angle at all. It is not said that the Textile Mills in the State of Maharashtra and the Gokak Mills will fall in one region and there is no finding recorded by either the Certifying Authority or by the Tribunal. On the other hand, certain documents were produced before the Tribunal to show that in Madhavnagar textile Mills, the age of retirement and in certain other Textile Mills in maharashtra, the age of retirement is 60 years extendable upto 63 years. On the other hand, certain documents were produced before the Tribunal to show that in Madhavnagar textile Mills, the age of retirement and in certain other Textile Mills in maharashtra, the age of retirement is 60 years extendable upto 63 years. ( 9 ) THE tribunal has failed to consider in what region the petitioner should beconsidered and even in comparing the industries, the conditions of service are not taken note of. The tribunal has dealt with the matter in the most perfunctory manner. In my view there is total paucity of evidence to come to the conclusion on the aspect of conditions of service prevalent in comparable industry and whether the two areas form one region. The tribunal could not have held that these form one region by any stretch of imagination, much less in the light of tests given by the Supreme Court in the French Motor Car's case and dunlop Rubber Co. 's case referred to supra. ( 10 ) IN Writ Petition Nos. 6537 and 1114 of 1984 arising out of a dispute between the workmen of petitioner and petitioner, the question was of linking of D. A payable on the basis of C. P. I numbers relating to Sholapur (in maharashtra) which was stopped and the same was linked to C. P. I, numbers applicable to Davangere City (in the State of Karnataka ). Whether even after lapse of 25 years after reorganisation of States whether the conditions prevalent in the State of Maharashtra should be looked at as constituting one region is a matter of serious dispute. When for purposes of D. A. by settlement parties are agreed to link the same to a City in Karnataka, there is no reason to continue to hang on the vestiges of the past history. ( 11 ) THE trend of decisions in the matter of fixation of age of retirement is to raise the age of retirement. To fix the retirement age, though originally the age of retirement in respect of Government employees was fixed as 55 years, the second Pay Commission made a recommendation it should be increased to 58 or 60 years, considering the improvement in health care and increase in longevity. It is also stated that the maturity of the workmen would be certainly useful to concerned employers and efficiency would increase. It is also stated that the maturity of the workmen would be certainly useful to concerned employers and efficiency would increase. To these aspects, detailed reference has been made by the Supreme Court in British Paints (India) ltd. v Its Workmen, 1966 (1) LLJ 350 and I need not reiterate the same. ( 12 ) GENERALLY in respect of Textile Industries in the State of Maharashtra, age of retirement has been fixed at 60 years. Although material was placed before the Tribunal as well as the Certifying Officer in regard to the Textile industries in the State of Karnataka showing the age of retirement was only 55 to 58 years, I think the standard adopted by the tribunal should be accepted for reasons set forth hereinafter. ( 13 ) HOWEVER, in sustaining the finding recorded by the Appellate Authorityin this regard that 60 years would be reasonable age of retirement, I must advert to the decision in The Workmen of the Bharat Peroleum Corporation Ltd. , bombay v M/s. Bharat Petroleum Corporation Ltd. and Another, A\r 1984 SC356. In that case the Industrial Tribunal raised the retirement age from 55 to 58 years so as to bring them on par with Clerks of the Marketing Division. The supreme Court, on a thorough examination of all aspects of the matter and various decisions of the Supreme Court rendered hitherto on the question of fixing the age of superannuation, concluded that the age of retirement to Clerks is fixed at 60 years which would be reasonable. In doing so, Supreme Court took into consideration the conditions of service and other factors, reports of the second Pay Commission and the comments made on the Norms Committee and such other materials. It was held there that in cases where there is no pension scheme as such, as admittedly there is none in the present case, it would be reasonable to fix the age of retirement as 60 years. The Karnataka government has raised the age of retirement from 55 to 58 years. The government service has attractive pension schemes. If that standard is adopted in the petitioner industry and if age of retirement is fixed at 60 years, it is not incorrect. Though this is not a satisfactory way of disposal of the matter, I must confess in this case I have no other option but to proceed on this basis. The government service has attractive pension schemes. If that standard is adopted in the petitioner industry and if age of retirement is fixed at 60 years, it is not incorrect. Though this is not a satisfactory way of disposal of the matter, I must confess in this case I have no other option but to proceed on this basis. ( 14 ) NOW the question arises whether the tribunal was right in making aproviso that workmen who are on the rolls as on the date should continue to be in service till they attain the age of 63 years subject to being medically fit. On this aspect the Supreme Court in Guest, Keen, Williams' case referred to supra on which strong reliance was placed on behalf of the workmen of the Mills in question, stated that it is certainly permissible to have two classes of conditions one applicable to those who are in service on the date when the rules come into force and another in respect of those who join service after the coming into force of the rules. That decision was followed in M/s. British Paints (India) Ltd. v Its Workmen, AIR 1966 SC 732 wherein again the Supreme Court held that there could be two sets of rules one applicable to those who are already in service and another to those who came in later. But this approach was not followed or severely ignored or even taken strong exception of in subsequent decisions of the Supreme Court to which I shall instantly make a reference now. In Salem-Erode Electricity Distribution Co. (P) Ltd. v Their Employees' Union, air 1966 SC 808 it was held that it is not permissible for the Industrial establishment to have two sets of Standing Orders to govern the relevant terms and conditions of the employees, one in respect of those who are already in service and another in respect of those who come in later. Again this was further considered in Dunlop India Ltd. v Their Workmen, (1972)II LLJ 1 (SC) and in united Provinces Electric Supply Co. Again this was further considered in Dunlop India Ltd. v Their Workmen, (1972)II LLJ 1 (SC) and in united Provinces Electric Supply Co. Ltd. v T. N. Chaterjee, (1972)II LLJ 9 (14) (SC) wherein it was held that if there are two sets of Standing Orders one in respect of those who are already in service and another in respect of those who come in subsequently, in the very nature of things, a great deal of irritation and annoyance between the employees inter se could result if any such discrimination is made and no discrimination could be made in matters covered by items covered in the Schedule to the Industrial Employment (Standing orders) Act. There are other reasons set out to distinguish decision of Guest, keen, Williams' case but it is not necessary for me to refer to the same. In fact, in agra Electric Supply Co. Ltd. v Alladin, (1969)II LLJ 540 without mincing words shelat, J. , observed that to say that the certified Standing orders would not bind the workman previously employed, was not correct view of law as clarified in salem Erode-Electricity Distribution Co. Ltd. case to remove any possible misapprehension this statement is made. In this state of law it must be held that the view of the tribunal that there could be a proviso of the nature that has been made in the present case, is not sustainable at all whatever may have been the position in regard to the case dealt with in Guest, Keen, William's case referred to supra. In that view of the matter, the petitions filed by the Management to the extent of challenging the validity of the proviso made by the tribunal in the order will have to be quashed and the petitions are allowed only to that extent and in other respects, petitions shall stand dismissed. --- *** --- .