JUDGMENT : 1. All these writ petitions filed under Art. 226 of the Constitution of India are concerning the right of the employees in the cotton textile industry in the local area of Mumbai to work up to the age of 63 years. These petitions are filed either by the textile mill/company or by the employees concerned challenging the orders passed by the Industrial Court constituted under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act, for short) on the complaints filed by these employees against these mill companies invoking items (1), (5), (9) and (10) Sch. IV of the said Act. It is therefore, that all these petitions have been directed to be heard together and are accordingly being decided together. 2. The Bombay Industrial Relations Act, 1946, governs the relationship between the employers and the employees engaged in this cotton textile industry. Under Chap. VII of this Act, Standing Orders are required to be framed governing various industrial matters mentioned in Sch. 1 to that Act. The age of retirement or superannuation is item 13 in that schedule. As far as cotton textile industry is concerned, there are separate Standing Orders governing separate categories of employees. Thus mere are Standing Orders for a category of employees which is known as “Operatives” and mere are separate Standing Orders for another category of employees designated as clerks. The Standing Orders presently in vogue for operatives, have been settled and finalised by the Industrial Court under S. 36(3) of the B.L.R. Act. 1946. The provision with respect to retirement of operatives is seen in Standing Order 20A It reads as follows. “20A. An operative shall retire from service on attaining the age of 60 years, but a male operative shall be retained in service, if he continues to be efficient, up to the age of 63 years, provided mat when retrenchment becomes necessary a person who has completed the age of 60 may be retired in preference to younger men” 3. As far as clerks are concerned. Standing Order 11A governs the age of retirement of clerks. It reads as follows: “11A. As far as clerks are concerned. Standing Order 11A governs the age of retirement of clerks. It reads as follows: “11A. Any employee shall retire from service on attaining the age of 60 years, but a male employee shall be retained in service, if he continues to be efficient up to the age of 63 years, provided that when retrenchment becomes necessary, an employee who has completed the age of 60 may be retired in preference to younger men.” The Standing Orders for the clerks are also similarly settled by the Industrial Court under S. 36(3) of the said Act. Thus as can be seen the provisions for retirement of operatives and clerks as settled under the two different Standing Orders under S. 36(3) of the B.I.R. Act, 1946 are identical. 4. The question with respect to interpretation of these Standing Orders first came up before a Single Judge of this Court (Hon'ble Justice Smt. Sujata V. Manohar, when she was in this Court) in the case of Maharashtra State Textile Corporation, Ltd. v. Vasudev Vinayak Joshi reported in 1990 (1) L.L.N. 191. In that matter, respondent 1 had worked as a jobber (a category specifically included amongst the operatives) in a textile mill belonging to the petitioner-Corporation. He was sought to be retired on attaining the age of 60 years and he, therefore, filed a complaint under the MRTU and PULP Act, 1971, which came to the allowed. It was against that order that the Corporation had approached this Court. 5. The learned Single Judge noted that mere were three parts of this Standing Order (concerning the operatives) which were as follows: (1) An operative shall retire from service on attaining the age of 60 years. (2) A male operative shall be retained in service after the age of 60 years, if he continues to be efficient up to the age of 63 years. (3) When retrenchment becomes necessary, a person who has completed the age of 60 years, may be retired in preference to younger men. In that matter, it was contended by the petitioner that rationalisation of the workload had been agreed between the management and the representative union and the workforce was to be reduced and, therefore, on completing 60 years of age, it was necessary to retrench the respondent. In that matter, it was contended by the petitioner that rationalisation of the workload had been agreed between the management and the representative union and the workforce was to be reduced and, therefore, on completing 60 years of age, it was necessary to retrench the respondent. It was further contended that it was not obligatory for the management to continue an employee up to the age of 63 years and that the adverb “shall” used in second part of the Standing Order has to be read as “may” and not as mandatory. 6. As far as third part of this submission is concerned, the learned Judge noted that the phrase “when retrenchment becomes necessary” does not refer merely to the subjective satisfaction of the management regarding the need for retrenchment; nor does it refer merely to a settlement or agreement for retrenchment which may be arrived at between the management and the representative union. It refers to a further stage when ultimately reduction does take place in the number of workmen or the posts as the case may be and, hence it becomes necessary for the management to comply with S. 25N of the Industrial Disputes Act, 1947, before the management can resort to the provisions of the last part of the Standing Order 20A. (See Para. 14 of the judgment) Thus, the teamed Judge took the view that apart from the fact that the objective circumstances must exist, employer must comply with whatever are the necessary statutory requirements like S. 25N of the Industrial Disputes Act, 1947, and thereafter when it comes to actual implementation at that stage a person who has completed the age of 60 years will have to be retrenched first in preference to younger men. 7. As far as the other submission that the adverb “shall” should not be read as laying down a mandatory requirement in the second part of the Standing Order, the learned Judge negatived mat by observing that there was no warrant for such an interpretation. The learned Judge went into the historical setting while construing mat Standing Order. It was noted that initially the Standing Orders did not contain any such provision regarding the retirement of an employee. Item (13) referred to above came to be added in Sch. 1 of the B.L.R. Act in the year 1956. The learned Judge went into the historical setting while construing mat Standing Order. It was noted that initially the Standing Orders did not contain any such provision regarding the retirement of an employee. Item (13) referred to above came to be added in Sch. 1 of the B.L.R. Act in the year 1956. Thereafter, the Mill Owners Association applied to the Commissioner of Labour for insertion of an appropriate provision corresponding to this new item. The Mill Owners Association had initially proposed a Standing Order that every male operative shall retire from service on completion of 55 years of age and every female operative on completion of 50 years of age with a right to the management to give extension if the operative was found medically fit. The representative union had pointed out that the retirement benefits were meagre and the proposed age of retirement was very low After taking all these facts into consideration, the present Standing Order was added by the Industrial Court order, dated 13 September 1958. The Industrial Court had also noted the fact that no old age pension scheme as existing in some of the western countries, was available to the employees and that the existing retirement benefits were inadequate. 8. A submission was sought to be advanced before the learned Judge on the basis of the Standing Order prevalent in Railways and considered by the Supreme Court in the case of Kailash Chandra v. Union of India reported in A.I.R. 1961 S.C. 1346, but the Court noted that the Standing Orders of the Railway employees were different. The wording thereof was that: “the ministerial servant may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years.” The learned Judge, therefore, took a view that the Standing Order was quite different from the one which was framed for textile industry and held that an employee had a right to go up to the age of 63 years unless he was established to be inefficient. This judgment of the learned Single Judge came to be referred to in another matter which went to a Division Bench viz. Tata Textile Mills (U.C.) v. Munnilal Nanhoo Yadav reported in 1990 (1) L.L.N. 216 , and the Division Bench confirmed the view taken by the learned Single Judge. This judgment of the learned Single Judge came to be referred to in another matter which went to a Division Bench viz. Tata Textile Mills (U.C.) v. Munnilal Nanhoo Yadav reported in 1990 (1) L.L.N. 216 , and the Division Bench confirmed the view taken by the learned Single Judge. These two judgments have been holding the field all these years. It is on the background of these Standing Orders and these two judgments that one has to see the facts in all these seven cases. 9. Sri Ramaswamy has appeared for the petitioners and Sri Buch for the respondent 1. The member of the Industrial Court is the second respondent. As far as this writ petition is concerned, the respondent herein was an employee of the petitioner-textile mill. His dale of birth is 14 May 1935 and he would have completed 60 years of age on 14 May 1995. He was working as a junior clerk under the petitioners. He was given a notice on 3 December 1994 that he would be retired on 14 May 1995 under Standing Order 11A The respondent-workman sent a reply on 15 April 1995 stating that he was physically and mentally fit and should be given an extension for three years. His reply was not favourably considered and hence he filed a complaint being (ULP) No. 434 of 1995 under the provisions of the MRTU and PULP Act 1971 on 27 April 1995 That complaint came to be allowed by the judgment and order, dated 9 June 1998, rendered by the Industrial Court, Mumbai Being aggrieved by that judgment and order, the present petition has been filed and was admitted on 30 November 1998. 10. Sri Ramaswamy, learned counsel appearing for the petitioners, pointed out that the evidence on record was such that it could not be said that the respondent-workman was an efficient employee. The management had Jed evidence in the Industrial Court and had placed necessary documents on record Those documents pointed out that the workman concerned was all throughout lethargic in his duties. The management had examined one Vasant Jadhav, Deputy Manager. Sri Jadhav in his evidence pointed out that there was a strike in the mill in the year 1982; that the affairs of the mill-company were referred to the B.I.F.R. and subsequently on nationalization efforts were made to run the null-company. The management had examined one Vasant Jadhav, Deputy Manager. Sri Jadhav in his evidence pointed out that there was a strike in the mill in the year 1982; that the affairs of the mill-company were referred to the B.I.F.R. and subsequently on nationalization efforts were made to run the null-company. Sri Ramaswamy pointed out that there were a number of instances on the part of the respondent-workman of absence on duty, sleeping on duty or being found in a drunken state while on duty. 11. Sri Ramaswamy tendered a compilation of notes of evidence and the documents tendered in the Industrial Court. It was seen therefrom that the respondent initially joined as a mazdoor in the year 1972 and later on sometimes around 1981-82 was taken in the clerical cadre From the documents on record, it was seen that his probation as a clerk was extended by memo, dated 21 December 1985 (Exhibit C14) and lastly for a period of three months by a notice, dated 1 April 1986 (Exhibit C11) while informing him that there was no improvement in his performance. In as much as no specific letter of confirmation is tendered on record, it could be said that after passage of three months from that letter, the respondent became permanent. Prior to this notice of 1 April 1986, there are a few memos on record, firstly, one dated 3 June 1981 (Exhibit C7) extending the probation period since the work was not satisfactory, then on 25 August 1985 (C 8) that he was not reporting and writing hand summary in attendance books properly and then again on 2 October 1985 (C 9) that he was not attentive in his work, on 3 December 1985 that he was not punctual and attended duty on 9 November 1985 under the influence of liquor (C 13) and lastly on 9 April 1986 (C10) that he was negligent in his duties Even if one decides to keep aside all these memos which are given prior to the completion of probationary period, there are not less than eleven memos subsequent thereto which were tendered in the Court below. They are as follows: Sr. No. Exhibit Mark Date Necessary contents 1. C 12 6-8-1986 Respondent was warned for gross negligence. His absence without permission was also recorded on six days 2. They are as follows: Sr. No. Exhibit Mark Date Necessary contents 1. C 12 6-8-1986 Respondent was warned for gross negligence. His absence without permission was also recorded on six days 2. C 15 with C 16 19-2-1989 3-2-1989 Came on duty at wrong time and booked wrong production 3. C 17 with C 18 26-8-1989 13-8-1989 Found sleeping on duty. 4. C 19 3-11-1990 Paid excess amount while paying wages and left the place of work early by 1 hour and 15 minutes on two days, booked wro production. 5. C 20 2-3-1991 Remained absent and reported for duty la??? 6. C 21 19-3-1991 Remained absent on duty, as a result thereof annual stock taking wo remained pending and it is reported that i very difficult to take work from him 7. C 23 1-6-1992 Remained absent without prior permission 8. C 24 16-4-1992 Over time is required to be given due to the absence of the employee concerned 9. C 22 12-3-1994 Came late on duty on five days in the month of January 1994. 10. C 26 30-4-1995 Remaining on medical leave without give certificate from 25 April 1995 to 30 Apr 11. C 25 5-10-1995 A report that the employee concerned may not be sent to the winding department since he always remained on leave and does not take interest work requiring over time to be given. Sri Ramaswamy, in this connection, referred to Para. 5 of the examination-in-chief of Sri Vasant Jadhav, Deputy Manager, Administration wherein he has stated as follows: “We evaluated the work of the complainant before issuing him Exhibit (J 9 order of superannuation. He was not regular in attendance, he used to remain absent without permission and without sanction, he used to make mistakes in the departmental work. We had issued him memos, show-cause notice warning in this respect. I personally issued memo to him. We have filed the documents on record which are admitted by the complain and marked exhibits respectively” Now, what is important is mat there is no effective cross-examination on this aspect and the contents of these 11 memos are not disputed The only thing which has come in the cross-examination is a statement by Sri Jadhav that the management has not issued the complainant a chargesheet after evaluation of his work. Thereafter, it is stated in the cross-examination as follows: “There is a charge of inefficient in the retirement memo. No enquiry was held against the complainant on allegation of inefficiency” Thereafter it is stated that the workman has to record the attendance and record the production in the winding department and at Exhibit C16 was the memo issued to the complainant for recording wrong production in winding department. 12. Sri Buch learned counsel appearing for the respondent-workman, on the other hand, submitted that ail these entries, only show the dark side of the service of the employee concerned. The positive entries are not placed before the Court and, therefore, one should not merely rely upon these entries which are produced by the management. Sri Buch pressed into service the following observation of Smt. Manohar, J., from Para. 10. at page 195 of the above cited judgment [1990 (1) L.L.N. 19]: “It is urged by Sri Naik, learned advocate for the petitioner, that the Standing Order, if interpreted in this manner would compel the management to continue a male operative if he is efficient but if he is otherwise not a suitable person to be continued in service. But the plain language of Standing Order 20A does not permit any discretion being granted to the management to retire an efficient employee at 60 if he is otherwise unsuitable. In such situation it is open to the management to take such steps as may be available in taw to discontinue him from service” He, therefore, submitted that the learned. Judge of the Industrial Court was right in coming to the conclusion that unfair labour practice had been established and that there was a breach of Standing Orders and thus item (9) of Sch IV of MRTU and PULP Act 1971 was rightly invoked. Sri Buch submitted that the management ought to have held a specific enquiry by levelling a charge of inefficiency and then the respondent-workman could have been denied the right which he otherwise had, viz. to continue to serve up to the age of 63 years. Sri Buch submitted that the material produced on record was about conduct and not about efficiency and that the term efficiency has a wider meaning. 13. to continue to serve up to the age of 63 years. Sri Buch submitted that the material produced on record was about conduct and not about efficiency and that the term efficiency has a wider meaning. 13. Now, when one looks the material on record as seen above, after the completion of probation period there are not less than 11 memos against the respondent in the span of about nine years. They all throughout indicate that the respondent was not punctual on duty, he was found sleeping on occasions, he paid excess amount to the employees which showed unattentiveness, he left his place of work early, he remained absent habitually or even on medical ground without giving certificate. His absence necessitated engaging somebody else or payment of over time and on one occasion he was found drunk while on duty (though prior to completion of probation period). Ail these memos were tendered in the Court and necessary oral evidence was led by the management. The learned Judge, on the other hand, has observed in his order in Para 17 as follows: “Carefully considering the note Exhibit C30 which is submitted by the Senior Administrative Officer to the General Manager of the respondent, it reveals that the General Manager has not taken any cognizance since there is no remark of the General Manger to whom notice is produced Throughout the pleadings of the respondents, nowhere specifically pleaded about this Exhibit C30; not only that, there is no suggestion to the complainant Sri Tambe in the cross-examination as to whether his work is assessed and concluded that he is not efficient, referring to Exhibit C30” The learned Judge has thereafter observed as follows: “…it is expected before issuing the retirement memo, the management is in wisdom to assess the periodical work and compare the same to the past working for evaluation of his efficiency. After evaluation, a proper opportunity is to be given to have explanation of the delinquent employee.” As far as these aspects mentioned by the learned Judge are concerned, what is to be noted is that assuming that no such opportunity was given at the departmental level, the entire material has been placed before the Court by the management. It is not the case of the respondent-workman that these memos are false or an after-thought. It is not the case of the respondent-workman that these memos are false or an after-thought. They are part of his service record and, therefore, Sri Ramaswami submits that on this back-ground it could not be said that the respondent-workman was efficient and was entitled to continue up to the age of 63 years and that no reasonable person would have reached the conclusion reached by the learned Judge. 14. In this case, we are concerned with the assessment of efficiency of the employee concerned on attaining the age of 60 years and as to whether he should be continued thereafter. Thus, one has to see “the continued utility of the employee or rather what could be said to be his potential for continuation useful in service.” Among others, this is also a factor emphasized by the Hon'ble Supreme Court in All India Judges Association v. Union of India reported in 1994 (1) L.L.N. 337 , on pages 348 and 349 in the matter continuing the members of judicial service up to 60 years. The emphasize and interpretation of Sri Buch of the observation of Smt. Manohar, J., in Para 10 in M.S.T.C. case [1990 (1) L.L.N. 191] (vide supra) is misplaced. Under the relevant Standing Order, the employee concerned is to be continued in service if he continues to be efficient. In this what one has to see is not merely the productive capacity but the continued utility of the employee and the management will be expected to look into all relevant factors in this behalf The material placed by Sri Ramaswami on record concerning this employee cannot be brushed aside by the Court which is deciding the complaint of unfair labour practice lodged by the workman. It would have been desirable had an opportunity being given to the employee at the departmental level and that should be the normal rule but in any event the fact remains that the necessary evidence has been led in the Court. The non-continuation of the employee after attaining the age of 60 years is not an action for any misconduct Assuming that the management did not hold any inquiry for these 11 memos earlier, it cannot be blamed if it takes them into consideration while deciding as to whether the employee should be continued beyond the age of 60 years while deciding on his efficiency. The employee concerned had the full opportunity in the Court and he did not dispute the contents of these memos. Thus the action having been justified in Court, the Court ought to have taken cognizance of the material placed on record which clearly established that the employee was not efficient in his service. 15. The second submission of Sri Ramaswamy has been that the mill-company has become a sick company. But then as far as that part is concerned, unless an application to retrench the employee is made under S. 25N, any such circumstance cannot be of much assistance. 16. In these circumstances, in my view, the learned Judge of the Industrial Court has ignored the material on record which is quite substantial. It is not a case of one or two instances but 11 instances in a span of about nine years after the confirmation of the employee and they are all relating to absence at the place of work, coming late on duty, not performing the duty properly, sleeping on duty (and being found drunk at the place of duty on an earlier occasion). These cannot be said to be the factors which are alien or unrelated while deciding on efficiency. They could not be ignored while deciding on the issue of efficiency and continued utility as to whether the employee ought to be continued after the age of 60 years. Therefore, in the facts and circumstances of the case, the order passed by the Industrial Court is required to be set aside and the complaint will have to be dismissed. Accordingly rule is made absolute in this matter in terms of prayer Cl. (a). 17. Sri Buch, learned counsel appearing for the respondent-workman, informs that the gratuity and the provident fund of this employee has not been paid, rather he has not received this, since he expected his continuation up to the age of 63 years. The petitioners will, therefore, clear his gratuity, provident fund and all other amounts which are due to him within eight weeks from today with interest as directed hereinbelow. The petitioners will, therefore, clear his gratuity, provident fund and all other amounts which are due to him within eight weeks from today with interest as directed hereinbelow. Sri Buch points out that as far as the amount of provident fund is concerned, the mill-company was depositing the provident fund with Provident Fund Commissioner and hence the mill-company is expected to take necessary steps to see to it that the amount of provident fund due to the respondent is paid to him at the earliest. Sri Buch points out that for non-payment of the amounts to the Provident Fund Commissioner an amount of interest at the rate of 12 per cent is provided under S. 7 Q of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. In the event the mill-company has not deposited the amount with the Provident Fund Office, the respondent will be entitled to interest at the rate of 12 per cent. As far as the amount of gratuity is concerned, Sri Buch points out that for delayed payment under S. 8 of the Payment of Gratuity Act, 1972, interest is payable at the rate to be notified by the Central Government. This rate has been notified at 15 per cent vide the Central Government notification published in Gazette of India, entry No. 603 being Notification No. S.O. 1032 (E), dated 1 December 1987. Hence the petitioners will clear the amount of unpaid gratuity with interest at the rate of 15 per cent. 18. Sri Buch, learned counsel appearing for the respondent, states that, if instructed, the respondent may carry this order in appeal, though he would like to receive the amounts on the aforesaid accounts when paid and such a receipt should be permitted without prejudice. That will certainly be so. Accordingly Rule is made absolute in terms of prayer Cl. (a) with the above clarification, though with no order as to costs. 19. Sri Buch appears for the petitioner in this matter and Sri Naphade appears for the respondent 2. The first respondent is the member of the Industrial Court who passed the impugned order. 20. The petitioner herein was an employee of the second respondent-Textile Mill. He joined the service in a category known as a sider in the year 1988 and there is no dispute that this category falls in the wider category of employees known as operatives. The first respondent is the member of the Industrial Court who passed the impugned order. 20. The petitioner herein was an employee of the second respondent-Textile Mill. He joined the service in a category known as a sider in the year 1988 and there is no dispute that this category falls in the wider category of employees known as operatives. The petitioner remained a badly employee all throughout. On 15 April 1994 he was given a retirement memo stating that he will retire with effect from 1 July 1994 (on the basis of his year of birth given as 1934). The petitioner wrote back on 21 June 1994 stating that he was an operative and was entitled to work until completion of 63 years of age. On that request not being entertained (since there was no reply to it), he filed a complaint being (ULP) No. 770 of 1994 before the Industrial Court in Mumbai under MRTU and PULP Act, 1971. The second respondent filed written statement and documents and oral evidence was bad by both the parties. 21. The learned Judge of the Industrial Court took a view that the petitioner ought to be given an opportunity to prove his efficiency which had not been permitted He relied upon the observations of the Division Bench in the case of Tata Textile Mills (U.C.) v. Munnilal N. Yadav [ 1990 (1) L.L.N. 216 ] (vide supra). In Paras. 17 to 19 of that judgment, the Division Bench had taken a view that a periodical evaluation of the work of the employee concerned was desirable since the Standing Orders required that the employee concerned “continues to be efficient.” Rollicking upon that dicta and also the requirement of Standing Order 20A applicable to the operatives, the learned Judge passed an order directing the respondent-company to give an opportunity to the petitioner to prove his efficiency. The Court, however, held that there was no unfair labour practice, on the part of the respondent-company though the complaint was partly allowed in view of the above direction. 22. The Court, however, held that there was no unfair labour practice, on the part of the respondent-company though the complaint was partly allowed in view of the above direction. 22. Now, what is interesting is that after this order, the petitioner was permitted to join the mill-company and he worked therein for a period of six months from 2 January 1997 to 30 June 1997 that is until the date he would have retired had he been permitted to work until completion of 63 years of age as per Standing Order 20A applicable to the operatives. 23. The petitioner, however, felt aggrieved with respect to the denial of wages for the earlier period and filed an application for review of the said order though it has been wrongly shown as Revision Application No. 4 of 1997 in the writ compilation. In this behalf, the learned Judge in his order in review noted in Para. 10 of his order that in fact there was no prayer in the complaint that the employee was entitled to back-wages. In that paragraph, the learned Judge further noted as follows: “In fact, the status of complainant was of a badly worker and it has also come on record that he was working 20 days in a month but sometimes he was working 10-12 days in a month and badli workers status is not of a permanent nature. By claiming the back-wages in the review application, does not seem to be just and proper.” The learned Judge noted that if he had grievance, then be could have filed a separate case for that but there was no occasion to change the order passed earlier and therefore rejected the review application. 24. This petition seeks to challenge both these two orders, firstly, one passed in complaint (since the complaint was allowed only in part) and the later one in review application (since the wages for the intervening period were not granted and review rejected). Sri Buch, learned counsel appearing for the petitioner, submitted that the very fact that the employee concerned worked during the last six months preceding to his completing 63 years, shows that he was efficient enough to work. As against that, Sri Naphade, learned counsel appearing for respondent 2, has pressed into service the above referred observation of the learned Judge in review which factual part has not been disputed by the petitioner. As against that, Sri Naphade, learned counsel appearing for respondent 2, has pressed into service the above referred observation of the learned Judge in review which factual part has not been disputed by the petitioner. Sri Naphade, therefore, submitted that if the petitioner was a badli employee and if the record showed that he worked only for 20 days in a month or 10-12 days in a month and never put in 240 days in a calendar year, the factors for that will have to be looked into. The fact that the petitioner was a badli employee and then non-availability of the work was, of course, one factor but, over and above that it had come on record that the workman was not keeping well and was sick for quite some time. Thus, as per the respondent-management he was to retire on 1 July 1994 but as recorded in Para 20 of the order of the Industrial Court on the complaint, the workman admitted in his cross-examination that he had availed of sick leave from 13 May 1993 to 30 May 1993, 1 July 1993 to 7 July 1993, 21 July 1993 to 27 July 1993, 19 January 1994 to 21 January 1994, 15 March 1994 to 19 March 1994, 25 April 1994 to 29 April 1994 and 2 June 1994 to 9 June 1994. He also admitted that unless he submitted the medical certificate, he would not be granted leave. He also admitted that he was covered under the E.S.I. Scheme and he had availed of the facility in the year 1994. He was not in a position to state as to how much production he had given. He accepted that he was provided with work only when the regular employee did not come on duty. Thus, during the period 13 May 1993 till 9 June 1994, i.e., during the period of one year prior to attainment of his 60 years of age, he was continuously absent for a very long time. Thus, although the management did not reply the petitioner's representation, dated 21 June 1994 (which it ought to have done) it explained its decision before the Court, on the basis of their record. Thus, although the management did not reply the petitioner's representation, dated 21 June 1994 (which it ought to have done) it explained its decision before the Court, on the basis of their record. If this was the state of his health and work during the year just preceding to his attaining the age of 60 years, it could not be said that he was efficient in service and had continued utility and that he should have been continued thereafter and also be granted wages during the period of 2½ years, i.e., the period subsequent to 1 July 1994 and up to 2 January 1997 when he was taken back on duty. Sri Naphade therefore submitted that, the learned Judge was not correct to the extent he passed the order on the complaint against the management directing an opportunity to the employee to prove his efficiency; but in any case that order was accepted and implemented. That, however, cannot, lead to the prayer that the employees be paid wages for the period of 2½ years (when he was not given work). In his submission the order rejecting the review application was a correct one. 25. This petition seeks to challenge both these orders and also a direction to pay to the employee the wages that would have been earned during the intervening period. This is on the footing that if the petitioner could put in work during 2 January 1997 to 30 June 1997, he would have similarly put in work during the earlier 2½ years if he was allowed to work. The submission is that he had been wrongfully denied the opportunity to work during that period. Sri Naphade, on the other hand, emphasises the continued non-availability of the petitioner for a long time on a number of occasions during the period of one preceding year prior to 1 July 1974. He submitted that was the material before the management when it decided to retire the petitioner on completing 60 years and that it was a correct decision and management could not be faulted for that decision merely because it subsequently accepted the order of the Industrial Court whereby the petitioner worked for six months. 26. In my view, the submission of Sri Naphade is correct and the decision of the management to retire the employee, when taken, could not be faulted. 26. In my view, the submission of Sri Naphade is correct and the decision of the management to retire the employee, when taken, could not be faulted. At the same time, the management itself has accepted the decision of Industrial Court on the complaint and given the opportunity to the petitioner and he has worked for six months. That decision of the Industrial Court is not challenged by the management and has become final. At the same time, the very Industrial Court has declined to give full effect to that order and has denied the wages of 2½ years when the petitioner did not work and in my view rightly so. Apart from the fact that this aspect could not be gone into review, proving of efficiency by subsequently working for six months cannot lead to the inference that the employee was efficient during previous 2½ years, particularly due to his ill-health over a year prior to 1 July 1974. It is true that the petitioner loses the wages for 2½ years during this period when he was not provided with work, but the decision of the management to retire him could also not be faulted as baseless since they had his record of non-availability for a very long period during the very year preceding their decision to retire him. Besides since he was a badli employee, the fact that he could be provided with work for six months cannot necessarily mean that he would be provided with work for the prior 2½ years leading to a claim of wages. In the circumstances, it is not possible to accept the prayers of the petitioner. In fact, in the order on the complaint the Industrial Court has exercised its discretion in favour of the petitioner (though partly) and it is difficult to understand as to how the petitioner could be aggrieved by that order. The part of mat order declining to hold the management guilty of unfair labour practice cannot be faulted nor the one declining to review it on the application of the petitioner. In any case, the fact remains that the petitioner has been permitted to work until 30 June 1997 when he would have completed 63 years of age. The part of mat order declining to hold the management guilty of unfair labour practice cannot be faulted nor the one declining to review it on the application of the petitioner. In any case, the fact remains that the petitioner has been permitted to work until 30 June 1997 when he would have completed 63 years of age. It has not come on record as to what wages were paid to him during that period but they must have been the wages payable to him at that point of time considering his earlier service on a continuous basis. It has not been stated by the respondent 2 anywhere that he was given wages during that period as if he was a new entrant. In the circumstances, though the prayers (a) to (c) in this petition are not being entertained, it would be proper and just that the respondent 2 ought to be directed to pay the gratuity and the provident fund of the petitioner as if he had put in continuous service for 63 years ending on 30 June 1997 by way of other relief deemed fit by this Court as prayed n prayer C.(d). Sri Naphade has been fair enough to accept that it is something which flows from the continuous service and he has left it to the Court to pass the appropriate order in that behalf, Sri Buch, learned counsel appearing for the petitioner states that the petitioner has not collected his gratuity and provident fund so far, nor has management offered it to him. In the circumstances, though the petition is being disposed of without granting the prayers (a) to (c) as they are worded, there will be a direction to respondent 2 to pay provident fund and the gratuity to the petitioner for the period ending up to 30 June 1997 considering the entire service as a continuous one. 27. The respondent 2 will, therefore, clear the gratuity, provident fund and all other amounts which are due to the petitioner (excluding of course the wages of 2 ½ years) within eight weeks from today with interest as directed hereinbelow. 27. The respondent 2 will, therefore, clear the gratuity, provident fund and all other amounts which are due to the petitioner (excluding of course the wages of 2 ½ years) within eight weeks from today with interest as directed hereinbelow. Sri Buch points out that as far as the amount of provident fund is concerned, the mill-company was depositing the provident fund with Provident Fund Commissioner and hence the mill-company is expected to take necessary steps to see to it mat the amount of provident fund due to the petitioner is paid to him at the earliest. Sri Buch points out that for non-payment of the amounts to the Provident Fund Commissioner an interest at the rate of 12 per cent is provided under S. 7 Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, In the event the mill-company has not deposited the amount with the Provident Fund Office, the respondent will be entitled to interest at the rate of 12 per cent on the particular portion. As far as the provident fund is concerned, the petitioner will be entitled to the amount which is deposited for him in the provident fund office plus provident fund for further three years on which he will be entitled to interest at the rate of 12 per cent as per S. 7Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 As far as the amount of gratuity is concerned, Sri Buch points out that for delayed payment under S. 8 of the Payment of Gratuity Act, 1972, interest is payable at the rate to be notified by the Central Government This rate has been notified at 15 per cent vide the Central Government notification published in Gazette of India, Entry No. 603 being Notification No. S.O. 1032 (E), dated 1 December 1987. 28. Sri Buch learned counsel appearing for the petitioner, states that, if instructed, the petitioner may carry this order in appeal, though he would like to receive the amounts on the aforesaid accounts when paid and such a receipt should be permitted without prejudice. That will certainly be so. 29. Sri Naphade and Sri Saiyed have appeared for the petitioners and Sri Buch for the respondents. 30. This petition seeks to challenge the orders of the Industrial Court in Complaint (ULP) Nos. 1276 of 1997, 1277 of 1997 and 1278 of 1997. That will certainly be so. 29. Sri Naphade and Sri Saiyed have appeared for the petitioners and Sri Buch for the respondents. 30. This petition seeks to challenge the orders of the Industrial Court in Complaint (ULP) Nos. 1276 of 1997, 1277 of 1997 and 1278 of 1997. All these three complaints were filed on behalf of three different groups of employees. Complaint (ULP) No. 1276 of 1997 was filed by one Nandgopal Kaliding Tiwari; Complaint (ULP) No. 1277 of 1997 was filed by one Prabhakar Ramchandra Kudalkar, whereas Complaint (ULP) No. 1278 of 1997 was filed by Rashtriya Mill Mazdoor Sangh on behalf of 12 other employees. The learned Judge of the Industrial Court has decided all the three complaints together by common judgment and order, dated 30 June 1998. The petitioner-mill company have chosen to challenge that common judgment and order by filing this writ petition. The prayers are also to quash and set aside the orders in the three complaints. However, the petitioners have not chosen to Join the two complainants in Complaint (ULP) Nos. 1276 and 1277 of 1997 as the respondents. 31. In this matter also the case of the employees was that they were covered under Standing Order 20A that they were operatives who were eligible to work up to completion of 63 years and they were sought to be discontinued on completing 60 years only. The petitioners took a stand before the Industrial Court mat retrenchment had become necessary in as much as the mill-company had become sick. The proceeding concerning their mill-company had gone to BIFR. The petitioners, therefore, submitted that in view of the provisions of S.22 of the Sick Industrial Companies (Special Provisions) Act, 1985, all legal proceedings and execution of any order creating monetary liability would stand suspended. They also relied upon the statement of Sri Haribhau Naik, the men President of RMMS made before the BIFR that the workmen concerned were paid idle wages. As against this submission of the miff-company, it was pointed out on behalf of the workmen that the Standing Orders still continue to be in force. They were not suspended and had been specifically preserved for their operation. As against this submission of the miff-company, it was pointed out on behalf of the workmen that the Standing Orders still continue to be in force. They were not suspended and had been specifically preserved for their operation. The work-force had already been reduced substantially and whatever work-force was remaining was entitled to get the benefits under the Standing Orders until completion of 63 years unless the necessary requirement of retrenching the workmen by following the due procedure of law had been gone into. That plea on behalf of the workmen was accepted by the Industrial Court and the complaints were allowed directing the management to pay the wages. The Industrial Court in its order held that the mill-company had engaged in unfair labour practice under item (9) of Sch. TV and it directed the employees involved in these three complaints to continue with their duties till they attain the age of 63 years. 32. Being aggrieved by that order, the present petition has been filed. Though the petition was admitted, no interim relief was granted. In fact, the Industrial Court had earlier granted an ad interim order on 22 December 1997, restraining the petitioners from retiring the employees on completion of 60 years of age and against that order Writ Petition No. 645 of 1998 had been filed. My brother Rebello, J., who heared the matter directed the Industrial Court to dispose of the complaint within six months. Accordingly, the complaint has come to be disposed of and hence though this petition was subsequently admitted, no interim relief was granted by this Court. 33. Sri Naphade, learned counsel appearing for the petitioners, repeated the submissions which were advanced in the Industrial Court. He submitted that the sickness of the mill-company was writ large and hence the provision which was made in the Standing Order 20A ought to be properly construed so that the management is not required to continue with this workforce beyond the age of 60 years. As stated above, he drew attention of the Court to the statement of the President, RMMS, made before the BIFR that the workers were sitting idle. As stated above, he drew attention of the Court to the statement of the President, RMMS, made before the BIFR that the workers were sitting idle. As against that Sri Buch pointed out mat the Standing Orders were not suspended and he placed on record the order, dated 9 September 1998, passed by the appellate authority on the specific application by the RMMS in that behalf wherein it was clarified that the Standing Orders were not suspended. Sri Buch also drew my attention to the judgment of my brother Srikrishna, J. in the case of Baburao P. Tawade v. Hes, Ltd., Bombay reported in 1995 (2) L.L.N. 96, wherein the learned Judge has held that the bar under S. 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, could not be applicable to the claim made by the workmen under S. 33C(2) of the Industrial Disputes Act. Sri Buch, therefore, submitted on the same analogy that as far as the present group of employees are concerned, they are entitled to continue to work and receive wages and other benefits until they complete 63 years of age under the Standing Order and which is a enforceable right. 34. Sri Buch, alternatively, submitted that since a voluntary retirement scheme had been framed and a number of employees had opted for voluntary retirement scheme, this group of employees was also prepared to go for the same. However, Sri Naphade on instruction declined to accept this offer of Sri Buch. In the circumstances, the controversy in this matter would stand squarely covered under the observations by Smt. Sujata Manohar, J. (as she then was in this Court), in the case of Maharashtra State Textile Corporation, Ltd. v. Vasudeo Vinayak Joshi [1990 (1) L.L.N. 191] (vide supra), wherein in Para. 14 the learned Judge has, in terms stated that this phrase when retrenchment becomes necessary (appearing in Standing Order 20A) does not refer merely to the subjective satisfaction of the management regarding the need for retrenchment; nor does it refer merely to a settlement or agreement for retrenchment which may be arrived at between the management and the representative union. It refers to a further stage when ultimately reduction does take place in the number of workmen or the posts as the case may be. It refers to a further stage when ultimately reduction does take place in the number of workmen or the posts as the case may be. And hence it becomes necessary for the management to comply with S. 25N of the Industrial Disputes Act before it resort to the provision of the last part of Standing Order 20A In the present case, the petitioner-management has not done any of these things. The aforesaid judgment of the learned Single Judge has been subsequently confirmed by the Division Bench and there is no reason for me to make an exception when similar facts squarely covered under that judgment. In the circumstances, this petition fails and the same is accordingly dismissed. Rule is discharged, though with no order as to costs. 35. Sri Vaidya has appeared for the petitioner in this matter and Sri Dharap for respondent 1. Second respondent is a member of the Industrial Court. 36. Respondent 1 in this matter joined the petitioner-company in the year 1955 in its time office as a clerk. He was promoted as a senior clerk in the year 1980. On 1 November 1993, he was promoted as a head time keeper in the supervisory technical grade of Rs. 695-40-895-50-1195. In the year 1994 he attained the age of 60 years on 31 August 1994. He was initially granted one extension until 28 February 1995, i.e., for a period of six months. Thereafter, he was given a further extension for six months until 31 August 1995, and thereafter for three months until 30 November 1995. Thus, he was given an extension of one year and three months, over and above, the period when he ought to have retired after completing the age of 60 years. The stand of the management has been that he is governed under Standing Order 26A of the standing Orders applicable to employees other than operatives. These are a third set of Standing Orders than those applicable to operatives and clerks which have been referred earlier. This Standing Order reads as follows: “26A. The stand of the management has been that he is governed under Standing Order 26A of the standing Orders applicable to employees other than operatives. These are a third set of Standing Orders than those applicable to operatives and clerks which have been referred earlier. This Standing Order reads as follows: “26A. The date of the compulsory retirement of an employee other than an operative shall be the date on which he attains the age of 60 years, or such other age as may be agreed upon between the employer and the employee by an agreement, settlement or award which may be binding on the employer and the employee under any law for the time being in force.” 37. As against the above stand of the management the stand of the employee concerned was that he belonged to the clerical cadre and Standing Order 11A from the Standing Orders applicable to clerks, would apply and govern his service conditions. 38. The respondent-workman, therefore, filed a Complaint (ULP) No. 1563 of 1995 in the Industrial Court at Mumbai. The documents were produced and evidence was led by both the sides (The papers and proceedings of the Industrial Court have also been produced before me for perusal by calling them from that Court). After considering the material on record, the learned Judge on the Industrial Court came to the conclusion that the respondent was eligible to be considered under Standing Order 11A only and not Standing Order 26A as contended by the management. The learned Judge, therefore, held that the management had engaged in an unfair labour practice and by his judgment and order, dated 17 January 1997, directed that the employee be reinstated and paid all his back-wages with continuity of service. 39. Sri Vaidya, learned counsel appearing for the petitioner, submitted mat the respondent-workmen had been promoted as a head time keeper on 1 November 1993 and worked in that capacity until he completed the age of 60 years on 31 August 1994. Prior thereto he was working as a senior clerk right from 1980. The submission of Sri Vaidya was that the pay-scale which was made available to the respondent-employee was that of supervisory staff. Prior thereto he was working as a senior clerk right from 1980. The submission of Sri Vaidya was that the pay-scale which was made available to the respondent-employee was that of supervisory staff. As far as the technical and supervisory staff are concerned, their pay-scales and service conditions were governed by the award of the Industrial Court in Reference (IC) No. 91 of 1954 and as per the subsequent agreement arrived at between the Representative Union and the Mill Owners Association modifying it on 6 October 1970. Those pay-scales were available to the technical and supervisory staff which as specifically classified under the Clause “Classification” therein. The clause reads as follows: “Classification. The existing Technical and Supervisory Staff including Assistants Engineers shall be classified in the categories of: (a) assistant masters; (b) departmental assistants; (c) departmental assistants who are Technical and Engineering Graduates; (d) foreman and assistant foremen; and (e) apprentices. The respondent was given clearness allowance of the supervisory staff and his pay-scale was also or that cadre. As a head time keeper, he was all throughout considered as a Junior Assistant as can be seen from the management's letter including one, dated 1 August 1994 (at Annexure A to the petition) informing initially to the employee that he will retire from 1 September 1994. His pay slip produced on record described him as Junior Assistant. Sri Vaidya, therefore, submitted that when totality of these factors are considered, having received the benefits in the cadre of supervisory and technical category, the respondent could not turn back and say that he was not a departmental assistant and that he was a clerk. He was admittedly a head time keeper and classified as a Junior Assistant and hence the Standing Order which was applicable for employees other than operatives or clerks, will apply. Sri Vaidya submitted that undoubtedly the respondent was not an operative, nor was that his case. As far as clerks are concerned, Standing Order 11A of the Standing Order applicable to clerks permitted them to work up to the completion of 63 years but a clerk has not been as such defined under those Standing Orders except by stating in Standing Orders 2(a) that an “employee” means a clerk which is a meaning provided for the purpose of reading those Standing Orders. Sri Vaidya, therefore, submits that we will have to look into the document laying down the pay-scales and service conditions of technical and supervisory staff and if those benefits are made available to the respondent-employee (who had received the same), he could not later on say that he did not fall in their category. 40. Sri Dharap, on the other hand, pointed out that whatever may be the stand of the management, when the Standing Orders for persons other than operatives and clerks did not provide for extension beyond 60 years, the management did give an extension for one year and three months to respondent 1. He submitted that the first respondent did not have a disciplinary power nor was any such material placed on record. The submission of Sri Dharap was that essentially the duties of respondent 1 were clerical duties and merely because he was designated as a head time keeper, he could not be taken out of the Standing Orders applicable to clerks. 41. As far as oral evidence is concerned, the employee concerned stated that he used to assit other clerks in preparation of paysheets and did not have any right to take any disciplinary action or to sanction any leave. He however accepted that he was getting the benefit of overtime and also that the scale given to him was that of a Junior Assistant Master. He further accepted that the supervisory and technical staff were not entitled to get extension upto the age of 63 years. The management examined one Mohan Narayan Acharya, General Manager, who stated that the employee was getting dearness allowance applicable to technical and supervisory category. He accepted din his cross-examination that there was no allegation of inefficiency against the respondent. On the basis of this evidence and the Standing Orders the question to be considered before the Industrial Court was as to whether the employee was governed under Standing Order 26A (for employees other than operatives and clerks) or under Standing Order 11A (applicable to clerks) That depended on deciding as to whether he fell in the clerical category or in the category of technical and supervisory staff. Now undoubtedly as recorded above, although the respondent did not have any disciplinary power or to sanction leave, etc., he was given the pay and dearness allowance of the category known as technical and supervisory staff which he would not have been given if he was only a clerk. In their correspondence, the petitioner has described him as junior assistant (head time keeper). Hence when he wag otherwise getting the benefits of a higher cadre, it could not be permissible for him to say that for other purposes he would not be governed by the Standing Orders which apply to that category in which he was paid salary. The Standing Orders will have to be construed in their entirety It cannot be said that for one purpose, i.e., for pay and salary the employee would be in the category of technical and supervisory staff and for other purpose he would be in the category of clerks. Hence, in my view, the submission of Sri Vaidya is well justified that the respondent was working in the technical and supervisory category and hence the Standing Order 26A would apply to him It is true that the respondent was given extension for one year and three months. But that, by itself, could not lead to the conclusion that he was entitled to extension for a period of three years. The finding of the Industrial Court in that behalf is erroneous. 42. In the circumstances, this petition will have to be allowed. The order of the Industrial Court will have to be quashed and is accordingly set aside. It has not been executed in the meanwhile in view of the direction given by my brother, Rebello, J., while admitting this petition. Accordingly, rule is made absolute in terms of prayer Cl.(a). 43. Though, the petition is thus allowed, it is, however, clarified that the petitioner-management had itself given an extension to the respondent-employee on their own until 30 November 1995. He will, therefore, have to be given all his benefits including those concerning provident fund and gratuity and all other benefits on the footing that he put in continuous service until that date. He will, therefore, have to be given all his benefits including those concerning provident fund and gratuity and all other benefits on the footing that he put in continuous service until that date. The petitioner will clear all those dues (in case they have not been paid or received so far), viz., gratuity, provident fund and all other amounts which are due to respondent 1, within eight weeks from today with interest as directed in the earlier matters. Respondent 1 will be entitled to collect those amounts without prejudice in case he wants to file an appeal. Rule is made absolute with clarification as above, though without any order as to costs. 44. Sri Buch appears for the petitioner in this matter and Sri Naik appears for respondent 1. 45. The petitioner herein joined as a badli Doffer boy under respondent 1/mill company on 20 February 1959. He became permanent in Spinning Department on 1 November 1963. On 1 February 1972 he became a doffer jobber. On 17 February 1979, he became an assistant foreman, then a foreman on 1 January 1988 and a departmental assistant on 1 January 1990. He also earned a merit increment on 1 January 1992. On 27 November 1996, he was given a retirement memo that he will retire on 31 December 1996 on completing 60 years of age. He replied on 7 December 1996 stating that he was eligible to work until completing 63 years of age. That reply not having been accepted, he filed a complaint bearing Complaint (ULP) No. 1400 of 1996. After considering the documentary material and oral evidence, the complaint was rejected by an order, dated 5 July 1997. Hence this petition. 46. Sri Buch, learned counsel appearing for the petitioner submitted that at the time of retirement of the petitioner, the petitioner's basic wage was Rs. 925 per month, i.e., less than Rs. 1,000. It is his submission that he was essentially doing technical work and was an operative. His submission was that the definition of an “operative” in the Standing Orders applicable to the operatives, includes all work-people. 925 per month, i.e., less than Rs. 1,000. It is his submission that he was essentially doing technical work and was an operative. His submission was that the definition of an “operative” in the Standing Orders applicable to the operatives, includes all work-people. Now for ready reference, definition of operatives under these Standing Orders reads as under: “‘Operatives’ means all work-people, male or female, employed in the mill or in the mill premises, whose names and ticket numbers are included in the departmental musters, and includes, overseers, Jobbers, muccadams, watch and ward staff, motor vehicle staff and cartmen.” 47. The submission of Sri Buch was that the petitioner was amongst the work-people and was an operative, he was doing technical work, his salary was less than Rs. 1,000 basic and hence he was an employee under the definition of an employee provided in S. 3(13) of the B.L.R. Act, 1946. He, therefore, submitted that the Industrial Court was wrong in applying Standing Order 26A from the Standing Orders for employees other than the operatives to the petitioner. It was the Standing Order 20A from the Standing Orders for operatives which will apply and he ought to nave continued until completion of 63 years of age. 48. As against the submission of Sri Buch, Sri Naik submitted that pay-scales which were made available to the technical and supervisory start specifically covered the categories of foreman and assistant foremen and departmental assistants. Admittedly, the petitioner became an assistant foreman on 17 February 1979, a foreman on 1 January 1988 and then a departmental assistant on 1 January 1990. Sri Naik submitted that even by looking at Para. 3(C) of the complaint, it would be seen that the petitioner accepted that it was a part of his responsibility to see to it that the machines in the department were in proper conditions. It is no doubt true that the petitioner stated in his affidavit that he did not allot work to workers and that he attended to repairing only minor faults and also that he did no sanction leave of workers. In the complaint, he has stated that he was studied up to 4th standard. Sri Naik submitted that the petitioner was given leave and medical assistance as can be seen from his cross-examination. In the complaint, he has stated that he was studied up to 4th standard. Sri Naik submitted that the petitioner was given leave and medical assistance as can be seen from his cross-examination. He was not given any ticket number (which is given to the operatives) and was in fact not doing any manual work. The question is as to which Standing Order will govern and in that connection the totality of the factors will have to be considered including his pay, the category in which he is placed, designation, given to him and the work that was expected from him… Sri Naik therefore submitted that the industrial Court was right in coming to the conclusion that the petitioner did not fall in the category of operatives and that the Standing Order 26A applicable to the employees other than operatives, would apply. 49. I have given my anxious thoughts to the submissions of the rival parties. In my view, the submission of Sri Naik is well founded. One will have to take an overall view and one cannot ignore the fact that the petitioner was working as an assistant foreman and thereafter in the promoted category for a very longer time and got all the benefits of salary and other benefits of those categories. He cannot therefore be permitted to say that he was an operative for other purposes and he should be allowed to work until completion of 63 years. That is a benefit made available to the employees whose salaries are less as referred in the historical background in the judgment of Smt. Sujata Manohar, J., referred to above. Sri Naik relied upon the judgment of Industrial Court, Nagpur, in the case of Central India Spinning Weaving and Manufacturing Company, Ltd. v. Bansilal reported in 1959 I.C.R. 715, wherein similar Standing Orders were under consideration and while dealing with the case of a foreman, the Industrial Court had referred to the salary structure and dearness allowance which was paid to the employees concerned who were designated as foreman. The Court observed that dearness allowance was an important constituent of the total wages paid to the employees and held in Para. 7 that the respondent could not be regarded merely as an operative or a clerk in view of the nature of his work and emoluments received, though he would otherwise be an “employee under the BIR Act. The Court observed that dearness allowance was an important constituent of the total wages paid to the employees and held in Para. 7 that the respondent could not be regarded merely as an operative or a clerk in view of the nature of his work and emoluments received, though he would otherwise be an “employee under the BIR Act. That was a different aspect. 50. In the circumstances, this petition fails and is accordingly dismissed though with no order as to costs. 51. Writ Petition No. 1248 of 1999 is filed by the petitioner-mill-company against one vinayak Eknath Dadpe who has filed the cross petition being Writ Petition No. 1006 of 1999. Sri Bapat has appeared for the mill-company whereas Sri Deshpande has appeared for the workman. 52. The facts leading to this petition are as follows: The employee Sri Dadpe joined as a senior assistant in the Spinning department of the mill on 15 July 1983. He is holding a Diploma in Textile Technology from M.S. University, Baroda, obtained in the year 1958. In the hierarchy of officers in his department, the only person above him was the spinning master. He has been signing the documents for the head of the department for granting leave, etc. On being given a retirement memo that he will retire on 20 January 1994, on completing the age of 60 years, he filed a complaint being Complaint (ULP) No. 41/94 in the Industrial Court at Mumbai contending that he was entitled to be continued in service until completion of 63 years under the Standing Order 20A applicable to the operatives and could not be retired on completing 60 years as per Standing Order 26A applicable to the technical and supervisory staff. The Industrial Court accepted the contention of the employee. In Para. 37 of the judgment, it is recorded that it has come on record that similar category of employees have been continued after completion of 60 years. This was one of the factors which weighed on the Court and the Court allowed the complaint but directed payment of 75 per cent back-wages in lieu of reinstatement to the employee. In Para. 37 of the judgment, it is recorded that it has come on record that similar category of employees have been continued after completion of 60 years. This was one of the factors which weighed on the Court and the Court allowed the complaint but directed payment of 75 per cent back-wages in lieu of reinstatement to the employee. Being aggrieved by the award of grant of 75 per cent back-wages the mill-company has filed Writ Petition No. 1248 of 1999, whereas the employee has filed Writ Petition No. 1006 of 1999 since he is aggrieved by denial of 25 per cent back-wages. 53. Now, it has come on record that the basic wage of the employee concerned at the time of his jointing was Rs. 1,305 which is much more than the basic wage for being covered under the definition of an “employee” under the BIR Act, 1946. As against that, the basic wage of the operatives has been all around Rs. 400 per month. The educational qualification of the employee concerned, his designation and placement in the category of senior assistant throughout and his signing by the documents as head of department were the factors which were pressed into service by Sri Bapat. On the other hand, Sri Deshpande, learned counsel appearing for the employee submitted that the basic pay of the employee concerned could not be the governing factor in the instant case. He was also an operative like any other operatives. He referred to the definition of operatives and pointed out that many other categories including that of an overseer are covered in the definition of operatives. All work-people including overseer are covered in that definition. Sri Deshpande, therefore, submitted that at the highest the employee could be considered as an overseer and would still be governed under the Standing Orders which apply to the operatives. 54. Sri Bapat, on the other hand, relied upon the documents which were tendered in the Industrial Court and the copies whereof were made available as also oral evidence which showed signing of the employee for the head of the department on leave applications of the other employees. It also showed that the employee concerned got privilege leave of 30 days whereas operatives would get privilege leave for only 12 days. The employee concerned got medical reimbursement to the extent of Rs. It also showed that the employee concerned got privilege leave of 30 days whereas operatives would get privilege leave for only 12 days. The employee concerned got medical reimbursement to the extent of Rs. 2000 per year which was not the facility available to the operatives who were covered under the E.S.I. Scheme. The employee concerned accepted that he had signed the documents for the Head of Department whenever required. The Industrial Court has relied upon the fact of two other employees being continued beyond the age of 60 years, i.e. one Sri R.G. Darbari and one Sri V.K. Motiwala, Sri Bapat has produced the orders of injunction passed by the Industrial Court and pointed out that they were so continued because of the Courts orders and there was no intention of discriminating against the present employee. Obeying of the orders in those two matters does not mean that the management is required to follow same policy contrary to the Standing Orders with respect to other employees. 55. Sri Deshpande relied upon a judgment of Calcutta High Court reported in 1986 (2) L.L.N. 908 in the case of Guest Keen Williams, Ltd. v. Assistant Labour Commissioner, Government of West Bengal, to contend that the Standing Orders are determinative. There is no quarrel with the proposition. The question in the present matter is which Standing Order is to apply. Then he relied upon a judgment of this Court in 1989 (2) L.L.N. 483, in the case of Bombay Dyeing and Manufacturing Company, Ltd. v. R.A. Bidoo [1989 (2) L.L.N. 483], holding that the designation is not relevant. The question before the Court was in the context of a reinstatement application as to whether the employee concerned could be excluded from the definition of “employee on the assertion of the management that he was engaged in technical or supervisory capacity and was drawing salary exceeding Rs. 1,000 per month. In Para. 26 of its judgment, the Court held, in any case in the absence of basic material relating to the nature of work performed by the respondent, it has not been possible for us to differ with the concurrent findings given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity.” In the present case we are concerned with the question as to which set of Standing Orders will apply. Admittedly the employee is receiving all the benefits under the Standing Order applicable to technical and supervisory staff including salary and D.A., privilege leave and medical benefits. The management has also produced documents showing that this employee was signing for the head of department on leave applications of others. In the circumstances, the controversy and facts of the present case are different from the Bombay Dyeing case (vide supra). The employee can not pick and choose favourable part of the Standing Orders of the operatives. Sri Deshpande lastly relied upon the judgment reported in 1955 I L.L.J. 371 in the case of K.N. Joglekar v. Barsi Light Railway Company, Ltd. to contend that a term ought to be construed according to the language used by Legislature This was to canvass that the employee herein was an “overseer” and, therefore, an operative. In our case, we have ample material on record right from the appointment of the employee concerned, his pay-scales and the work that he had done and on that footing in the present case, there is no alternative but to hold that the employee concerned will be governed by the Standing Orders for employees other than those for the operatives. 56. All these factors will have to be considered in their totality The pay and the various benefits received by the employee concerned are far superior to those of operatives. His appointment letter designated him as senior assistant. In view of all these circumstances it could not be said that the employee concerned was an operative so as to avail of the benefit of extended service under the Standing Orders which govern the service conditions of the operatives when he was otherwise receiving the pay-scales and all other service conditions of the technical and supervisory category. He has functioned as such in a supervisory category by signing various documents In the circumstances, in my view, the learned member of the Industrial Court has erred in coming to the conclusion that Cl. 20A would be available to employee Sri Dadpe. The employee concerned would be governed under Standing Order 26A and the management was right in retiring him on completing the age of 60 years. 20A would be available to employee Sri Dadpe. The employee concerned would be governed under Standing Order 26A and the management was right in retiring him on completing the age of 60 years. In the circumstances, Writ Petition No. 1248 of 1999 filed by the management succeeds Rule issued therein is made absolute though with no order as to costs Writ Petition No. 1006 of 1999 filed by the workman fails. The rule issued therein will stand discharged, without any order as to costs. 56A. Sri Bapat prayed for refund of the amount which has been deposited in this Court. The prothonotary will releaase the amount deposited by the mill company in this Court with accrued interest within four weeks from today. Sri Deshpande prays for stay of this order. The mill-company will not withdraw the said amount for a period of six weeks from today. 57. Heard Sri Saiyed for the petitioners and Sri Chaudhary for respondent 1. In this matter, the respondent-workman joined the mill-company in the year 1982 as a sweeper in wring wrap department and was to be retired after completing 60 years of age. There is no dispute that he fell in the category of operatives and in the subordinate staff He contended that he was efficient in his work and that he was entitled to work until completion of 63 years under Standing Order 20A and filed a complaint being Complaint (ULP) No. 659 of 1994 before the Industrial Court, Mumbai. The respondent examined their Senior Security Officer In his cross-examination he accepted that except his words there was no evidence to show that the employee was inefficient. He also admitted that his past record was very good. That complaint came to be allowed. Being aggrieved by that judgment and order, the present petition has been filed. 58. Sri Saiyed who appeared for the petitioner, raised only one point and submitted that the management suffered from a number of financial difficulties and referred to me to the fact that the mill company was before BIR. He referred me to various provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, and submitted that the requirement of retrenchment was writ large. In his submission, therefore, the workman could not be extended beyond 60 years of age and the Industrial Court could not have allowed the complaint. 59. He referred me to various provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, and submitted that the requirement of retrenchment was writ large. In his submission, therefore, the workman could not be extended beyond 60 years of age and the Industrial Court could not have allowed the complaint. 59. As far as the above submission of Sri Saiyed is concerned it cannot be accepted for the simple reason that as held by Smt. Sujata Manohar, J., in the above cited case of M.S.T.C. (vide supra), on the Standing Orders applicable to operatives and clerks, the requirement for retrenchment has to be assessed when actual occasion arises. It cannot depend upon the subjective satisfaction of the management and as held by the Hon'ble Judge, the requirement of S. 25N of the Industrial Disputes Act, 1947, has got to be followed by the management. In as much as it has not been followed, the Industrial Court was right in awarding reinstatement with full back-wages and holding that there was unfair labour practice and that the workman was entitled to work up to completing 63 years of age. 60. There is no error in the order passed by the Industrial Court. The petition, therefore, fails and is dismissed though with no order as to costs. The petitioner will pay the respondent-back-wages of 63 years service (with interest at 15 per cent as directed earlier) and provident fund (with interest at 12 per cent for the portion not contributed) as directed in the earlier part of this judgment within 12 weeks from today. 61. Certified copy of this order is expedited. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary of this Court.