Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 920 (HP)

Ramadhar v. Associated Ancillaries

2014-07-17

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. 1. The petitioner is aggrieved by the award passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, on 19.12.2011 (hereinafter referred to as the Tribunal) whereby the learned Tribunal rejected the plea of the petitioner for continuation in service till the age of 60 years. 2. The facts, in brief, may be noticed. The following reference came to be filed before the Tribunal:- “Whether forced retirement at the age of 56 years of Sh. Ramadhar workman by the Management of M/s. Associated Ancillaries, Shed No.1 to 4, Sector-2 Parwanoo, District Solan contrary to the provisions of Rule 12(3)(c) of Employees Pension Scheme, 1995 under Employees Provident funds and Miscellaneous Provision Act, 1952 and also contrary to the provisions prescribed in sub-item(3) of item 10-A of schedule 1-A of Model Standing Orders under Rule 3 of the Model Standing Orders framed under Rule 3 of Industrial Employment (Standing orders) Himachal Pradesh Rules, 1973 and Amendment Rules, 1991 framed under Section 15 of the Industrial Employment (Standing orders) Act, 1946 is legal and justified as M/S Associated Ancillaries have been employing more than 60 (Sixty) workers in their establishment? If not, to what service benefits and relief the workman Sh. Ramadhar is entitled to from the abovesaid establishment?” 3. The petitioner had claimed that in terms of the provisions contained in sub-item (3) of item 10-A of schedule 1-A of Model Standing Orders framed under Rule 3 of the Industrial Employment (Standing Orders), Himachal Pradesh Rules, 1973 and amended Rules, 1991, framed under Section 15 of the Industrial Employment (Standing Orders) Act, 1946, the petitioner has a right to remain in service till the date of superannuation i.e. till he attains the age of 60 years. 4. This claim was opposed by the respondent on the ground that the petitioner had retired from service after attaining the age of superannuation i.e. 56 years and 4 months and had in fact taken away all the benefits payable to him like gratuity and EPF. The sum and substance of the reply of the respondent was that the petitioner was estopped from filing the present reference petition. 5. The learned Tribunal below framed the following issues:- 1. The sum and substance of the reply of the respondent was that the petitioner was estopped from filing the present reference petition. 5. The learned Tribunal below framed the following issues:- 1. Whether the petitioner has been illegally retired contrary to the provisions of Rule 12(3)(C) of Employees Pension Scheme, 1995 and also contrary to the provisions of Model Standing Order of Industrial Employment (Standing Orders) HP Rules, 1973? If so, its effect? OPP 2. If issue No.1 is proved in affirmative, to what relief the petitioner is entitled to? OPP 3. Whether the present reference is not maintainable? OPR 4. Relief. 6. The learned Tribunal on the strength of Clause-3 of the Model Standing Orders concluded that in the letter of appointment issued to the petitioner on 27.06.1983 (Ex. PB), it was clearly stated that the petitioner would retire at the age of 55 years and, therefore, this was an agreement between the parties as contemplated under Clause-3 of the Model Standing Orders and consequently the claim of the petitioner on this ground alone was rejected. 7. Aggrieved by the award passed by the learned Tribunal below, the petitioner has approached this Court by contending that the award passed by the learned Tribunal is illegal as it has failed to take into consideration the fact that this was a case of “forced retirement” of the petitioner and was contrary to the provisions of Rule 12(3) of the Employees Pension Scheme, 1995 under Employees Provident Funds and Miscellaneous Provision Act, 1952 and also contrary to the provisions prescribed in sub-item (3) of item 10-A of schedule 1-A of the Model Standing Orders, Rule-3 of the Model Standing Orders framed under Rule 3 of Industrial Employment (Standing Orders) Himachal Pradesh Rules, 1973 and amendment Rules 1991 framed under Section 15 of the Industrial Employment (Standing Orders) Act, 1946. 8. I have heard Shri V.D. Khidtta, Advocate, for the petitioner and Mr. Dushyant Dadwal, Advocate, for the respondent and gone through the records of the case carefully. 9. At the outset, it may be observed that the scope of power of this Court to interfere with the award of the Labour Court under Article 226 of the Constitution of India is though wide, but then the same has to be exercised with great circumspection. 9. At the outset, it may be observed that the scope of power of this Court to interfere with the award of the Labour Court under Article 226 of the Constitution of India is though wide, but then the same has to be exercised with great circumspection. The Court cannot constitute itself into an appellate Court over Tribunals and the jurisdiction is limited when the inferior Court and the Tribunal function within the limits of its authority. The award can only be interfered with if it is shown to be vitiated or erroneous in law. This Court can interfere with the order of the Tribunal only incase where the decision of the lower Court has been reached at in gross violation of the legal propositions. Further, Court will interfere with the factual aspects placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistake in admitting the inadmissible evidence or has made grave error in law in coming to the conclusion of the facts or else it will amount to exceeding jurisdiction conferred upon it. 10. Clause-3 of the Model Standing Orders provides as under:- “(3) Age of retirement – The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workman under an agreement or as specified in a settlement of award which is binding on both the workman and the employer where there is no such agreed age, retirement or superannuation shall be on completion of 60 years of age by the workman.” 11. A perusal of the aforesaid clause would go to show that the following eventualities regarding age of the retirement have been contemplated under Clause-3 of the Model Standing Orders: (i) The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workman under an agreement; (ii) As specified in a settlement of award which is binding on both the workman and the employer. (iii) When there is no such agreed age, retirement or superannuation shall be on completion of 60 years of age by the workman. Each of the aforesaid conditions is separate and distinct and is applicable to the fact situation obtaining in a particular case. 12. (iii) When there is no such agreed age, retirement or superannuation shall be on completion of 60 years of age by the workman. Each of the aforesaid conditions is separate and distinct and is applicable to the fact situation obtaining in a particular case. 12. The learned counsel for the respondent has placed on record a copy of the appointment letter of the petitioner dated 27.06.1983 which was proved on record as Ex. PB before the learned Tribunal wherein under Clause-13, it has been clearly provided that “you will automatically retire on attaining the age of 55 years, unless otherwise informed in writing by the Firm”. The copy of this letter was shown to the petitioner, who did not dispute the veracity and authenticity of the contents of the same. Once this be the fact situation, the irreversible conclusion is that the petitioner was to retire on completion of 55 years of age not only in terms of the appointment letter, but in terms of condition No. (i) of Clause 3 of the Model Standing Orders (supra). Therefore, by no stretch of imagination, it can be held that there was violation of the Employees Pension Scheme or the Model Standing Orders. 13. There is yet another reason why the petition merits dismissal, the petitioner admittedly came to be appointed on 27.06.1983 and kept mum for more than two decades before resorting to the proceedings before the Conciliation Officer which culminated into a reference and ultimately on the basis of which the impugned award came to be passed by the learned Tribunal. Therefore, the petitioner is estopped by his act, conduct, acquiescence and waiver and could not have raised a claim which was belated and stale. 14. For all the aforesaid reasons, I find no merit in the petition and the same is dismissed along with all pending application(s), if any, leaving the parties to bear their own costs.