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Madhya Pradesh High Court · body

2018 DIGILAW 584 (MP)

Tata International Limited v. State of M. P.

2018-07-04

S.C.SHARMA, S.K.AWASTHI

body2018
ORDER 1. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of the Writ Petition No. 9264/2018 are narrated hereunder. 2. The petitioner before this Court has filed the present petition being aggrieved by the award dated 7.12.2017 pronounced on 20.12.2017 passed by the Presiding Officer, Industrial Tribunal, Indore, in Reference Case No. 42/ID Act/2016. 3. The facts of the case reveal that the workman in question is an employee of Tata International Limited and was superannuated on attaining the age of 58 years. The respondent No. 3/workman has raised a dispute under the provisions of Industrial Disputes Act, 1947 and a reference was made to the Industrial Tribunal. It was pleaded before the Industrial Tribunal that the workman is entitled for continuance up to the age of 60 years. 4. Undisputedly, in the present establishment, certified standing orders are in vogue, which have been duly certified by the Certifying Officer under the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (hereinafter referred as the Act of 1961). As per the standing order, which is applicable to the petitioner/company, the age of retirement is 58 years. The relevant paragraph of the certified standing order reads as under : "Employees shall retire from their employment on the last day of the months in which they attain the age of 58 years. In the suitable cases purely on the discretion of the management where an employee is considered physically fit and mentally alert he may be continued in employment for further of one year at a time upto a maximum period of two years. For the purpose of retirement, the age recorded at the time of his employment on the basis of any school certificate, certificate of date of birth from a Municipality or other competent authority which records births and deaths or in the absence of any such certificate on the basis of assessment made by the Medical Officer, shall be taken as the valid record." 5. In exercise of the powers conferred by sub-section (1) and (2) of section 21 of the Act of 1961, the State Government, has made the following amendment in the Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963, and the same was published as required by sub-section (3) of section 21 of the said Act, vide notification dated 30.6.2017 and the amendment reads as under : "In the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 in the Annexure, in serial Number 14-A, the words "An employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services are necessary in the interest of the undertaking," shall be replaced by the words "An employee shall retire from the service of the employer on the date he attains the age of 60 years: and in the first proviso the words "if the age of retirement is not less than 58 years" shall be replaced by the words "if the age of retirement is not less than 60 years" and at the end of this proviso the words "provided further that this amendment shall not apply to the employees of Corporations, Boards and Undertakings of the State Government." shall be added." By virtue of the aforesaid amendment, the standard standing orders have been amended. The age of retirement of the workers has been enhanced from 58 years to 60 years, which is an undisputed fact. 6. In the State of Madhya Pradesh, as a large number of companies/industries were having their own certified standing orders, a necessity arose to make the retirement age uniform in all industrial establishments and in those circumstances on 25.10.2014, section 8 of the Act of 1961 was amended and a proviso was added, the same reads as under : "Provided that were the government has made any amendment in the Standard Standing Orders, the same shall be deemed to be duly incorporated in any award, agreement or settlement and in the certified amendments to the standing orders applicable to an undertaking." 7. Meaning thereby, any amendment in the standard standing orders was made applicable ipso facto in respect of certified standing order also. 8. Meaning thereby, any amendment in the standard standing orders was made applicable ipso facto in respect of certified standing order also. 8. In light of the amendment dated 25.10.2014, from 25.10.2014 onwards, the certified standing order, which provided the age of retirement as 58 years also stood amended and the age of retirement was extended to 60 years. However, the amendment came into force only w.e.f. 25.10.2014, meaning thereby, for the period w.e.f. 28.6.2014 till 25.10.2014, age of retirement was certainly 58 years in respect of the present petitioner. 9. Learned counsel for the petitioner has argued before this Court that the Industrial Tribunal in spite of the aforesaid fact, has made applicable the amendment dated 25.10.2014 with retrospective effect. 10. Shri Patwardhan, learned counsel for the petitioner has also argued before this Court that unless and until the statute provide, it can not be made applicable with retrospective effect. In the present case, the Act of 1961 has been amended on 25.10.2014, and, therefore, by virtue of the amendment under Act of 1961, the amendment in the standard standing order dated 28.10.2014 will be made applicable certainly from 25.10.2014, the day on which the act was amended. 11. It is pertinent to note that in the present case, the workman has attained the age of 58 years on 31.8.2015, meaning thereby, after the amendment came into force on 25.10.2014, and, therefore, as he was very much in service after 25.10.2014, he was less than 58 years on 25.10.2014, and, therefore, the Industrial Tribunal was justified in allowing the application and directing the present petitioner to continue him up to the age of 60 years or to pay salary for period till he has attained the age of 60 years. 12. Shri Patwardhan has placed reliance upon a judgment delivered in the case of Sitaram and ors v. The State of Madhya Pradesh, reported in 1979 JLJ 696 = AIR 1980 MP 4 . Heavy reliance has been placed upon para-7 and 8 of the aforesaid judgment, the same reads as under : "7. 12. Shri Patwardhan has placed reliance upon a judgment delivered in the case of Sitaram and ors v. The State of Madhya Pradesh, reported in 1979 JLJ 696 = AIR 1980 MP 4 . Heavy reliance has been placed upon para-7 and 8 of the aforesaid judgment, the same reads as under : "7. Before we proceed to dwell on and consider the effect of the new section 47A inserted in the Act on the documents, which were registered prior to its coming into force, we shall first state the law and the principles governing the prospective and retrospective operation of statute or a particular section inserted into it by amendment. "8. It is an unexceptionable cardinal principle of construction that every statute or a particular new section introduced to it is prospective unless it is manifest by express words or by necessary implication indicating retrospective operation. It, therefore, follows that unless there are words in the statute sufficiently to show that the intention of the legislature to affect the existing rights, it is deemed to be prospective only based on the principles of "nova constitution futur is formam imponere debet non preterits, that is to say, a new law ought to regulate what is to follow, not the past. It has been said that every statute which takes away or impairs vested rights acquired under the existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect." 13. This Court has carefully gone through the aforesaid paragraphs. In the present case, the Industrial Tribunal has not made applicable the Amending Act of 1961 with retrospective effect. On the contrary, it has been made applicable with prospective effect and has treated the certified standing order to be amended, meaning thereby, in respect of age of retirement from 58 to 60 years w.e.f. 25.10.2014, and, therefore, the judgment relied upon by learned counsel for the petitioner is of no help to the petitioner. 14. Reliance has also been placed upon a judgment delivered by the Full Bench of Allahabad High Court in the case of M/s Hindustan Lever Ltd. Orai Unit v. Presiding Officer, Industrial Tribunal, Kanpur and ors. 2015 (147) FLR 416 . 14. Reliance has also been placed upon a judgment delivered by the Full Bench of Allahabad High Court in the case of M/s Hindustan Lever Ltd. Orai Unit v. Presiding Officer, Industrial Tribunal, Kanpur and ors. 2015 (147) FLR 416 . Paragraph-35 of the aforesaid judgment reads as under : "We accordingly, answer the reference to the Full Bench by holding that amendments made in the Model Standing Orders do not automatically apply to the standing orders of the establishment which have been finally certified under section 10 of the Industrial Employment (Standing Orders) Act, 1946. any modification of the certified standing orders can be made in accordance with the procedure which is prescribed in section 10(2) of the Act." 15. It is true that in the aforesaid, the Full Bench case has held that amendment/modification of certified standing order can be made in accordance with the procedure, which is prescribed under section 10(2) of the Act, of 1961. However, the fact remains that in the present case, the Act of 1961 has been amended w.e.f. 25.10.2014, the certified standing order stands amended automatically and the constitutional validity of the aforesaid amendment is not before this Court. Unless and until the amendment dated 25.10.2014 is declared ultravires, all the certified standing orders are to be treated as amended in light of the amendment dated 25.10.2014. 16. Shri Patwardhan has fairly stated before this Court that he is not pressing the relief in respect of challenge to the constitutional validity of the notification dated 30.6.2014 as well as the Amending Act No. 22/2014, and, therefore, no order is being passed in respect of the constitutional validity of the statutory provision. 17. In light of the aforesaid, this Court doesn't find any reason to interfere with award passed by the Industrial Tribunal. 18. Resultantly, the admission is declined. However, as in the present case purely interpretation of the amendment was involved and there was certified standing order governing the retirement age to be 58 years, the retirement was done bonafidely by the employer. Grant of 100% backwages is certainly on the higher side, and, therefore, the backwages granted, are restricted to 50% of the total amount. 19. With the aforesaid, the present petition stands disposed of. All other writ petitions also stand disposed of and the order passed in this case shall govern all other connected matters.