B.S. Verma, J.
Oral:
Since similar controversy is involved in these writ petitions, therefore, for the sake of convenience, they are being decided by this common order.
In Writ Petition No. 417 (M/S) of 2001, a writ of certiorari has been sought for quashing the award dated 18-7-1995 which was published on 27-3-1996 and become enforceable w.e.f. 27.4.1996 U/S 6-A of U.P. Industrial Disputes Act, given by Labour Court, Dehradun in Adjudication Case No. 128 of 1993.
In Writ Petition No. 7573 (M/S) of 2001, a writ of certiorari has been sought for quashing the award dated 14-12-1995 which become enforceable w.e.f. 27.4.1996, given by Labour Court, Dehradun in Adjudication Case No. 41 of 1992.
The facts in short are that the owners of Buses put their buses into one pool which is known as Garhwal Motors Owners Union Limited Kotdwara. The buses belong to individual members and company charges commission for plying those buses and is engaged in the business of running of vehicles for carrying passengers and their transportation in the Garhwal region. The terms and conditions of the employees engaged in the company are governed by Standing Orders framed by the company under the Standing Orders Act. The employees of the petitioner company get their wages as prescribed by the State of U.P. under the Minimum Wages Act. The Standing Orders of the Company were certified sometimes in the year 1960. The Standing Orders are silent so far as the age of retirement or superannuation is concerned. Therefore when the Payment of Gratuity Act, 1972 came into force in the year 1972, Section 2(4) of the said Act provides 58 years as the age of superannuation and Payment of Gratuity Act, 1972 was made applicable to the Organization of the petitioner vide Notification GSR 415 dated 8th April, 1974. As no age of retirement was prescribed originally, an agreement took place on 29-3-1973 between the petitioner and the Union of the workmen with regard to the age of retirement before the Industrial tribunal-II U.P. Lucknow in Adjudication Case No. 417 of 1972. In the agreement it was settled that the employees who had retired under the Payment of Gratuity Act, 1972 in the month of March, 1973 and onwards, their gratuity would be payable in accordance with new Wage Scheme. About 17 employees of G.M.O.U.Ltd were retired from service on attaining the age of 58 years under the Payment of Gratuity Act, 1972. Lateron the age of 58 years was deleted from Section 2(4) (ii) but the clause (i) remained as it was originally there, in which the age of retirement would be fixed in the contract. On 5.2.1995 an agreement was arrived at between the petitioner and the workers union in which the employer had agreed to the demand of workers union for creation of a trust for Payment of gratuity and in that connection Board of Directors had passed a resolution No. 16 in their meeting dated 21.1.1989, by which a scheme was framed for providing gratuity benefits to the employees which was to take effect from 1.6.1099 and the policy issued by the LIC of India provides normal retirement date shall mean in respect of member the date on which he attains the age of 58 years. After the amendment dated 1-7-1984 of Payment of Gratuity Act, 1972 by Act No. 25 of 1984 the G.M.O.U.Ltd. Sharmik Union in its general body meeting dated 31.3.1986 passed resolution No.3 in connection with the superannuation at the age of 58 years. Thereafter the petitioner and the G.M.O.U.Ltd. Sharmik Union had entered into agreement dated 10-4-1987 by which the workmen had agreed to fix the age of superannuation to 58 years wherein clause-7 of the agreement provided that in future if an employee is retired on attaining the age of 58 years and if the age of superannuation falls in the middle of the month, then he will be entitled to continue for the whole of the month and will deemed to have retired on the last day of the month. The respondent Prasanna Lal Uniyal was the Secretay of the workers Union and he had submitted a charter of demand on 9-12-1986 and he was one of the signatory on behalf of workers in the agreement dated 10-4-1987.
The employer got retired Prasanna Lal Uniyal Clerk and Nand Ram Purohit, Transport Superintendent after attaining the age of 58 years. They raised industrial disputes and the said disputes were referred to Labour Court. Before the Labour Court the stand of the employees was that in the Standing Orders of the Company no retirement age has been prescribed, therefore, the orders of retirement at the age of 58 years in accordance with the provision of Payment of Gratuity Act, 1972, are illegal. The learned Labour Court has observed that in the Payment of Gratuity Act by amendment that age of superannuation would be such as is fixed either in the contract of service or in the conditions of service. The conditions of service are contained in the Standing Orders and admittedly the standing orders are applicable to the instant cases which are silent as to the age of the retirement and there is no age of superannuation indicated in the contract of service nor has it been provided in the standing orders and the service will continue so long as the workmen are mentally and physically fit to discharge the duties assigned to them till the standing orders are suitably amended by the employer. Accordingly, the learned Labour Court has held that the orders of dismissal of services of the workmen respondents were illegal and they were reinstated in service with full back wages.
Feeling aggrieved the employer GMOULtd has preferred these petitions. In the writ petitions the stand taken is that the learned Labour Court fell into error in not considering the certified Standing Order which govern the services of workmen working with the petitioner. The retirement age as per standing order is 58 years wherein clause-7 of the agreement provided that in future if an employee is retired on attaining the age of 58 years and if the age of superannuation falls in the middle of the month, then he will be entitled to continue for the whole of the month and will deemed to have retired on the last day of the month. The respondent Prasanna Lal Uniyal was the Secretary of the workers Union and he had submitted a charter of demand on 9-12-1986 and he was one of the signatory on behalf of workers in the agreement dated 10-4-1987. Along with supplementary affidavit the standing orders have been annexed as Annexure-1 and in clause-7 the retirement age was prescribed as 58 years. It is further statement in the supplementary that the standing order Annexure No.1 was forwarded for certification before Certifying Officer i.e. Deputy Labour Commissioner and he declined to certify the standing order therefore the GMOULtd filed appeal before the appellate authority under Industrial (Standing Orders) 1946 and the Presiding Officer Industrial Tribunal U.P. Allahabad presided by Justice N.L. Gangulu Former Judge, of Allahabad High Court allowed the appeal and the age of retirement of the workmen has been maintained as 58 years on superannuation.
The respondents workmen filed counter affidavits and denied the contents of the writ petitions. It is not disputed that certified standing orders, certified under the Industrial Employment(Standing Orders) Act, 1946 are applicable in the petitioner company and which govern the conditions of service of its employees. It is further alleged that the Standing Orders are silent about the age of retirement. The retirement of the respondents at the age of 58 years was not disputed. It is further alleged that item 11-C was introduced in the 1946 Act by the State of U.P. by Notification dated 17-11-1959 that age of superannuation or retirement, rate of pension or any other facilities 5 which the employers like to extend or may be agreed upon between the parties and after introduction of item 11-C in the Schedule to the 1946 Act, it became incumbent for the petitioner to have got its Standing Orders modified and to have fixed the age of retirement by getting its Standing Orders modified. It is further alleged that the Payment of Gratuity Act does not and cannot provide the age of retirement. The source to determine the age of retirement is the Industrial Employment (Standing Orders) Act, 1946 and the agreements referred in the writ petition cannot have the effect of adding any provision to the Certified Standing Orders. The agreements will at the best be oral evidence for adding to the provisions contained in the Standing Orders. This could not be done in view of Section 12 of 1946 Act.
I have heard learned counsel for parties and perused the record.
Learned counsel for the petitioner has submitted that the retirement age of superannuation was not in the schedule at the time of enactment of the Act and the age of superannuation/retirement was included in Schedule 1-B by G.S.R. 1040 dated 12-9-1984 in the Act and the petitioner Company got certified its Standing Order under Section 5 of the Act according to the item in Schedule of the Act in the year 1960. After inclusion of item age of superannuation/retirement in the Act (58 years) was included by the State Govt. of U.P. in the Industrial Employment (Standing Order) Rules 1946 vide notification dated 15.11.1985. In the petitioner Company, a Union has also been registered under the Trade Unions Act viz. G.M.O.U.Ltd Kotdwara. On 10-4-1987 the petitioner company and the Union entered into a settlement on several points including the age of superannuation/retirement as 58 years as mentioned in para-7 of the settlement and the same is binding upon the parties.
Learned counsel for the petitioner also contended that the learned Labour Court has committed a manifest error of law by not accepting the settlement arrived at between the parties and recorded a wrong finding that the respondent No.2 did not make his signature hence the same is not binding on the workman and also gave the reason that from the language of clause-7 it is not clear that between workman and employer had any contract and regarding next settlement dated 24-5-93 not accepting this settlement the reason given by the Labour Court that the said settlement did not register by the order dated 15-2-1995.
Having considered the submissions of the parties, in the present case the G.M.O.U.Ltd and its workers Union had arrived at settlement dated 10-4-87 and 24-5-93, in which the age of retirement was settled 58 years, hence the workers are bound by the settlement. This question was also settled by Honble Apex Court in the case of KCP Ltd. vs. P.O. Labour Court, reported in AIR 1997 SC page 2334, if the union signed any settlement on behalf of the workers outside the conciliation proceeding whether the same is binding on the workers or not, the Honble Supreme Court has after discussing earlier case law relied upon the judgment of Barauni Refinery case has held that the settlement signed by the Union is also binding on other 17 workmen who had refused to accept the settlement and only 12 workmen had accepted the same. Hence the Labour Court has fell into error and the reasons given regarding not accepting settlement dated 10-4-87 and dated 24-5-93 is against law.
Here it may also be added that the learned Labour Court has observed in its finding that the standing orders applicable in the instant case are silent as to the age of retirement and there is no age of superannuation, admittedly also, provided in the contract of service, therefore the service of the workers will continue so long as the workman is mentally and physically fit to discharge the duties assigned to him or till the standing orders suitably amended by the employer. The above finding is also a perverse finding, in an establishment there may not be a provision to continue in service till an employee is mental and physically fit, rather age of retirement/superannuation is fixed.
For the discussions made above, the writ petitions are liable to be allowed.
Both the petitions are allowed and the impugned awards given by the Labour Court are set aside.