1. Writ Petition No. 2112 of 1989 of 1989 by an employee of the respondent Corporation of the City of Nagpur is directed against the order passed by the Industrial Court dismissing his complaint in which a grievance was made that he should have been retired on completion of the age of 60 years, instead of 58 years. Writ Petitions Nos. 2214 of 1991, 2641 of 1989, 2642 of 1989 and 3022 of 1990 have been filed by the Corporation of City of Nagpur questioning the orders by which interim relief has been granted restraining the Corporation from retiring the respondents upon completion of the age of 58 years and directing it to continue the complainant till he attains the age of 60 years. The remaining eight petitions are directed by the Corporation against the declaration that the Corporation has indulged in an unfair labour practice by issuing notice directing superannuation of the complainants at the age of 58 years and restraining it from engaging in the said unfair labour practice.
2. It is unnecessary to refer in detail to the respective dates of appointments and superannuation of the employees in all these petitions. Suffice it to say that in Writ Petition No. 2112 of 1989 the petitioner was appointed as a Patwari on March 1, 1952 and by the letter dated November 16, 1988 issued by the Corporation it was ordered that he should be retired on attaining the age of 58 years. The complainants in all these petitions challenged similar notices asking them to retire on completion of the age of 58 years, and contended that in view of the Model Standing Orders issued under the Bombay Industrial Relations Act, the age of superannuation would be 60 years and not 58 years. There is no dispute about the position that prior to the coming into force of the Bombay Industrial Relations Act which was made applicable to the City of Nagpur Corporation with effect from May 2, 1965 by virtue of its extension to Vidarbha area, the parties were governed by the C.P. and Berar Industrial Disputes Settlement Act, 1947. The Model Standing Orders issued under the Bombay Industrial Relations Act, 1946, were made applicable by the Notification dated July 11, 1967 to all the industries to which the Bombay Industrial Relations Act, 1946 was made applicable. The complainants fall within the categories of non-operatives and claim that they would be governed by clause 27 of the Model Standing Orders which prescribes the age of retirement for non-operatives as 60 years or such other age as may be agreed upon between the employer and the operatives by any agreement, settlement or award, which may be binding on the employer and the employees under any law for the time being in force. No such agreement, settlement or award was in force in respect of the non-operatives and, if Clause 27 were to apply, the age of retirement of the complainants would be 60 years. The C.P. and Berar Industrial Disputes Settlement Act, 1947 ceased to apply to the employees of the City of Nagpur Corporation from May 2, 1965 when the Bombay Industrial Relations Act came to be applied. With effect from November 25, 1966 the Standing Orders called the Standing Orders of the Corporation of the City of Nagpur came to be framed and Clause 16 thereof reads as follows :-
'For removal of doubt and defects of provisions inconsistent with the Standing Orders :-
(a) Notwithstanding anything contained hereinbefore in these Standing Orders, the relations between the employees and the City of the Nagpur Municipal Corporation shall be governed under the provisions of Nagpur Corporation Act, rules/bye-laws made thereunder, Govt. resolutions, circulars and executive instructions issued by the Govt. of Maharashtra from time to time.
(b) Notwithstanding anything contained hereinbefore in these Standing Orders, it is hereby made clear that this shall be subject to the provisions of Industrial Laws governing the relations between the employees and the Corporation.'
The contention of the Corporation is that since earlier in the Bombay Civil Service Rules (which later came to be known as Maharashtra Civil Services Rules) the age of retirement of the categories to which the complainants belonged was 58 years, the age of retirement of the complainants would be 58 years and not 60 years. On behalf of the Corporation it is also contended that under Section 415 of the City of Nagpur Corporation Act, the bye-laws called the Nagpur Municipal Corporation Services Bye-laws were framed with retrospective effect from April 1, 1963 and under Bye-law No. 2, the Bombay Civil Services Rules, 1959 with Supplementary Rules, Orders and Appendices made thereunder, as amended from time to time, as far as possible, regulated the conditions of service of the Civil services in the Nagpur Corporation and in view of the bye-laws so framed, the provisions of the Bombay Civil Services Rules would govern the service conditions and the age of retirement would be 58 years as provided therein.
3. On behalf of the complainants it was contended that the Standing Order (framed under the C.P. and Berar Industrial Disputes Settlement Act) which were settled on November 18, 1966 could not have come into force from November 25, 1966, because that Act had ceased to apply by virtue of its repeal on account of the Bombay Industrial Relations Act having been made applicable with effect from May 2, 1965, and any Standing Orders framed purportedly under the authority of the C.P. and Berar Industrial Disputes Settlement Act, would not be valid. Shri Samarth the learned counsel for the Corporation, however, urged that these Standing Orders would be saved by virtue of the provisions (b) and (d) to Section 123A of the Bombay Industrial Relations Act. Unfortunately no return has been filed on behalf of the Corporation in any of the petitions in which it was joined as the respondent, nor have the particulars regarding the Standing Orders framed under the C.P. and Berar Industrial Disputes Settlement Act, given in any of the petitions which the Corporation has filed. Under proviso (b) to Section 123A any standing order settled, agreement or settlement recorded or registered changes which have come into operation, submissions entered into, awards made or orders passed by the State Industrial Court, a District Industrial Court, the Labour Commissioner, the Registrar or the Wage Board, under the provisions of the Act so repealed shall be deemed to have been settled, recorded or registered, come into operation, entered into, made or passed by the appropriate authority under the corresponding provisions of this Act. Clause (d) of the proviso saves proceedings pending before the State Industrial Court, a District Industrial Court, the Labour Commissioner, the Registrar or the Wage Board, conciliation proceedings or any proceeding relating to the trial of offenses punishable under the provisions of the Act so repealed, shall be continued and completed as if the said Act has not been repealed and continued in operation; and any penalty imposed in such proceedings shall be recorded under the Act so repealed. Since the Standing Orders purported to have been framed under C.P. and Berar Industrial Disputes Settlement Act, were to have effect from November 15, 1966 i.e., after the Bombay Industrial Relations Act came into force, it was necessary for the Corporation to show that proceedings were initiated under the C.P. and Berar Industrial Disputes Settlement Act before its repeal and were pending when the Bombay Industrial Relations Act came into force. No such material has been placed on record and it is not, therefore, possible to accept the contention on behalf of the Corporation that the Notification dated November 18, 1966 under the C.P. and Berar Industrial Disputes Settlement Act, would be saved by clauses (b) and (d) of the proviso to Section 123A of the Bombay Industrial Relations Act.
4. Shri Samarth at one stage urged that since the Commissioner of Labour, Bombay had certified that the Standing Orders had been settled on November 18, 1966 under Section 30(2) of the C.P. and Berar Industrial Disputes Settlement Act, that certificate should be regarded as sufficient for inferring that the proceedings were pending when the Bombay Industrial Relations Act was made applicable. It is difficult to accept this position in the absence of the material which could have been produced to show that the proceedings were in fact pending, since the question about the validity of the Standing Orders after to Bombay Industrial Relations Act was made applicable was raised.
5. Assuming that the Standing Orders would be saved under Clauses (b) and (d) of the proviso to Section 123A of the Act, it was necessary to show in view of the provisions of Chapter IV which pertains to Standing Orders in C.P. and Berar Industrial Disputes Settlement Act, 1947 that they fell under any of the industrial matters listed in Schedule I of the Act. Item 8 relates to terminations of employment. But it is well settled now in view of the decision of the Supreme Court in The United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee : (1972)IILLJ9SC where it was observed while considering the provisions of the Industrial Employment (Standing Orders) Act, 1946, that unless an employer can include a clause relating to the age of retirement and superannuation and the Certifying Officer can certify it even though no such item appears in the Schedule to the Act, clause 32 as certified in 1951, it could not be regarded as valid. It was also observed that the word 'termination' used in Item 8 cannot mean each and every form of termination or cessation of employment and would not include superannuation or retirement. It may be noted that in Schedule I of the Bombay Industrial Relations Act, item 13 which relates to age for retirement or superannuation, had come to be added by an amendment on May 18, 1956 and it was permissible under the provisions of that Act to have the Model Standing Orders with regard to age of retirement or superannuation and accordingly under the Model Standing Orders notified on July 11, 1967, Clause 25 in the case of non-operatives came to be mentioned. However, the Standing Orders framed on November 18, 1966 purported to have been passed under the provisions of the C.P. and Berar Industrial Disputes Settlement Act contained no such provision. Under Section 35(5) of the Bombay Industrial Relations Act, until Standing Orders came into operation under the provisions of sub-section (4) Model Standing Orders, if any, notified in the Official Gazette by the State Government in respect of the Industry shall apply to such undertaking. Section 40 provides that the Standing Orders in respect of an employer and the employees settled under Chapter VII and in operation, or where there are no such standing orders, Model Standing Orders, if any, applicable under the provisions of sub-section (5) of Section 35 shall be determinative of the relations between the employer and the employees in regard to all industrial matters specified in Schedule I. As I have already indicated item 13 of Schedule I of the Bombay Industrial Relations Act clothed the authority to frame standing orders with regard to the age for retirement and superannuation. There is no dispute about the position that except the standing orders settled on November 18, 1966 there were no such orders nor was there any agreement, settlement or award which could govern the age of retirement or superannuation. In this view of the matter the age of superannuation or retirement would be 60 years as indicated.
6. With regard to clause 16(a) of the Standing Orders dated July 11, 1967 it is apparent that it would have the effect of superseding the bye-laws which were framed under Section 415 of the Corporation of the City of Nagpur Act, because the Municipal law in respect of the industrial relations would be the general law, while Bombay Industrial Relations Act would be the special law. This position is no longer res integra in view of the decision of this Court in Pyarelal Ganesh Khichar v. Municipal Council, Ramtek : 1991 M.LJ. 1408 where the question was whether the Industrial Employment (Standing Orders) Act would prevail over the Maharashtra Municipalities Act. With regard to the period of probation under the Model Standing Orders it was held that the provisions of the Industrial Employment (Standing Orders) Act would prevail over the provisions of the Maharashtra Municipalities Act. In U.P. State Electricity Board v. Hari Shankar Jain : (1978)IILLJ399SC , the Supreme Court examined the scheme of the Electricity (Supply) Act and pointed out that though Section 78 empowered the Government to make rules and Section 79 empowered the Board to make regulations in respect of the matter specified in Clauses (a) to (k) of that Section under Section 79, it was no more than the ordinary general power with which every employer is invested in the first instance to regulate the conditions of service of his employees, while the Industrial Employment (Standing Orders) Act was specially designed to define the terms of employment of workmen in industrial establishments to give the workmen a collective voice in defining the terms of employment and to subject the terms of employment to the scrutiny of quasi-judicial authorities by the application of the test of fairness and reasonableness, and the provisions of Industrial Employment (Standing Orders) Act as a special Act would prevail over the Electricity (Supply) Act. The bye-laws framed under Section 415 of the Corporation of the City of Nagpur Act, which would make the provisions of the Bombay Civil Services Rules applicable in so far as the age of superannuation is concerned restricting it to 58 years, shall have to yield to the Model Standing Orders under the Bombay Industrial Relations Act which prescribes the age of superannuation as 60 years.
7. Shri Samarth, however urged that there was no challenge to the Standing Orders issued under the C.P. and Berar Industrial Disputes Settlement Act by any of the complainants. However, what is overlooked is that in Writ Petition No. 2112 of 1989 it was mentioned by the petitioner that the certified standing orders purported to have been framed under the C.P. and Berar Industrial Disputes Settlement Act being silent on the point of age of retirement of employees of the respondent Corporation, after repeal of the C.P. and Berar Industrial Disputes Settlement Act, 1947, by virtue of Section 123A read with Section 35 and other sections of the Bombay Industrial Relations Act, 1946, and the Model Standing Order framed thereunder, the age of retirement of the petitioner is 60 years and unless he completes 60 years of age, he cannot be retired from service the issue of invalidity cannot be retired from service. The issue of invalidity of the Standing Orders under the C.P. and Berar Industrial Disputes Settlement Act, on account of the repeal of the C.P. and Berar Industrial Disputes Settlement Act, has been specifically raised and it should have been possible for the Corporation to bring all the material which would have showed that the Standing Orders were saved by Clauses (b) and (d) of Section 123A of the Bombay Industrial Relations Act. In the absence of a return, these averments remained unchallenged. In none of the petitions which the Corporation has filed did they seek to bring out the facts which would show that the Standing Orders framed under the C.P. and Berar Industrial Disputes Settlement Act would still operate in the field.
I, therefore, see no merit in the contentions raised by Shri Samarth on this point.
8. It, therefore, follows that the age of retirement for the categories to which the complainants belong i.e. non-operatives would be 60 years and not 58 years. Rule is, therefore, made absolute in Writ Petition No. 2112 of 1989 and is discharged in all the other petitions. In the circumstances there will be no order as to costs of these petitions.