G.S. Singhvi, J.
1. The prayer made in this petition is for quashing order dated 20.10.1983 passed by Chief Engineer, R&T;, Punjab State Electricity Board, Patiala (hereinafter described as 'the respondent') retiring from service late Shri Hazura Singh w.e.f. 28.2.1978 and also for grant of a declaration that he shall be deemed to have continued in service up to the age of 60 years.
2. Late Shri Hazura Singh was appointed as workshop Mistri on work-charge basis w.e.f. 1.6.1946 by the Chief Engineer (Electricity Branch). He was promoted as Machine Attendant (work-charge) on 20.10.1947 and then as Sub Station Operator (work-charge) w.e.f. 6.8.1953. He continued on that post till the formation of the Punjab State Electricity Board (for short) in May, 1959. He was prematurely retired in 1975. He challenged the action of the competent authority in C.W.P. No. 2624 of 1975 which was allowed by a Division Bench of this Court on 5.8.1975 and the order of his premature retirement was quashed. However, liberty was given to the competent authority of the Board to pass fresh order in accordance with law.
3. Taking a cue from the observation made by the Court in the concluding part of order dated 5.8.1975, the respondent issued notice dated 22.8.1975 proposing to retire late Shri Hazura Singh w.e.f. 30.11.1975. He challenged the same in C.W.P. No. 7481 of 1976 by contending that his pre-mature retirement amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (for short, 'the 1947 Act') and was liable to be quashed on the ground of non-compliance of provisions of Section 25-F of the Act. The Board and the Chief Engineer (North), Establishment Section, who were impleaded as respondents in that petition, did not dispute that Shri Hazura Singh was serving in an Industry but pleaded that he was not covered by the definition of the term workman'. A learned Single Judge of this Court rejected their plea and allowed the writ petition vide his order dated 5.5.1983. He held that - '(i) the petitioner is a workman within the meaning of Section 2(s) of the 1947 Act; (ii) his retirement amounts to retrenchment; and (iii) the notice of retrenchment was liable to be nullified due to non-compliance of Section 25-F of the 1947 Act.' After 5 months and 23 days of the decision of the second writ petition filed by late Shri Hazura Singh, the respondent issued the impugned order vide which he withdrew notice dated 22.8.1975 but, at the same time, retired him from service w.e.f. 28.2.1978 on the assumption that he would have superannuated on that date on attaining the age of 58 years.
4. The latest action taken by the respondent to retire late Shri Hazura Singh with effect from 28.2.1978 led to the filing, of the present writ petition in which he challenged the impugned order on the following grounds:
(a) The respondent did not have the jurisdiction, authority and power to retire him with retrospective effect.
(b) The age of retirement prescribed in the Certified Standing Orders framed in 1965 is 60 years and, therefore, he could not have been retired at the age of 58 years. 5. After filing the writ petition, Shri Hazura Singh filed supplementary affidavit dated 15.2.1985 in which he averred as under:
'1. That the petitioner was appointed on 1.6.1946 as Workshop Mistry, a work charged post, by the Chief Engineer, Elecy, Branch. He was promoted as Machine Attendant on 20.10.47 which was again a work charged post. The petitioner-deponent was, however, promoted as Sub Station Operator on 6.8.53 and remained as such till formation of Punjab State Elecy. Board on 2.5.59.
2. That since the deponent had been a work charged employee, as such he was not governed by Punjab Civil Services Rules at all. At no stage, the deponent was confirmed in any of the capacity viz. Workshop Mistry, Machine Attendant or Sub Station Operator or made regular.'
6. The respondent has contested the writ petition. In the written statement filed on his behalf, it has been averred that Hazura Singh was retired at the age of 58 years in accordance with Regulation 1.2 of the Punjab State Electricity Board Main Service Regulations, 1972 (for short, 'the 1972 Regulations').
7. Shri R.L. Sharma reiterated the grounds taken in the writ petition and argued that retirement of Hazura Singh w.e.f. 28.2.1978 is liable to be nullified because as per Clause 25 of the Certified Standing Orders applicable to the Board and Hydel Industrial Establishment, he was entitled to continue in service up to the age of 60 years. He further argued that in view of order dated 5.5.1983 passed by the learned Single Judge in C.W.P. No. 7481 of 1976, late Shri Hazura Singh will be deemed to have continued in service at lest up to the date of decision of that petition and the respondent could not have retired him with retrospective effect. Shri Sharma then submitted that Industrial Employment (Standing Orders) Act, 1946 (hereinafter described as 'the 1946 Act') is a special law regulating the conditions of service of the workers and the same would override the general provisions contained in the 1972 Regulations framed by the Board under Section 79(c) of the Electricity (Supply) Act, 1948 and, therefore, the respondent could not have retired late Shri Hazura Singh at the age of 58 years by invoking Regulation 1.2 of the 1972 Regulations ignoring that the age of retirement prescribed under Clause 25 of the Certified Standing Orders, applicable to the Board, is 60 years.
8. Shri N.S. Boparai, learned counsel for the respondent argued that in view of Section 13-B of the 1946 Act, the Certified Standing Orders are not applicable to the establishment of the Board and late Shri Hazura Singh could not have continued in service beyond the age of 58 years. Shri Boparai submitted that even if the Certified Standing Orders are held applicable to the establishment of the Board, the legal representative of late Shri Hazura Singh cannot be given any relief because the age of superannuation prescribed under the 1972 Regulations framed under Section 79(c) of the 1948 Act is 58 years. Learned counsel further submitted that even though late Shri Hazura Singh became entitled to be reinstated in service in view of order dated 5.5.1983 passed by the learned Single Judge in C.W.P. No. 7481 of 1976, he could not get any tangible benefit because in the meanwhile, he had attained the age of 58 years. In support of his argument, Shri Boparai relied on the judgment of Andhra Pradesh High Court in D. Radha Krishna Murthy and Ors. v. The A.P. State Electricity Board and Anr., 1977 Lab.I.C. 1509.
9. I have given serious thought to the respective arguments.
10. The main question which needs determination by the Court is whether the provisions contained in Clause 25 of the Certified Standing Orders are applicable to the employees, like late Shri Hazura Singh and he was entitled to continue in service up to the age of 60 years. For deciding that question, it will be useful to notice the statutory provisions, on which reliance has been placed by the learned counsel for the parties. The same read as under:
'Clause 25 of the Certified Standing Orders applicable to the Board and Hydel Industrial Establishment Superannuation: The age of compulsory retirement is prescribed as 60 years with the provision that after the age of 55 years, a workman may be required to retire on one month's notice or one month's pay in lieu thereof. The Executive Engineer concerned shall exercise the powers to retire a workman in the age group 55 to 60 years of age whenever, in his opinion the health of the workman has been impaired to such an action as to effect his Utility as a workman or when he is found to be negligent or inefficient in the discharge of his duty.
Regulation 1.2 of the 1972 Regulations
Except as otherwise provided in Regulation 1.4 below, these regulations shall apply to all Board employees belonging to the categories mentioned below, who are under the administrative control of the Board and whose pay is debitable to the Funds of the Board:
a) Members of the Punjab State Electricity Board Service Classes I, II, III and IV.
b) Holders of special posts; and
c) Any other Board employees or class of Board employees to whom the competent authority may, by general or special order, make them applicable. Section 13-B of the 1946 Act 13-B Act not to apply to certain industrial establishments.- Nothing in this act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the official gazette apply.'
11. The argument of Shri Boparai that the provisions of the 1946 Act are not applicable to the establishments of the Board which appears to be founded on the non-ob-stante clause contained in Section 13-B of the said Act sounds attractive but lacks merit and is liable to be rejected because he could not place before the Court the notification issued by the Government of Punjab notifying the 1972 Regulations framed by the Board under Section 79(c) of the 1948 Act.
12. In our considered opinion, issuance of notification by the appropriate government of the Rules and Regulations is sine qua non for excluding the applicability of the provisions of 1946 Act and as the 1972 Regulations are not shown to have been notified by the Government of Punjab, the exclusion clause contained in Section 13-B of the said Act cannot be invoked by the respondent for contesting the plea of late Shri Hazura Singh that he could not have been retired before attaining the age of 60 years.
13. In U.P. State Electricity Board and Anr. v. Hari Shanker Jain and Ors., A.I.R. 1979 S.C. 65; the Supreme Court reversed the decision of Allahabad High Court which had held that U.P. State Electricity Board did not have the power and authority to frame regulations inconsistent with the Certified Standing Orders framed under the 1946 Act. Their Lordships analysed the provisions of the 1946 and 1948 Acts and held:
'The Industrial Employment (Sanding Orders) Act deals with a specific subject, namely the Conditions of Service, enumerated in the Schedule, of workmen in industrial establishments. It is impossible to conceive that Parliament sought to abrogate the provisions of this Act embodying as they do hard-won and precious rights of workmen and prescribing as they do an elaborate procedure, including a quasi-judicial determination, by a general, incidental provisions like Section 79(c) of the Electricity (Supply) Act and Parliament never meant that the Standing Orders Act should stand pro into repealed by Section 79(c) of the Electricity (Supply) Act, Therefore, the provisions of the Standing Orders Act must prevail over Section 79(c) of the Electricity (Supply) Act in regard to matters to which the Standing Orders Act applies. The Industrial Employment (Standing Orders) Act is a special law in regard to the matters enumerated in the schedule and the regulations made by the electricity Board under the Electricity (Supply) Act with respect to any of those matters are of no effect unless such regulations are either notified by the Government under Section 13-D or certified by the Certifying Officer under Section 5 of the Industrial Employment (Standing Orders) Act, in regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Employment (Standing Orders) Act continues to apply. Therefore, in the instant case, the regulation made by the Electricity Board under Section 79(c) of the Electricity (Supply) Act with regard to age of superannuation having been duly notified by the Government under Section 13-B of the Act of 1946, the regulation shall have effect notwithstanding the fact that it is a matter which could be the subject-matter of Standing Orders under the Industrial Employment (Standing Orders) Act. The respondents were therefore, properly retired when they attained the age of 58 years.'
14. In Shitla Prasad v. State of U.P. and Ors., 1986 Lab.I.C. 2025, a Division Bench of Allahabad High Court observed that the regulations framed by U.P. State Road Transport Corporation cannot be held applicable to its employees because the same had not been notified under Section 13-B of the 1946 Act and the Model Standing Orders would regulate their service conditions.
15. In Divisional Forest Officer, Gadchiroli v. Madhukar Ramaji Undirwade and etc., 1995 Lab.I.C. 2141, a learned Single Judge of Bombay High Court held as under: 'The Industrial Employment (Standing Orders) Act of 1946 being the Special Act and expressly and exclusively dealing with the conditions of service of the workmen in industrial establishment enumerated in Schedule appended to the Act, shall prevail unless it is excluded under Section 13-B of the Act. Perusal of the Forest Guard recruitment Rules, 1987 published in the Official Gazette on 29.10.1987 would reveal that the said Rules have been made in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, but the said Rules though notified for the purposes of the Act of 1946 and unless the rules or regulations are notified by the appropriate Government in the official gazette for the purposes of the Act of 1946, the provisions of the Act of 1946 and the Model Standing Orders relating to the conditions of service of the workmen in the industrial establishments enumerated in Schedule shall have an overriding effect and would prevail.'
16. By applying the ratio of the above noted decisions to the facts of this case and keeping in view the admitted position that the 1972 Regulations have not been notified by the State Government in the official gazette, I have no hesitation to hold that the same would not exclude the applicability of Certified Standing Orders to the employees of the establishment of the Board.
17. The judgment of Andhra Pradesh High Court in D. Radha Krishna Murthy and Ors. v. The A.P. State Electricity Board and Anr. (supra) has no bearing on the case in hand because, as mentioned above, it is an undisputed position that the 1972 Regulations were not notified by the State Government in the official gazette.
18. Equally meritless is the argument of Shri Boparai mat the provisions of the Certified Standing Orders were not applicable to the case of late Shri Hazura Singh because he did not fall within the definition of workman. In my view, the respondent is estopped from raising this question because the finding recorded by the learned Single Judge in C.W.P. No. 7481 of 1976 that the petitioner fell within the definition of workman is binding on him.
19. As a logical corollary to the above conclusion, it must be held that the retirement of late Shri Hazura Singh at the age of 58 years was ultra vires to Clause 25 of the Certified Standing Orders and the impugned order is liable to be invalidated on that ground.
20. In the result, the writ petition is allowed. Order Annexure P.2 is quashed. The legal representative of late Shri Hazura Singh shall get all consequential benefits including the arrears of salary which her husband would have derived but for his illegal retirement from service.