D.K. Seth, J.
Facts
1. In this writ petition, the Calcutta Port Shramik Union represented by its General Secretary, Parbati Das and Calcutta Port Officers' Federation represented by its General Secretary, Dipankar Ghosh had challenged the decision of the Calcutta Port Trust to roll back the retirement age from 60 years to 58 years.
The facts of the case briefly are that originally the retirement age of Class I, Class II and Class III employees of the Calcutta Port Trust (CPT) was 55 years. Whereas the retirement age of Class IV employees was 60 years. By a Resolution dated September 30, 1963, the retirement age of the Class I, Class II and Class III employees were raised from 55 years to 58 years in order to maintain parity with the decision taken by the Central Government in respect of its employees at the material point of time. By a Resolution dated October 30, 1972, the retirement age of Class IV employees was reduced from 60 years to 58 years. The Fundamental Rules was amended by Fundamental (Amendment) Rules, 1998, amending Rule 56 by a Notification dated May 13, 1998 providing for retirement age on the attainment of 60 years by a Government servant. The Calcutta Port Trust by a Resolution dated December 12, 1921 had adopted the Fundamental Rules of the Government of India except Rule 86. Subsequently, by a Resolution dated March 29, 1954, CPT decided that the amendments to the fundamental and supplementary Rules of Central Government as may be made from time to time, will be automatically applicable to CPT employees as those can be adopted through the Port Trust requirement and are not inconsistent of the provision of the Calcutta Port Act. Thus, in an agenda item no. 14 in May 1988, it was pointed out that the retirement age be enhanced from 58 years to 60 years. Accordingly, by a Resolution No. 62 amendments of Rule 56 was adopted by CPT and it was so published by an administrative notice issued on May 29, 1998 after the same was approved by the Trustees.
Subsequently, in a Note dated September 7, 2000 addressed to the Chairman of all Major Port Trusts, the Director, Ministry of Surface Transport had pointed out the decision relating to reduction of retirement age of Port employees from 60 years to 58 years and freezing of recruitment against the resultant vacancy on certain economic reasons spelt out therein. By a further letter dated September 19, 2000, the Port Trust was asked to expedite the rolling back. Prior to the enhancement of retirement age in 1998, a settlement of wage revision and retirement benefits and conditions of service of Port and Dock workers at the Major Ports were entered into by CPT and its workers with effect from January 1, 1997. Clause 35 and 36 of the said settlement provided respectively for adoption of steps for increasing productivity and resource generation for augmenting financial viability together with an idea of customer satisfaction and introduction of new enterprise culture in Major Ports on the one hand and also to retain and protect the existing benefits but that too having regard to the improvement of productivity. A note was prepared by the CPT with regard to such situation where economic reason was highlighted to support rolling back of the retirement age.
In the mean time, in a letter dated April 17, 2000, Ministry of Surface Transport again reminded the CPT for rolling back of retirement age. Through a letter dated August 4, 2000, the Ministry of Surface Transport again requested CPT to inform the reason for delay in adopting the rolling back of retirement age. Thereafter, in a Resolution No. 128 dated August 25, 2000 subject to sanction of the Government, the Board had adopted rolling back of retirement age from 60 years to 58 years with effect from December 31, 2000 of all employees except in respect of Class IV employees recruited prior to October 30, 1972. This resolution, received sanction from the Ministry of Surface Transport through a letter dated October 18, 2000. It is this Resolution No. 128 dated August 25, 2000 and the approval of the Ministry of Surface Transportthereto conveyed through letter dated October 18, 2000 are the subject matter of challenge in this writ petition.
Submission on behalf of the Petitioners
2. Mr. Anindya Mitra, learned counsel for the petitioners, had assailed the said rolling back on various grounds. According to him, the amendment of fundamental rules being automatically applicable to CPT by reason of the resolution adopted in 1921 and readopted in 1954, there cannot be any rolling back of retirement age until the Fundamental Rule (Rule 56 thereof) is amended. So long the Fundamental Rule 56 is not amended, the same would continue to be applicable to CPT automatically. He had also questioned the competence of this. Board to adopt such a resolution for rolling back. He further assailed the resolution on the ground that it was not a Board's resolution taken by its own decision. The Board is an autonomous body. It has been influenced by the direction from the Ministry of Surface Transport. Such decision was taken without any application of mind. Relying on the various facts, he points out that the decision suffers from mala fide and oblique motive on the part of the CPT. He further contended that the reasons as spelt out from the materials on record clearly gives out that it is not oriented by sound administrative or economic reasons. He has also pointed out the comparative economic scenario in order to contend that adoption of rolling back would be more harmful for CPT than beneficial for its viability. He contended that the adoption of the resolution is mechanical and the approval given by the Government is also equally mechanical. Therefore, this resolution and the approval should be struck down.
Submission on behalf of the Respondents
3. Mr. Sundrananda Pal, learned counsel for the respondent CPT, points out that enhancement of retirement age was made by amendment of Fundamental Rule 56, by the Central Government. But, it did not automatically apply to CPT employees as is apparent from the materials disclosed by the petitioners themselves. On the other hand, thiswas adopted by the CPT in its own Board resolution through proper deliberations subject to the approval of the Government, which had been insisting upon enhancement of the age. Subsequently, having regard to the scheme for economic revival and introduction of sense of competition, the Ministry of Surface Transport had thought it fit that steps relevant for economic revival and adaptability should be adopted. The possibility was explored at various levels and that after proper deliberations, it was found, as is apparent from the materials produced by the petitioners themselves, that the decision to roll back the retirement age was oriented by the economic revival and rationality. Accordingly, a resolution was so adopted independent of the advise of the Ministry of Surface Transport. Such reasons are spelt out in the agenda note annexed to the writ petition. Accordingly, the resolution was duly taken. This resolution has since been approved by the Central Government. The Court cannot interfere with policy decisions as in this case. According to him, such a decision was taken as a policy decision for revival of the CPT in order to compete with other worldly bodies. Therefore, the petition should be dismissed.
Whether amendment of Fundamental Rule 56 necessary
4. After having heard the learned counsel for the parties, it may be necessary to refer to certain admitted facts. The facts are already disclosed in detail as above. Admittedly, enhancement of retirement age was adopted by CPT after a proper note was prepared and the same was deliberated and a resolution was adopted on May 20, 1998. Despite amendment of Fundamental Rule 56 by the Central Government, the same did not automatically apply to the CPT. CPT had to adopt the same through a resolution. Therefore the contention that unless the Fundamental Rule 56 is amended, the same would continue, to govern the employees of the CPT is wholly misplaced. From the petitioners' own showing, it is apparent that this enhancement of retirement age had to be adopted by the CPT, as is apparent from annexure 'P-3' at page 99,through an administrative notice dated May 29, 1998. The age of retirement was enhanced from 58 years to 60 years with effect from May 10, 1998.
Thus, when the enhancement was adopted by a resolution, it can very well be rolled back by a resolution of the Board itself. There is nothing to prevent the Board from rolling back the age. It appears from a note dated September 7, 2000 that the Ministry of Surface Transport had considered the question and driven by some economic compulsion for revival of Major Ports, the retirement age was sought to be rolled back from 60 to 58 years. This was so intimated to CPT.
Can the settlement prevent rolling back
5. The settlement with the workers entered into prior to August 2, 2000 providing for protection of existing benefits. But, one thing we may note that item 35 of the said settlement speaks of economic measure. It had pointed out that the parties to the settlement had recognised that the Indian economy has reached a take off-stage, which calls for adopting the strategy used by the ports worldwide to address problems under similar circumstances. Technological upgradation, higher productivity and resource generation are imperative. The challenge emanating from intra and/or inter-port competition within the country/region calls for urgent need for improvement of efficiency and customer satisfaction, augmentation of financial viability and new enterprise culture in major ports. At the same time in Condition No. 36, the facilities, privilege, amenity, right, benefit, monetary or otherwise or concession to which a category of employee may be entitled shall not be withdrawn, reduced or curtailed except to the extent and manner as explicitly provided in the settlement. But this condition is subject to the proviso that the protection clause shall not be used by the Federations and their affiliated unions and any person/persons enjoying benefits under this settlement for preventing Port/Dock Labour Board Management from taking step for the implementation of the provision of the settlement for improving productivity. Thus this condition was also independent of the economic rationality.
However, this settlement cannot prevent the implementation of a rolling back of retirement age.
Economic reason:
6. In the agenda note for the meeting held on April 20, 2000 being annexure 'P-4(b)' at page 137, it was noted that for economic reasons, it was felt necessary that the retirement age should be rolled back, which will allow an annual savings of Rs. 19 crores. However, the decision to roll back the age was postponed for consideration subsequently. It appears from various documents disclosed that this question was deliberated upon and ultimately in an agenda note for the meeting dated August 25, 2000, the rationality of rolling back of the age was gone into mentioned and deliberated upon. There was a study on the subject, which can be seen at page 178 of the writ petition.
It appears therefrom that 11,000 people are handling 6 million tonnes of cargo. Even by the rule of thumb, the existing level of traffic would support a maximum of 3,000 employees/workers. The study reveals that 5,000 employees/workers to represent the optimum level and that the existing manpower is far too in excess of the optimum level. It was also pointed out that in 1954, a resolution was adopted that the CPT reserved the right not to adopt any rule or amendment of any rule of the Government and also to reserve the right to frame its own rule in deviation of any Government Rule, subject to the sanction of the Government. Detailed report was submitted in the said agenda note.
Thus, it appears that there were sufficient reasons to compel the Board to adopt the Resolution No. 128 rolling back the retirement age to 58 years. This resolution was, however, approved by the Central Government through its letter dated October 18, 2000. From the discussion above, it appears that this decision was taken as a policy decision under economic compulsion, as spelt out from the materials on record.
Competence of CPT:
7. With regard to the competence of the CPT to take such a resolution, we may refer toSection 31 of the Calcutta Port Trust Act, which makes the Board competent to frame its own service rules. The adoption of the Fundamental Rules was in exercise of this power conferred upon it under Section 31(3) of the said Act. This did not preclude the Board to frame its own rules or deviate from fundamental rules. The adoption of fundamental rules was in effect a legislation by adoption. It is a plenary jurisdiction exercised through adoptive legislation. Therefore, there cannot be any embargo on the plenary jurisdiction to legislate when the statute confers power to legislate. Power to legislate, postulates power to amend or rescind. However, in 1954, as pointed out, the Board had itself adopted a resolution to deviate from the Central Rules. Therefore, such a contention of Mr. Mitra cannot be sustained.
Court's power to interfere with policy decision.
8. How far the Court can interfere with a policy decision, as in this present case, came up for consideration by this Court in Jessop & Co. Ltd. Staff Association v. Union of India and Ors., W.P. No. 7219(W) of 2001, disposed of on April 18, 2002 and Braithwaite Officers' Association v. Union of India and Ors., W.P. No. 7216 (W) of 2001, disposed of on April 18, 2002. In both these decisions, I had occasion to deal with similar question of rolling back. There cannot be any question of the power of the CPT to roll back as a policy decision. The extent of Court's power to interfere was discussed in both the decisions having regard to the various cases governing the subject. This question was comprehensively dealt with in BALCO Employees Union (Regd.) v. Union of India and Ors., : (2002)ILLJ550SC . Following the BALCO (supra), the decision in Jessop & Co. Ltd. Staff Association (supra), the ratio decided by different decisions discussed in the said judgment was summarized as follows:
'12. The sum total of the ratio laid down in the decision discussed above boils down to the following effect viz. (a) The Court must be circumspect in its approach, before interfering with a policy decision adoptedadministratively, to address itself as to whether it relates to economic administrative decision aimed at stimulating efficiency, keeping costs down, improved management methods, balancing of costs against time scales, source of resource, cost benefit ratio, which are essentially matters of economic policy lacking adjudicative disposition, (b) It has also to remind itself of the judicial recognition of administrator's right to trial and error so long it is bonafide and within the limits of administrative competence. (c) It cannot compare such policy as to whether these could be wiser or better policy. (d) When the decision is an outcome of a fair action, even if faltered in wisdom, Court cannot play the role of super auditor. (e) Whether it is fair and free from the taint of unreasonableness or it is arbitrary and founded on mere ipse dixit of the executive functionary. (f) The Court must remind itself that it cannot outstep its limit and tinker with policy decision nor it can attempt to assess the efficacy or otherwise of such policy '.
Applying the said principle in the present facts and circumstances, it appears that the decision relates to economic administrative decision aimed at stimulating efficiency, keeping cost down, improved management methods, balancing of costs against time scales, source of resource, cost benefit ratio which are essentially matters of economic policy lacking adjudicative dispossession. The Board must have joints to play. Such a right of the administration has to be recognized by the Court. The administration has a right to trial an error unless mala fide is shown. Having regard to the facts of the present case, we have not been able to find out any mala fide or oblique motive on the part of CPT. On the other hand, it has played within the joints to take an appropriate decision. That there could be a wiser decision is not a ground to interfere. As discussed above, the decision does not appear to be tainted by unreasonableness or arbitrariness. Neither it can be said to be outcome of mere ipse dixit of the executive functionary. Having regard to the above decision, I am not inclined to interfere in thiscase in view of the fact that it would amount to tinker with policy decision and assessing the efficacy or otherwise of such policy.
The decisions that have been cited in the present case were also cited in Jessop & Co. Lid. Staff Association (supra) where Mr. Mitra had occasion to appear and contend against the decision of rolling back. Therefore, it is not necessary to deal with the citation once again. The decision cited in this case by him may be dealt with in the same manner as in that case, in view of the fact that the points involved in all these cases are common.
As discussed above, having regard to the principle of interference with policy matters by Courts, it is apparent that the decision docs not suffer from any such infirmity to lead this Court to outstep the limits circumscribed by ratio laid down by the Apex Court.
Order:
9. In these circumstances, the writ petition fails and is accordingly dismissed.
There will be no order as to costs.
Xerox certified copy of this order, if applied for, be given.