1. Challenge in this writ petition is made to the order dated 15.03.2008 whereby and whereunder the Labour Commissioner and Certifying Officer under the Industrial Employment Standing Orders Act, 1946 (for short 'the Act') raised the superannuation age of the workers of the company to 58 years with effect from 01.01.2008 holding that the company has not opposed to the amendment proposal wherein the Trade Union workers have moved a proposal to the Certifying Officer of Standing Order of Assam for amending the age of superannuation from 55 years to 58 years.
2. In order to determine the controversy raised in the instant writ petition a brief facts of the case is summarized hereinbelow- The petitioner herein is the Management of M/s Steelsworth Pvt. Ltd. Tinsukia Makum Road, Tinsukia a Private Ltd. Company registered under the Companies Act, 1956 having its registered office at Kolkata. The company deals with manufacturing and fabrication of steel items of various descriptions including machineries having the strength of workers at Makum Road, Tinsukia at 54 in total. Out of the workers of 54, a minority trade Union of the Company represented by one Shri B Singh, General Secretary of the Steelsworth Workers Union vide its letter dated 02.04.2004 prayed for modification of the retirement age of the workers from 55 years to 58 years in order to get the full benefit of Provident Fund, Pensionary benefit and ESI benefits.
3. The Labour Commissioner-cum-Certifying Officer, Assam Gopinath Nagar who has been arrayed as party respondent No. 2 in the instant writ petition has entertained the letter dated 02.04.2004 submitted by the aforesaid Trade Union of the Company and issued a communication on 05.08.2004 to the writ petitioner company alongwith the letter dated 02.04.2004 stating that the union has submitted a proposal for amending the age of superannuation of the workers fixing the hearing of the application on 10.08.2004. However, the hearing was adjourned to a latter date on 27.08.2004. Thereafter the union on 16.09.2004 submitted a photocopy of the order passed on 04.09.2004 wherefrom the company came to know that the respondent No. 2 has passed an order raising the age of superannuation of the workmen from 55 years to 58 years.
4. The order dated 04.09.2004 passed by the respondent No. 2 was under challenge before this Court being WP(C) No. 7329 of 2004 and this Court on 08.06.2006 had set aside the order dated 04.09.2004 with an observation that the respondent union may proceed with the matter in accordance with the provision of the Act.
5. Thereafter, the company received a notice dated 23.10.2007 from the office of the respondent No. 2 asking the company to be present before the authority with all relevant records wherein it was mentioned that an application has been filed by the Steelsworth Workers Union for amendment/modification of the superannuation clause of the Certified Standing Order of the company. Accordingly, the company filed objection on 29.11.2007 contending inter alia that the proceeding so contemplated to be drawn by the respondent No. 2 is dehors the provisions laid down under Section 10 of the Act. On receipt of the objection the respondent No. 2 passed an order on 30.11.2007 to the effect that pursuant to the High Court order, the union has to file a fresh application with copy to management.
6. The respondent No. 2 reviewed its own order dated 30.11.2007 and issued a notice to the company on 28.12.2007 fixing the next date of hearing on 18.01.2008 relating to modification of superannuation age. The representative of the company appeared before the respondent No.2 on 18.01.2008 and on that date for the first time the company received the proposal filed by the Union for modification of retirement age of the standing order. However, the majority of the workers union filed an application on 29.11.2007 before the company praying to raise the retirement age of the workers of the company and the company issued a communication on 04.12.2007 conveying that the decision in the matter will be taken in the month of February 2008 and accordingly, series of bilateral talks took place between the majority of the workers of the company whereby a decision to raise the retirement age from 55 years to 57 years was adopted wherein 33 workers signed the memorandum of settlement except the 21 workers led by Shri B Singh.
7. After the settlement arrived at between the management of the company and majority of the workers union dated 15.02.2008, the company submitted the entire facts and developments took place on 15.02.2008 before the Certifying Officer and submitted that the proceeding initiated may be closed as the dispute between the workers and the management has been amicably settled out of court and nothing remains to be adjudicated upon between the parties. However, the respondent No.2 passed an order on 15.03.2008 raising the superannuation age to 58 years with retrospective effect from 01.01.2008 holding that the management has not opposed to the amendment of the Standing Order which is now under challenge before this Court in this writ proceeding.
8. Heard Mr. SN Sharma, learned Senior counsel assisted by Mr. A Jahid, learned counsel for the petitioner. Also heard Mr. BC Saikia, learned State counsel appearing for respondent No.1. None appeared on behalf of respondent Nos.2 and 3 despite service of notice.
9. Referring to Section 10 of the Industrial Employment (Standing Orders) Act, 1946, Mr. Sharma, learned Senior Counsel has contended that standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen be liable for modification until the expiry of six months from the date on which the Standing Order or the last modification thereof came into operation. However, workmen or trade union or other representative body of the workmen may apply to the Certifying Officer to have the standing order modified and such application shall be accompanied by five copies of the modification proposed to be made and where such modifications are proposed to be made by agreement between employer and the workmen, a certified copy of the agreement shall be filed alongwith the application which is absent in the instant case and therefore, urged that the order dated 15.03.2008 passed by the respondent No. 2 cannot stand being dehors the provision of Section 10 of the Act.
10. Mr. Sharma, learned Senior Counsel would further urge that there being a settlement between the majority of workers and the management raising the age of superannuation to 57 years, which was available on the file of the respondent No. 2 could not have proceeded in the adjudication of the matter holding that the management has not opposed the modification of superannuation age of the workmen to 58 years as the same is beyond the record of the case, more so, when the respondent No. 2 has passed the impugned order under challenge stating that the amendment proposal has been served under Section 20 of the Act on the management where there is no statutory provision regarding the age of superannuation nor the Act contains Section 20 of the Act which is perverse, requiring interference under judicial scrutiny.
11. The record of the case reveals that the notices on the respondents were duly served. The respondent Nos.2 and 3 did not contest the case. The respondent No.1 has been represented by the State counsel who has supported the order dated 15.03.2008 passed by the respondent No. 2 contending that raising the age of superannuation to 58 years of the workers considering the span of longevity being increased considerably, the age of superannuation to 58 is correct which do not require to be interfered with in the facts and circumstances of the case.
12. Considered the submissions made by the parties. Perused the relevant records alongwith the pleadings in the writ petition. The only question requires to be answered as to whether the respondent No. 2 has acted within the power prescribed under the Act in amending the proposal of superannuation age to 58 years and if not, whether the said order requires to be interfered with within the ambit of power under Article 226 of the Constitution of India.
13. In order to answer the question it would be appropriate to quote relevant portion of Section 10 of the Act which reads as follows:
"10. Duration and modification of standing orders-
(1) Standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen [or a trade union or other representative body of the workmen] be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation.
(2) Subject to the provisions of sub-section (1), an employer or workman [or a trade union or other representative body of the workmen] may apply to the Certifying Officer to have the standing orders modified, and such application shall be accompanied by five copies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workman [or a trade union or other representative body of the workmen], a certified copy of that agreement shall be filed alongwith the application."
14. Upon a close scrutiny of the above provisions of Section 10 of the Act alongwith the relevant records including the impugned order dated 15.03.2008 passed by the respondent No. 2, the following points would emerge- a) The petitioner company has its certified standing order which was certified by the Certifying Officer-cum-Labour Commissioner, Assam, Shillong on 24.07.1963; b) In the said certified standing order, Section C provides the age of superannuation for the workmen on attaining the age of 55 years with an option to the management for extension at its sole discretion; c) This Court in WP (C) No. 7329/04 set aside the order dated 04.09.2004 whereby the respondent No.2 had passed an order raising the age of superannuation of the workmen from 55 years to 58 years holding that the same, however, would not preclude the respondent union to proceed in the matter in accordance with the provision of the Act; d) The majority of the workmen of the company submitted an application for revision of retirement age of a workman and during the course of bi-lateral discussion majority of workmen and the management have agreed and arrived at the settlement of increasing the superannuation age from 55 years to 57 years on 15.02.2008 which fulfills the provisions of Sub- section 1 of Section 10 of the Act; e) The respondent No. 3 representing 21 workmen moved a proposal for amending the age of superannuation from earlier 55 years to 58 years before the Certifying Officer of Standing Order of Assam without fulfilling the criteria as laid down under Section 10 of the Act and the respondent No. 2 vide impugned order dated 15.03.2008 raised the superannuation age further to 58 years with effect from 01.01.2008 when the agreement dated 15.02.2008 was made available on the record holding that the respondent company did not oppose to the amendment proposal which is contrary to record.
15. To sum up the controversy raised, this Court finds that the impugned order dated 15.03.2008 passed by the Labour Commissioner and Certifying Officer under the Act cannot stand in the eye of law in view of violation of the provision of Section 10 of the Act and accordingly, the same is liable to be set aside and quashed.
16. In the result, the writ petition is allowed thereby setting aside and quashing the impugned order dated 15.03.2008 passed by the respondent No. 2. The parties are left to bear their own costs.