Shri Tulsiram K. Gothad Vs. the Superintendent, Mahatma Gandhi Memorial Hospital and anr. - Court Judgment

R.J. Kochar, J.

1. The problem of age of retirement in the industrial law is of perennial nature. At the fag end of retirement or after a stipulated age of retirement, the employees often contest the age of retirement to be higher than what many times is agreed upon either under the certified standing orders or under the appointment letters. In the present case, the petitioner was appointed by an appointment letter dated 25.6.1962 by the respondents as a plumber in Class IV category. There is no dispute that at the time of retirement he was in Class III category of the employees. Soon after his appointment in the year 1962 he was given promotion in Class III category. There is also no dispute that he received increase in wages and he received higher emoluments. There is also no dispute that he was provided residential accommodation after he was put in Class III category of the employees. By an order dated 31.10.1997, the petitioner was informed that he would attain age of 58 years and would be superannuated on and from 31.1.1998. It appears that under the rules the respondents had given an intimation to the petitioner that he would stand superannuated with effect from 31.1.1998. By a letter dated 17.11.1997, the petitioner caused anotice through his Advocate that he should not be retired at the age of 58 years as under the provisions of the Model Standing Orders, the age of retirement would be 60. The respondents having not agreed with the said contention of the petitioner, the petitioner approached the Industrial Court by filing a complaint of unfair labour practice under section 28 of the M.R.T.U. & P.U.L.P. Act, 1971 invoking Items 5. 9 and 10 of Schedule IV of the Act. The respondents contested the complaint of unfair labour practice filed by the petitioner. Both the parties adduced documentary and oral evidence before the Industrial Court. By the judgment and order dated 31.3.1999, the learned Member of the Industrial Court dismissed the complaint filed by the petitioner and held that the age of retirement of the petitioner could not be sixty years but was as agreed in the appointment order read with the rules and regulations governing the service conditions of the employees of the respondents as 58 years.

2. Being aggrieved by the aforesaid judgment and order of the Industrial Court, the petitioner filed the present petition under Article 226 of the Constitution of India. Shri Deshpande, the learned Advocate for the petitioner has submitted that the appointment letter whereby the petitioner was appointed was not binding on the petitioner as far as the question of retirement age is concerned. According to Shri Deshpande, the said appointment letter cannot be construed as an agreement as contemplated under clause 27 of the Model Standing Orders governing the workmen doing manual or technical work. Shri Deshpande based his submissions on the ground that in the said appointment letter, it was vaguely stated in the last paragraph (clause 4) as under :-

'His conditions of service under the Board of Management will be governed by the rules framed and to be framed hereafter by the Board.'

Shri Deshpande has further argued that even if he had signed the certificate of taking over charge the next day pursuant to the said appointment letter, it will not indicate his agreement. Shri Deshpande has further submitted that the establishment of the respondent hospital is governed by the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders framed thereunder. He has pointed out that Clause 27 of the Model Standing Orders would squarely apply to the case of the petitioner and under the said standing orders his age of retirement was as prescribed therein i.e. 60 years. Shri Deshpande, therefore, contended that the action of the respondent to superannuate the petitioner at the age of 58 years was in contravention of the said Model Standing Order and therefore it amounted to unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. The second item which Shri Deshpande has Invoked is Item 5 of Schedule IV of the Act which reads as under :-

'5. To show favouritism or partiality to one set of workers, regardless of merits.'

Shri Deshpande further submitted that there were number of other employees who were continued up to the age of 60 years, while the petitioner was tried to be superannuated at the age of 58 years. According to him, this act of the respondents attracted the aforesaid Item No. 5 of Schedule IV of the Act. The petitioner was unfairly treated and discriminated. As far as Item No. 10 of Schedule IV of the Act is concerned, Shri Deshpande has rightly not pressed the said item as there was absolutelyno force or violence practised by the respondents on the petitioner. Shri Deshpande has pitched his case to absurdity to say that the appointment letter as given to the petitioner did not amount to an agreement and further it was a void agreement and the same was contrary to public policy to attract sections 23 and 29 of the Indian Contract Act. Shri Deshpande has tried to elaborate this submission by saying that Clause 4 of the Appointment Order was vague, insofar as, no such rules and regulations were stated in the appointment order and that the petitioner was not made known of the said so-called rules and regulations. The learned Advocate further submitted that the appointment order had referred to the rules and regulations framed by the management and the said rules and regulations prescribed the age of 58 years as retirement age. According to the learned Advocate, these rules and regulations were contrary to the clause 27 of the Model Standing Orders, and therefore, the Model Standing orders would prevail over the appointment letter and also the rules and regulations framed by the management of the respondent. Shri Deshpande has also relied upon a letter dated 16.3.1990 issued by the Deputy Secretary of the Government of Maharashtra to get support for his contention that the respondents had accepted the age of retirement as 60 years. Shri Deshpande termed the said letter issued by the Deputy Secretary to Government of Maharashtra as a circular binding on the management of the respondents. According to the learned Advocate by the said circular the rules framed by the respondents stood amended as far as the age of retirement is concerned. It was further contended by Shri Deshpande that the Model Standing Orders would prevail over the rules and regulations framed by the management of the respondents. According to Shri Deshpande, Industrial Court has not adverted to the aforesaid point and has erroneously decided the complaint against the petitioner.

3. Shri Deshpande has relied upon the following Judgments in support of hts contention.

1. Western India Match Co. Ltd. v. Workmen,;

2. The U.P. State Electricity Board and Anr. v. Hari Shanker Jain & Ors.,.

3. The Indian Tobacco Company Ltd. v. The Industrial Court & Ors.,;

4. Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguli & Anr.,;

5. Order dated 30th November, 1994 in Writ Petition No. 2324 of 1994;

6. Order dated 2nd September, 1991 in Writ Petition No. 2665 of 1991;

7. Order dated 10th March, 1997 in Writ Petition No. 304 of 1997:

8. Order dated 8th March, 2000 in Writ Petition No. 1098 of 2000;

4. Shri Bukhari the learned Advocate for the respondent management has pointed out that by a Trust Deed of Declaration, dated 8th October, 1958, the respondent hospital was established. In establishing this hospital the Government of Maharashtra had played an important role toprovide medical facilities to the city workers. Shri Bukhari pointed out that the Trust Deed Part II provides for service rules to be framed by the Board of Management. It is further provided that the service rules would come into operation only after the Government of Maharashtra gives its approval to such service rules. The respondents framed the service rules and the same were approved by the Government of Maharashtra on 3rd June. 1960. The respondents enforced there said service rules by adopting the same in its resolution passed in the Board of Management. In the aforesaid service rules age of retirement is prescribed. Initially it was 55 years for Class I, II and III employees which was subsequently increased to 58 years and Class IV employees were to retire at the age of 60 years. Shri Bukhari pointed out that under the service rules, the petitioner being Class HI employee was rightly superannuated at the age of 58 years. Shri Bukhari pointed out that the petitioner was bound by the appointment letter wherein it was clearly mentioned that he would be governed by the rules and regulations framed and amended from time to time. The age of superannuation of the employees was in accordance with the said service rules and it was very well notified and known to the employees. Shri Bukhari has further pointed out that the respondents are not disputing the proposition of law that the Model Standing Orders would prevail over the rules and regulations framed by the Board of Management. It was clarified by the learned Counsel that the Model Standing Orders would prevail over and would apply as far as the service rules are or would be found inconsistent therewith. Shri Bukhari has submitted that the respondents have strictly acted in accordance with the Model Standing Order No. 27 and have not travelled beyond the said provision and therefore, the respondents have not committed any act of unfair labour practice as contended by the petitioner. According to him, Item No. 9 of Schedule IV of the Act is not at all attracted. Shri Bukhari has also pointed out that Item No. 5 of Schedule IV of the Act is also not attracted as by an interim order passed by the Industrial Court on 16th January, 1989, the respondents were directed to retire their employees at the age of 60 years and the said order was in operation from 1990 to 1995. During this period, pursuant to the said order of Industrial Court, a few employees could be retired only at the age of 60 years as the management did not want to disobey the order of the Industrial Court. Shri Bukhari has pointed out that the said order was vacated as the complaint filed by the union was withdrawn. Soon thereafter all such employees who reached the age of 58 years in Class I, II and III category were retired at the age of 58 years in accordance with the prevalent rules and regulations. Shri Bukhari has also drawn my attention to the fact that a representation by 304 employees was made that the management should enforce its rules and regulations and that the union had obtained the aforesaid interim order only to benefit a few of their own members and as soon as their purpose was served the union withdrew the complaint. In the aforesaid circumstances, Shri Bukhari has submitted that there was absolutely no discrimination or favouritism shown by the respondent management. The learned Counsel submitted that the respondents are all along following the Bombay Civil Services Rules (M.C.S.R.) and they have not departed from those rules in any way. As far as the so-called circular dated 16th March, 1990 isconcerned, Shri Bukhari has stressed the point that the said letter was not a circular at all but was a letter written by the Deputy Secretary of the Government of Maharashtra to the management. In the said letter whatever was discussed in the meeting was minuted. The said meeting was held to discuss the grievances and problems of the union and the signatory of the said letter had communicated what was discussed in the meeting. The said letter could not be termed as a circular or could not be said to have any binding force on the respondents. By the said letter, the rules and regulations could not stand amended as the rules and regulations can be amended only by following the procedure laid down in the rules and regulations. The said procedure is that a resolution is to be passed by the Board of Management which is forwarded to the Government of Maharashtra for approval and after it is approved. It is adopted by the Board of Management and thereafter the amendment is effected. The signatory of the said letter was not an Appropriate Authority to direct the amendment of service rules.

5. Shri Bukhari has strenuously pointed out that under the Model Standing Order No. 27 an agreement between the employer and an employee is certainly contemplated. Accordingly to the Standing Orders, the age of retirement may be 60 years or such other age as may be agreed upon between the employer and the workmen. Shri Bukhari has pointed out that the appointment letter issued by the respondent management is an agreement within the meaning of the aforesaid Model Standing Order. In the appointment order it is mentioned that the petitioner employee would be governed by the rules and regulations framed by the management and amended from time to time. Instead of mentioning or appending all the rules and regulations along with the appointment order, it is pointed out that the employee deemed to be appointed by virtue of the said appointment order is governed and bound by all the rules and regulations. Shri Bukhari has, therefore, pointed out that the petitioner was bound by the rules and regulations which were prevalent in the establishment of the respondents. Under the rules and regulations of the employees in Class I, II and III would stand superannuated on completion of age of 58 years and Class IV employees would stand superannuated at the age of 60 years. In his submissions the respondents have not committed any unfair labour practice and have not violated Model Standing Order No. 27. Shri Bukhari has cited the following Judgments:-

(i) Petroleum Employees Union v. Industrial Court, Maharashtra, Bombay & Anr.,:

(ii) Cricket Club of India and Anr. v. Baljit Shyam (Ms.) and Anr.,;

(iii) P.R.T.C. Workers Union (Regd.) Patiala v. Pepsu Road Transport Corporation, Patiala and Ors.,.

6. Shri Bukhari has, therefore, submitted that the Industrial Court has dealt with the point extensively and has given its reasons for thefindings and therefore, this Court in its extraordinary jurisdiction of Article 226 of the Constitution of India should not interfere with the same.

7. Shri Deshpande, the learned Advocate for the petitioner has gone far beyond the point of absurdity to submit that the appointment letter was not binding on the petitioner as far as the age of retirement was concerned. He has also crossed the limits of absurdity saying that the appointment letter was void and was against the public policy and therefore, the same was hit by sections 23 and 29 of the Indian Contract Act. Though Shri Deshpande has tried to elaborate the aforesaid absurd submissions, I do not wish to burden the record by reproducing his submissions in detail. I have recorded the aforesaid submissions merely to be rejected. The petitioner was appointed by the aforesaid appointment letter and there is no dispute of such appointment. There is also no dispute that he has accepted the said appointment by signing a certificate of taking charge of his post of plumber. Obviously, there cannot be a dispute that he continued in the employment from 1962 till he reached the age of 58 years without any protest or without any complaint to say that the appointment order was not binding on him as it did not mention the specific age of retirement or that no rules or regulations were shown to him. I, therefore, do not find any substance in the submissions of Shri Deshpande that the appointment letter does not form an agreement between the petitioner and the respondent management. The petitioner continued his employment only under the said appointment order and there was no other document or no other basis for the petitioner to be employed in the employment of the respondent to get all the benefits of the employment till the age of retirement. It cannot be said that merely because the appointment letter mentions that the appointee would be bound by all the rules and regulations prevalent in the establishment, such appointment letter becomes void or against the public policy or such appointment letter does not bind the appointee. The only question which arises is whether such an agreement which is in the form of the appointment letter can be termed as an agreement within the meaning of Clause 27 of the Model Standing Orders. Before I deal with the said point, I must deal with the other important point which was vehemently argued by Shri Deshpande. He has placed heavy reliance on the letter dated 16th March, 1990 addressed by the Deputy Secretary to Government to the Superintendent of the respondent establishment. A simple reading of the said letter demonstrates that the letter had only minuted whatever discussion had taken place between the representative of the union and the management. The letter has enumerated the problems posed by the Union. In the letter one of the problems raised by the Union was the age of retirement. The letter has quoted the union's demand as under :-

'the Model Standing Order rules provide for retirement at the age of 60 years. This provision should be continued till the new rules are enforced.'

Shri Deshpande has tried to mislead me by saying that this was the order passed by the Deputy Secretary to Government. The letter also enumerates other problems. By no stretch of imagination it can be said that the said letter is an order issued by the Deputy Secretary. By no stretch of imagination it can be said that by the said letter the respondents were ordered to amend the rules and regulations. The Industrial Court has alsorightly considered the said letter and has rejected the submissions of Shri Deshpande that it was an order to amend the rules and regulations of the respondent establishment, as I have already mentioned that there is a prescribed procedure to amend the rules and regulations. If at all the respondents proposed to amend the rules, they have to pass a resolution in the Board of Management and get it approved by the Government and thereafter to adopt the said rules in its Board of Management to become an amendment enforceable as the rules and regulations. Merely because the Deputy Secretary writes a letter enumerating the Items of discussions it cannot become an order to the respondent establishment to amend the rules and regulations. This is absurdity which was argued by the learned Advocate.

8. The Model Standing Order Clause No. 27 is ex facie very clear and it can be analysed as under :-

(a) the age for retirement or superannuation of the workmen may be 60 years; or

(b) such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award which may be binding on the employer and the workmen under any law for the time being in force.

I have already held that the appointment order issued by the respondent management appointing the petitioner as a plumber and the petitioner having accepted the same and having worked for such a long period, it cannot be said that it was not an agreement between the respondent employer and the petitioner. The retirement age as reflected in Clause (a) above is 60 years or as would be agreed between the parties. It does not mandatorily say that the retirement age would be 60 only. The clause in fact contemplates an agreement between the two parties. It could be 58 years or it could be 60 years or even more. The Petitioner was issued an appointment order wherein he was informed that he would be governed by the rules and regulations framed and amended from time to time by the respondents. The said appointment order amounts to an agreement, as contemplated by the present standing order. I fail to understand if it is not an agreement what else it could be. Shri Bukhari is, therefore, right in his submissions that the respondents have not contested the claim that the Model Standing Orders do not prevail over the service regulations in the case of inconsistency. He has, therefore, rightly submitted that the appointment order being an agreement as contemplated under the said Standing Order No. 27, the age of retirement having been agreed specifically is within the four corners of the said standing order. I am not able to agree with Shri Deshpande when he has submitted that the agreement, settlement or award as mentioned in the said standing order has to be such only when there is a specific clause in respect of the age of retirement or with the union or with the large number of workmen and that an appointment order is not contemplated as an agreement within the said standing orders. There is nothing in the standing order to read that an appointment order individually issued to an employee cannot be an agreement. I, therefore, hold that the appointment order issued to the petitioner and every such appointment order issued to every such employee does constitute an agreement within the meaning of clause 27 of the standing order and both the parties are bound by such an agreementunless, it is in any way contrary to the law or inconsistent with any provisions of law. In the present appointment order I do not find anything which is inconsistent or contrary to the law. The appointment order is clear enough to inform the employee that he would be bound by the service regulations present and as amended from time to time. There is second aspect of this matter. Even the service regulations which are framed by the Board of Management and which are governing the service conditions of the employees have statutory flavour and have binding force, so long as there are not contrary to any provisions of law, including the Mole Standing Orders. At the same time, we cannot forget that they are not the service rules privately framed by any employer and kept in his cupboard. The respondent management is a responsible organisation formed under the declaration of trust deed. In its organisation, there have been very highly placed dignitaries consisting of representatives of the mill owners, employees, the E.S.I.C. Corporation and also the State Government. The trust deed elaborately provided for all the rules and regulations and the procedure. The Board of Management is not allowed to amend the rules and regulations unilaterally. It has to pass a resolution and approach the Government for its approval. Such rules and regulations or amendments therein can be enforced only after the State Government grants approval. In these circumstances, it cannot be said that the rules and regulations have no binding effect or have no statutory force. I have already observed that the rules and regulations of the respondent have statutory flavour. It cannot be said that the management has followed the rules and regulations and therefore, it has committed an unfair labour practice. The decision of the management is not arbitrary or whimsical. The management followed unilaterally the rules and regulations which are not contrary to any law and which are not shown to be arbitrary or unreasonable. We, further, cannot lose sight of a fact that about 304 employees of the respondent had made a representation to the Industrial Court that the age of retirement was 58 years and 60 years for Class I, II and III and Class IV employees respectively. It was complained by large number of employees that the union was acting not in favour of the employees but only for the benefit of a few and mala fide. There is a third dimension to the matter. Standing Order No. 32 reads as under :-

'32. Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force or to the prejudice of any right under a contract of service, custom or usage or an agreement, settlement or award applicable to the establishment.'

Under this standing order what is expected is any order which would operate in derogation of any law in the time being in force or to the prejudice of any right under the contractor service. According to this standing order the respondents have acted on the basis of the appointment order which is a contract of service or which is an agreement between the parties. It is, therefore, clear that anything which is contrary to the appointment order would be hit by the aforesaid Standing Order No. 32. It is a contract of service that the petitioner would retire at the age of 58 years. The contention of the petitioner, therefore, would straightway attract the aforesaid provisions of standing order which would be prejudicial to the right of the management to retire the petitioner at the agreed age of 58years. I, therefore, do not find any merits in the petition and the same is dismissed and rule is discharged with no orders as to costs. Shri Deshpande has complained that the petitioner was not paid his gratuity. Shri Bukhari has fairly stated that he would instruct the respondents to pay the gratuity payable to the petitioner in accordance with law within one week.