Engineering Workers Association Vs. J.D. Jamdar and ors. - Court Judgment

Excerpt:
maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - sch. iv - item 9 - industrial employment (standing order) act, 1946 - sections 27 and 32 - unfair labour practice - age of retirement of the workman - 60 years as per standing order no. 27 - retirement of the workman at the age of 58 according to the agreement between the workers and the employer - model standing orders prevail over the agreement - retiring the workman at the age of 58 years amounts to unfair labour practice.;the standing order 27, stipulates that the age of retirement should be 60 years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award. if the submission of the counsel for respondent nos. 2 and 3 is correct that any age could have been the retirement age, there was no need for the legislature to stipulate the age of 60 years in the standing order 27. this has obviously been done in order to ensure that the retirement age of the workman is at least 60 years. any settlement or agreement or award stipulating any age of retirement which is above the age of 60 years is permissible under the standing orders. standing order 32 makes it amply clear that the standing orders cannot operate in derogation of any law for the time being in force or to the prejudice of any right under the contract of service, custom or procedure or agreement, settlement or award. therefore, if the contract of service under an agreement, settlement or award stipulates that age of retirement should be something other than 60 years, the agreement is saved by this standing order which when read with standing order 27 lends credence to the submission of the advocate for the petitioner. if the retirement age was not to be at least 60 years, there was no need for the legislature to mention this figure in standing order 27 and the standing order could have read as 'the age of retirement or superannuation of the workmen may be such age as may be agreed upon between the employer and the workmen by any agreement, settlement or award'. by stipulating the age as 60 years in the standing order, obviously the legislature meant that the minimum, age of retirement would be 60 years.;having held that the retirement age as specified in model standing orders is 60 years and that the model standing orders would prevail over the agreement which fixes a lower age of retirement, it is axiomatic that by retiring the workmen at the age of 58 years, the respondent company has committed an unfair labour practice under item 9 of sch. iv of the act. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - ) has held that the standing orders must prevail over the contract of employment except when the contract of employment offers better rights. the prohibition is hence cast against the operation of the standing orders only when better rights are acquired on an employee under the contract of service and are likely to be prejudiced.mhatre nishita, j.1. this petition challenges the order of the industrial court passed in a complaint filed under items 5 and 9 of schedule iv of the m.r.t.u. & p.u.l.p. act. the industrial court has dismissed the complaint and has come to the conclusion that the petitioners were unable to prove that respondent nos. 2 and 3 have committed unfair labour practice. the facts giving rise to the present petition are as follows :the company that is respondent no. 2 was carrying on business of the grease division in mumbai steel containers ltd. and industrial containers ltd. were merged with the respondent company in 1975. after merger, this was known as container division. both the container division and the grease division were treated as separate entities by the respondent company. according to the respondent-company, after the merger the service conditions which prevailed in the erstwhile steel containers ltd. applied to the container division. these conditions of service were stipulated in an agreement which had been entered into with their workers on 3-6-1964. under this settlement, the retirement age of the workers was 58 years. even after merger, the respondent company continued to retire the workmen employed in the container division at the age of 58 years.2. it appears that in 1977, a reference being reference (it) no. 304 of 1977 was made for adjudication of certain demands which had been raised by the workmen of the grease division. most of the demands were settled and an award parti has been made on 10-8-1979 in terms, of the settlement. the two demands which were not settled were adjudicated upon by the industrial tribunal. these demands pertained to bonus and the age of retirement. the tribunal adjudicated these demands and by an award part ii dated 8-9-1980 held that the age of retirement should be 60 years.3. a complaint was filed by the petitioner being complaint (ulp) no. 914 of 1989 alleging that the respondent company had committed an unfair labour practice by retiring persons in the container division at the age of 58 years although there was an award of 1980 which prescribed the age of retirement as 60 years. it was also contended in the complaint that the model standing orders which were applicable to the company stipulate that the age of retirement is 60 years and, therefore, the persons working in the container division ought to have been retired at the age of 60 years and not 58 years as was being done by the respondent-company in the container division.4. in reply, the respondents submitted that a settlement dated 3-6-1964 which was entered into between the workmen of the erstwhile steel container limited and their workmen prevailed over the model standing orders and, therefore, 58 years was the appropriate retirement age. it was also submitted that the award in reference (it) no. 304 of 1977 pertained only to the demands raised of the employees of the grease division through their union which was a recognised union for that division; therefore, it covered the service conditions of the workmen of that division only.5. neither party led any evidence before the industrial court. the industrial court on the basis of the pleadings before it, came to the conclusion that the retirement age of 60 years applied only to the grease division since the award covered the workmen of that division and not of the container division. it was also held that the model standing orders permitted the employer and the employees to agree to the age of retirement which was less than 60 years and therefore, item 9 of schedule iv of the m.r.t.u. & p.u.l.p. act was not breached. the industrial court was of the view that since the grease division was a separate division having separate terms and conditions, there could be no unfair labour practice under item 5 of schedule iv only because the persons in the container division were retired at an earlier age. accordingly, the complaint was dismissed.6. on behalf of the petitioner, ms. buch, learned advocate, submits that the industrial court is totally in error in coming to the conclusion that there is no unfair labour practice under item 5 or 9 of schedule iv of the m.r.t.u. & p.u.l.p. act. she submits that when a reference is made for adjudication, the reference is between the company and its workmen. there is no segregation of the divisions of any company and, according to her, the reference is made for adjudication in respect of all the workmen of the company. she, therefore, submits that the award made pursuant to such a reference would cover all the workers and not just those who were employed in the grease division.7. on the other hand, mr. talsania, learned counsel for respondent nos. 2 and 3, submits that admittedly, the service conditions of the workmen employed in the two divisions were disparate and historically had remained different. according to him, the demands were raised by a recognised union which existed in the grease division and at no point of time did the petitioner union appear in the reference or at any stage that the workmen employed in the container division would also be covered by the same set of demands made by the recognised union in the grease division. he, therefore, submits that the award will naturally be applicable only to the employees of the grease division and not the other employees.8. the submission of mr. talsania appears to be correct. it was open for the petitioner union to appear in the reference before the tribunal and contend that the demands raised by the recognised union were also applicable to the workers in the container division. in all probability, the petitioner did not appear and contest the award because only a recognised union would have been heard before the industrial tribunal in a reference for general demands. admittedly, the petitioner was not a recognised union in the grease division in which the balmer lawrie employees union had obtained recognition. therefore, the award would be applicable only to the grease division which has always been treated as separate division from that of the container division. there is nothing on record to indicate that the other service conditions such as dearness allowance, hours of working, leave etc. were the same in both the divisions. therefore, the submission of ms. buch that the award is applicable to the workmen of the container division cannot be accepted.8. the next submission made by ms. buch was that the model standing orders which were applicable to the respondent-company specify that the age of retirement should be 60 years and not any lower age. she submits that an agreement under which the age of retirement has been fixed at an age lower than 60 years cannot prevail over the model standing orders. according the learned advocate, the model standing orders applicable to the workmen doing manual or technical work, which the workmen in the container division were performing stipulate standing order 32 that nothing would operate in derogation to the model standing orders and, therefore, any settlement or agreement which was contrary to the model standing orders cannot prevail. the learned advocate relies on the judgments in indian tobacco company ltd. v. industrial court and ors., : (1990)iillj236bom ; association of maharashtra education service class ii officers and ors. v. state of maharashtra and ors. 1990 bom.c.r. 548 : 1989(ii) c.l.r. 473; western india match company ltd. v. workmen : (1973)iillj403sc and philipos babu v. bajaj tempo ltd. and anr. : (1996)iiillj666bom to submit that the age of retirement ought to be 60 years and when the model standing orders specify this age, no workman could have been retired at the age other than 60 years. she submits that retiring a workman at the age of 58 years amounted to an unfair labour practice under item 9 of schedule iv of the m.r.t.u. & p.u.l.p. act because the respondent company had committed a breach of the provisions of the law.9. mr. talsania, on the other hand, submits that under the standing orders the employer and employees may fix the age of retirement at 60 years or any other age as is agreed upon by the parties. he submits that clause 32 of the model standing orders which stipulates that nothing which is in derogation of the model standing orders would prevail and is applicable only where the standing orders make it mandatory that the employer must act in a particular manner or act within a stipulated time frame. according to the learned counsel, the model standing order 27 which deals with the age of retirement used the word 'may' and not 'shall' leaving it open to the discretion of the parties to fix the age of retirement at any age. therefore, according to him, retiring the persons at the age 58 years did not amount to unfair labour practices. the learned counsel submits that when there is a settlement between the parties under which the age of retirement has been fixed at 58 years, the discretion left to the parties under the model standing orders has been exercised and both the parties have agreed at 58 years being the retirement age. he, therefore, urges that there is no case made out that an unfair labour practice has been committed. if at all, the workmen were aggrieved by the settlement, they ought to have either terminated the settlement or raised an industrial dispute regarding the age of retirement in order to have the age fixed by the tribunal, according to the learned counsel.10. before embarking on the submissions made by the learned counsel for the parties, it would be advantageous to set out the provisions of the model standing orders. model standing order 27 as applicable to the manual and supervisory staff reads as under :27. the age for retirement or superannuation of the workmen may be sixty years or 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.standing order 32 reads as follows :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.11. similar standing orders are applicable to the workmen employed for clerical or supervisory work. the standing order 27, therefore, stipulates that the age of retirement should be 60 years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award. if the submission of mr. talsania is correct that any age could have been the retirement age, there was no need for the legislature to stipulate the age of 60 years in the standing order 27. this has obviously been done in order to ensure that the retirement age of the workman is at least 60 years. any settlement or agreement or award stipulating any age of retirement which is above the age of 60 years is permissible under the standing orders. standing order 32 makes it amply clear that the standing orders cannot operate in derogation of any law for the time being in force or to the prejudice of any right under the contract of service, custom or procedure or agreement, settlement or award. therefore, if the contract of service under an agreement, settlement or award stipulates that the age of retirement should be something other than 60 years, the agreement is saved by this standing order which when read with standing order 27 lends credence to the submission of ms. buch. if the retirement age was not to be at least 60 years, there was no need for the legislature to mention this figure in standing order 27 and the standing order could have read as 'the age of retirement or superannuation of the workmen may be such age as may be agreed upon between the employer and the workmen by any agreement, settlement or award'. by stipulating the age as 60 years in the standing order, obviously the legislature meant that the minimum age of retirement would be 60 years.12. in the case of indian tobacco company ltd. (supra), the learned single judge of this court (h,d. patel, j.) has held that the standing orders must prevail over the contract of employment except when the contract of employment offers better rights. this judgment deals with the standing order 4-a. while interpreting this standing order r/w standing order 32 of the model standing orders, the learned judge has held that the provisions contained in the standing orders should not operate to the prejudice of any right under the contract of service, custom or usage or agreement, settlement or award. the prohibition is hence cast against the operation of the standing orders only when better rights are acquired on an employee under the contract of service and are likely to be prejudiced. i am in respectful agreement with this view taken by the learned single judge. in the case of philipos babu (supra), another learned single judge of this court (srikrishna, j.) has taken a similar view after considering the judgments in the case of indian tobacco co. ltd. (supra). the learned judge has held that the provisions of the model standing order 4-a would override any provision to the contrary contained in the employment contract or certified standing orders existing on the day on which the model standing order 4-a was brought into effect.12-a.the supreme court in the case of western india match company ltd. (supra) has held that the terms of employment specified in the standing orders would prevail over the corresponding terms in a contract of service in existence at the time of enforcement of the standing orders. the apex court has held that if a prior agreement, inconsistent with the standing orders, will not survive, an agreement posterior to and inconsistent with the standing orders should also not prevail. this judgment, therefore, leaves no room for doubt that the agreement of 1964 which fixes the age of retirement of the employees of the container division at 58 years cannot prevail and it is the model standing orders which fix the age of 60 years which will override the agreement.13. the judgment in case of .association of western india match company ltd. (supra) is not very relevant to the case before me as this judgment merely takes into consideration what should be the retirement age for government employees.14. having held that the retirement age as specified in model standing orders is 60 years and that the model standing orders would prevail over the agreement which fixes a lower age of retirement, it is axiomatic that by retiring the workmen at the age of 58 years, the respondent-company has committed an unfair labour practice under item 9 of schedule iv of the act.15. petition is, therefore, allowed. rule made absolute with no order as to costs.16. parties to act on an authenticated copy of this order.