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Bangalore Woollen, Cotton and Silk Mills Company Ltd. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 220 of 1956
Judge
Reported in(1958)IILLJ613Kant
ActsIndustrial Disputes Act, 1947 - Sections 2, 10, 10(1), 17, 17A, 17A(1), 17A(4), 19, 19(3) and 25F
AppellantBangalore Woollen, Cotton and Silk Mills Company Ltd.
RespondentState of Mysore and ors.
Excerpt:
- section 29: [s.r. bannurmath & a.n. venugopala gowda,jj] concluded contract sale of seized assets of borrower by financial corporation - offer of appellant accepted and acted upon by corporation, by receiving money and adjusting to loan account - letter of confirmation of sale issued by corporation held, offer made to appellant by corporation, that too, with consent of borrower, has resulted into a concluded contract. corporation is obliged to hand over possession and transfer assets to appellant. inaction on part f corporation, being a state authority and unilateral cancellation of contract by it is arbitrary and is violative of article 14 of constitution. writ court can grant relief. that apart, borrower also cannot contend that offer to appellant is not fair. law does not permit a.....order1. the petitioner before us is the bangalore woollen, cotton and silk mills company, ltd., managed by binny & co., ltd., the prayer of the petitioner is for issue of writs certiorari and for quashing the award of the industrial tribunal, bangalore, in i.c. no. 11 of 1955, dated september 25 1956. the facts on which this petition is founded may be shortly stated as follows. 2. the petitioner had applied, under the provisions of the industrial employment (standing orders) act - central act xx if 1946, to the certifying authority constituted under the said act for certification of draft standing orders which were submitted by the petitioner. the authority concerned, after due notice, certified the same on july 16 1955. the respondent 3 (the binny mills labour association), having taken.....
Judgment:
ORDER

1. The petitioner before us is the Bangalore Woollen, Cotton and Silk Mills Company, Ltd., managed by Binny & Co., Ltd., The prayer of the petitioner is for issue of writs certiorari and for quashing the award of the Industrial tribunal, Bangalore, in I.C. No. 11 of 1955, dated September 25 1956. The facts on which this petition is founded may be shortly stated as follows.

2. The petitioner had applied, under the provisions of the Industrial Employment (Standing Orders) Act - Central Act XX if 1946, to the certifying authority constituted under the said Act for certification of draft standing orders which were submitted by the petitioner. The authority concerned, after due notice, certified the same on July 16 1955. The respondent 3 (the Binny Mills Labour Association), having taken exception to a number of standing orders submitted by the management and certified by the carrying authority, raised an industrial dispute with reference thereto. Thereafter by notification dated August 2 1955 issued by the Government, the said dispute was referred for adjudication to the Industrial tribunal, Bangalore. The points of dispute mentioned in the said notification and referred to the said tribunal for adjudication were as follow :-

'Whether the standing orders filed by the management and now certified by the certifying authority be modified as a modification to the existing standing orders as demanded by the employees through their association in the light of the views and as indicated in the annexure to this notification.'

3. In the annexure to the said notification the particulars of such objections were set out. Thereafter the said tribunal made its award which was published in the Mysore Gazette on October 18 1956. By that award the tribunal modified some of the standing orders which had been certified by the certifying authority under the Industrial Employment (Standing Orders) Act of 1946. The present petition has been filed challenging the said alterations.

4. At the hearing before us the learned advocate for the petitioner confined his client's case only to three items of the award. He informed us that the rest of the items which were originally in dispute between the parties have subsequently been settled. Before I mention the points urged by the learned advocate for the petitioner before us and in order to appreciate the same, it would be necessary to set out the material provisions of the Industrial Employment (Standing Orders) Act, 1946, and of the Industrial Disputes Act, 1947.

5. Section 3 of the Industrial Employment (Standing Orders) Act, 1946, provides that within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the certifying officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment.

6. Section 4 of the said Act inter alia provided that standing orders shall be certifiable under this Act if -

(a) provision is made therein for every matter set out in the schedule which is applicable to the industrial establishment, and

(b) the standing orders are otherwise in conformity with the provisions of this Act.

7. Section 5 lays down the procedure which has to be followed before the certifying officer certifies the said standing orders. It inter alia provides that under S. 3 of the certifying officer shall, after giving the parties concerned a copy thereof and after giving the employer and workmen an opportunity of being heard, shall decide whether or not any modification of, or addition to, the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and thereupon the certifying officer shall certify the draft standing orders after making such modifications therein as he may decide and shall within seven days thereof send certified copies of the standing orders authenticated in the prescribed form to the employer and to the trade union or other prescribed representatives of the workmen.

8. Section 6 gives a right of appeal to the party who may be aggrieved by the order of the certifying officer to be filed within the time mentioned in the said section to the appellate authority. The said section inter alia provides that the appellate authority shall, by order in writing, confirm the standing orders, either in the form certified by the certifying officer or after amending the said standing orders by making such modifications thereof or additions there to as it thinks necessary to render the standing orders certifiable under this Act and shall within seven days of its order send copies thereof to the certifying officer, to the employer and to the representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the certifying officer, by copies of standing orders as certified by it and authenticated in the prescribed manner.

9. Section 7 provides that standing orders shall, unless an appeal is preferred under S. 6, come into operation on the expiry of thirty days from the date on which the authenticated copies thereof are sent under Sub-section (3) of S. 5 or where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which the copies of the order of the appellate authority are sent under Sub-sec, (2) of S. 6.

10. Sub-section (1) of S. 10 provides that standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six moths from the date on which the standing orders or the last modifications there of came into operation.

11. Section 13 inter alia provides that an employer, who modifies the standing orders otherwise than in accordance with s. 10, shall be punishable with fine which may extend to Rs. 5,000 and in the case of a continuing offence, to a further fine which may extend to Rs. 200 for every day after the first during which the offense continues. Sub-section (2) of this section provides that an employer who does any act in contravention of the standing orders finally certified under this Act for his industrial establishment shall be punishable with a fine which may extend to Rs. 100 and in the case of a continuing offence with a further fine which may extend to Rs. 25 for every day after the first during which the offence continues. Sub-section 3 lays down that no prosecution for an offence punishable under this section shall be Industrial except with previous sanction of the appropriate Government.

12. The schedule to this Act mentions matters to be provided in standing orders under this Act.

13. The sections of the Industrial Disputes Act which I need refer to for the present are Ss. 10, 17, 17A and 19 of the said Act.

14. Sub-section (1) of S. 10 inter alia provides that, where the appropriate Government is of opinion that any industrial disputes are apprehended, it may at any time by order in writing refer the dispute to a board for promoting a settlement thereof, or refer any matter appearing to be relevant to the dispute to a court of enquiry, or refer the any matter appearing to be connected with or relevant to, the dispute if it relates to any matter specified in the Sch. II to a labour court for adjudication, or refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Sch. II or the Sch. III to a tribunal for adjudication.

15. Section 17 inter alia provides that every award of a labour court, tribunal or national tribunal shall, within the time mentioned in the said section, be published in such manner as the appropriate Government thinks fit.

16. Sub-section (1) of S. 17A provides that an award (including an arbitration award) shall be enforceable on the expiry of thirty days from the date of its publication under S. 17. Sub-section (4) of S. 17A inter alia provides that, subject, to the provisions of Sub-section (1) regarding the enforceability of an award the award shall come into operation with effect from such date as may be specified therein but where no date is specified it shall come into operation on the date when the award becomes enforceable under Sub-section (1).

17. Sub-section (3) of S. 19 reads as follows :-

'An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable under S. 17A.'

18. The first objection of the learned advocate for the petitioner relates to Clause 130 of the award wherein the tribunal directed that the said award will come into operation from August 2 1955. The learned advocate contended that standings orders from their very nature are incapable of being given a retrospective effect. Standing orders, according to him, only relate to future terms of service and can operate prospectively. According to him the said term of the award conflicts with the provisions of the Industrial Employment (Standing Orders) Act, 1946, and runs contrary to the policy laid down in the said Act. In other words, the learned advocate contended that once a standing order has been certified in accordance with the said Act, it shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date or which the standing orders or the last modifications thereof came into operation. The tribunal, according to the learned advocate, in making its award retrospective in its operation, has violated the said provisions of the Act and has acted contrary to the policy laid down therein.

19. The learned advocate further contended that this question as to whether or not the award of the tribunal adjudicating disputes between the parties relating to the standing orders will have a retrospective effect was not referred to the tribunal and therefore the tribunal had no jurisdiction to made any award in respect thereof.

20. Lastly it was urged on behalf of the petitioner that the workers themselves did not claim that the award should have a retrospective effect except only with regard to one matter, viz the benefits to be a given under standing orders 9(1) and 9(2) i.e., standing orders relating to leave with wages and medical leave, and even this claim was not pressed at the hearing before the tribunal.

21. Before I deal with these contentions of the learned advocate for the petitioner, I should mention that the learned advocate appearing for the respondent stated before us that the only item, in respect of which their clients were claiming a retrospective operation of the award was with respect to wages for the holidays they enjoyed in the years 1955 and 1956. Under the standing orders, as they originally stood, the workers were entitled to only ten festival holidays and in respect thereof they would not be entitled to receive pay but would be eligible for dearness allowance only. By the award the tribunal directed that there shall be eleven festival holidays and the management should pay wages and dearness allowance for five such holidays and for the remaining six holidays they would only get dearness allowance. It was submitted before us on behalf of workers that the wages for the holidays which the workers have already enjoyed in the years 1955 and 1956 and in respect of which both dearness allowance and wages are payable under the award should be paid to them. This is the only item in respect of which retrospective effect of the award was claimed before us.

22. The first question which I shall deal with is whether the tribunal had any jurisdiction to direct that its award will have a retrospective operation in view of the fact that the question as to the date from which the award will come into operation was not specifically referred to the tribunal. It seems to me that in view of the clear provisions of the Industrial Disputes Act, the jurisdiction of the tribunal to give its award a retrospective operation cannot be questioned. I have already referred to the material provisions of Ss. 17A 19 of the Industrial Disputes Act. By virtue of Sub-section (1) of S. 17A of award shall become enforceable on the expiry of thirty days from the date of its publication under S. 17, sub-section (4) of the said section inter alia provides that, subject to the provisions of Sub-section (1) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein but, where no date is specified, it shall come its operation on the date when the award becomes enforceable under Sub-section (1). The true effect of Sub-section (4) of S. 17A read with Sub-section (1) of the said section, to my mind, is that in an award the date with effect from which its terms shall come into operation may be mentioned which may be a past date but the period from which those terms can be enforced will be the period mentioned in Sub-sec.(1) S. 17A.In other words, the terms of an award may be retrospective in operation, but the period from which those terms may enforceable will be the period mentioned in s. 17A. In other words, in saying 'that the award shall come into operation with effect from such date as may be specified in the award' and in saying that ' the award becomes enforceable under Sub-section (1) of S. 17A' the legislature meant two different things. An award, whether its terms are prospective or retrospective, shall only become enforceable on the expiry of thirty days from its publication under S. 17. This is indicated by the starting words of Sub-section (4), viz., ' Subject to the provisions of Sub-section (1).' In other words, the enforceability of an award was not meant to be the same thing as the coming into operation of an award in the said section. The last portion of Sub-section (4) makes this position quite clear. It is said that 'where no date is specified (meaning thereby ' in the award') the award shall become enforceable.' Thus the award becoming enforceable are meant to be two different things. This, in my opinion, is the correct reading of Sub-section (4). Some difficulty has no doubt been created by the wording of Sub-section (3) of S. 19 of the Act.

23. The learned advocate for the petitioner placed considerable reliance on the said clause in order to show that the interpretation, which I am giving to Sub-section (4) of S. 17A cannot be so given to it. Sub-section (3) of S. 19 provides that an award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which an award becomes enforceable under S. 17A. The learned advocate contended that the period during which the award shall remain in operation is one year and that period shall commence from the date on which the award becomes enforceable under S. 17A, i.e., on the expiry of thirty days from the date of the publication of the award. The learned advocate also referred to the proviso to the said Sub-section (3) of S. 19 where in it has been laid down that the appropriate Government may, before the expiry of the said period, extend the period of operation for any period not exceeding one year at a time as it thinks fit provided however that the total period of operation of any award does not exceed three years from the date on which it came into operation. The learned advocate contended that, on the view which I am taking in this matter, Sub-section (3) of S. 19 would be in conflict with Sub-section (4) of S. 17A, because, under Sub-section (3) of S. 19 the period of operation of the award has to commence from the date on which the award shall become enforceable under S. 17A, whereas according to the interpretation which I have put on Sub-section (4) the said period of operation can commence from an earlier date. He then urged that such a construction of Sub-section (4) of S. 17A would also lead to anomalous results. For instance, if the date specified in an award with effect from which the award is to come into operation happens to be more than three years prior to the date of the making of the award, then Sub-section (3) of S. 19 would not come into operation at all because by the time the award becomes enforceable under S. 17A, the maximum period of three years allowance under S. 19 would already expire.

24. I am unable to accept this contention of the learned advocate for the petitioner. The period of one year, which may be reduced or extended by appropriate Government, is the period subsequent to the award itself. In the case in Roberts Mclean & Co., Ltd., v. Das Gupta it has been expressly held that 'the maximum period of one year starts from the date of award and does not cover the period antecedent to the award.' There is, in my opinion, no conflict between the provisions of Ss. 17A and 19 of the Industrial Disputes Act. In my view, therefore, this contention of the learned advocate, viz., that the tribunal had no jurisdiction, to make its award retrospective in its operation, must therefore fail.

25. As for the contention of the learned advocate for the petitioner, viz., that standing orders from their very nature are incapable of being given a retrospective effect, I am also unable to accept the same. I am unable to hold that in no case a standing order can be given a retrospective effect. It is possible to give at least some standing orders a retrospective operation. As in this case the wages, which have been made payable for festival holidays mentioned in the award, by virtues of their being given a retrospective operation, may have to be paid in respect of previous years although such holidays have already been enjoyed. It is, however not necessary for me to express any final opinion on this question in this petition. It would, in my opinion, be sufficient to say for the purpose of this petition that, if the tribunal has jurisdiction to give its award a retrospective operation, then the validity of the award cannot be questioned in a petition for the issue of a writ of certiorari on the ground that the provisions of the said award from their very nature are incapable of being given such a retrospective effect. In the case of Hari Vishnu v. Ahmad Ishaque : [1955]1SCR1104 , their lordships of the supreme court have laid down the grounds on which a writ of certiorari can appropriately be issued. The following propositions were laid down by their lordships in the said case :

(1) Certiorari will be issued for correcting errors of jurisdiction as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.

(2) Certiorari will also be issued when the court or the tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.

(3) Certiorari can be issued to correct an error of law but it is essential that it should be something more than a mere error and it must be one which is manifest on the face of the record.

26. In the present case, this particular provisions in the award cannot be challenged on any of the grounds as aforesaid. I have already held that the tribunal had jurisdiction to make its award retrospective in operation. It has not been suggested before us that the tribunal acted illegally in the exercise of its jurisdiction or that it has decided the matter without giving an opportunity to the parties to be heard or has violated the principles of natural justice. I am also unable to hold that in making such a provision there is an error apparent on the face of the award. Although, as observed by their lordships of the Supreme Court in the case to which I have referred, what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. The test laid down by the Chief Justice Chagla in Batuk K. Vyas v. Surat Borough Municipality [I.L.R. 1953 Bom. 191 = 1952 - II L.L.J. 178] may be taken to be satisfactory basis for a decision on this question. Chief Justice Chagla observed in that case that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. It seems to me that it is not possible to say that, so far as this provision in the award is concerned, there is an error apparent on the face of the record. This contention of the learned advocate for the petitioner must therefore fail.

27. As for the contention of the learned advocate for the petitioner, viz., that the said provision in the award conflicts with the provisions of Industrial Employment (Standing Orders) Act, 1956. And runs contrary to the policy laid down in the said Act and must therefore be held to be void. On this point I accept the contentions of the learned advocate for the workers. In my opinion, the jurisdiction of the tribunal has to be determined by reference to the Industrial Disputes Act and not by the Industrial Employment (Standing Orders) Act which determines the jurisdiction of the authority created by that Act, that is to say, the certifying officer. What the tribunal has been called upon to do is to make an award on the disputes which have arisen between the workers and the management after the standing orders were certified under the Industrial Employment (Standing Orders) Act. In making such an award the jurisdiction of the tribunal is not fettered by the Industrial Employment (Standing Orders) Act. It can go beyond that Act, although the certifying officer do so and the latter has to restrict himself within the Act. I am therefore unable to hold that the award in question is void because it does not fall within the four corners of the Industrial Employment (Standing Orders) Act. Acceptance of the contention of the learned advocate for the petitioner on this point would amount to holding that the Government had no power to make the present reference to the tribunal. But it should be mentioned that the reference itself in this case has not been challenged. In any event, as already mentioned, I am unable to hold that such a dispute cannot be referred to the tribunal or that the tribunal would have no jurisdiction to decide the same.

28. The only other contention that remains to be considered on this part of the petitioner's case is that, having regard to the fact that the workers, although they claimed that the benefits under standing orders 9(1) and 9(2) should be given with retrospective effect as from 4 February 1950, did not at the hearing of the matter before the tribunal press for the same, the award cannot have any retrospective operation with regard to these items. It was also contended before us that the fact that retrospective operation was claimed with regard only to two items of the disputed standing orders shows, that the workers themselves did not intend that the award should be given retrospective effect with regard to other items. I am unable to accept either of these contentions. In the first place, we are not called upon to decide in this petition whether or not having regard to the fact that the retrospective operation of standing orders 9(1) and 9(9) were claimed but the said claim was not pressed, the workers would be still entitled to claim the said benefits with effect from August 2 1955. This question would be properly decided in any claim that may be made hereafter by the workers in respect thereof. This fact, in my opinion, would not affect the jurisdiction of the tribunal to make such a provisions in the award and would not entitle us to interfere in an application for the issue of a writ. It, however appears that the claim for retrospective operation, made in respect of the said benefits, was with effect from February 4 1950 and that claim was not pressed but what was awarded was retrospective benefit with effect from August 2 1956. It is therefore not possible for me to hold that having regard to the fact that the claim for retrospective effect from February 4 1950 was not pressed, the tribunal has no jurisdiction to give the award a retrospective operation. I am also unable to accept the other contention of the learned advocate, viz., that the fact that the retrospective operation was specially claimed with regard to these terms, showed that there was no intention on the part of the workers to claim a retrospective benefit of the other items of the disputed standing orders. In my opinion, it was a special claim made with regard to these two items to have the benefit as from February 4 1950. This only shows that with regard to other items the workers did not think it necessary to claim retrospective effect as from February 4 1950 and this fact, to my mind, does not show that there was no intention on the part of the workers to claim that the award should be operative as from the date of the reference, i.e., August 2 1955. I therefore hold that that all these grounds urged by the learned advocate for the petitioner in support of his contention, that the clause in the award whereby the tribunal directed that the said award would come into operation from August 2, 1955 is void, must fail.

29. The next ground urged by the learned advocate for the petitioner relates to the provisions in the award whereby medical relief for aged parents of workmen was allowed by this tribunal. It was contended before us by the learned advocate for the petitioner that such a dispute, viz., whether or not medical relief should be granted to the aged parents of the workmen, is not an industrial dispute within the definition of that expression as appearing in S. 2(k) of the Industrial Disputes Act, nor is it an item mentioned in the schedule of the Industrial Employment (Standing Orders) Act. It was therefore contended by the learned advocate that the tribunal had no jurisdiction to grant such a relief. He further pointed out that the tribunal itself has come to the conclusion that it can by no means be said that medical aid to the children or aged parents is a condition of service. Nevertheless, the said tribunal has come to the conclusion that, though technically this demand may not be tenable, yet from human point of view that the amenities so far given by the management may be continued in favour of aged parents. The learned advocate therefore urged that this provision in the award is void having been made without jurisdiction and should be deleted.

30. I am unable to accept this contention of the learned advocate for the petitioner. This particular dispute, viz., whether or not medical aid should be given to aged parents of the employees, was specifically referred to the tribunal for determination. The tribunal therefore had jurisdiction to determine this question. As already mentioned, the jurisdiction of the tribunal has to be determined by reference to the Industrial Disputes Act and not by reference to the Industrial Employment (Standing Orders) Act. In other words, it is the order of reference which gives jurisdiction to the tribunal [vide J. K. Iron and Steel Company, Ltd., v. Iron and Steel Mazdoor Union : (1956)ILLJ227SC ]. Whether or not a particular order of reference is void is, however a different question. In this case, the order of reference has not been challenged by the petitioner. The tribunal, therefore, had jurisdiction to decide this question which had been specifically referred to it by the order of reference. Apart from this, I am also of the opinion that this dispute comes within the definition of 'industrial dispute' as given in S. 2(k) of the Industrial Dispute Act. The expression 'industrial dispute,' according to the said definition, means any dispute or difference between the employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or with the conditions of labour, of any person. I do not see why an employee cannot insist as one of the terms of his employment that medical relief should be given to his aged parents and, if there is a dispute between the employer and the employee on this point, why such a dispute cannot be said to be a dispute connected with the terms of his employment. Standing orders are really the terms and conditions of employment. Therefore, if there is dispute as to whether or not this particular condition viz., relief to aged parents, would find a place in the standing orders to be framed, such a dispute would be a dispute connected with the terms of employment and would come within the definition of 'industrial dispute' as given in S. 2(k) of the Industrial Disputes Act. In any event, as I have already pointed out, there is no want of jurisdiction on the part of the tribunal in awarding medical relief to the aged parents of the employees.

31. As for the contention of the learned advocate for the petitioner, viz., that such a dispute is not covered by the schedule, I would mention once again that in making an award under the Industrial Disputes Act, the tribunal can go beyond the Industrial Employment (Standing Orders) Act, whereas the certifying officer under the latter Act has to restrict himself within the said Act. What the industrial tribunal was called upon to do in the present case was not to frame standing orders under the Industrial Employment (Standing Orders) Act but to make an award on the matters specifically referred to it. I accept the contention of the learned advocate for the respondent that Industrial Employment (Standing Orders) Act does not prohibit inclusion of matters not mentioned in the said Act. What the said Act requires is the minimum to be provided for in a standing order to be framed under the said Act and if such a minimum has been provided for and if found to be reasonable, then the certifying officer is bound to certify the same. It does not follow therefrom that the workers cannot insist on further terms being provided for and if they do so the dispute which arises out of their insistence may be referred to for adjudication by the industrial tribunal under the Industrial Disputes Act and the tribunal in such a case would be competent to give its award on such a dispute. I therefore hold that this ground urged before us by the learned advocate for the petitioner must also fail.

32. The third and the last ground urged by the learned advocate for the petitioner relates to the retirement clause in the certified standing order. Under the said clause the company may in the discretion retire from its service an employee who has completed 35 years of full-time service in the company or has attained the age of 55 years, whichever event shall first occur, and not employee would have any claim to be continued in the service of the company thereafter. The tribunal has deleted that clause. The learned advocate for the petitioner contended before us that in deleting the said provision the tribunal acted without jurisdiction, in as mush as the Industrial Employment (Standing Orders) Act itself, as appears from item 8 of the schedule to that Act, requires such provisions to be made in the standing order. He contended that the schedule to the said Act indicates the matters to be provided for in the standing orders under this Act and the matter mentioned in item 8 is 'termination of employment' and that retirement is a mode of termination of employment.

33. This short answer to this contention again is that this matter, namely, whether or not the said clause should be deleted, was specifically referred to the tribunal for determination by the order of reference and the tribunal for determination by the order of reference and the tribunal has given a finding in respect of such a matter. The learned advocate for the respondent contended before us that in giving its finding on this matter the tribunal has in fact performed its jurisdiction and cannot be said to have acted without jurisdiction. The ground of such a decision, may be erroneous but the tribunal cannot for that reason be said to have acted without jurisdiction. As already mentioned, the jurisdiction of the tribunal is to be determined by the order of reference. In my opinion, therefore, this contention of the learned advocate for the petitioner must fail.

34. The learned advocate then urged before us that there is an error apparent on the face of the award so far us it relates to this question. He drew our attention to the facts that the tribunal has come to the conclusion that the management is not competent to introduce any standing order relating to the fixation of age for retirement of an employee and on that view has held that the tribunal has not power to empower the management to retire the workmen after they attain a certain age. The learned advocate for the petitioner contended that this view taken by the tribunal, viz., that the management is not competent to introduce any standing order relating to the fixation of age for retirement of an employee and that the tribunal has no power to empower the management to retire the workmen, is on the face of it erroneous. I am also unable to accept this contention of the learned advocate. It is true that the tribunal in dealing with this question has not expressed itself quite clearly in its award but it is not possible to say that there is any error on the face of the award. In my opinion, it is possible to support the view taken by the tribunal viz., that the management is not competent to introduce any standing orders relating to the fixation of age for retirement of an employee. The tribunal, in support of the view has referred to S. 25F of the Industrial Disputes Act. That section lays down that no workman, who has been in continuous service for not less than one year under an employer, shall be retrenched by the employer until amongst others the workman has been given one month's notice in writing and has been paid at the time of retrenchment such compensation as is mentioned in the said section. The word 'retrenchment' has been defined in Sub-section (oo) of S. 2 of the said Act as meaning termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but not including amongst others retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf. On the basis of these provisions it is possible to argue that the result of allowing the said clause of retirement to be retained in the standing orders would amount to giving the management the power to retrench on the workman attaining a certain age without complying with the conditions mentioned in S. 25F of the said Act. Such a contention has to be investigated before any final opinion can be given on it and in any event it is not possible to say that it is erroneous on the face of it, To my mind, there is no such error on the face of the award which would entitle us to interfere on an application of this nature. It cannot therefore be said that the tribunal in holding that the management was not competent to introduce any standing order relating to the fixation of age for retirement of an employee committed an error which was apparent on the face of it.

35. I should mention that the tribunal has also taken other matters into consideration in arriving at the said decision. It has held that it is open to the management to consult their medical officers regarding the physical capacity of a workman to continue in employment after a certain age and that, as a matter of fact, even now there are cases in which the management on medical services of disabled workmen and therefore it cannot be said that the management is without a remedy when it feels that the workman is physically unfit to hold the employment on account of advancing age. The tribunal has taken these matters also into consideration in coming to its aforesaid conclusion.

36. I am therefore unable to hold that this part of the award is void to that it should be deleted.

37. In the result, all the contentions of the learned advocate for the petitioner fail and the petition is dismissed with costs.

38. Before concluding my judgment I should mention one matter. When this petition was opened by the learned advocate for the petitioner, it was found that the order of reference in question was issued in the name of my learned brother Justice Sri Sadasivayya, who was then the Law Secretary to the Government. We then sought this matter to the notice of the parties and both the parties informed us that they have not the slightest objection to this petition being taken up by this Bench. Thereafter the matter was proceeded with.


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