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

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 229 of 1956
Judge
Reported inAIR1958Kant85; AIR1958Mys85
ActsIndustrial Disputes Act, 1947 - Sections 2, 7, 10, 17, 17A, 17A(1), 17A(4), 19, 19(3) and 25; Constitution of India - Article 226; Industrial Employment (Standing Orders) Act, 1946 - Sections 3, 4, 5, 5(3), 6, 6(2), 10, 10(1), 13 and 13(2); Industrial Employment (Standing Orders) (Amendment) Act, 1956
AppellantManagement of Bangalore Woollen, Cotton and Silk Mills Co. Ltd.
RespondentState of Mysore and ors.
Appellant AdvocateK. Raja Iyer, Adv.
Respondent AdvocateD.M. Chandrasekhar, Adv. for ;Adv. General and ;G.V. Ramachar, Adv.
Excerpt:
- income tax act,1961[c.a.no.43/1961] -- sections 21 (1) & 31(1): [k.l. manjunath & a.s. bopanna, jj] change of sound system in a theater whether to be treated as capital expenditure or a revenue expenditure? held, it has to be seen that whether the change of sound system has increased the revenue or not. admittedly the old sound system was in existence for several years and due to use of the very same sound system for several years, the old system was worn out. if the assessee has provided certain amenities to its customers by replacing the old system with a better sound system, it cannot be said that the assessee has increased its income. instead of repairing the old stereo system, the assessee has installed the dolby stereo system. this has not benefited the assessee in any way.....s.r. das gupta, c.j.1. the petitioner before us is the bangalore woollen, cotton and silk mills co. ltd., managed by messrs. binny and co. ltd., the prayer of the petitioner is for the issue of write and directions and in particular a writ of certiorari and for quashing the award of the industrial tribunal, bangalore, in i.c. no. 11/55 dated 25-9-1956. 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 of 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 16-7-1955.the 3rd respondent.....
Judgment:

S.R. Das Gupta, C.J.

1. The petitioner before us is the Bangalore Woollen, Cotton and Silk Mills Co. Ltd., managed by Messrs. Binny and Co. Ltd., The prayer of the petitioner is for the issue of write and directions and in particular a writ of certiorari and for quashing the award of the Industrial Tribunal, Bangalore, in I.C. No. 11/55 dated 25-9-1956. 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 of 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 16-7-1955.

The 3rd respondent (The Binny Mills Labour Association) having taken exception to a number of standing orders submitted by the Management and certified by the certifying authority raised an industrial dispute with reference thereto. Thereafter by notification dated 2-8-1955 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 wore as follows:

'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.'

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 18-10-1956. 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.

3. 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.

4. 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.

5. Section 4 of the said Act inter alia Provides 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.

6. 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 Section 3 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.

7. 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 thereto 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.

8. Section 7 provides that standing orders shall, unless an appeal is preferred under Section 6, come into operation on the expiry of 30 days from the date on which the authenticated copies thereof are sent under sub-section (3) of Section 5 or, where an appeal as aforesaid is preferred, on the expiry of seven days from the date on with the copies of, the order of the appellate authority are sent under sub-section (2) of Section 6.

9. Sub-section (1) of Section 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 months from the date on which the standing orders or the last modifications thereof came into operation.

10. Section 13 inter alia provides that an employer, who modifies the standing orders otherwise than in accordance with Section 10, shall be punishable with fine which may extend to Rs. 5000/- and, in the case of a continuing offence, to a further fine which may extend to Rs. 1200/- for every day after the first during which the offence continues. Sub-section (2) of this Section provides that an employer who does act in contravention of the standing orders finally certified under this Act for bis 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. Subjection (3) lays down that no prosecution for an offence punishable under this section shall be instituted except with the previous sanction of the appropriate Government.

11. The schedule to this Act mentions matters to be provided in Standing Orders under this Act.

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

13. Sub-section (1) of Section 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 dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the second schedule, 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 second schedule or the third schedule, to a Tribunal for adjudication.

14. 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.

15. Sub-section (1) of Section 17A provides that an award (including an arbitration award) shall be enforceable on the expiry of 30 days from the date of its publication under Section 17. Sub-section (4) of Section 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).

16. Sub-section (3) of Section 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 Section 17A.'

17. 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 2-8-1955. The learned Advocate contended that standing 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 clown 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 on 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.

18. The learned Advocate further contended that this question as to whether, or not the award of Tribunal adjudicating disputes between the parties relating to the standing orders will nave a retrospective effect was not referred to the Tribunal and therefore the Tribunal had no jurisdiction to make any award in respect thereof.

19. 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 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.

20. 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 Dear-ness Allowance. It was submitted before us on behalf of the 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 clearness 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.

21. 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 Section 17A and Section 19 of the Industrial Disputes Act.

By virtue of sub-section (1) of Section 17A an award shall become enforceable on the expiry of 30 days from the date of its publication under Section 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 into operation on the date when the award becomes enforceable under Sub-section (1).

The true effect of Sub-section (4) of Section 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-section (1) of Section 17A. In other words, the terms of an award may be retrospective in operation but the period from which those terms may be enforceable will be the period mentioned in Section 17-A.

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 Section 17A.' the legislature meant two different things. An award, whether its terms are prospective or retrospective, shall only become enforceable on the expiry of 30 days from its publication under Section 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 come into operation on the date when the award becomes enforceable'. Thus the award coming into operation and 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 wordings of Sub-section (3) of Section 19 of the Act.

22. 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 Section 17A, cannot be so given to it. Sub-section (3) of Section 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 Section 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 Section 17A, i.e. on the expiry of 30 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 Section 19 wherein 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 Section 19 would be in conflict with Sub-section (4) of Section 17A, because, under Sub-section (3) of Section 19 the period of operation of the award has to commence from the date on which the award shall become enforceable under Section 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 Section 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 data of the making of the award, then Sub-section (3) of Section 19 would not come into operation at all because by the time the award becomes enforceable under Section 17A, the maximum period of 3 years allowable under Section 19 would already expire.

23. 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 reported in Roberts Maclean & Co. Ltd., v. A.T. 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 Section 17A and Section 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.

24. 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 same standing orders a retrospective operation. As in this case the wages, which have been made payable for festival holidays mentioned in the award, by virtue of their being given a restrospective-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 (S) : [1955]1SCR1104 (B), 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 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.

In the present case, this particular provision 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 indefinite-ness 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 Chief Justice Chagla in Batuk K. Vyas v. Surat Borough Municipality, : AIR1953Bom133 (C) may be taken to be a 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.

25. As for the contention of the learned Advocate for the petitioner, viz. that the said provision in the award conflicts with the provisions of the 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, I am also unable to accept the same. 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 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 cannot 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.

26. 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 4-2-1950, 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 three 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(2) were claimed but the said claim was not pressed, the workers would lie still entitled to claim the said benefits with effect from 2-8-1955. 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 provision 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 4-2-1950 and that claim was not pressed but what was awarded was retrospective benefit with effect from 2-8-1955. It is therefore not possible for me to hold that, having regard to the fact that the claim for retrospective effect from 4-2-1950 Was not pressed the Tribunal had 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 retrospective operation was specially claimed with regard to these items showed that there was no intention on the part of the workers to claim a retrospective benefit of the other items of the disputed Stand-jag Orders.

In my opinion, it was a special claim made with regard to these two items to have the benefit as from 4-2-1950. This only shows that with regard to other items the workers did not think it necessary to claim retrospective effect as from 4-2-1950 and this fact, to my mind, does not show that there was no intention on the part of the worker to claim that the award should be operative as from the date of the reference, i.e. 2-8-1955. therefore hold 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 2-8-1955 is void, must fail.

27. The next ground urged by the learned Advocate for the petitioner relates to the provision in the award whereby medical relief for aged parents of workmen was allowed by the 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 or the workmen is not an industrial dispute within the definition of that expression as appearing in Section 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 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.

28. 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 bo determined by reference to 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 Co. Ltd. v. Iron and Steel Mazdoor Union, (S) : (1956)ILLJ227SC (D)). 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 Section 2(k) of the Industrial Disputes Act.

The expression 'industrial dispute', according to the said definition, means any dispute or difference between employers & employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of 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 a 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 Section 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.

29. 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 the 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.

30. 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 its 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 no 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, Inasmuch as the Industrial Employment (Standing Orders) Act itself as it appears from Item 8 of the Schedule to that Act requires such a provision 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.

31. The short answer to this contention again is that this matter, namely, whether or not the said clause should ho deleted was specifically referred to 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 grounds 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.

32. The learned Advocate then urged before us that there is an error apparent on the face of the award so far as it relates to this question. He drew our attention to the fact that the Tribunal has conic 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 no 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 order relating to the fixation of age for retirement of an employee.

The Tribunal, in support of that view, has referred to Section 25(f) 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 (00) of Section 2 of the said Act RS meaning termination by the employer of the ser-vice 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 Section 25(f) 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.

33. I should mention that the Tribunal has also taken other matters into consideration ill arriving at its 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 advice is dispensing with the services of disabled workman 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.

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

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

36. Before concluding my judgment I shouldmention one matter. When this petition wasopened by the learned Advocate for the petitionerit was found that the order of reference in Ques-tion was issued in the name of my learned bro-ther Justice Sri Sadasivayya, who was then theLaw Secretary to the Government. We thenbrought this matter to the notice of the partiesand both the parties informed us that they havenot the slightest objection to this petition beingtaken up by this Bench. Thereafter the matterwas proceeded with.

37. Petition dismissed.


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