1. In the Writ Petition, the petitioner who is an employee of the Karnataka Vidhyuth Karkhane Ltd., Bangalore, formerly the Government Electric Factory ('KAVIKA' for short) has sought for the issue of a writ of mandamus directing the respondent to continue him in service until he reaches the age of 58 years.
2. On 29.9.1982 this Court issued emergent notice regarding rule and also granted an interim order not to relieve the petitioner. The matter has now come up for preliminary hearing after notice to the respondent. Statement of objections have been filed. Sri S. Krishnaiah, learned counsel for the petitioner and Sri K. Lakshminarayana Rao, learned counsel for the respondent, addressed arguments for the petitioner and respondent, respectively on the merits of the case.
3. It is common ground that KAVIKA is a Government Company wholly owned and controlled by the State Government. Therefore, in view of the decision of this Court in T. G. Srinivasamurthy v. B. E. M. L. [1982-I LLJ 268] KAVIKA falls within the definition of the word 'State' as defined under Art. 12 of the Constitution and, therefore, an employee of 'KAVIKA' is entitled to seek redress in a petition under Art. 226 of the Constitution in relation to his enforceable conditions of service.
4. The short question that arises for consideration is whether the petitioner has a legal right to continue till he reaches 58 years of age which alone can constitute the basis for the issue of a writ of mandamus as prayed for in the writ petition.
5. The facts of the case, in brief, are as follows :
A memorandum of settlement had been signed by the management and the workmen on 19.8.1977. Clause (5) of the said settlement reads :-
5. 'Age of Retirement : It is agreed that the age of retirement in respect of all the employees shall be fifty five years (55 years) irrespective of the fact whether they are employees of GEF on deputation in the Company or employees of the Company. This age of retirement will be incorporated in the Standing Orders. This will be subject to the GEF Labour Union and GEF Staff Association giving a notice as required under S. 19(6) of the Industrial Dispute Act terminating the Award of the Labour Court in reference No. 27 of 1975 dated 16.6.1975 published in Karnataka Gazette dated 24.7.1975 in respect of the age of superannuation.'
According to the said provision, the age of retirement of employees of KAVIKA was fixed at 55 years. A notice (Annexure-VII) was given by the employer on 21.3.1982 informing the petitioner that he had to retire with effect from 1.4.1982 on his attaining the age of superannuation. However, he was given extension of service till 1.10.1982. In the meanwhile a notice dated 18.6.1982 (Annexure-B) was given by the workmen terminating the settlement. Accordingly the settlement stood terminated with effect from 19.8.1982. The extension of service granted to the petitioner having come to an end, he was asked to retire on 1.10.1982. At that stage he has presented this petition.
6. The claim of the petitioner is that before the settlement came to an end on 19.8.1982, on 11.3.1982 an amendment was made to the Industrial Employment (Standing Orders) Rules, 1962. Rule 15-A introduced into the Schedule by this amendment is relevant to the case of the petitioner, who is a workman, not belonging to the clerical cadre. It reads :
'15-A. The age of retirement of superannuation of the workman may be 58 years or such other age as may be agreed upon between the employer and the workman by any agreement, settlement or award which may be binding on the employer and the workman under any law for the time being inforce.'
The main case of the petitioner is that Rule 15-A so introduced into the schedule to the Rules framed under the Standing Orders Act became a statutory condition of service applicable to the workmen of KAVIKA by the operation of the provisions of the Industrial Employment Standing Orders Act ('the Act' for short) in place of Clause 5 of the settlement which, according got him, had spent itself and, therefore, he was entitled to continue in service till he attains the age of 58 years. He has also claimed relief on two other grounds.
Sri Krishnaiah, learned Counsel appearing for the petitioner, urged the following contentions :
(1) On and after 19.8.1977 the settlement came to an end and therefore the petitioner could not have been retired on the basis of Clause 5 of the settlement.
(2) Rule 15-A introduced into the Schedule to the Rules framed under the Standing Orders Act automatically became the statutory condition of service of the workmen by the force of the provisions of Ss. 3, 4 and 12A of the Act and, therefore, he had a right to continue in service till 58 years of age and his premature retirement was therefore illegal.
(3) The management itself had proposed to increase the age of superannuation from 55 years to 58 years and in view of the said decision the petitioner could not have been retired earlier to 58 years.
7. The petitioner has been discriminated against as extension of service only to the extent of six months is given to him, whereas extension to a larger extent has been given to other persons similarly situated.
8. The first contention is, as the settlement came to be terminated with effect from 19.8.82, the petitioner could not have been retired under Clause 5 thereof. There is no dispute that the period of five years for which the settlement dated 19.8.77 was to be in force had come to an end. Two months statutory notice terminating it was given by the workmen on 18.6.82 (Annexure-E). Hence the settlement came to an end. But admittedly there is no new settlement. The question is whether or not the settlement dated 19.8.77 continues to bind the parties even after its expiry until another settlement or award takes its place The question is not res integra. The Supreme Court in the case of Life Insurance Corp. v. Bahadur [1981-I LLJ 1], has said thus at paragraph 32.
'...... Like Nature, Law abhors a vacuum and even on the notice of termination under S. 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiate settlements or seek a reference and award. Until such a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties.'
Therefore there is no substance in the first contention.
9. (1) The second contention urged by the learned counsel for the petitioner, was that by virtue of Ss. 3, 4 and 12A of the Act, Rule 15-A introduced into the Model Standing Orders became automatically part of the certified Standing Orders of the KAVIKA.
(2) Learned Counsel for the respondent submitted that there was no support for the submission in the provisions of those sections. He submitted that unless the certified Standing Orders are amended, following the procedure prescribed in the Act, incorporating into it a provision similar to Rule 15-A, it does not come into effect by its own force.
10. I shall now consider the merits of the rival contentions. Sections 3 and 4 of the Act, inter alia require -
(i) an employer should submit draft Standing Orders meant to be certified under the Act within six months from the date of commencement of applicability of the Act to his establishment;
(ii) such Standing Orders should provide for every matter set out in the Schedule; and
(iii) the provisions so incorporated must in so far as practicable, be in conformity with the Model Standing Orders framed by the Government under the Act.
Section 12-A provides that from the date on which the Act becomes applicable to an industrial establishment, till the date on which the Standing Orders as finally certified come into operation, the prescribed Model Standing Orders shall be deemed to have been adopted in that establishment.
11. There is no dispute that the Act came into force long back and that Standing Orders framed by KAVIKA have been certified and they have been in force since a long time. Admittedly the age of superannuation was not one of the items mentioned in the Schedule to the Act and there was no rule incorporated in the Model Standing Orders prescribing a model age of superannuation prior to 11.3.82.
12. The first limb of the contention is that Rule 15-A incorporated into the schedule on 11.3.82 must be regarded as having become part of the certified Standing Orders KAVIKA as Ss. 3, 4 require that draft Standing Orders submitted for certification must conform to the Schedule and the model rules.
13. I find no merit in the contention. Admittedly draft Standing Orders prepared by KAVIKA in conformity with the provisions of the Act, have been certified and they are in force and that there is no provision in it relating to the age of retirement. There is nothing in the provisions of Ss. 3, 4 to indicate that if any new item of condition of service is added to the schedule to the Act and a model rule on that time is incorporated in the model Standing Orders by any amendment made to the schedule to the Act and the model Standing Orders respectively, the certified Standing Orders of an establishment automatically stand modified or amended so as to bring it in conformity with such modification or amendment. All that can be said is that on such amendment, by the force of Ss. 3, 4 it becomes obligatory for the employer, to include a provision, on such new item of conditions of services, in the certified Standing Orders. Further the provisions so included must be, so far as is practicable in conformity with such new rule added to the model Standing Order.
14. The second limb of the contention urged by the learned Counsel was based on S. 12-A of the Act. Learned Counsel strenuously contended that the effect of S. 12-A was that the Rule 15-A incorporated into the model Standing Orders on 11.3.82 must be deemed to have become part of the certified Standing Orders.
15. The argument lacks substance. Section 12-A reads :
'12-A. (1) Notwithstanding anything contained in Ss. 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the Standing Orders as finally certified under this Act comes into operation under S. 7 in that establishment the prescribed model Standing Orders shall be deemed to be adopted in that establishment, and the provisions of S. 9, Sub-s. (2) of S. 13 and S. 13-A shall apply to such model Standing Orders as they apply to the Standing Orders as certified.
(2) Nothing contained in Sub-s. (1) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the state of Gujarat or the Government of State of Maharashtra'.
The wording of S. 12-A of the Act is clear and unambiguous. The effect of the provision is :
(i) the model Standing Orders framed under the act automatically become applicable to an industrial establishment from the date when the Act becomes applicable to that industrial establishment; and
(ii) the model Standing Orders which had so become applicable to an industrial establishment cease to be applicable from the date on which the Standing Orders prepared by the management of that establishment as finally certified comes into operation.
16. Thus S. 12-A is not at all applicable to an industrial establishment on and from the date on which certified Standing Orders come into force. As admittedly certified standing orders are in force in respect of KAVIKA, S. 12-A is not at all attracted.
17. Learned Counsel for the petitioner submitted, that if S. 12-A is not construed in the manner he wants me to do an amendment made to the schedule and the model Standing Orders, would serve no purpose and it would be merely on paper without any benefit to the employees for whose benefit it is framed.
18. I am not impressed by this submission either. Firstly in the guise of construing S. 12-A it is impermissible to read into that section, what is not there. Secondly, in my opinion, S. 10 takes care of all such situations. It reads :
'10. (1) 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.
(2) Subject to the provisions of sub-s. (1) an employer or workman may apply to the certifying Officer to have the Standing Orders modified and such application shall be accompanied by five copies of the modification proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workmen, a certified copy of that agreement shall be filed along with the application.
(3) The foregoing provisions of this Act shall apply in respect of an application under sub-s. (2) as they apply to the certification of the first Standing Orders.'
While Ss. (1) does not permit a modification of a Standing Order except by agreement within six months after it comes into force, thereafter Ss. (2) enables both the employer and employees to apply before the certifying authority for modification. Further Ss. (3) provides that the provisions preceding, S. 10 as they apply to the certification of the first Standing Orders apply to the application made under S. 10(2). This means that to an application for modification made under S. 10(2), the conditions prescribed by Ss. 3 and 4, for the framing of the Standing Orders, namely -
(i) the requirement to provide for every matter set out in the schedule, in the Standing Orders and
(ii) that the provision should so far as practicable be in conformity with the model Standing Orders and should be in conformity with the provisions of Act, which apply for certification of Standing Orders (see : 'Mysore Kirloskar Employees' Ass. v. Industrial Tribunal [1959-I L.L.J. 531] are equally applicable.
19. (1) Therefore, immediately after Rule 15-A was added to the model Standing Orders on 11.3.1982, while undoubtedly the employers governed by it came under an obligation to get their certified standing orders amended so as to conform to Ss. 3 and 4 of the Act, by making an appropriate application under S. 10(2) of the Act, the workmen could also make an application before the certifying officer, under that provision seeking an amendment of the certified standing orders on those lines, who is under a duty to pass orders on that application in accordance with law.
(2) Thus, it may be seen that the Act itself provides a procedure for bringing into effect, any amendment made to the schedule to the Act or the model standing orders and it is the workmen who have failed to utilise the said provision immediately thereafter. However, Annexure-E produced along with the petition discloses that the workmen have made and application under S. 10(2) for that purpose only on 16.6.1982 and admittedly it has not yet been allowed.
(3) S. 7 prescribes the date from which the certified standing orders come into operation.
It reads -
'7. Standing order shall, unless an appeal is preferred under S. 6, come into operation on the expiry of thirty days from the date on which authenticated copies thereof are sent under Ss. (3) of S. 5, or where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which copies of the order of the appellate authority are sent under Ss. (2) of S. 6.'
By virtue of S. 10(3), the above provision applies to an amendment of Standing Orders pursuant to an order made under S. 10(2) also. The combined effect of S. 7 and 10(3) therefore is, that the amendment would come into force only after the application filed by the workmen is allowed by the Certifying Officer and, if any, appeal is presented by the employer against that order, it would come into force if and when it is confirmed by an appellate order made and communicated and after the expiry of the period, thereafter, as specified in S. 7.
(4) The resultant position is that a rule similar to rule 15-A has not yet become the part of the Standing Orders of the KAVIKA and, therefore, the petitioner has not acquired any legal right to continue in service till 58 years.
20. It is not insignificant, that the conduct of the petitioner, who was himself the President of the Labour Union, was also in conformity with the above legal position. It is seen, though the model rule 15-A was inserted on 11.3.1982, the petitioner accepted without demur and extension of service of six months on 1.4.1982 and as late as on 15.6.1982 he was the signatory to the note (Annexure-IV) which said that extension beyond 55 years should not exceed six months.
21. As far as the third contention is concerned, though it is true that the directors of KAVIKA had in their resolution on subject No. 400 dated 25.11.1980 (Annexure-A) noted that a proposal to increase the age of retirement of the workmen from 55 to 58 years had been sent to the Government for its approval, the fact remains that the same has not yet been approved and has not been given effect to. The fact that rule 15-A is included in the Standing Orders by the Government cannot been taken as an approval of the proposal sent by the Board of Directors of KAVIKA as contended for the petitioner. Therefore, I see no merit in the third contention also.
22. (1) The fourth contention is that the petitioner has been discriminated against in the matter of grant of extension in that only six months extension is given to him whereas extension to a larger extent is given to others. A list of names to whom extension beyond six months had been given is also furnished in the petition.
(2) The documents produced along with the statement of objections establish that there is no substance in the plea of discrimination also. They are -
(1) Office Order dated 5.12.1980 (Annexure-I) which laid down -
(a) the criteria for granting extension,
(b) the members of the committee constituted, to consider the grant, and
(c) that initial extension should be 3 to 6 months and the maximum extension should be one year.
(ii) The proceedings of extension committee held on 1.5.81 (Annexure-III) which indicates that extension of service was granted to 14 workmen and only 6 months' extension was granted to all of them.
(iii) Note dated 15.6.1982 (Annexure-IV) which indicates that extension committee had resolved on 11.11.81 that in all future cases extension should be limited only to six months and one of the signatories to this note is the petitioner in capacity as member, being the President of KAVIKA Labour Union.
(iv) A statement showing the list of workmen to whom the extension was granted between 7.7.80 to 7.6.82, indicates though extension of service beyond six months had been granted prior to 11.11.80, on and after that date, uniformly extension has been granted only to the extent of six months and the petitioner is one of them. He was due to retire on 1.4.1982 and he was given extension upto 1.10.1982. The names furnished in the petition, to whom extension beyond six months was granted are those to whom extension was granted prior to the decision taken on 11.11.1981 which is also incorporated in Annexure-IV dated 15.6.1982. Thus the plea that the petitioner has been discriminated against also fails.
23. In the context of the forth contention claiming a right to extension of service, I may also observe that the grant of extension is a discretionary power to be exercised in individual cases having due regard to the criteria laid down for giving the grant of extension and no one can claim extension as of right. (see : Kailash Chandra v. Union of India [1961-II L.L.J. 639] paragraph-7).
24. For the reasons aforesaid, I make the following order :
(i) The writ petition is dismissed.
(ii) No costs.