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Bijli Mazdoor Sangh Vs. Resident Engineer, Allahabad Electric Supply Undertaking, U.P. State Electricity Board, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2963 of 1968
Judge
Reported inAIR1970All589
ActsIndustrial Employment (Standing Orders) Act, 1946 - Sections 3, 3(2), 5, 6, 6(1) and 10; Electricity Act, 1910 - Sections 5, 6 and 7; Electricity (Supply) Act, 1948 - Sections 79
AppellantBijli Mazdoor Sangh
RespondentResident Engineer, Allahabad Electric Supply Undertaking, U.P. State Electricity Board, Allahabad an
Appellant AdvocateK.P. Agrawal, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....3 of industrial employment (standing orders) act, 1946 - purchase of electricity undertaking by state electricity board - whether standing orders of previous owners apply as it is - held, standing orders will not apply automatically upon new purchasers. (ii) regulation passed - section 79(c) of electricity (supply) act, 1948 and section 5 of industrial employment (standing) orders act,1946 - regulation under section 79(c) passed concerning age of retirement - supersedes section 5 - section 79 (c) is from a latter act so will prevail - regulation cannot be quashed or modified by section 5. - - , had lapsed with the taking over of the concern by the state electricity board, and that the board had failed to get any fresh standing orders certified, with the result that, the application..........j.1. this writ petition, filed by the bijli mazdoor sangh, representing the employees of the u. p. state electricity board in the allahabad electric supply undertaking, challenges an order passed by the appellate authority for standing orders on 29-4-1968, allowing an appeal against an order of the certifying officer, d/- 23-12-1967, accepting a modification in the standing orders relating to the age of superannuation. the contention of the employees was that the standing orders framed by the u. p. electric supply company limited, allahabad (under the management of martin & co., ltd., of calcutta) remained in force, even after the concern was taken over by the state electricity board in the year 1964. under those standing orders the retirement age was 55. in 1966 this retiring age was.....
Judgment:
ORDER

W. Broome, J.

1. This writ petition, filed by the Bijli Mazdoor Sangh, representing the employees of the U. P. State Electricity Board in the Allahabad Electric Supply Undertaking, challenges an order passed by the Appellate Authority for Standing Orders on 29-4-1968, allowing an appeal against an order of the Certifying Officer, D/- 23-12-1967, accepting a modification in the Standing Orders relating to the age of superannuation. The contention of the employees was that the Standing Orders framed by the U. P. Electric Supply Company Limited, Allahabad (under the management of Martin & Co., Ltd., of Calcutta) remained in force, even after the concern was taken over by the State Electricity Board in the year 1964. Under those Standing Orders the retirement age was 55. In 1966 this retiring age was raised by the State Electricity Board to 58 years for all employees other than class IV inferior servants and to 60 for class IV inferior servants, by means of a Regulation framed under Section 79(c) of the Electricity (Supply), Act, 1948. The employees then made an application to the Certifying Officer under Section 10 of the Industrial Employment (Standing Orders) Act, 1946, for modification of the Standing Orders so as to provide a retirement age of 65 for all employees.

The Certifying Officer, having heard the parties, came to the conclusion that the Certified Standing Orders of the U. P. Electric Supply Co., Ltd., had been adopted by the State Electricity Board after it took over the concern and had remained applicable to all employees of the concern, that the Board had no jurisdiction to modify these Standing Orders by making Regulations under Section 79 of the Electricity (Supply) Act, that to have two different ages of superannuation for workmen employed in the same undertaking was unreasonable, and that a uniform age of superannuation should be fixed for all the workmen of the Allahabad Electricity Supply Undertaking at 60 years. An order was accordingly passed' on 23-12-1967 under Section 10 read with Section 5 of the Industrial Employment (Standing Orders) Act, certifying Clause 32 of the Standing Orders-afresh in modified form as follows:--

'An employee who has completed the age of 60 shall retire, but exemption to this may be granted by the Undertaking in deserving cases.'

In appeal, however, the Appellate Authority, by the impugned order dated 29-4-1968, has held that the Certified Standing Orders, of the U. P. Electric Supply Co., Ltd., had lapsed with the taking over of the concern by the State Electricity Board, and that the Board had failed to get any fresh Standing Orders certified, with the result that, the application for modification presented to the Certifying Officer by the employees was misconceived and meaningless, since there were no certified Standing Orders in existence that could be modified under Section 10 of the Act. The Appellate Authority further held that the Regulation framed by the State Electricity Board fixing the age of superannuation at 58 for some of its employees and 60 years for others was not in any way unreasonable or unfair, and that this Regulation took away the jurisdiction of the Certifying Officer to give any decision regarding the age of superannuation. The appeal was accordingly allowed and the order of the Certifying Officer modifying Clause 32 of the Standing Orders was quashed.

2. The primary question that calls for consideration is whether the Appellate Authority was right in holding that the Certified. Standing Orders of the U. P. Electric Supply Company Limited did not continue in force, after the concern had been taken over by the State Electricity Board and could not be deemed to have become the Certified Standing Orders of the Board. The 'Undertaking was acquired by the State Electricity Board by purchase from the licensee (the U. P. Electric Supply Co., Ltd.,) under Section 5 or Section 6 of the Indian Electricity Act, Section 7 of that Act provides ' that where such a purchase is made 'the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser'.

But the obligations referred to here are only the obligations under the licence viz., obligations towards the Government or towards the consumers and cannot be construed as including obligations towards the employees as well. Had there been any intention on the part of the Legislature to make it necessary for all obligations of the old licensee towards its employees to be assumed by the State Electricity Board when it purchases an undertaking, one would have expected some specific provision in the Act to this effect, but no such provision is to be found. In fact, as Mr. Shanti Bhushan (appearing for the respondents) has pointed out, such a provision would in many cases defeat the very object of the takeover of an electrical undertakings by the State Electricity Board, for the Board would find itself obliged to retain in service all employees of the Company, even though some of them might be found redundant or unqualified.

The Industrial Employment (Standing Orders) Act also contains no provision for the automatic continuance of Standing Orders framed by an owner of an undertaking when the undertaking is transferred to another owner. It is to be noted moreover that in the present case, when the State Electricity Board took over the concern, the U, P. Electric Supply Company Ltd., terminated the services of all its employees and paid them all their dues; and then they were employed afresh by the Board, a fresh appointment letter being issued to each employee in the following form:--

'Sri ..... is hereby appointed as ....under the U. P. State Electricity Board with effect from 17-4-1964 on the same pay plus D. F. A. as he was drawing on 16-9-1964 under Messrs. U. P. Electricity Supply Co., Limited Lucknow/Allahabad, subject to the following conditions:--

(a) He will retire from the service of the Board on attaining the age of fifty-five years unless he is granted extension in service for any period thereafter at the discretion of the Board, and

(b) Subject to the provisions of Sub-para (a) he will be governed in matters covered by the schedule to the Industrial Employment (Standing Orders) Act, 1946 by the Standing Orders, if, any, as modified from time to time and in all other matters by the rules and regulations of the Board.'

It has been argued on behalf of the employees that the above-quoted letter of appointment shows that the State Electricity Board had allowed the Standing Orders framed by the Company to continue in force and was treating them as its own Standing Orders; but this interpretation of the appointment letter does not seem to be correct. All that the letter meant was that an ex-employee of the Company reemployed by the Board would have the same conditions of service as he enjoyed under the Standing Orders of the Company, except with regard to the age of retirement, which was separately dealt with in Clause (a). The reference to the Standing Orders was purely a matter of convenience, in order to avoid having to set forth all the terms and conditions of employment in extenso. The State Electricity Board declared that it would deal with its employees in the undertaking on the same terms as the Company had dealt with them, as set forth in the Standing Orders of the company; but that did not mean that the Board was accepting, those Standing Orders as its own Certified Standing Orders.

In the same way I see no particular significance in the statement (Exh. K) made by the Resident Engineer in an earlier industrial dispute over the termination of a workman's services to the effect that 'the Standing Orders of the outgoing, company have been adopted by us.' This too merely meant that the State Electricity Board had been dealing with its employees on the same terms as were in force when the undertaking was being run by the U. P. Electric Supply Co. Ltd.

3. As already pointed out, there is not provision either in the Industrial Employment (Standing Orders) Act or in the Electricity Act for the automatic continuance of Standing Orders framed by the erstwhile licensee, after an electrical undertaking is purchased by the State Electricity Board. Therefore, (assuming for the time being that the State Electricity Board is required to have Standing Orders under the Industrial Employment (Standing Orders) Act and not mere Regulations under Section 79(c) of the Electricity Act) when the Board become the employer of the Allahabad Undertaking it ought to have complied with the provisions of Section 8 of the Industrial Employment (Standing Orders) Act, which makes it incumbent upon every employer in an industrial establishment to which the Act applies to submit to the Certifying Officer the draft Standing Orders proposed by him for adoption, within 6 months from the date on which the Act becomes applicable to the establishment concerned. This was not done, with the result that the Certifying officer has not had any opportunity so far to certify any Standing Orders for the State Electricity Board in respect of the Allahabad Undertaking, under Section 5 of the Act. In this view of the matter, the Appellate Authority was justified in coming to the conclusion that the employee's application under Section 10 for modification was misconceived for that section can only be invoked after Standing Orders have first been certified under Section 5.

4. The next point to be considered is the effect of the Regulation framed in the year 1966 by the State Electricity Board under Section 79(c) of the Electricity (Supply) Act, 1948, fixing the age of retirement at 60 for its class IV employees and at 58 for the rest.

Section 79(c) runs as follows:--

'79. Power to make regulations:--The Board may make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:--

(c) the duties of officers and servants of the Board, and their salaries, allowances and Other conditions of service.'

Both parties have argued before me that there is repugnancy between this provision and the provisions of Section 3(2) of the Industrial Employment (Standing Orders) Act, 1946, read with the Schedule to that Act, which run as follows:--

'3 (1). 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.

(2) Provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment.....

The Schedule

Matters to be provided in Standing Orders under this Act.

1. Classification of workmen, e.g. whether permanent, temporary, - apprentices, probationers, or badlis.

2. Manner of intimating to workmen periods and hours of work, holidays, paydays and wage rates.

3. Shift working.

4. Attendance and late coming.

5. Conditions of, procedure in applying for and the authority which may grant leaye and holidays.

6. Requirement to enter premises by certain gates, and liability to search.

7. Closing and reopening of sections of the industrial establishments, temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.

8. Termination of employment, and the notice thereof to be given by the employer and workmen.

9. Suspension or dismissal for misconduct, and acts or omission which constitute misconduct.

10. Means of redress for workman against unfair treatment or wrongful exactions by the employer or his agents or servants.

11. Any other matter which may be prescribed.

Repugnancy being admitted, the question arises as to which of the two repugnant enactments is to prevail, with regard to the conditions of service of the employees or an electrical undertaking that is being run by the 'State Electricity Board. Will the Board have the final say in such matters, acting, under Section 79(c) of the Electricity (Supply) Act, or will the final authority be the 'Certifying Officer, acting under Section 5 of the Industrial Employment (Standing Orders) Act? In Asa Ram v. District Board, Mazaffarnagar, AIR 1959 SC 480 it was found that the power to issue licences and regulate trades had been bestowed both on the Town Area Committee under Section 20 of the U. P. Town Areas Act and on the District Board under Section 174 (i) (k) of the U. P. District Boards Act; and when dealing with this conflict, the Supreme Court observed:

'... .We have still to see which Act will prevail in the circumstances. The U. P. District Boards Act deals with a larger area in which the area constituting the Town Area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from that area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to the body governing the larger, area.'

And in the same case two English rulings --King v. Justices of Middlesex, (1831) 2 B & AD 818 and Daw v. Metropolitan Board of Works, (1862) 12 CBNS 161 were cited with approval, in which the principle has been enunciated that:

'Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the Legislature co-exist, the earlier must necessarily be repealed by the later statute.'

If these principles are applied to the facts of the present case, it becomes apparent that the power conferred on the State Electricity Board by Section 79(c) of the Electricity (Supply) Act 1948 must override the power given to the Certifying Officer by Section 5 of the 'Industrial Employment (Standing Orders) Act 1946. The Electricity Supply Act is the later statute and its provisions regarding the framing of Regulations by the State Electricity Board to provide for the conditions of services of its employees must be deemed to have repealed the provisions of the earlier Act, according to which the Certifying Officer was given the deciding voice in such matters. And Just as a Town Area Committee deals with a smaller area which is included in the larger area administered by a District Board, similarly a. State Electricity Board dealt with a particular type of industrial undertaking which is included in the broad general category of industrial establishments that are subject to the jurisdiction of the Certifying Officer. Consequently the Board's special power to make Regulations for this particular kind of undertaking must supersede the Certifying Officer's general power to certify Standing Orders, so far as this kind of undertaking is concerned.

5. I am satisfied therefore that the Regulation framed by the State Electricity Board in 1966, under Section 79(c) of the Electricity Supply Act, fixing the age of retirement at 60 for its Class IV employees and at 58 for the rest, is perfectly valid and enforceable and cannot be modified or superseded by any order of the Certifying Officer, purporting to act under Section 5 of the Industrial Employment (Standing Orders) Act.

6. Learned counsel for the petitioner vehemently argued that the Appellate Authority was not justified in coming to the conclusion that the differentiation between different classes of employees in the matter of the age of retirement, introduced by the State Electricity Board's Regulation, was fair and reasonable; and in this connection a number of cases were cited in which the Supreme Court has held that the normal retirement age should be 60 for all classes of employees -- vide Telang (G, M.) v. Shaw Wallace and Co. Ltd., 1964-2 Lab LJ 644 = (AIR 1964 SC 1886) and Hindustan Antibiotics Ltd. v. Their Workmen, (1967) 1 Lab LJ 114 = (AIR 1967 SC 948). But it has nowhere been, said that there can never be different retirement ages for different categories of workers; much will depend on the amount of strain, physical or mental, entailed in the work done by each particular kind of workman and no hard and fast rule can be laid down that covers all cases. In the present instance differentiation has been made between skilled workers and unskilled workers; and the principle on which this differentiation is based seems to be that the capacity for doing skilled work, requiring a high degree of mental alertness and physical dexterity, is likely to decline after a certain age, with the result that skilled workers suffer from impaired efficiency earlier than persons performing unskilled work. In any case, the decision given by the Appellate Authority in this connection cannot be said to be perverse or manifestly wrong, and is not liable to be quashed by a writ of certiorari.

7. The final argument put forward on behalf of the petitioner is that the impugned order of the Appellate Authority is entirely without jurisdiction, because Section 6 of the Industrial Employment (Standing Orders) Act, which creates the right of appeal, envisages only confirmation or modification of the Standing Orders certified by the Certifying Officer, not their complete cancellation.

The section runs as follows:

'6 (1) Any person aggrieved by the order of the Certifying Officer under Sub-section (2) of Section 5 may, within twenty-one days from the date on which copies are sent under Sub-section (3) of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the Standing Orders either in the form as 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.'

This section will also govern the appeal in the present case, by virtue of Section 10 of the Act, the relevant portions of which are:

'10 (2) .... an employer or workman may apply to the Certifying Officer to have the Standing Orders modified......

(3) The foregoing provisions of this Actshall apply in respect of an application under Sub-section (2) as they apply to the certification of the first Standing Orders.'

The question is whether it is open to the Appellate Authority, acting under Section 6 read with Section 10(3), to allow an appeal and quash an order of the certifying Officer modifying the Standing Orders, if it finds that order to be without jurisdiction because there were no certified Standing Orders in existence that could be modified. Mr. Shanti Bhushan has suggested that, despite the clumsy drafting of Section 6(1), it is possible to construe the section so as to cover this class of case, if we divide it into two parts: the first portion, which gives 'any person aggrieved by the order of the Certifying Officer' the right of appeal and confers on the Appellate Authority the right to dispose of that appeal by an order which shall be final will of course apply to all appeals; but the second part, which lays down that the Appellate Authority 'shall .... 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', will come into play only in those cases where Standing Orders have been validly certified under Section 5, or modified under Section 10 by the Certifying Officer.

I find it difficult however, to accept this interpretation of the section. The right of appeal is created by the statute and only those powers can be exercised by the Appellate Authority which are sanctioned by the Statute. And the only power conferred on the Appellate Authority by Section 6(1) is to confirm the certified Standing Orders (with or without modification): no power seems to have been given to pass an order completely cancelling the Standing Orders that are appealed against.

8. However, even if the impugned order in the present case is held to be beyond the jurisdiction of the Appellate Authority, this finding will not benefit the petitioner in any way, for it is clear that in the circumstances of this case, the petitioner is not entitled to the issue of any writ. I have already held (a) that the provisions of Section 3(2) of the Industrial Employment (Standing Orders) Act stand abrogated, so far as the employees of the State Electricity Board are concerned, and that the Regulations framed by the Board under Section 79(c) of the Electricity Supply Act will govern the conditions of service of such employees; and (b) that even if Standing Orders are required to be framed under Section 3(2) of the Industrial Employment (Standing Orders) Act, no such Standing Orders have sp far been got certified by the Board, with the result that the petitioner's application for modification under Section 10 of the Act was misconceived. In view of these findings, I am not prepared to issue any writ in the petitioners favour. This writ petition is accordingly dismissed with costs.


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