Hooghly Printing Company Ltd. vs State of West Bengal and Others

Arun Kumar Mitra, J.—Challenge in this writ petition is the judgment of learned Eighth Industrial Tribunal declaring the decision of M/s. Hooghly Printing Company Ltd. (hereinafter referred to as said Company) to roll back the age of the workmen of the Company from 60 to 58 years as illegal and grant of relief to the workmen consequently. The fact remains-

The Hooghly Printing Company Ltd. is engaged in the business of printing and other allied jobs.

Andrew Yule & Company is a Government Company and said Hooghly Printing Company Ltd. is the wholly owned subsidiary of Andrew Yule. According to the said Company i.e. Hooghly Printing Company, there are two trade Unions representing the entire sector of workmen of the Company viz., Hooghly Printing Employees'' Association and Hooghly Printing Company''s Staff Union. According to the Company the conditions of service of the workmen are governed by standing orders certified under the Industrial Employment (Standing Order) Act, 1946. The certified standing order originally provided for retirement of workmen at 45 (55) years with the provision for extension of the retirement age for a period not exceeding 3 years, an application towards that end having been made by a workman. The standing order is still in force.

Government of India, Ministry of Industries issued a directive on May 9, 1998 for enhancing the age of retirement of the Central Andrew Yule Employees''from 58 to 60 with exception and this was implemented. The Union controlled by CITU objected to it.

On January, 1999 the Union raised Charter of Demands demanding retirement age of workmen to be fixed at 60 years. This charter of demand was settled at tripartite level.

On May 9, 2000 Government issued another directive to the Board of Sick or Unviable Public Sector Units for reviewing its earlier policy decision in respect of enhancement of the age of superannuation and sent its recommendation to the Administrative Ministry if rolling back of retirement age is desired for approval.

On July 28, 2000 a tripartite settlement of the charter of demand was executed before the Additional labour Commissioner, Govt. of West Bengal in which two chartered demands were submitted by the Union and the Association. In the said tripartite settlement it was agreed that the issues raised by the charters got not included specifically in the settlement to be treated as dropped or withdrawn. Since the issue of retirement age forming part of the charter of demands was dropped a the tripartite settlement, the employees'' association is not entitled to raise the said issue during the subsistence of the tripartite settlement.

On May 21, 2001 the agenda note containing the reasons for reviewing the issue of enhancement of the retirement age from 58 to 60 in 1998 by the Board was placed in the meeting of the Board of Directors of the Company for decision. The Board of the Company considered the issues and considering overall situation proposed roll back of the retirement age to 58 and sent the proposal for rolling back to its administrative ministry for approval.

On September 27, 2001 Ministry of Industries, Department of Heavy Industries approved the recommendations for rolling back the age of superannuation to 58 years on September 28, 2001. The Union raised objection to the Company''s decision to maintain the retirement age at 58 years.

On October 5, 2001 the Union dispute before the Labour Commissioner. On December 27, 2001 the Company submitted its comments before the conciliation officer. On July 2, 2002 State Government issued order of reference. On September 9, 2003 the Learned 8th Industrial Tribunal Passed an award directing the Company to reinstate in service all those workmen who have already been retired from service prior to 60 years of age and to pay the respective sufferer or usual pay till they attained 60 years. The Tribunal held that the management is not justified in rolling back the retirement age of its workmen from 60 to 58 years. The said award is under challenge here.

The Company filed written statement before the Tribunal. In the said written statement the Company raised the following objection:

(a) Under the contract of employment, as would appear from the standing order, the age of retirement is 55 years and that standing order has got the binding effect on both the parties.

(b) The demand in the Charter of Demands dated October 1, 1999 with regard to the retirement age having been dropped at the conciliation and a tripartite settlement having accordingly signed by the Union--the dispute with regard to the retirement age does not exist.

On behalf of the Respondents affidavit-in opposition was filed denying all the allegations.

The Petitioner submitted reply reitierating their stand taken in the writ petition. Apart from making oral submission the Learned Counsel for the Petitioner and the Respondents submitted their written notes on argument also.

The Learned Counsel for the Petitioner submitted that the learned Tribunal failed to appreciate the basic points of law.

The Learned Counsel then submitted that certified standing orders laid down the workmen''s condition of service including the age of retirement and that is statutory and Tribunal cannot pass award contrary to such standing order or statutory provision.

The Learned Counsel also submitted that in the certified standing order the retirement age was fixed at 55 years with a provision for extension up to 58 years.

The Learned Counsel then submitted that the standing orders have not been modified but the retirement age was enhanced to 60 years -- actually, the retirement age was enhanced tb 60 years by a Central Government memo and for a while the workmen enjoyed that benefit but at that time also certified standing order was not modified and that memo was not in conformity with Industrial Employment (Standing Orders) Act, 1946. The Union did not apply for modification of the certified standing order and if the order of the learned Tribunal is to be carried out then the statutory provision of the said Act of 1946 is to be violated.

The Learned Counsel then submitted that the learned Tribunal failed to answer the challenge of the Company with regard to maintainability of reference.

The Learned Counsel then submitted that sofar as conditions of service in Standing Order Act, 1956 are concerned, the State Act is a special statute vis-a-vis the Industrial Disputes Act, is a general statute and as such in this case the Standing Orders Act should prevail.

The Learned Counsel further submitted that the dispute with regard to the retirement age having been raised in charter of demands and subsequently, dropped in tripartite settlement--no industrial dispute in that regard could be said to exist over the said issue of retirement age. The Union, according to the Learned Counsel, is debarred from raising from raising the issue during the currency of tripartite settlement under the Industrial Disputes Act.

The Learned Counsel then submitted that if the workers had enjoyed an extended age of superannuation for a short span not in terms of the contract of employment but in terms of the circumstances extraneous to the contract and by virtue of that Government memo it cannot be said that the right of the workmen has accured in view of the Government memo and that cannot be discontinued with notice of change u/s 9A of the Industrial Disputes Act.

The Learned Counsel then submitted that the said short enjoyment of the extended period of service cannot give any right enforceable by law in violation of the standing order.

The Learned Counsel submitted that Schedule ''1B'' read with Section 2A of the Industrial Employment (Standing Orders) Central Rules pescribe age of retirement to be 58 years. As such unless agreed upon by amending the standing order through due process, the workmen cannot claim service beyond 58 years.

The Learned Counsel then submitted that the award has practically altered the conditions of service in respect of members of contesting Unions who are governed by the certified standing order and the tripartite settlement last executed.

The Learned Counsel attacked the judgment of the learned Tribunal by submitting that the learned Tribunal did not consider that the office memorandum of the Ministerial Department cannot be a binding one and they are only advisory or recommendatory in nature.

The learned Tribunal, as submitted by the counsel is not even a Court not to speak of being a Court of equity and as such the question of Tribunal granting relief on the basis of equity does not arise.

The Learned Counsel submitted that annual apcounts exhibited on behalf of the Union before the Tribunal fully supports the view taken by the Company in its Board resolution dated May 21, 2001. The Company has emphasised on the statutory Auditor''s Report which form part of the annual accounts.

The Learned Counsel then submitted that it is the auditor''s repot which really gives the true status of the financial health of the Company. All the throughout between the period 1995-96 till 2000-2001 the financial position of the Company was not rosy, as sought to be emphasised by the Union. On the Contrary it was running at a loss and having regard to the continuation of the caYry-forward losses there was a clear possibility that the said Company becoming totally unviable. Therefore, the learned Tribunal must assess the financial strength of the Company.

The Learned Counsel further submitted that the Union was well aware of the above position and in fact the Union dropped from their charter of demands the claim for enhancement of retirement age from 58 years to 60, as would be evident from the tripartite settlement as mentioned above. In fact Andrew Yule''s support was very vital for the Company. The Learned Counsel submitted that even in 1995-96 as amount of Rs. 83,76,280.00/- given by Andrew Yule was converted into equity as the Company could not make repayment of the loan. This is appearing under the heading "Share Capital" of the Accounts of 1996-97.

The learned.counsel submits that the Tribunal has to decide on the basis of exbts. viz., exbt.-H series and on a scrutiny of the audited accounts produced before the Tribunal for the aforesaid period, the financial condition of the Company was such that the Tribunal could not have disallowed roll back of the retiement age from 60 to 58 years. The findings of the Tribunal as regards the financial condition is clearly perverse and suffers from total misconception of law.

The Learned Counsel submitted that the Tribunal failed to consider the Auditor''s comments on the accounts for the said periods.

The Learned Counsel submitted that for the time in the affidavit-in-opposition the Union sought to rely upon the balance sheets which are for subsequent periods and were not exhibited before the Tribunal. The Learned Counsel also submitted that no reliance could be placed on the annual accounts exhibited in the affidavit in-opposition inasmuch as the same was for the year ending 31st March, 2002. According to the Learned Counsel the said document Was never before the Tribunal.

The Learned Counsel then placed reliance on paragraph 21 of the affidavit-in-reply affirmed by Debashis Roychowdhury on 17th March, 2004 where the financial condition has been explained with reference to the annual accounts for the relevant time.

The Learned Counsel then summarized three points oh which the Union could not make any submission. Those are as follows-

(i) The learned tribunal did not answer the question raised by the Company as regards the validity of reference and has therefore failed to answer question relating to its own jurisdiction.

(ii) The Tribunal has by its award impugned in the writ application directed the Company to act contrary to the certified standing orders when certified standing orders of the Company have to be necessarily followed. The Learned Counsel also submitted that any act beyond the standing orders is not permissible but in the instant case the Tribunal has directed the Company to act otherwise.

(iii) The Unions had no doubt whatsoever that the retirement age of the workmen had not been raised to 60 years and as such in the Charter of demands, the Unions demanded for raising the retirement age to 60 years. The Charter of demands was raised on September 1, 1999 whereas the office memorandum was issued by the Ministry on 19th May, 1998 whereby the retirement age was enhanced. Had the office memorandum automatically raised the retirement age to 60 years then there Was no reason at all for the Unions to submit Charter of Demands by claiming the retirement age to be 60 years. The said demand of the Union stood dropped at the time of settlement of the dispute at tripartite level. Thus there could be no industrial dispute raised over the issue during the exisence of tripartite settlement.

The Learned Counsel then sought to distinguish the case laws cited by the Unions.

Insofar as management of Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. Vs. The Workmen and Another, is concerned, the Learned Counsel submitted that in the cited decision the matter is covered by standing orders and the standing orders remains as it is. But in the instant case the Unions have themselves raised a demand and settled the same at the time of agreement at tripartite level and as such no righit exists in favour of the Unions under the standing orders.

Insofar as the decision reported in''Braithwaite Officers Association''21 is concerned the Learned Counsel for the Petitioner submitted that in this citation there was no reference of an industrial dispute to an industrial Tribunal. No question has been raised in the cited case with regard to conflict in the standing orders. In that case it was never the defence of the Company that certified standing orders are staring at the face.

Insofar as the citation reported in Tyre Corporation of India officers'' Association v. Union of India 2003 (2) CLR 731 is concerned it is submitted by the Learned Counsel that Tyre Corporation''s judgment pronounced by the Single Judge has been overruled by the Division Bench. So the case law cited, is no longer a good law.

Insofar as the decisions reported in Shanmuga Rajeswara Shethupati^ Khurjawala Buchles Manufacturing Company(5) are concerned; the Learned Counsel submitted that these cases do not approve filing of one petition over multiple causes of action. It is not a case where the Petitioner is challenging two causes of action or two different causes of action or two orders of two different authorities in a single writ. The framing of issues in an order of reference culminates into an award. Award is a consequence of a reference. The award answers a reference-both on merit as well as on maintainability. The Learned Counsel submitted that the process of conciliation u/s 12, making of reference u/s 10, proceedings before the Tribunal u/s 11 and submitting of award by Tribunal u/s 15 all form part of a single cause of action. If the tribunal passes an award after a jurisdictional issue has been raised before in touching the maintainability of rerefence, then on the award being quashed, the.reference will also go automatically.

Insofar as Madan Lal and Others Vs. State of Jammu and Kashmir and Others, is concerned, the Learned Counsel for the Petitioner Company submitted that in this judgment the petitipner has appeared in the examination without protest and subsequently contended that the process of interview was unfair but in the instant case the Company has not questioned the process followed by the Tribunal but has questioned its decision. The Petitioner has challenged the jurisdiction of the Tribunal before the Tribunal itself because the Tribunal is competent to decide on its own jurisdiction.

Insofar the decision reported in Mecon Limited''7'' the Learned Counsel for the Petitioner submitted that this citation holds that Tribunal should decide jurisdiction issue. The writ petition filed by the Company challenging the reference was deprecated by the High Court and the matter was remanded to Tribunal for answering the jurisdictional issue. But in the instant case Tribunal held that it could not have decided the jurisdiction issue and that is wholly erroneous approach considering the judgment under citation.

Insofar as the judgment reported in Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others, is concerned, the Learned Counsel for the Petitioner Company submitted that the aforementioned decision lays down that on a hyper technical point the Writ Court should not intefere with the award. In the instant case the Company has not challenged the award on any hyper-technical point.

Insofar as the decision reported in Shashuram19'' is concerned, the Learned Counsel submitted that this judgment is based on the scope of judicial review and this is not the question raised here.

Insofar as Uptron''s case is concerned, acording to the Learned Counsel for the Petitioner Company Standing Orders were not challenged - in fact, to protect the Standing Orders, the Hon''ble Apex Court read natural justice into it.

Lastly, insofar as the judgment reported in Dunlop India Limited Vs. Their Workmen, is concerned, the Learned Counsel for the Petitioner Company submitted that the aforementioned judgment does not deal with Standing orders but only with agreement and such agreement could not have overridden Standing Orders.

The Learned Counsel for the Petitioner Company then scanned the evidence-on-record referred to the chief of P. W. 1 dated 07/03/2003, 02/04/2003, 24/06/2003, 08/ 07/2003, 17/07/2003 and the cross-examination dated 07/ 05/2003, 27/05/2003, 10/06/2003, 17/07/2003. The Learned Counsel from these evidences sought to establish that the age of superannuation of the workmen has been made 58 years legally and no violation of statutory provision has been made.

The Learned Counsel for the Petitioner Company summarised his submission in the manner as follows.-

(i) Matter in dispute is the age of retirement of the Unionised employees of the Company.

(ii) The Company has two Unions viz. Hooghly Printing Employees'' Association and the Hooghly Printing Company Staff Union and all the employees of the Company other than officers are members, of either of these Unions.

(iii) The Company has a Standing Order containing the condition of employment effective from 1st February, 1951 as per the award of the Industrial Tribunal dated 1st February, 1951.

(iv) As per the Standing Order as applicable in 1951, the age of retirement was 55 with an enabling provision for extending the same by 3 more years i.e. not exceeding 58 years.

(v) Since early 60s employees are retiring at 58.

The Company is a wholly owned subsidiary of Andrew Yule & Company Ltd., a Govt. of India enterprise and in turn became a Government Company u/s 617 of the Companies Act, 1956.

(vi) By an administrative circular dated 29th May, 1998 the Company in compliance with the direction of the Central Government raised to retirement age from 58 to 60 in 1998.

(vii) In the year 2000 the Central Government relaxed the earlier direction and conferred enabling power to roll back the age of retirement from 60 to 58 years.

(viii) By another cirular dated 27th September, 2001 the Company rolled back the retirement age to 58 years from 60 years.

(ix) Only Employees'' Association singularly raised a dispute -- conciliation proceeding commenced by the Assistant Labour Commissioner and ultimately, referred to the Tribunal by Govt. of West Bengal for adjudication of issues specified in the order of reference.

(x) Staff Union did neither raise similar dispute nor participated in the proceeding before the Tribunal in support of the Association''s case.

(xi) The Company and the Association entered appearance and filed their respective written statements and documents and led evidence.

(xii) The Learned Counsel submitted that the issue relating to retirement is in the domain of Industrial Employment (Standing Orders) Act 1946 and the Rules framed there under.

(viii) The Learned Counsel refers to the preamble of the Standing Order Act read with Section 2(g) , 10, 12, 15p) and 15(1) (a) and the Schedule to the Standing Order Act and also Item No. 11 read with Industrial Employment Standing Order Rules and submitted that roll back from 60 years to 58 years was not in violation of any contract.

(xiv) The Learned Counsel further submits that no irregularity in Company''s action is there so long it operates within the stipulation of the Standing order or for that matter the tripartite Settlement, if there be any item relating to retirement. By rolling back Company has not violated any contract calling for intervention by the learned Tribunal. In this context the Learned Counsel relied on a decision reported in Indian Airlines Case (V)

(xv) The Learned Counsel then submitted that even if it is counceded that the age of retirement could be an issue in periodic settlemet between the Company and the Unions, the Association and/or the Staff Union is debared from raising this issue during the currency of settlement. The Learned Counsel also submitted that their demand having not been accepted by the Company and non acceptance has been agreed to by the Association by signing the tripartite settlement in course of conciliation. He submitted that on this score the reference must faif. The Learned Counsel also submitted that all the employees of the Company named in the Association''s written statement and during adducing by PW 1, retired at the age of 58. Since there was no termination of service and cessation of employment prematurely before 58 i.e. the age of superannuation, the question of service of notice or payment of compensation does not arise. No contract or law has been violated by the Company in rolling back. In this regard the Learned Counsel for the Company/Petitioner referred to a judgment reported in National Engineering Industries Ltd. Vs. State of Rajasthan and Others, The Learned Counsel laid stress on the observations made in paragraph 27 of this judgment which is quoted herein below:

The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference. The question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the Management, the Labour Union and the Staff Union., When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of the Workers'' Union that the tripartite settlement is in any way mala fide. It has been contended by the Workers''Union that the settlement was not arrived at during the conciliation proceedings u/s 12 of the Act and as such was not binding on the members of the Workers'' Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings.

The Learned Counsel for the Company/Petitioner submitted that Section 9A of the Industrial Disputes Act, 1947 does not come into play in the case of the instant roll back, as alleged. The Learned Counsel submitted that it does not come within the scope and* purview of the fourth schedule to the Act (as submitted by the Learned Counsel for the Union).

The Learned Counsel further submitted that roll back was approved by the main concerned Ministry (exbt.- ''C''). While approving, the Ministry advised that implementation of the roll back be made after fulfilling the requisite legal formalities. According to the Learned Counsel. This is a general guidelines given by the Ministry to the Company so that no illegality furstrating implementation of the roll back policy occurred.

The Learned Counsel then submitted that Section 9A of the Industrial Disputes Act does not apply and the current tripartite settlement does not contain any contrary provision regarding the age of retirement and further, fulfillment of any legal formalities does not arise.

The Learned Counsel then submitted that the term ''retrenchment'' has been dealt with in Section 2 (oo) (b) and Section 25F of the Industrial Disputes Act. Section 25F is atracted if the action complained of, comes within the definition of retrenchment as provided in Section 2 (po) (b) .

According to the Learned Counsel for the Petitioner, cessation of employment of the concerned workmen having occurred on their attaining the age of 58 - no retrenchment within the meaning of Industrial Disputes act took place. Hence, question of compensation for retrenchment does not arise. On the same breath the Learned Counsel for the Company/Petitioner submitted that Company''s action has not been in violation of the Industrial Disputes Act or any other Act.

It is submitted by the Learned Counsel for the Petitioner that roll back decision was taken by the Board of Directors of the Company and contrary allegation is not correct and thi.s was not coming through any evidence and only allegation in writing without evidence does not make the position confirmed.

The Learned Counsel further submitted that admittedly, the Company is a Wholly owned subsidiary of Andrew Yule & Company (Govt. of India Enterprises) and as a Government Company is under the Administrative control of the Ministry of Heavy Industries. Andrew Yule is a sick Company and the Hooghly Printing Press has been receiving diverse financial support from Andrew Yule & Company but Andrew Yule becoming a sick Company; the support has become uncertain. Company''s roll back proposal was duly approved by the concerned Ministry which means that the Government is satisfied to the extent that the proposal to roll back was in conformity with the Government''s policy decision.

The Company in its written statement; particularly in paragraph 37 and 13 stated the basic reasons for roll back and the same was reiterated by P. W. 1 in his evidence dated July 17, 2003 when he said ''all facts stated in our written statement are correct" and no cross examination on this point is there.

The Learned Counsel in support of his contentions regarding the financial set back of the Company in his written submission quoted the extract from the balance sheet for the financial year 1995-1996 to 2000-2001.

The Learned Counsel submitted that Andrew Yule''s earlier unsecaured loan to the Company to the tune of Rs. 8,37,628 was converted into equity as the Company was unable to repay the loan.

According to the Learned Counsel for the Petitioner, the Company is not a profit making Company as.alleged by the Learned Counsel for the Union and the annual accounts of the Company (exbt.-ll) series and the entries made therein have not been diputed also by the Association.

The Learned Counsel then quoted a portion from the audited balance sheet starting from 1995-1996 to 2001 and had tried..to establish that all these years the Company has suffered losses.

The- Learned Counsel submitted that the Association has no locus, standi in challenging the roll back; the Association is debarred from raising dispute u/s 10A and Section 12 of the- Industrial Employment (Standing Orders) Act,. 1946 and.Sections 18(3) and 19 of the Industrial Disputes Act.

The Learned Counsel then'' relied on several judgments which are set out hereinbelow:

(i) Western India Match Company Ltd. Vs. Workmen,

(ii) Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others,

(iii) National Engineering Industries Ltd. Vs. State of Rajasthan and Others,

(iv) A. Umarani Vs. Registrar, Cooperative Societies and Others,

(v) Sureshchandra Singh and Others Vs. Fertilizer Corpn. of India Ltd. and Others,

(vi) A. Umarani Vs. Registrar, Cooperative Societies and Others,

The Learned Counsel in support of his contentions rgarding the binding natural of Industrial Employment Standing Orders relied on the decision of Western India Match Company Ltd. Vs. Workmen, . The Learned Counsel laid special emphasis on the observationsrmade in paragraph 6 and 7 of this judgment which.are quoted hereinbelow:

The terms of employment specif led in the Standing Order would prevail over the corresponding terms in the contract of servite in existence on the enforcement of the Standing Order. It was in effect so held in the Agra Electric Supply Co. Ltd. Vs. Sri Alladdin and Others, ( Agra Electric Supply Co. Ltd. Vs. Sri Alladdin and Others, ); Avery India Limited Vs. The Second Industrial Tribunal, West Bengal and Others, and the The United Provinces Electric Supply Co. Ltd., Allahabad Vs. Their Workmen, ). While the Standing Orders are in force, it is not permissible to the employer to seek statutory modifications of them so that there may be one set of Standing Orders for some employees and another set for the rest of the employees. In Salem Erode Electricity Distribution Company Ltd. Vs. Salem Erode Electricity Distribution Co. Ltd. Employees Union, at p. 504 ( Salem Erode Electricity Distribution Company Ltd. Vs. Salem Erode Electricity Distribution Co. Ltd. Employees Union, ) Gajendragadkar C.J. said.

(T)here is RO scope for having two separate Standing Orders in respect to any one of them. Take the case of classification of workmen. It is inconceivable that there can be two separate Standing Orders in respect of this matter. What we have said about classification is equally true about each one of them other said clauses; and so, the conclusion appeais tb be irresistible that the object of the Act is to certify Standing Orders in respect of the matters covered by the Schedule; and having regard to these matters, Standing Orders so certified would be uniform and would apply to all workmen alike who are employed in any industrial establishment.

If a prior agreement, inconsistent with the Standing Orders will not survive, and agreement posterior to and inconsistent with the Stand Order should also not prevail. Again,, as the employer cannot enforce two sets of ''Standing Orders governing the classification of workmen, it is also not open to him to enforce simultaneously the Standing Order regulating the classification of workmen and a special agreement between him and an individual workman setting his categorisation.

In view of the decisions of. this Court cited.earlier, the decisions in J.K. Cotton Manufacturers Ltd., Kanpur Vs. J.N. Tewari and Others, and the Banaras, Electric Light and Power Company Ltd. Behlupara v. Government of Uttar Pradesh (1962) 1 Lab I.C. 14 (All) no longer lay down good law. They take the view that notwithstanding the Standing Orders it is open to the employer to conclude an agreement with an individual workman which may be inconsistent with the Standing Orders. These decisions are overruled.

The Learned Counsel on the same principle or issue of Standing Order relied on the decision of the Rejasthan State Road Transport Corporation and Anrs. v. Krishna Kant(Supra). The Learned Counsel laid stress on the observations made in paagraph 12, 17 and 32 of the judgment which are quoted hereinbelow:

With a view to clear the ground, we may deal with these two issues debated before us at some length. The first one relates to the nature and character of the certified Standing Orders. We may indicate the relevance of this discussion. Sri Jitender Sharma, Learned Counsel for Respondents workmen submits that the certified Standing Orders have statutory force and their violation enables the civil court to decree reinstatement in service and that bar of Section 14 of the Specific Relief Act does not operate in such a case. He relies upon the holding in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, ). The Appellant''s counsel, however, dispute this proposition. Bereft of authority, we find it difficult to agree with Sri Sharma. The certified Standing Orders are not in the nature of delegated/subordinated legislation. It is true that the Act makes it obligatory upon the employer (of an'' industrial establishment to which the Act applies or is made applicable) to submit draft Standing Orders providing for the several matters prescribed in the Schedule to the Act and it also provides the procedure- inter alia, the certifying officer has to examine thejr fairness and reasonableness-for certification thereof. Yet it must be noted that these are conditions of served framed by the employer-the employer may be a private corporation, a firm or an individual and not necessarily a statutory Corporation-which are approved certified by the prescribed statutory authority, after hearing the concerned workmen, The Act does not say that on such certification, the Standing Orders acquire statutory effect or become part of the statute. It can certainly not be suggested that by virtue of certification, they get metamorphosed _ into delegated/subordinate legislation. Though these Standing Orders are undoubtedly binding upon both the employer arid the employees and constitute the conditions of service of the employees, it appears difficult to say, on principle, that they have statutory force. The decisions of this Court, however, read differently though some dissonance is to be found among them. In The Bagalkot Cement Co. Ltd. Vs. R.K. Pathan and Others, ), the question was whether the certifying officer had the power to add a condition prescribing the procedure.for applying for leave and the authority competent.to sanction it. The Court held that the officer did possess such a power. In that connection, Gajendragadkar, J. speaking for the Bench, referred to the object and schme of the enactment and observed (at p, 441 of AIR)

That is why the Legislature took the view that in regard to industrial establishments to which the Act applied, the conditions of employment subject to which industrial labour was employed, should be well defined and should be precisely known to both the parties, with that object, the Act has made relevant provisions for making Standing Orders which, after they are certified, constitute the statutory terms of employment between the industrial-establishments in question and their employees. That is the principal object of the Act.

It is evident from a perusal of the above decisions that while the first decision referred to the certified Standing Orders as constituting "the statutory terms of employment", they were described, as "conditions of service in a statutory form" and as "binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service" in the second decision. The third decision, reiterated the holding in the first decision. So. far as the two last mentioned decisions are concerned, it is obvious, they only purport to set out the purport of the earlier decisions. Vaidialingam. J. stated more emphatically that "certified standing orders have statutory force". It must, however, be said that in the decision rendered by Ramaswamy, J. used the very expression "part of the statutory terms and conditions of service", while K. Ramaswamy, J. stated more emphatically that certified standing orders have statutory force, it must, however, be said that in the decision rendered by Ramaswamy, J. the question as to the nature and character of the certified Standing Orders did not arise for consideration; the said observation was made in another context. The consensus of these decisions is the qertified Standing Orders constitute statutory terms and conditions of service. Though we have some reservations as to the;, basis of the above dieta as pointed out supra, we respectfully accept it both on the ground of stare decisis as well as judicial discipline. Even so, we are unable to say that they constitute "statutory provisions" within the menaing of the dicta in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, ) where it was held: "(T)the employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. "Indeed, if it is held that certified Standing Orders constitute statutory provisions or have statutory force, a writ petition would also lie for their enforcement just as in the case of violation of the Rules made under the proviso to Article 309 of the Constitution. Neither a suit would be necessary nor a reference under Industrial Disputes Act. We do not think the certified Standing Orders can be elevated to that status, it is one thing to say that they are statutorily imposed conditions of service and an altogether different thing to say that they constitute statutory provisions themselvs.

So far as the meaning and ambit of Section 13A of the Standing Orders Act is concerned, a good amount of debte took place before us. Certain decisions of the High Courts have also been brought to our notice. The section provides that "if any question arises as to the the application or interpretation of a Sanding Order certified under this Act "any employer or workman or their Union may refer the'' question to "the Labour Court constituted under the Industrial Disputes Act, 1947 and specified for the disposal of such proceedings by the appropriate Government by notification in the official gazette". The determination of the Labour Court is made final and binding on the parties. The contention of Sri Altaf Ahmed, learned Additional Solicitor General is that any and very violation of Standing Orders entitles the workman to approach the Labour court directly under this provision and obtain relief. He submits that the Labour Court is empowered under this provision to adjudicate disputes between workmen and employer arising from the certified Standing Orders and grant such relief as is appropriate in the circumstances of the case.. We are afraid;. we cannot give effect to this submission. Acceptance of the said submission would mean that Section 13A creates a parallel forum for adjudication of the, very questions which the Labour court or the Industrial Tribunal has been empowered to adjudicate under the Industrial Disputes Act and that too without the requirement of a reference by the Government. While we agree that''language of Section 13A is not very clear, it cannot certainly be understood as creating a forum for adjudication df industrial disputes involving the application'' and/or interpretation of the Standing Orders. That is, the function of the Courts and Tribunals constituted.under the Industrial Disputes Act. The limited purpose of Section 13A is to provide a forum for determination of any question arising "as to the application or interpretation" of the certified Standing Orders, as such in case either the employer or the employee(s) entertain a doubt as to their meaning or their applicability. Probably it was thought that adecision of the appointed forum oh the said question would itself facilitate the resolution of an industrial dispute, whether existing or apprehended. So far as the Labour Court, Industrial Tribunal or other adjudicatory bodies under the Industrial Disputes Act are concerned, it isagreed on hands-and we endorse it-that where a dispute is referred to any of them they are undoubtedly competent to go into and decide questions as to the application or interpretation of the certified Standing Orders insofar as they are necessary for a proper adjudication of the question or dispute referred.

We may now summarise the principles flowing from the above discussion:

(1) Where the disputes arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute on "industrial dispute" within the meaning of Section 2 or Section 2A of the Industrial Disputes Act, 1947

(2) Where, however, the djspute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.

(3) Similatly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-which can be called ''sister enactments'' to industrial Disputes Act-and which do not a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute Industrial Disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an Industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the. appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power contend is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the labour Court/ Industrial Tribunal directly-i.e without the requirement of a reference by the Government-in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the fourms created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.

(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.

The Learned Counsel then on the scope and/or on the jurisdiction of the High Court in industrial disputes matter or a reference u/s 10relied on the decision of the National Engineering Industries Ltd. Vs. State of Rajasthan and Others,

The Learned Counsel for the Petitioner/Company then relied on the decision of Mecon Limited v. State of West Bengal and Ors.(Supra) to forfity his submission to the extent that the Court can canvass the roder of reference to see if there was any material before the Government to support its conclusion as if it was a judicial or quasi judicial determination.

The Learned Counsel then relied on Sureshchandra Singh and Ors. v. Fertilizer Corporation of India Ltd and Ors.(Supra) and submitted that the retirement age and policy set out therein in the order dated 13/05/1998 of the Govt. of India itself, does not raise the retirement age to 60 years- it is only an administrative direction.

The Learned Counsel for the Company submitted or rather reiterated the submission once again that the Court cannot direct violation of the statutoy provisions. If anything is thee in the statute and if anything is to be done; that must be done following the statute. The Learned Counsel in this regard relied on a decision of A. Umarani v. Registrar, Cooperative Societies and Ors.(Supra)

The Learned Counsel submitted that Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. Vs. The Workmen and Another, and the ratio applied therein is also applicable in this case. The Learned Counsel submitted that the decision given by the learned Single Judge in Tyre Corporation case has been reversed by the Division Bench and as such Single Bench judgment has no application.

Then the Learned Counsel quoted different portions from the Annual Accounts and sought to establish that the Company is sick as Andrew Yule..''-ST

The Learned Counsel then referred to Auditor''s report and the comments therein and submitted that in the facts and circumstances, the roll back is legal and from the point of financial viability also it stands and the Union cannot challenge it nor has any locus tandi to challenge this roll back decision.

On the other hand the Learned Counsel for the Union Mr. Gooptu raised a preliminary objection at the outset and submitted that the writ petition is not maintainable in view of the fact that multifarious causes of action have been joined in a single writ petition. The reference u/s 10 has been challenged and the award has been also challenged. The two are different causes of action and these two causes of action cannot be joined in a single writ petittion.

It is to be stated that the Learned Counsel on behalf of the Union has also submitted written argument in addition to his oral submission: The Learned Counsel submitted that the reference has been sought to be set aside and at the same time the award has also been challenged-two are quite different in nature inasmuch as consideration of passing the order of reference u/s 10 by the State Government is largely administrative in nature and what requires to be apprised is that there is only a dispute in existence between the parties. The Learned Counsel then relied on a decision reported in State of Madras v. C. P. Sarathim) in this regard. This is a judgment delivered by Five Hon''ble Judges'' Bench. According to the Learned Counsel it has been stated there that ''in making a reference u/s 10(1) th% Government is doing an administrative act and the fact that it has to form an opinion as to the factual opinion of an industrial dispute as a preliaminary step to the discharge of its functual opinion of an industrial dispute as a preliminary step to the discharge oH.ts tunction does not make it any less administrative in character. "On the other hand passing of the award by the tribunal is a purely judicial act with a full scale trial taking place in various facts as well as on points of law which results in the passing of the award under totally different provisions of the said Act.

The Learned Counsel submitted that the appropriate authority viz. the State Government passed an order drawing up a reference and the Industrial Tribunal has passed the award-two are different parties, that apart the Learned Counsel submitted that if this is allowed by the Courts especially is proceeding under Article 226 of the Constitution of India the same will result in a huge loss of revenue by way of Court Fees to the State and there is no reason as to why this should be permitted especially in view of the fact that same will be setting a very had precedent in law.

The Learned Counsel submitted that there can be no merit in the fallacious argument that the order of reference u/s 10 of the said act culminates or merges with the award passed by the Tribunal inasmuch as there are separate, clear and distinct considerations of the State Government i.e. the "appropriate authority" in this case in passing the order u/s 10 of the Act as explained hereinabove.

The Learned Counsel submitted that the appropriate procedure of challenging the order of reference would be by way of a spparate writ petition under Article 226 of the Constitution of India. The Learned Counsel submitted that the Petitioner has accepted the order of reference by the simple action of participating in the entire proceeding without invoking Article 226 of the Constitution of India but at the same time sought to object to the order of reference u/s 10 of the Act before the Tribunal-is a lip service. This is nothing but taking a calculated chance by accepting the said order of reference by the simple action of participating in the entire proceeding or without formal protest and therefore, having failed to come out victorious in the proceedings before the said Industrial Tribunal, the Petitioner decides to attack the said order of reference. -The Petitioner should have challenged the order of reference immediately after it was passed. In this context the Learned Counsel relied on a decision reported in (Sri Shanmuga Rajeswara Sethupati, Rajah of Ramhad v. State of madras represented by the Revenue Secretary to the State of Madras.(Supra) The Learned Counsel laid emphasis on certain observations made in paragraph 3 which is quoted herein below:

In petitions for writs of certiorart where the order sought to be quashed are distinct and different, separate petitions are being insisted upon in conformity with the ruling of the Courts given from time to time, and it is submitted that the same principles are applicable to all writ petitions where reliefs of a composite charter are sought as in the present case, based on distinct and separate causes of action, irrespective of the nature of the writ or the wording of the prayer.

On the same principle the learned cunsel relied on a decision of the Allahabad High Court reported in (Khurjawala Buckles Manufacturing Company Tantanpara v. Commissioner. Sales Tax. U.P. Lucknow & Anrs.(Supra) The Learned Counsel relied on the observation made in paragraph 8 of this decision which is quoted hereinbelow:

(8) Not only is Rule 3 of Order II CPC not applicable in a proceeding under Article 226 but its analogy or principle also should not be applied in it. A fixed court fee of- Rs. 50/- is payable on a petition regardless of the member of the orders to be quashed and regardless of the number of the Petitioner and the opposite parties. If in this case separate petitions were insisted upon, the State would have recovered in the form of court-fee Rs. 200/- whereas the Petitioner has paid only Rs. 50/- . Allowing one petition to be filed for impugning several distinct orders (e.g. orders passed against different assesses or in respect of different assessment years or under different taxing statutes) would result in a loss of revenue to the State and there is no reason why we should permit this. We may go even further and say that we have not been given the power to permit.loss to the State revenue and if this is correct, it follows that we have not the power to permit one petition for impugning several distinct orders. The number of suits in which benefit can be taken of the provisions of Order II Rule 3 is very small but the number of petitions under Article 226 in which its benefit can be taken will be very large.

In a petition under Article 226 the opposite Party Generally is the State Government and if a Petitioner or Petitioner were allowed the benefit of Order II Rule 3 all kinds of different orders under different Acts having no connection whatever with one another would be liable to be joined in one petition causing confusion and embarrassment and this cannot be permtted. Then the principle that one proceeding may be instituted combining a number of cases in which common questions of law or fact arise is not a universal application. Nobody yet has thought of filing one appeal against several appellate orders, on the ground that common questions of fact or law arise. If there are two proceedings and therefore, two orders Courts have always insisted upon two appeals and two revision application ragardless of whether they are by the same Appellant or Applicant or against the same Respondent or opposite party or not. There is no reason why one writ petition should be entertained simply on the ground that common question of law or fact arise or that they are by or against the same person.

We are not prepared to lay down that the practice of uniting in one petition several causes of action against the same opposite party is reasonable merely because it is permitted by Order II Rule 3 and therefore must be permitted as a rule of justice, equity and good conscience in a proceeding under Article 226. One safeguard against the abuse of the practice namely that contained in S. 17 of the Court-Fees Act is not available in a petition under Article 226 and that itself is a sufficient reason for not allowing it.

The Learned Counsel then relied on Madan Lai''s case. (1955) 3 SCC 486 The Learned Counsel laid stress on. certain observations made in paragraph 9 and 10 which are quoted hereinbelow:

It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the selection committee Was not properly constituted.

Therefore, the result of the interview test on merit cannot be successfully challenged by a candidate who takes a chance to get selected at the interview and finds himself to be unsuccessful.

In connection with the validity of order of reference the Learned Counsel relied on a decision of the Hon''ble Apex Court reported in Calcutta Port Shramik Union v. The Calcutta River Transport Association and Ors.(Supra) The Learned Counsel relied on the observations made in paragraph 10 and 12 of this judgment which is quoted hereinbelow:

The object of enacting the Industrial Disputes Act 1947 and of making provision therein to refer disputes to Tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a Government to an industrial Tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the awards made by industrial Tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the Tribunals by striking down awards on hyper-technical grounds. Unfortunately the orders of the single Judge and of the Division Bench have resulted in such furstration and have made the award furitless on an untenable basis."

The reference was rnade on 22-08*1970. The validity of reference itself was questioned by some of the management in a writ petition field in the High Court, That writ petition was dismissed on 24-1-1972. Against the dismissal of the writ petition a writ appeal was filed before the Division Bench of the High Court whichwas unconditionally withdrawn on 11-7-1974. During the interval there were at least two strikes and some attempts at settlement between the parties, The settlements did not conclusively put an end to the dispute. In the aforementioned settlements which were only of interim character it was made certain that the demands of the workmen concerned for the enhancement of wages and allowances to be paid to the bargemen, both on the basis pf the recommendation of the Wage Board as well as on the basis of their alleged legitimate claim for enhancement in spite of the V^/age Board Award were to be decided by the National Tribunal during the period of four years between the date of the reference and the date on which the writ appeal was withdrawn fromt the High Court there were changes in the Presiding Officers of the National Tribunal.

Shri B. N. Banerjee was the Presiding Officer of the National Tribunal at the time when the reference was made. On his retirement on 24-6-1971 Shri S. N. Bagchi was appointed as Presiding Officer. Onthe retirement of Shri S. N. Bagchi on 31-1-1974 Justice E. K. Moidu was oppointed as the Presiding Officer on 18-7-1974. The reference was finally heard and decided by Jutice E. K. Moidu.

The Learned Counsel then relied oh Sadhu Ram''s case 1983 (2) SLG 734. The Learned Counsel relied specifically on some relevant portions of paragraph 3 and 5 of this judgment which is quoted hereinbelow.-

We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislation to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of facts decided by those Tribunals. That the questions decided pertained to jurisdiction of facts does not entitle the High Court to interfere with the finding on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal snatched at jurisdiction, the High Court may be justified in interfering but where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour court and hold that the workmen have raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the conciliation officer had so reported to the Govt. The Govt. was justified in think that there was a industrial dispute and referring it to the Labour Court.

Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under Article 226 on a mere technicality. Article 226 is a device to secure on advance justice and not othwewise.

The Learned Counsel then relied on a judgment of the Hon''ble Apex Court reported in The State of Madras Vs. C.P. Sarathy and Another, The Learned Counsel in his argument quoted some relevant portions from paragraph 14 and 15 which are also quoted hereinbelow:

But it must be remembered that in making a reference u/s 10 (1) the Govt. is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to discharge of its function does not make it any less administrative in character. The Court cannot, therefore, canvass'' the order of reference closely to see if there was any material before the Govt. to support its conclusion, as it was a judicial or quasi-jusicial determination. No doubt, it will be open to a party seeking to impugn the resulting order to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was a industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Govt. to dicide upon, and it will not be competelit-for the court to hold the reference bad and quash the proceeding for want of jurisdiction merely becasuse there was, in its opinion, no material before the Govt. on which it could have come to an affirmative conclusion on those matters.

Then the Learned Counsel started making submision on the roll back issue i.e. rolling back of the retirement age of its workmen from 60 to 58 years and what reliefs the workmen are entitled to. The Learned Counsel submitted that a clear state of affairs was continuing namely workers being retired at the are of 60 years by the Petitioner Company before any dispute. However, the dispute arose when the illegal roll back was sought to be effected and the workers were retired at 58 years. Therefore, whether part of any settlement or governed by any provision of standing order in immaterial as a serious question/dispute of the age of retirement arose which is the only criteria for referring a matter for adjudication to the Tribunal u/s of the Act.

The Learned Counsel then submitted that chronology of events can be synchronised jn the matter as follows:

a) On 19th May, 1998 the workers in the said Petitioner Company for all intents and purposes were retiring till 1998 at the age of 58 years. However, by issuance of the Office Memorandum by the Govt. of India, Ministry of Industry, Deptt. of Public Enterprises dated 19705/1998 the retirement age of all the workers was raised from 58 years to 60 years.

b) On 9th May, 2000 by way of an Office memorandum issued by the Govt. of India, Ministry of Heavy Industries and Public Enterprises, Dept. of Public Enterprises directed or proposed rolling back the age of retirement of workmen in some sick/unviable public sector undertakings for which rehabilitation/revival packages were under consideration. The workmen were under impression that this memorandum wil be applicable only in case of sick/unviable public sector units but the Company made applicable the said Office Memorandum in the instant case and no revival/rehabilitation package was under consideration.

c) On 28th July, 2000 Memorandum of Settlement was arrived at by and between the Petitioner Company and the workers of the Petitioner Company represented by Hooghly Printing Employees'' Association and the Hooghly Printing Staff Union on 28th July, 2000. The said settlement was duly endorsed and approved by the Additional Labour Commissioner and Conciliation Officer, Govt. of West Bengal. According to the Learned Counsel, it is most important to note that when the said settlement was arrived at, there was no question of making the retirement age 60 years for the workers of the Petitioner Company because by virtue of the Office Memorandum dated 19th may, 1998 the age of retirement had ajready been made 60 years. According to the Learned Counsel, it is most important to note that when the said settlement was arrived at there was no question of making the retirement age 60 years for the workers of the Petitioner Company because by virtue of the said Office Memorandum by the Government of India, Ministry of Industry, Dept. of Public Enterprises dated 19th may, 1998 the age of retirement had already become 60 years. Hence, there was no cause for incorporating the age of retirement into the terms of settlement being a nonexistent issue or alternatively an isue already settled and given effect to by the Petitioner Company on the basis of the said Office Memorandum dated 19th May, 1998. The fact of such non existence of any disputes regarding the retirement age at that stage has been admitted by the Petitioner Company in its letter dated 27th December, 2001 addressed to the Asst. labour Commissioner, Govt. of West Bengal wherein it has been stated "The tripartite wage settlement dated 28th July, 2000 was signed in line with the discussion held with the Union and enhancement of retirement age from 58 years to 60 years or rolling back the retirement age from 60 years to 58 years were neither part of the settlement not was discussed during the negotiation. Therefore, the said issue was not incorporated in the tripartite agreement.

The above are the chronology of events.

The Learned Counsel further submitted that the workmen had no apprehension that the age of retirement would be once again made 58 years later on simply because the Ofice Memorandum dated 9th May, 2000 would be perversely and illegally applied and implemented in case of the Petitioner Company inasmuch as the said Office Memorandum dated 9th may, 2000 would be only applicable in case of sick and unviable PS Us for which rehabilitation package were under consideration. According to the Learned Counsel, the Petitioner Company is not such a sick industry and no revival package is under consideration.

The Learned Counsel further submitted that a board resolution is passed by the Petitioner Company rolling back the age of retirement from 60 years to 58 years for all the workmen employed in the Petitioner Company without considering the financial health of the Petitioner Company and with total non-application of mind. Then on 27th September, 2001 a notice was published and issued by the Petitioner Company informing all the workmen that the age of retirement has been fixed at 58 yeas instead of 60 years in pursuance of a decision taken by the Petitioner Company. No reference whatsoever was made to the Office Memorandum dated 9th May, 2000 and whether the same applied to the facts and circumstances of the Petitioner Company specially in view of the fact that the Petitioner Company is a hugely profit earning concern.

The Learned Counsel then submitted that in view of the existence of a industrial dispute between the petititioner Company and the espondents, the issue of rolling back the retirement age of workmen from 60 to 58-years was referred for adjudication to the 8th Industrial Tribunal u/s 10 of the Industrial Disputes Act, 1947.

The Learned Counsel then submitted that according to the clause pertaining to termination of employment on the basis of purported standing order, the age of retirement has been declared to be 55 years. However, the said clause of the purported standing order of the Petitioner Company was amended and are changed by subsequent settlemen dated 7th June, 1967 arrived at between the Respondent No. 3 and the Petitioner Company whereby the retirement age of the workers was clearly declared to be 58 years. The said variation, of retirement age to 58 years was done pursuant to Section 10(1) of the Industrial Employment (Standing Orders) Act, 1946 and the settlement dated 7th June, 1967. The Learned Counsel in his written submission quoted the relevant Clause (i) of the said terms of settlement which is quoted hereinbelow for the sake of convenience of discusion.

The existing clause in the Company''s standing order relating to retirement on account of old age is substituted by a clause reading as follows:

With effect from 1st June, 1967, all workmen shall retire ordinarily on completion of the 58th year of their age. Any extension of the retiring age will be entirely at the discretion of the Company. A workman who is physically unfit shall be made to retire. Any workman completing 28 years of service shall have the option to retire even if he has not completed 58 years of his age.

The above clause comes into effect on and from 1st June, 1967.

The Learned Counsel further submitted that the cross-examination of Sri Debashis Ray Choudhury before the 8th Industrial Tribunal shows that the age of retirement was 60 years and hot 58 years. It has been recorded in the award passed by the 8th Industrial Tribunal that "according to the cross-examination of Sri Debashis Ray Choudhury (O. P. S. 1), the age of retirement was enhanced to 58 years some time in the year 1960."

The Learned Counsel submitted that the age of retirement was duly enhanced as a policy matter by the Office memorandum dated 19th May, 1998 issued by the Govt. of India, Ministry of Industry, Dept. of Public Enterprises and the Learned Counsel in his written submission quoted a portion which according to him is relevant. This relevant portion runs in the manner as follows:

a) Except as otherwise provided specifically every employee at below Board level in the Central Public Enterprises whose age of retirement is currently 58 years shall now retire from the services of the Enterprise from the afternoon of the last date of teh month in which he/ she attains the age of 60 years. However below Board level employees of Public Sector Enterprises whose date of birth is the 1st of the month shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 60 years."

The Learned Counsel submitted that it is of utmost important to appreciate the fact that the writ petition or even for that matter the challenge of the workers before the 8th Industrial Tribunal, concerns only the roll back or the reduction of retirement age from 60 to 58 years and not the enhance from 58 years to 60 years. Therefore, jt is beyond the scope and ambit of the Writ Petitioner to at all go into the question of legality or validity of the enhancement from 58 years to 60 years of the workmen in the Petitioner Company.

The Learned Counselsubmitted that the notice of retirement issued by the Petitioner Company dated 27th September, 2001 is illegal.

The learned connsel further submitted that when a particular dispute has been referred u/s 10 then if the same question touched upon ruy clause of the standing order in that event the provisions of the standing order do not stand alone as sacrosanct but considered under the proceedings conducted pursuant to Section 10 of the Act on the question of legality, propriety and the existence of the terms of service that have become disputed. In this context the Learned Counsel for the Union referred to a decision reported in Management of Bangalore Woolen, Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. Vs. The Workmen and Another, The Learned Counsel in his written submission quoted some relevant portin of certain observations made by the Hon''ble Apex Court in this decision which is quoted herein below:

But there is no warrant, in our opinion, for holding that merely because the Standing Orders Act is a self-contained statute, with regard to the matters mentioned therein, the jurisdiction of the Industrial Tribunal under the Act, to adjudicate upon the matters, covered by the standing orders, has been, in any manner, abridged or taken away. It will always be open in a proper case, for the Union or workmen to raise an "industrial dispute", as that expression is defined in Section 2(k) of the Act, and, if such a dispute is referred by the Government, conerned, for adjudication, the Industrial Tribunal or labour Court, as the case may be, will have jurisdiction, to adjudicate, upon the same. But, it must also be borne in mind that an "industrial dispute" has to be raised by the Union, before it can be referred and, it is not unlikely that a Union must be persuaded to raise the dispute, though the grievance of a particular workman, or a member of the Union, be otherwise well-founded. Even if the Union takes up the dispute, the State Government may, or may not, refer it to the Industrial Tribunal. The discretion of the State Government, u/s 10 of the Act, is very wide, it may be that the workmen, affected by the standing orders, may not always, and in every case success in obtaining a reference of the Industrial Tribunal, on a relevant point. These are some of the circumstances for giving a right and a remedy, to the workman, and under the Standing Order Act itself, but there is no indication, in the scheme of the Standing Orders Act, that the jurisdiction of the Industrial Tribunal, to entertain on "industrial dispute", bearing upon the standing orders of an industrial establishment, and to adjudicate upon the same, has in any manner been abridged, or taken away, by the Standing Orders Act, Therefore, on this aspect, we are in agreement With the conclusions, arrived at, by the Industrial Tribunal, and the High Court.

The Learned Counsel in this regard also relied on a decision of the Hon''ble Apex Court reported in Dunlop India Ltd. v. Their Workmen Supra The Learned Counsel here, also quoted a relevant portion from the said judgment of the Apex Cdurt. The said quotation from his written submission is also quoted hereinbelow for the sake of discussional convenience.

When the roder of the management directing the workman to retire on his attaining the age of 58 years was being challenged as illegal, the Tribunal had necessarily to consider what is the proper retirement age for the concerned workman, it is only when a finding is given that the concerned workman is entitled to continue beyond 58 years that the Tribunal can hold the order of the Company directing his retirement at 58 years as illegal. So the Tribunal was justified in going to that aspect.

The Learned Counsel submitted that the question of clauses in the Standing Order being proper or not was canvassed and in spite of that the Court upheld the contention that the Tribunal can go into the question of propriety of retirement age.

The Learned Counsel then harped upon the memorandum issued by the Ministry of Heavy Industries and Public Enterprises, Dept. of Public Enterprises on 9th May, 2000 standing, that this is a policy decision of the Govt. of India insofar as the increase of the retirement age-

The Learned Counsel in his written submissions stated inter a//a that in the proceedings before the 8th Industrial Tribunal the workmen of the Petitioner Company challenged not the policy decision as enumerated in the Office Memorandum dated 9th May, 2000 issued by the Govt. of India, Ministry of Heavy Industries and Public Enterprise, Dept. of Public Enterprises but the implementation and the application of the same in the facts and circumstances of the case especially when the Petitioner Company being a separate entity from that of Andrew Yule & Company Ltd. as the following distinguishing features:

(i) a separate registration with the Registrar of Companies;

(ii) separate Board of Directors and;

(iii) filing separate annual reports and returns and earning steady and huge profits in a sustained manner unlike the said Andrew Yule & Company Ltd.

The Learned Counsel submitted that in all the previous cases whereever the said Office Memorandum dated 9th May, 2000 has been implemented including the cases of Tyre Corporation of India and Braithwaite & Company was done when the companies were either sick or unviable and for which rehabilitation or revival packages were under consideration.

It is also submitted by the Learned Counsel for the Union that the Petitioner Company being a very viable and profit making concern can be borne out from various Annual Reports and Directors'' R Eports of various financial years filed before the 8th Industrial Tribunal. The said reports would conclusively substantiate the fact that the Company is doing extremely well and in fact has been recording unprecedented record profits in recent years. Inthe Directors'' Reports at Point No. xix it is clearly stated "The Company is not a sick industrial Company within the meaning of clause O of Section 3(1) of Sick Industrial Companies (Special Provisions) Act, 1985 as amended in 1992."The Learned Counsel further submitted that the said fact has also been raised before the 8th Industrial Tribunal during and the said Tribunal has come to the positive finding that the Petitioner Company is not a sick unit.

The elarned counsel submitted that the Petitioner Company never placed or produced any Board resolution whatsoever before the 8th Industrial Tribunal.

It has been further submitted that when passing the Board resolution on 21st May, 2001, the Petitioner Company never considered that the Office Memorandum dated 9th May, 2000 is applicable only in case of some sick/unviable PS Us for which rehabilitation/revival packages were under consideration.

In the same breath the Learned Counsel submitted that there was also no ajdudication by any Tribunal pursuant to any reference by the Government and in fact the roll back was challenged directly by way of a writ petition. According to the Learned Counsel, in the trial Court before the single Judge the Board resolution rolling back the retirement age were ordered not to be given effect to and the notice envisaging the same was quashed simply on the ground that the policy decision of the Government as enumerated in the Office Memorandum dated 9th May, 2000 is applicable only in the case of sick units or PS Us. According to the Learned Counsel, the trial Court had held while disposing the application under Article 226 of the Constitution that the Company therein was not sick. In the said case there Was no adjudication in the first instance before any Industrial Tribunal as a court of fact like in the instant case.

The Learned Counsel then submitted that Tyre Corporation of India in the appeal Court was successful in setting aside the trial Court order passed by the learned Single Judge on the same premise that the policy decision as enumerated in Office memorandum dated 9th may, 2000 is applicable only in case of sick units/PS Us as the appeal Court held that the Tyre Corporation of India is a sick Company.

The Learned Counsel submitted that Respondent herein relies heavily on this proposition or ratio decidendi of the unreported decision of the appeal Court to substantiate that the policy decision as enurrierated in the Office Memorandum dated 9th May, 2000 is applicable only if there is a finding of fact tha the Company proposing to roll back the retirement are is a stok and unviable Company whose rehabilitation and revival package is under consideration. The Learned Counsel in this context relied on the judgment reported in Braithwaite Officers'' Association v. Union of India and Ors. 2003 (2) CLR 731) The Learned Counsel in his written submission quoted a portion relying it as relevant of the judgment which is quoted hereinbelow:

In the present case, it does not appear that the Board had taken into account the relevant factors mentioned in the Directors'' Report or the Agenda Note. It has not produced any material to support the decision. The justifiability of the decision can be questioned, since it does into appear that there was any application of mind to the the extent as to what prompted roiling back of the age of superannuation.

The impugned decision to reduce the retirement age is hereby quashed and the notices to retire impugned, in the writ petition are also hereby quashed.

The Learned Counsel submitted that Tribunal is a Court of fact and after going through the entire evidence including the evidence regarding the financial health and well-being of the said Company, the Tribunal has rightly held that the Company is not a sick unit or public sector undertaking and as such the application of the policy decision viz., the roll back of the retirement age from 60 to 58 years is not applicable in the facts and circumstances of the instant case. The Learned Counsel in this regard relied on the decisions reported in Indian Aluminium Company Ltd. v. Third Industrial Tribunal and Ors.(Supra) and Sadhu Ram v. Delhi Transport Corporation 1983 (2) SLG 734. The Learned Counsel in his written submission quoted some portions from Sadhu Ram''s case which are quoted hereinbelow:

The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court oyer Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decide by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management: There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court.

Nor do we think it was right for the High Court to interfere with the award of a Labour Court under Article 226 on a mere technicality. Article 226 is a device to secure and advance justice and not otherwise. In the result, we allow the appeal, set aside the judgment of the High Court and restore the award of the Presiding Officer, Labour Court.

Lastly, the Learned Counsel submitted that the back wages of the workers of the, Petitioner Company, who have been illegally retired should be paid and allowed to continue with their services.

The Learned Counsel also submitted that the writ petition is not maintainable and as such the award of the Tribunal should be upheld and the writ petition should be dismissed.

DECISION

Heard the Learned Counsel for the Petitioner as well as the Union. Considered their respective written submission also. The points for decision before me are-

i) Whether the writ petition is maintainable or not on the ground as alleged by the Union.

ii) Whether the Tribunal can give direction to violate and/or supersede the provisions of the standing orders.

iii) What are the effects and/or scope of two Government circulars and/or Company circulars - one increasing the age of retirement to 60 years and the other rolling back the age from 60 years to 58 years.

iv) Whether the workmen and/or Union dropping one particular demand from their Character of Demands and signing the settlement on that score can again raise the same demand or not.

v) Whether the appropriate Government has rightly drawn reference u/s 10A of the Industrial Disputes Act on the issue of roll back of the age of retirement of workmen of the Company.

vi) Whether roll back of the age of retirement, as has been done in the instant case has been done in accordance with law or not.

The workmen and/or Union has raised an issue that reference u/s 10A and award passed by the Industrial tribunal are two different issues and two different causes of action which cannot be joined in a single writ petition. In answering the instant question let me see what cause of action is.

In legal parlance. the expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person. (Black''s Law Dictionary)

in Stroud''s Judicial Dictionary a "cause of action'' is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the Plaintiff must prove in order to obtain judgment.

In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf.

From the above definition it does not appear that he two are separate causes of action. If reference can be said to be a cause then the award can be said to be its effect or rather resultant effect. Without reference award cannot be there or when reference is drawn, award must be there and in that view of the matter if one can challenge the award then he can very well challenge the reference in the same writ petition taking one as cause and other as its resultant effect.

On the score and in view of the above position, in my opinion, the writ petition is very much maintainable.

When discussing the second point let me see the object of Industrial Employment (Standing Orders) Act, 1946. Following is the State of Objects and Reasons:

Statement of Objects and Reasons

Expedience has show, that ''standing orders'' defining the conditions of recruitment, discharge, disciplinary action, holidays, leave, etc., go a long way towards minimising friction between the management and workers in industrial undertakings. Discussion on the subject at the tripartite Indian Labour Conference revealed a consensus of opinion in favour legislation. The Bill accordingly seeks to provide for the framing of ''standing orders'' in all industrial establishments employing one hundred or more workers.

In the first instance the Act will apply to the categories of industrial establishments specified in Clause (2)(e), which include, besides factories and railways, mines, quarries and oil fields, tramway or motor, omnibus services, docks, wharves and jetties, inland steam vessels, plantations and workshops, Government will be competent to extend the Act to other classes of industrial establishments or to grant exemptions where necessary, by notification.

Within 6 months from the date on which the Act becomes applicable to an industrial establishment the employer is required to frame draft ''standing orders''and submit them to the Certifying Officer for certification. The draft should cover all the matters specified in the Schedule to the Act and any other matter that Government may prescribe by rules. The Certifying Officer will be empowered to modify or add to the draft standing orders so as to render them certifiable under the Act. It will not be his function (nor of the Appellate Authority) to adjudicate upon their fairness or reasonableness. There will be a right of appeal against the decisions of the Certifying Officers.

From this it can be assessed that the Act is a special legislation created with particular purpose or intention. Under this act the industrial establishments prepare standing orders which are certified by the Certifying Officers as prescribed in the statute. Both the Company and its workmen are to follow these standing orders. There is also scope fo modification of the standing orders. As provided in Section 10 Sub-section (2) of the Act an employer or workmen (or a trade Union or other representative body of the workmen) can ask for modification of the standing orders and if no modification is asked for then the standing orders with all its binding force remain as it is. Tribunal is a quasi judicial body and when passing the roder it performs quasi judicial function and being a quasi judicial body the Tribunal cannot give direction to violate in its statutory provisions especially provisions of such an Act which is a special legislation created for a special purpose.

If the first order of the Central Government increasing the retirement age of workmen of the public sector undertakings to 60 years becomes a policy decision then approval of the order rolling back the retirement age to 58 years in also a policy decision and If one is administrative instruction the other is also administrative instruction. Now, nobody challenged when the first order increasing the age from 58 years to 60 years was passed by the Central Government. When the retirement age was rolled back to 58 years then only the Union or the workmen raised objection. Initially, in the standing orders the age of retirement was 55 years extendable up to 58 years and that is valid. The earlier Government administrative order cannot supersede the standng orders'' provisions and if that was a violation -both the parties accepted the said violation and now if it is said that the Central Government intends to correct its earlier stand then it cannot be said to be an illegality.

In fact, this roll back has been approved by the Central Government.

Admittedly, there was a Charter of demands. The Charter of Demands included the issue of age of retirement of the employees. In pursuance of the Central Government memo the workmen were getting advantage of retirement as 60 years and at that point of time a settlement was made-naturally or consequently, the employees/workmen or the Union did not oppose this issue of retirement age at 60 years. In fact the workmen did not press for the same and virtually and literally the workmen or Union did not press for the issue of retirement and it was dropped. Thereafter when the roll back memo was issued then the Union objected to it. It is relevant to note that theA Jhion had already signed the settlement which excluded the issue of retirement age that means when the negotiation went on or cllective bargaining started the Union never asked for consideration of the age of retirement. Now, when the Union and the workmen decided not to settle the issue of retirement at 60 years then they cannot again place their claim on the said issue.

It is clear from the writ petition itself or its annexures that the Company Was running at a loss, it appears also from the copies and audited balance sheet of different years submitted by Mr. Sengupta through his written argument also. No doubt, the Company is an independent unit apart from from its" holding Company Andrew Yule but on perusal of the financial statements, balance sheets and other accounting records it appears that this subsidiary Company was also running at a loss and the authorities kept the Company running taking subsidiary grant from the other Company. When Andrew Yule is a sick it cannot subsidies the subsidiary Company in a regular manner. The holding Company Andrew Yule has also a financial border line and Andrew Yule itself is a sick Company and it cannot subsidies other subsidiary Company. When this is the financial state of affairs and the roll back issue has been approved by the Central Government and this roll back was in the standing orders, the appropriate Government should not have drawn a reference u/s 10A of the Industrial Disputes Act. No doubt, if a dispute is raised that should be settled by the labour conciliation method or thereafter by Tribunal but when the issue itself is a settled one (as would appear from the standing orders and the Central Government Memos) then the Government should not have drawn reference on such a defunct issue or rather on the infructuous issue which cannot be raised as a dispute at all.

It appears or rather it is the admitted position that initially, in the standing orders the age of retirement of the employees was 55 years and that standing order was certified by the certifying authority under the Industrial Employment (Standing Orders) Act, 1946. The said standing order is still in force. Thereafter, the Central Government memo made the age of retirement in public sector undertakings to 60 years. The Central Government did not think about the certified standing order of the Company under Act of 1946. The Central Government also did not consider that there is provision in the said Act for modification of the standing orders and nor did the workmen claim for modification-this state of affairs continued. In fact, it appears that the Company has accepted the Central Government verdict incereasing the age of retirement to 60 years and thereafter the Company thinking about its financial position wanted to roll back the retirement age and placed the same before Central Government for approval (which is also redundant and not necessary). However, the Central Government approved the said roll back. What Company did? They returned to its original position as it was there in the standing orders. The Company did not do anything new.

Now, if a Company intends to come back or to place one issue, which is under dispute at a position in conformity with its certified standing orders it cannot be said that the Company has done anything wrong or illegal.

In view of the discussions made above, the impugned judgment and order passed by the learned 8th Indutrial Tribunal dated September 9, 2003 is set aside. Consequently, the reference by the appropriate Government also goes.

There will be however, no order as to costs.

Urgent xerox certified copy, if applied for, be given to the parties expeditiously upon usual undertaking.