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Judgment
K. Chandru
The Writ Petition is filed by the petitioner management seeking to challenge an award passed by the 2nd respondent Labour Court, Chennai in
I.D.No.817 of 1999 dated 30.10.2006. By the impugned award, the Labour Court directed that the workman was entitled to wages from
15.11.1998 to 15.11.2001 and also balance of retirement benefit as if the workman retired on 15.11.2001. The Writ Petition was admitted on
9.7.2007. Pending the Writ Petition, interim stay was granted. Subsequently, by an order dated 14.2.2008, this Court, after calculating the
backwages, which comes approximately Rs.2 Lakhs, directed the petitioner management to pay Rs.1 Lakh towards backwages. Thereafter, the
workman filed M.P.No.1 of 2009 seeking for an early hearing of the Writ Petition and no orders have been passed in that application.
The case of the workman was that he joined the petitioner laboratory on 6.11.1967. He was confirmed as Printing Assistant on 1.7.1968.
During the year 1970, he was promoted as Junior Printer. Later, he was promoted on Senior Printer on 1.4.1980. The management by a notice
dated 1.12.1980 transferred the workman from the Printing Department to F.C.C Department as a Senior Film Checker. He was absorbed in the
said Department on 1.12.1980. It is alleged that with effect from 15.10.1998, he was relieved from service. According to the workman, he had
put in 31 years of service and his last drawn salary was Rs.5450/-. The stand of the workman was that on 9.10.1998, the management put up a
notice stating that the workman had attained the age of retirement with effect from 15.11.1998. Therefore, it was contended that he was pre-
maturely retired from service at the age of 55 years when he was supposed to retire on 15.11.2001 on attaining the age of 58 years. In their
establishment, there were two different Clauses in the Certified Standing Order. With reference to the age of retirement of the persons, who have
worked in Printing Department, it was 55 years and for those who are working in F.C.C Department, it was 58 years. Therefore, it was
contended that there cannot be two sets of Standing Orders prescribed before it. If the Standing Orders are not certified, the model standing order
will apply. Though he was working in the Printing Department till 1.12.1980, subsequently he was transferred to F.C.C Department. Therefore, he
contended that the action of the management in pre-maturely retiring him from service would amount to retrenchment u/s 2(oo) of the Industrial
Disputes Act. Subsequently, he raised an industrial dispute before the Labour Court, Chennai. He filed a claim statement. The Labour Court
registered the dispute as I.D.No.870 of 1999 and issued notice to the management.
The management filed a counter statement dated 29.3.2000. In the counter statement, it was contended that the Certified Standing Orders of
the company fixed the age of retirement of Printers as 55 years. In fact the workman was promoted as Senior Printer even before he was
transferred to F.C.C Department. In respect of other employees, it was 58 years. At the relevant time he was designated as Senior Film Checker
though he continued to be Senior Printer. Hence, coming under the Printing Department, his age of retirement was only 55 years. The claim of the
workman that he was a Senior Film Checker was also erroneous.
The workman filed a reply statement dated ''nil'' (September 2001) and the Management filed an additional counter dated 18.2.2002. It was
contended that at the relevant time the workman was the Unit President of Union, knowing fully well the implications of the provisions of Certified
Standing Orders and the Certified Standing Orders contain the two sets of retirement ages for different sections of the workmen.
Before the Labour Court on behalf of the workman he had examined himself as W.W.1 and filed 21 documents and marked as Ex.W.1 to
Ex.W.21. The management contended itself by filing documents and they filed 16 documents, which were marked as Ex.M.1 to Ex.M.16 with the
consent of the parties.
The Labour Court on the basis of the materials came to the conclusion that the only question before the Labour Court was whether the the
workman who is working in F.C.C Department is eligible for age of retirement as 58 years, but in case he was a Printer, it was 55 years. The
Labour Court held that as per Ex.W.7, he was in the F.C.C Department. Therefore, the age of the retirement should be 58 years. Since he was
retired at the age of 55 years, it will amount to pre-mature retirement or amount to termination and he is eligible for the wages for the period from
15.11.1998 to 15.11.2001.
It is brought to the notice of this Court that the Certified Standing Orders have been amended on 30.4.2000 and the retirement age has been
uniform to all employees as 58 years. But at the relevant time, there was a distinction between the Printing Department and the F.C.C Department.
Therefore, there were two different retirement ages and the workman himself was a Unit President at that time and therefore he cannot have
ignorance of the same.
In this Case, the Court cannot go into the question as to the desirability of having two different ages of retirement and that too not in a dispute
where the question of non-employment alone was raised and nothing prevented the workman from seeking a modification of the Standing Orders
before his date of retirement and all along Standing Orders have been in force with effect from 23.10.1967 till it is amended in April 2000. The
workman is well aware of the same. In the evidence of W.W.1 and in cross-examination, he had admitted that as per the order dated 30.9.1980
he was promoted as Senior Printer with effect from 1.4.1980 and while he was transferred to F.C.C Department, he was not posted as Senior
Film Checker, though he sought for a change of name of the post. He admitted that there was already a Senior Film Checker in the Department,
who also retired from service. He did not get any written letter posting him as Senior Film Checker. In the salary register which was marked as
Ex.M.14, he was shown as Senior Printer and these were not disputed by him.
In the light of these facts, it is too late for the workman to contend that there cannot be any two separate clauses for retirement of the workers in
the same Certified Order. Such collateral issues cannot be gone into in a dispute relating to non-employment.
10.The learned counsel for the workman also relied upon a judgment of this Court in Pallavan Transport Corporation (Metro) Madras-2 vs.
Presiding Officer, I Additional Labour Court, Madras and others reported in 1984 2 LLJ 132, wherein this Court held that there cannot be a
waiver of right in the matter of age of retirement. Even after the worker receives the benefit, he can still question the action of the management in
pre-maturely retiring the service of the person. However, such an issue does not arise for consideration in this case. There is an overwhelming
evidence that when the workman was posted to F.C.C Department, he continued to remain as a Senior Printer for all practical purposes including
for drawing the salary. Though he demanded a new designation, that was not forthcoming until his retirement. Therefore, in the absence of the
workman raising an issue before the appropriate forum claiming to be discrimination, then he cannot presume that he was appointed only as a
Senior Film Checker. In the light of the above, the impugned award is irregular and accordingly stands set aside. The writ petition stands allowed.
If there is any amount paid to the workman by way of interim order, it is made clear that the petitioner need not recover the same considering the
fact that the workman had worked for more than 31 years and in case of non-employment, he will have the benefit of last drawn wages in terms of
Section 17-B of the I.D. Act during the pendency of the writ petition. Hence, no recovery shall be made for the amount if already paid to the
workman. With this direction, the writ petition stands allowed. No costs. Connected Miscellaneous Petition stands closed.