M.P. Vidyut Karmchari (Federation) Jabalpur vs Madhya Pradesh Electricity Board

Dipak Misra, J.

Pregnability of the order dated 15.7.2001 passed by the learned Single Judge in Writ Petition No. 7255/2000 has been called in question by Madhya Pradesh Vidyut Karmchari Sangh (Federation), Jabalpur (hereinafter referred to as ''the appellant'') in this appeal under Clause 10 of the (sic)ters Patent.

2 The facts as have been uncurtained are that the Federation feeling aggrieved by the Notification dated 26.12.2000, Annexure P/4 to the writ petition by which the age of retirement has been reduced by the respondent, Madhya Pradesh Electricity Board (hereinafter referred to as the ''Board'') from 60 years to 58 years the appellant had assailed the same on numerous grounds. It was put forth in the writ petition that it is a registered representative Union, representing the employees of the Board and the provisions of M.P. Industrial Relations Act, 1960 (hereinafter referred to as ''the MPIR Act'') apply to their service conditions. According to the appellant an agreement was arrived at between the petitioner-Union and the respondent-Board on 10.6.1996 which, inter alia, covered many aspects including the age of retirement. It was setforth in the petition that the settlement contained in Annexure P/1 to the writ petition was given effect to from various dates in respect of various items and eventually the Clause (S) of the agreement which deals with fringe benefits inclusive of the age of retirement awaiting recommendations of the Vth Pay Commission and adoption thereof, by the Central Government was ultimately concretised by issuance of a notification dated 22.5.1998, Annexure P/2 by the Board in exercise of powers conferred u/s 79 (C) of the Electricity (Supply) Act, 1948 (hereinafter referred to as the ''Electricity Supply Act''). In the said notification a reference was made to the decision taken by the Central Government. After the said adoption took place the Board conferred the benefit on its employees and the same was uniformly followed as far as the age of retirement was concerned. When the matter stood thus, abruptly by notification dated 26.12.2000, Annexure P/4, the Board superseded the earlier notification contained in Annexure P/2. It was averred in the writ petition that having provided the age of retirement as per agreement/settlement vide Annexure P/1 in accordance with the recommendations of the Vth Pay Commission being duly adopted by the Central Government, the same could not have been withdrawn by the Board in an arbitrary manner. It was also urged in the writ petition that notwithstanding the fact that settlement expired on 31.3.1999, the period prescribed in the agreement could not have ceased to have the effect and was entitled to continue as a contract holding the field. According to the writ petitioner u/s 79 of the Electricity Supply Act Regulation should be framed only by a notification published in the official gazette and the impugned notification having not been so published, it had no legal effect and thereby reduction of the age of retirement of the employees was absolutely vulnerable. It was setforth that the Board had not taken the decision in exercise of its independent discretion but had allowed the decision to come into existence on extraneous consideration i.e. influence of the State Government.

A return was filed by the respondent-Board contending, inter alia, that the Board has the duty to appoint employees/staff for the purpose of enabling it to carry out its function and the Board in its wisdom can issue regulations under the powers conferred on it u/s 79 (c) of the Electricity Supply Act to achieve the objects contained in Section 15 of the aforesaid Act. It was pleaded that the Board was successor of the earlier Board and was established by notification dated 30.3.1957 and came into beingwith effect from 1.4.1957. The earlier Board was governed by a set of regulations called "M.P.E.B. (General) Service Regulations, 1952," regulating service conditions of the employees of the Board which upon establishment of the successor Board continued to apply to the employees. These regulations were framed in exercise of powers conferred on the Board and prescribed the age of retirement to be 58 years in case of Class I, II and III servants and 60 years in the case of Class IV servants of the Board with an inherent discretion to continue the employees beyond the age of 60 years. It was setforth that under the provisions of M.P. Industrial Employment (Standing Orders) Act, 1961 reference was made to the Schedule by notification dated 19.10.1973 and thereafter Rule 14-A of the M.P. Industrial Employment (Standing Orders) Rules, 1973 came into existence that provided the age of retirement as 58 years with option to the employer to continue employees in service upto the age of 60 years, if necessary, in the interest of the undertaking. It was putforth that even if the Standing Orders are taken into consideration they are in tune with the Regulation of the Board and hence, the Board was justified to reduce the age to 58 years. A stand was taken that by notification dated 26.12.2000 the earlier notification was superseded and that did not violate any of the Rules or Regulations in force. It was also averred therein that there cannot be an agreement contrary to the statutory provisions and. therefore, no right did flow in favour of the employees as claimed in Annexure P/1. It was also urged that the Board had adopted certain rules by notification dated 19.10.1963 and if they are appreciated in proper perspective, it would be quite vivid that age of superannuation was fixed at 58 years and was followed by the Board for several years and hence, no right could accrue in favour of the employees of the Board because of the notification contained in Annexure P/2 and they cannot be permitted to contend that once Annexure P/3 has come into existence, the same cannot be altered.

3A. It is apposite to state here, an additional return was filed by the Board stating the precarious financial condition being faced by the Board and the conscious decision taken to reduce the age of retirement.

We feel it appropriate to state that an application for amendment was filed in Writ Petition No. 40/2001 and the reply thereto was filed by the Board. We may hasten to add that the learned Single Judge has disposed of the batch of writ petitions together though the writ petitioners in three cases are not before us in appeal and we only concerned with the appeal arising out of Writ Petition No. 7255/2000. But as in the course of hearing a reference was made to the amendment application filed in the Writ Petition No. 40/2001 and Mr. V.K. Tankha, learned counsel appearing for the Board referred to the reply filed to the amendment and there was no objection by any of the party to refer to that, we shall make reference to the same and dwell upon the contents stated therein at a later stage.

Before the learned Single Judge it was contended by the petitioners that the agreement did not come to an end on 31.3.1999; that even if the agreement lost its life spark on the date mentioned in the agreement it continued after its expiry as a contract; that the settlement which was arrived at between the parties vide Annexure P/1 having the status of an award it would override any other statutory provisions governing the field inasmuch as the law relating to the industrial field is a special law having the potentiality of overriding effect; and that the notification dated 19.10.1963 which has been published on 14.7.2000 in its ambit and sweep engulfs the law in the field on the date of publication in the offical gazette and, therefore, the age of retirement of the employees of the Board has to be treated at par with that of the State Government employees.

On behalf of the Board it was contended before the learned Single Judge that the Board has power to frame regulations and once the Board has framed regulations that would prevail and no other law can entrench into the said sphere; that if the agreement is read in proper perspective it would be luminously clear, a date has been mentioned extinguishing its life-spark and, therefore, it cannot continue rising like a phoenix after its date; that the settlement agreement in question cannot be allowed to continue as a contract inasmuch as there is gulf of difference in the provision contained u/s 19 of the Industrial Disputes Act, 1947 and Section 99 of the MPIR Act; that the settlement vide Annexure P/l was contrary to the law governing the field and, therefore, it cannot have sacrosanctity of settlement in the eye of law and the employees cannot claim to have benefit under the same; that if the settlement is scrutinised and dissected in an appropriate manner it would be quite luminescent that Clause (S) of the agreement is still born and, therefore, no right could have accrued in favour of the employees'', that the notification issued vide Annexure P/2 had not referred to the settlement in question but was issued in exercise of power u/s 79 (C) of the Electricity Supply Act and hence, the employees cannot rationally annex or append it to settlement and that notification issued vide Annexure P/2 and Annexure P/4 are tainted with same vice, having not been published in the official gazette and hence, have to sink in absence of any legal validity and because certain benefits were given to the employees vide Annexure P/2 on the basis of an illegal order the employees cannot claim it as a matter of legal right as the same could have never accrued in favour of the employees on the bedrock of Annexure P/2.

Considering the rival submissions raised at the Bar, the learned Single Judge came to hold that the agreement came to end on the date mentioned in the agreement; that there was difference between Section 19 of the Industrial Disputes Act and Section 99 of the MPIR Act; that no right could be claimed by employees of the Board on the basis of notification dated 19.10.1963 inasmuch as the regulations governed the field and in fact, the Board continued to retire its employees at the age of 58 years notwithstanding the fact the corresponding amendments in F.R. 56; that notification published in the official gazette on 14.7.2000 was wholly redundant and in fact, done by the Board to substantiate it defence in a particular writ petition and it was an act of panic; that settlement arrived at vide Annexure P/1 cannot prevail over the statutory provisions as engrafted under the Regulation of the Board as Regulation of 1952 would continue to be applicable to the employee notwithstanding the notification in the official gazette, Annexure P/14; that the Board has taken a conscious decision and it is not capricious or motivated, and that the notification issued vide Annexure P/2 and Annexure P/4 suffer from the vice of non-publication in the official gazette and, therefore, the federation cannot claim any benefit under Annexure P/2 inasmuch as the said notification is non est in the eye of law. It is relevant to state here that the learned Single Judge has also dealt with the aspect in regard to the bifurcation of the State of Madhya Pradesh into two states namely, the State of Madhya Pradesh and the State of Chhattisgarh and come to hold that the same did not any way spell any foundation to attribute any motive to the Board for bringing a decision of this nature.

Before we advert to the rival submissions which have been put forth by the learned counsel for the parties we feel obligated to state that in the memorandum of appeal amongst many others two grounds have been taken which relate to grant of commutation of pension and the discrimination qua State of Chhattisgarh in the matters of allocation. Mr. N.C. Jain, learned senior counsel fairly submitted that before the learned Single Judge the issue of commutation of pension was abandoned and, therefore, in an appeal this Court need not advert to the same. As far as the challenge of action of the Board is concerned with regard to allocation to the State of Chhattisgarh the learned counsel for the parties very clearly abandoned the stand pertaining to the same. They also abdicated the stand relating to the financial crunch suffered by the Board. It was fairly put to the counsel if a right exists to be retired at the age of 60 years it should legally flow as this Court while hearing an appeal from a writ petition cannot enter into the controversy with regard to financial crunch suffered by the Board and the resultant decision whether it was bona fide or not. In any case, the learned Single Judge has adverted to the same and come to hold no malice could be attributed to the action of the Board. Be that as it may, the said aspects have not been canvassed before us, and rightly so.

We have heard Mr. N.C. Jain, learned senior counsel, Mr. R.K. Gutpa and Mr. Rohit Arya, learned counsel for the appellant and Mr. V.K. Tankha, learned senior counsel along with Mr. H.K. Upadhyay, learned counsel for the Board.

Submissions of Mr. Jain can be categorised into following compartments :

(i) The finding recorded by the learned Single Judge with regard to expiry of the date is (sic) unsound inasmuch as accepted and apt reasonings have not been applied while scrutinising the terms of the agreement. 11 is (sic) forth by him that the agreement deals with various aspects and in certain clauses various dates have been mentioned and it all these are read conjointly and coherently in a harmonious manner it would flow from it that the agreement was to remain alive for a lustrum from the dates which have been mentioned against the items and 31.3.1999 cannot be the conclusive date.

(ii) Assuming the agreement expired on the date as has been mentioned in the agreement it would be alive as a contract between the parties.

(iii) The special laws which have been engrafted and enacted under various industrial laws, namely, M.P. Industrial Relations Act, 1960; M.P. Industrial Employment (Standing Orders) Act, 1961; and M.P. Industrial Employment (Standing Orders) Rules would have prevalence over the general law enacted under the Electricity Supply Act.

(iv) The learned Single Judge has erred in law by coming to hold that the settlement was contrary to the statutory law in force inasmuch such agreement/settlement was permissible under the provision of Rule 14-A of the Rules, and hence, it is to be respected holding the field in all fours.

(v) The agreement has to be read conjointly with the notification dated 19.10.1963 which has been published in the gazette on 14.7.2000 and that confers benefit on the employees reckoning the prevalent date to be the date of notification in the gazette and by such notification the amendments that are incorporated in the rules which have been adopted by the Board would be held to be applicable and equate the age of retirement of the employees'' of the Board with that of the State Government.

(vi) There are certain inconsistencies in the judgment of the learned single Judge which are irreconcilable and that makes the order sensitively susceptible.

(vii) The finding of the learned single Judge that the both the notifications dated 22.5.1998 and 26.12.2000 are tainted by the same vice is totally indefensible.

(viii) A pragmatic view has to be taken keeping the social philosophy in view as the need in prasenti warrants enhancement of retirement age to have a peaceful industrial atmosphere and also taking judicial notice of the fact that people get married at a late age because of financial stringencies and lack of employment avenues, as the employment in the present system requires, technical and professional education.

Mr. V.K. Tankha, learned senior counsel appearing for the Board, on the contrary, has contended as under :

(a) That once a definite date has been fixed in the agreement it will not be appo(sic) to give various dates qua various items as that would lead to (sic) and would not be in consonance with the concept of interpretation of an instrument.

(b) After expiry of the agreement the question of its survival as a contract does not arise as there is a sea of difference between the provisions enshrined u/s 19 of the Industrial Disputes Act, 1947 and Section 99 of the MPIR Act.

(c) The provisions of M.P. Industrial Employment (Standing Orders) Act, 1961 do not apply to the Board and therefore, the Regulation framed by the Board would have full force and once it is held that it has full force, settlement even if it is assumed, had fixed the age of retirement, will be in violation of the statutory provisions and resultantly cannot be respected.

(d) The publication of the notification dated 19.10.1963 in the official gazette by the State Government, though, it was not necessary to be published in the year 1963, rectifies the defect and brings the Board within the sweep of Sub-section (2) of Section 2 of the M.P. Industrial Employment (Standing Orders) Act, 1961, making the Board''s regulation not to yield in or succumb to any of the provisions of the Standing Orders or the Rules framed thereunder.

(e) The notification issued vide Annexure P/2 is not a continuation of the settlement in question and hence, the appellant cannot claim the benefit by placing reliance on the same when it has been withdrawn. The learned counsel has also reiterated the contention in this regard which he had canvassed before the learned Single Judge.

(f) The Board can, in absence of Regulations, pass administrative orders but when Regulations are in vogue, the Board cannot pass administrative orders in contravention of. the Regulation without bringing forth amendment into the Regulation as per law.

(g) The notification of 1963 has to be treated as one time incorporation and if the said construction is given to the notification the appellant cannot claim to reap benefits which are available to the State Government employees who have been benefitted due to amendments carried on from time to time in the fundamental rules and supplimentary rules by the State Government.

(h) The question of taking a pragmatic view and keeping in view the social philosophy has no role to play in the present context inasmuch as from the inception of the Board the employees have been retiring at the age of 58 years and when no right has created in favour of the employees of the Board by virtue of applicability of any law the employees cannot claim the same on the ground of equity as principles of equity are not applicable to the age of superanuation.

At this juncture we may proceed to state that an application for intervention was filed by the M.P. Bijli Karmchari Mahasangh which was allowed vide order dated 13.3.2001. On behalf of the intervener Mr. T.K. Modh had filed the written submissions.

We shall deal with the first contention first. It has been urged by Mr. Jain, learned senior counsel for the appellant that the agreement in question cannot be held to be extinguished because of the date mentioned in paragraph (w) of the said document inasmuch as there are various clauses dealing with applicability of agreement from various dates. He has referred to clause (g) to show that interim relief shall be granted with effect from 1.4.1996. Learned counsel has also pointed out that the benefits which have been covered in Clause (b) are to be given effect from 1.6.1996. Similarly, certain dates have been pointed out in respect of clause (7) to paragraph (d) of the submission. Similar is the provision relating to Clause (h). Learned senior counsel has submitted that when the retirement date has been fixed with effect from 22.5.1998, paragraph (w) has to be understood in a rational manner. To appreciate the aforesaid submission it is appropriate to refer Clause (w) of the agreement. It reads as under :

(w): The wage structure and fringe benefits shall be effective for a period of 5 years upto 31.3.1999 and no demand whatsoever, shall be made or considered in respect of the items already agreed to.

The agreement was signed on 10.6.1996. It is submitted by Mr. Tankha, learned senior counsel appearing for the Board that one term benefit was to be given from 1.4.1994 and that was taken as a guiding date and accordingly the date of expiry was fixed to be 31.3.1999. On a careful reading of the aforesaid Clause and taking note of the date on which the agreement was signed, it cannot be said by any stretch of imagination that it would remain effective for a period of five years. If that would have been so, a date would have been mentioned commencing 10.6.1996 but so is not the case. Ade finite date has been mentioned in the agreement. There is also provision which clearly stipulates that no demand whatsoever; shall be made or considered in respect of the items already agreed to. In view of the language employed therein, we are of the considered opinion that the agreement was to expire on 31.3.1999.

The next submission of Mr. Jain is that even if the agreement expired on 31.3.1999 it will be binding between the parties as it remains alive as a contract between the parties. To support the aforesaid submission he has drawn the attention of this Court to Section 19 of the Industrial Disputes Act, 1947. It is contended by Mr. Jain that the aforesaid section has been interpreted by the Apex Court in series of decisions and their Lordships are of the consistent opinion that even after expiry of the agreement/settlement the same survives as a contract The learned counsel has placed reliance on the decisions rendered in the cases of South Indian Bank Ltd. Vs. A.R. Chacko, ; Life Insurance Corporation of India Vs. D.J. Bahadur and Others, ; and Management of Karnataka State Road Transport Corporation Vs. KSRTC Staff and Workers'' Federation and Another, . In the case of A.R. Chacko (supra) the Apex Court ruled thus:

Quite apart from this, however it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under the provisions of Section 19 (6) it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place of the old contract

In the case of DJ. Bahadur (supra) V.R. Krishna Iyer, J. in his inimitable style expressed thus :

The core question that falls for consideration is as to whether the settlement of 1974 are still in force. There are three stages or phases with different legal effects in the life of an award or settlement There is a specific period contractually or statutorily fixed as the period of operation. Thereafter, the award or settlement does not become rum est but continues to be binding. This is the second chapter of legal efficacy but qualitatively different as we will presently show. Then comes the last phase. If notice of intention to terminate is given u/s 19 (2) or 19 (6) then the third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier contract and subsists until a new award or negotiated settlement takes its place. Like Nature, Law abhors a vacuum and even on the notice of termination u/s 19 (2) or (6) the sequence and consequence cannot be just void and but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiate settlements or award will regulate the relations between the parties. Such is the understanding of the industrial law at least for 30 years as precedents of the High Courts and this Court bear testimony. To hold to the contrary is to invite industrial chaos by an interpretation of the ID Act whose primary purpose is to obviate such a situation and to provide for industrial peace. To distil from the provisions of Section 19 a conclusion diametrically opposite of the objective, intendment and effect of the section is an interpretative stultification of the statutory ethos and purpose. Industrial law frown upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being. To argue otherwise is to frustrate the rule of law. If law is a means to an end-order in society - can it commit functional harakiri by leaving a conflict situation to lawless void ?

In the case of Management of KSRTC (supra) a two Judge Bench of the Apex Court in paragraph 16 expressed as under :

It has also to be kept in view that even assuming that settlement of 1988 had thereby come to an end, its binding effect as contractual obligation continued till it was replaced by other settlement as ruled by this Court in the Life Insurance Corporation of India Vs. D.J. Bahadur and Others, . It is also difficult to appreciate how the case of check-off Facility is not termed as condition of service as by the said facility the Management had agreed to deduct from the wages of the employee the requisite amount to be paid to the Union by way of subscription of the employees. Such permissible deduction from the wages cannot but be treated as condition of service. The contention that from 21st September, 1993 Check-off Facility has been given up by the Corporation cannot be of any assistance to the Corporation for the simple reason that it would amount to violation of a binding settlement by the Corporation which as per Section 29 of the ID Act would be penal. No advantage in law, therefore, can be taken by the Corporation from its unilateral withdrawal of binding Check-off Facility as per settlement of 1988. It is also not possible to countenance the submission that though the Check-off Facility may continue to exist de jure it would cease to exist de facto. Such unilateral withdrawal of Check-off Facility by one of the parties cannot be treated to be an act which is legal and valid. Minutes of the meeting held between the representatives of the Corporation and respondent No. 1 -Union held on 18th October, 1995 also cannot amount to substitution of a fresh settlement on the Pay Roll Check-off Facility. To reiterate, the Federation''s only agreement was to discuss demands relating to check off and trade union facilities at the Government level. So long as the said discussion had not culminated into any other binding settlement on the topic, the earlier settlement cannot be said to have been replaced or substituted by any other validly binding settlement Consequently, the aforesaid written submissions do not advance the case of the appellant.

From the aforesaid enunciation of law there remains no scintilla of doubt that even the agreement/settlement entered u/s 19 of the Industrial Disputes Act, 1947 remains alive after extinction of its term or tenure. But, Mr. V.K. Tankha, learned counsel for the Board would like us to read Section 99 of the MPIR Act to arrive at a different conclusion. To appreciate the submission of Mr. Tankha it apposite to reproduce Section 19 of Industrial Disputes Act, 1947 and section 99 of the MPIR Act successively :

Period of operation of settlements and awards: (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, the date on which memorandum of the settlement is signed by the parties to the dispute.

(2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months, from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.

(3) An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable u/s 17-A;

Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit:

Provided further that the appropriate Government may before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit, so however, that the total period of operation of any kind award does not exceed three years from the date on which it came into operation.

(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a Tribunal if the award was that of a Tribunal, or of a National Tribunal for decision whether the period of operation should not, by reason of such change be shortened and the decision of Labour Court or the Tribunal, as the case may be, on such reference shall be final.

(5) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.

(6) Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.

(7) No notice given under sub-section (2) or sub-section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be."

XXX

"99. Agreements, etc., when to cease to have effect :

(1) A registered agreement or a settlement or award shall cease to have effect on the date specified therein or if no such date is specified therein, on the expiry of the period of two months from the date on which notice in writing to terminate such agreement, settlement or award, as the case may be, is given in the prescribed manner by any of the parties thereto to the other parties :

Provided that no such notice shall be given till the expiry of [six] months after the agreement settlement or award comes into operation.

(2) Nothing in this section shall prevent the terms of a registered agreement or a settlement or an award in terms of an agreement being changed or modified by mutual consent of the parties affected thereby and the registered agreement, settlement or award shall be deemed to be changed or modified accordingly.

[(3) xx xx xx]

(4) The party giving notice under sub-section (1) [x x x] shall send a copy of it to the Registrar and the Labour Officer of the local area concerned.

(5) If a registered agreement or a settlement or an award is terminated under sub-section (1) [xx xx xx] or if the terms of a registered agreement or a settlement or an award are changed or modified by mutual consent, notice of such termination, change or modification shall be given by the Registrar shall enter the notice of such termination, change or modification in registering for the purpose.

Explanation : For the purposes of this Section, parties who shall be competent to terminate a registered agreement or a settlement or an award or to chnage or to modify the terms of a registered agreement or a settlement or an award and who shall give notice of such termination, change or modification under sub-section (5) shall be the employer, who has signed the agreement or settlement or who is a party to the award or the heirs, successors or assigns of such employer in respect of the undertaking concerned and the representative of the employees affected by the agreement, settlement or award.

It is putforth by Mr. Tankha that the language employed u/s 19 of the Industrial Disputes Act and Section 99 of the MPIR Act are absolutely different The learned counsel impressed upon us to sec that as per Section 99 of the MPIR Act a registered agreement or settlement ceases to have effect on a date specified therein. He has also pointed out that there is no provision like sub-section (6) of Section 19 of the Industrial Disputes Act. We have carefully perused both the sections and bestowed our anxious consideration to understand the essential purport and purpose. On a close scrutiny of the same, it is noticeable that Section 19 of the Central Act has been couched in a positive language, whereas Section 99 has been put in a different language but in quintessence the provisions relate to expiry of the award or settlement. Different modes are provided in both the provisions. The Apex Court while interpreting the scheme engrafted u/s 19 of the Central legislation has come to hold that even after expiry of the settlement or agreement in question it remains functional as a contract. We do not intend to read anything different to Section 99 of the MPIR Act inasmuch as it is a provision to demonstrate when an agreement ceases to have effect. The basic principle as enunciated by the Apex Court is that the law like nature does not appreciate a vacuum. That being the first principle, we are of the considered view the (sic) submission of Mr. Tankha on this score is not well founded. We are persuaded to accept the submission of Mr. Jain that the agreement in question remains alive even if it ceases to have effect after the date of expiry.

The next aspect which requires consideration by us whether the Industrial Law shall have overriding effect over the General Law governing the field. In this regard Mr. Jain, learned senior counsel has drawn our attention to the three Judge Bench decision rendered in the case of The U.P., State Electricity Board and another vs. Hari Shankar Jain and others, AIR 1979 SC 65. In the aforesaid case the Apex Court referred to the Industrial Employment (Standing Orders) Act, 1946 and considered the provisions of Section 79 (c) of the Electricity Supply Act. Their Lordhsips relying on the maxim Generalia Specialibus rum derogant came to hold in paragraph 9 as under:

We have already shown that the Industrial Employment (Standing Orders) Act is a Special Act dealing with a specific subject, namely the conditions of Service, enumerated in the Schedule, of workmen in industrial establishments. It is impossible to conceive tha t Parliament sought to abrogate the provisions of the Industrial Employment (Standing Orders) Act embodying as they do hard-won and precious rights of workmen and prescribing as they be an elaborate procedure, including a quasi-judicial determination, by a genral, incidental provision like Section 79 (c) of the Electricity (Supply) Act. It is obvious that Parliament did not have before it the Sanding Orders Act when it passed the Electricity (Supply) Act and the Parliament never meant that the Standing Orders Act should stand pro (sic) repealed by Sec. 79 (c) of the Electricity (Supply) Act. We are clearly of the view that the provisions of the Standing Orders Act must prevail over Sec. 79 (c) of the Electricity (Supply) Act in regard to matters to which the Standing Orders Act applies.

It is apposite to state here that the Apex Court recorded a finding that rules and regulations framed by the Statutory Bodies have the force of law but simultaneously came to hold that the General Law must yield to the Special Law. In the said case a reference was made to Section 13-B of the Industrial Employment (Standing Orders) Act in paragraph No. 12 and after dealing with the said provision their Lordships in paragraph Nos. 16 and 17 held as under:

Shri Garg suggested that the rules and regulations specific mention of which has been made in Sec. 13-B were all comprehensive sets of rules and, therefore, "any other rules or regulations" that might be notified by the government should also satisfy the test of comprehensiveness. He argued that a single rule or regulation could not be notified u/s 13-B as it would too much to say, he said, that the notifying of a single rule or regulation would exclude the applicability of all the provisions of the Standing Orders Act. We do not think that the notifying or one or many regulations has the effect that Shri Garg apprehends it has. The words ''nothing in this Act shall apply'' are not to be interpreted too literally as to lead to absurd results and to what the legislature never intended. In our view the only reasonable construction that we can put upon the language of Sec. 13-B is that a rule or regulation, if notified by the Government, will exclude the applicability of the Act to the extent that the rule or regulation covers the field. To that extent and only ''nothing in the Act shall apply.'' To understand Sec. 13-B in any other manner will lead to unjust and uncontemplated results. For instance, most of the Service Rules and Regulations expressely mentioned in Sec. 13-B do not deal with a large number of the matters enumerated in the Schedule such as ''Manner of intimating to workmen period and hours or work, holidays, pay days and wage rates'', ''shift working'', ''Attendence and Late coming'', ''conditions of, procedure in applying for, and the authority which may grant leave and holidays, ''Closing and re-opening of Sections of the industrial establishments and temporary stoppages or work and the rights and liabilities of the employer and workmen arising therefrom'' etc. To exclude the applicability of Standing Orders relating to all these matters because the Fundamental Rules, the Civil Service Rules or the Civil Services (Classification, Control and Appeals) Rules provide for a few matters like ''Classification of workmen'' or ''suspension or dismissal for misconduct'' would be to reverse the possesses of history, apart from leading to unjust and untoward results. It will place workmen once again at the mercy of the employer be he ever so benign and it will certainly promote industrial strife. We have indicated what according to us is the proper construction of Sec. 13B. That is the only construction which gives meaning and sense to Section 13-B and that is a construction which can legitimately be said to conform to the Directive Principles of State Policy proclaimed in Arts. 42 and 43 of the Constitution.

We, therefore, hold that the Industrial Employment (Standing Orders) Act is a special law in regard to the matters enumerated in the schedule and the regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under Sec. 13-B or certified by the Certifying Officer under Sec. 5 of the Industrial Employment (Standing Orders) Act. In regard to matters in respect which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Employment (Standing Orders) Act shall continue to apply. In the present case the regulation made by the Board with regard to age of superannuation having been duly notified by the Government, the regulation shall have effect notwithstanding the fact that it is a matter which could be the subject-mater of Standing Orders under the Industrial Employment (Standing Orders) Act. The respondents were, therefore, properly retired when they attained the age of 58 years.

Relying on the aforesaid decision it is contended by Mr. Jain that even if the Board has regulations they must succumb to the provisions of industrial law.

At this juncture it is necessary to note that the Industrial Employment (Standing Orders) Act, 1946, did not provide the age of retirement in its Schedule but the U.P. Government incorporated the same by way of amendment on 17.11.1959 as a result of which the Standing Orders Act became applicable and accordingly the Apex Court held as has been quoted above. In the present case the question that falls for consideration is whether any industrial law is applicable. It is noteworthy that the State of Madhya Pradesh brought an Enactment, namely, M.P. Industrial Employment (Standing Orders) Act, 1961, which got the Presidential assent on 8.7.1961. u/s 4 of the said Act it has been stipulated that nothing in Industrial Employment (Standing Orders) Act, 1946 (XX of 1946), shall apply to any undertaking to which the said Act applied. It is worthwhile to state that initially a Schedule was framed u/s 3 (b). Section 6 (3) which dealt with various aspects did not deal with the age of superannuation. Age of superannuation was included in the Schedule by notification dated 19.10.1973. Submission of Mr. Jain is that by virtue of this Standing Orders Act and the Schedule the said provision will have full play and the Board''s Regulations have to be yield in. In support of his submission he has placed reliance on a Full Bench judgment of this Court rendered in the case of Madhya Pradesh State Road Transport Corporation vs. Heeralal and Ochhelal and others, 1980 MPLJ 8. In the aforesaid case learned Chief Justice speaking for the Court in paragraphs No. 10 and 11 expressed thus :

The Road Transport Corporation Act, 1950 under which the petitioner-Corporation is established is an Act to provide for incorporation and regulation of Road Transport Corporations. Section 45 (2) (c) of the Act authorises the Corporation to make regulations to provide for the conditions of a ppointment and service and the scales of pay of officers and servants of the Corporation. The Act in so far it provides for establishment of Road Transport Corporations is a special Act. But the power conferred u/s 45 (2) (c) on the Corporation to make regulation laying down conditions of service is a general provision which is often found in statutes creating statutory Corporations. A general provision of this nature is not intended to affect a law designed to lay down conditions of employment for a special class of employees such as industrial workers governed by the Industrial Employment (Standing Orders) Act, 1946, which is an Act to require employers in industrial establishments formally to define conditions of employment under them, or the corresponding Madhya Pradesh Act i.e. the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. The Standing Orders Acts are special laws dealing with conditions of employment of industrial workers and so on principles of construction their provisions prevail over the general provisions contained in section 45 (2) (c) of the Road Transport Corporation Act. The regulations made, therefore, cannot have any effect on matters contained in the Schedule to the Standing Order Acts on which Standing Orders can be made under those Acts for industrial workers. The regulations can, however, be operative even in respect of industrial workers on matters not included in the schedule to the Standing Orders Acts. The only method by which the regulations can be applied to matters contained in the Schedule to the Standing Orders Acts is either to notify them u/s 13-B of the Central Standing Orders Acts as the case may be, or to have them certified as standing orders in accordance with the procedure laid down in those Acts. These conclusions are strongly supported by the decision of the Supreme Court in U.P.S.E. Board vs. Hari Shankar. The question in that case was as to how far the regulations made under the Electricity Supply Act, 1948 would apply to industrial employees. It was held by the Supreme Court that the Central Standing Orders Act is a special law in regard to matters enumerated in the Schedule and the regulations made by the Electricity Supply Act, 1948 would apply to industrial employees. It was held by the Supreme Court that the Central Standing Orders Act is a special law in regard to matters enumerated in the Schedule and the regulations made by the Electricity Board with respect to any or those matters are of no effect unless such regulations are notified by the Government u/s 13-B or certified by the certifying officer u/s 5". In that case a regulation made by the Electricity Board in 1970 relating to the age of superannuation was notified u/s 13-B. The Standing Orders did not provide for any age of retirement Age of superannuation was, however, added as a matter in the Schedule 1959. The regulation, therefore, was on a matter which was mentioned in the Schedule yet it was given effect to as it was notified u/s 13-B. It was held that the words '' ''any other rules or regulations" as used in that section were not to be read ejusdem generis with the expressions "Fundamental and Supplementary Rules" etc., so as to confine them to Government establishments where the employees have the status of Government servants. The regulation made by the Electricity Board were therefore, held to be covered by the words "any other rules or regulations" in section 13-B. It was further held that the words "nothing in this Act shall apply to an industrial establishment" as used in the said section are not to be interpreted too literally and that the only reasonable construction is that a rule or regulation notified by the Government excludes the applicability of the Act to the extent that rule or regulation covers the field. Now, the Central Standing Orders Act is replaced in our State by the Madhya Pradesh Standing Orders Act. The scheme of both the Acts is the same. Section 13-B of the Central Act is the same as section 2 (2) of the Madhya Pradesh Act. The ruling of the Supreme Court in Harishankar''s case, therefore, fully applies in deciding the question whether on a particular matter regulations made under the Road Transport Corporation Act apply or the Standard Standing Orders apply. As earlier pointed out by us the general power of making regulations as a matter of construction is not intended to prevail over the matters mentioned in the Schedule to the Standing Orders Act which in respect of industrial workers are to be regulated by Standing Orders. The Regulation will, however, have application even to industrial workers in respect of matters not covered by the schedule. Further regulations can also be effective on matters in the schedule and can apply to industrial workers on these matters when they are notified u/s 2 (2) by the Government or certified as Standing Orders under the Act It has to be noticed that the requirement of notification u/s 2 (2), on a proper understanding of that provision, is only in respect of matters mentioned in the schedule which are to be regulated by Standard Standing Orders.

It is in the light of these principles that it has to be seen whether regulation 59 applied to industrial workers of the Corporation. Now we have already stated that till 1973 retirement on superannuation was not included as a matter in the Schedule to the Standing Orders Act and the Standard Standing Orders did not cover such a matter. Regulation 59 deals with compulsory retirement on the completion of 58 years or if specifically permitted on attaining the age of 60 years. The regulation thus deals with a matter which was not covered till 1973 by the Standing Orders Act and the Standard Standing Orders. When this matter was not at all covered by the Standing Orders Act and the Standard Standing Orders till 1973, there could be no inconsistency between them and Regulation 59 and we find no difficulty in holding that the regulation when made became effective and applied to all employees of the Corporation. But when in 1973 the subject of retirement on superannuation was included in the Schedule to the Standing Orders Act and Standard Standing Order 14-A was made on that matter, the industrial employees ceased to be governed by Regulation 59. Standard Standing Order 14-A alone applied from 2nd November 1973 to industrial workers. The respondent''s retirement with effect from 1st October 1965 when attained the age of 58 years was invalid as on that date there was neither any effective regulation nor any Standard Standing Order covering retirement on superannuation. However, when Regulation 59 came into force on 1st June 1970, it brought about the respondent''s retirement as he had already completed 58 years of age in 1966. The Labour Court and the Industrial Court allowed wages to the respondent till 2nd November, 1973, when Standard Standing Order 14-A dealing with retirement was added. In our opinion, in holding so they omitted to take into consideration the operation of Regulation 59 from 1st June 1970. The respondent is thus entitled to wages only till 31st May 1970.

It is noteworthy to state here that in the aforesaid case the Full Bench took note of the fact that Regulation 59 of the M.P. State Road Transport Corporation could not prevail over the matter regulated by the Standing Orders but would apply to industrial workers in respect of matters not covered by the Standing Orders. The Full Bench also came to hold that if the regulation is not notified u/s 2 (2) of the Standing Orders Act the provisions enshrined under the Standing Orders Act would have full play. Reliance in this regard was placed in the Harishankar (supra). In view of the aforesaid law there is no trace of doubt in our mind that if a particular undertaking is covered by the Standing Orders Act, unless there is a notification as required u/s 2 (2) of the said Act, it has to be governed by the Act and the Rules framed therein. Mr. Tankha, as has been noted earlier, placed heavy reliance on Section 2 (2) of the Act and contended that the Board is not covered by the Standing Orders Act, inasmuch as Section 2 (2) comes to the aid of the Board. To appreciate the aforesaid submission, we think it apposite to reproduce Section 2 (2) of the M.P. Industrial Employment (Standing Orders) Act, 1961. It reads as under :

Application of the Act : (1) xx xx xx xx

(a) xx xx xx.

(b) xx xx xx

(2) Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other rules or regulations that may be notified in this behalf by the State Government in the Offical Gazette apply.

Submission of Mr. Tankha is two fold; first, by notification dated 19.10.1963 rules which have been mentioned u/s 2 (2) of the aforesaid Act, were adopted by the Board as a part of its regulation and hence, that will release the Board from the operation of the said Act; and secondly, in view of the notification dated 26.7.2000 the Board is entitled to the benefit under the second compartment of the aforesaid provision.

To appreciate the aforesaid submission we have carefully perused the notification dated 19.10.1963. In the said notification the Board in exercise of power conferred by Section 79 (c) of the Electricity Supply Act embodied the aforesaid rules with certain modifications to be the regulations of the Board and stipulated that they would apply to all servants of the Board. In the said notification certain exceptions were carved out It is apposite to reproduce the relevant portion of the said notification :

.. In exercise of the powers conferred by clause (c) of Section 79 of the Electricity (Supply) Act, 1948 (52 of 1948), the Madhya Pradesh Electricity Board is pleased to make the :

(i) Fundamental Rules and the supplementary Rules as in force in Madhya Pradesh;

(ii) Civil Services (Temporary Service) Rules;

(iii) Civil Services (Classification, Control and Appeal) Rules;

(iv) Revised Leave Rules as in force in Madhya Pradesh;

(v) Civil Service Regulations to the extent they are in force in Madhya Pradesh;

(vi) Madhya Pradesh New Pension Rules, 1951;

(vii) Madhya Pradesh Government Servants (Conduct) Rules, 1959; and

(viii) Madhya Pradesh Civil Services (Medical Attendance) Rules, 1958.

to be the regulations of the Board made thereunder and to direct that they shall hereafter apply to all servants of the Board except those specified in notification No. S-II-3706, dated 19th October, 1963 and notification No. S-II-3708, dated 19th October 1963. The Board is further pleased to direct that the said rules as amended and in force for the time being shall apply to the said servants in the same way as they apply to servants of the Madyha Pradesh State Government: Provided that nothing herein contained shall be deemed to affect the existing conditions of service of any servant in service immediately before the date of this Notification to the extent it is not inconsistent with the said rules.

We shall deal with the first limb of argument of Mr. Tankha first It is his submission under this Rule contents mentioned in Sub-section (2) of Section 2 of the Standing Orders Act, was adopted in the year 1963, and ipso facto, the Act would not apply to the Board. On the contary, Mr. N.C. Jain, learned senior counsel has submitted that the rules are to be applied to the employees in an Undertaking and not to the undertaking itself. Be that as it may, we are not persuaded by the submission of Mr. Tankha when these rules were adopted by the Board in the year 1963 the Standing Orders Act, 1961 would not be applicable to the Board, inasmuch as the said notification adopting the rules mentioned in Section 2 (2) of the Act was not published by the State Government in the Official Gazette. Publication u/s 79 (c) of the Electricity Supply Act and publication u/s 2 (2) of the Standing Order Act, 1961 are quite different and relate to two separate realms. But, a significant but, we are persuaded by the submission of Mr. Tankha, as far as the'' second compartment is concerned. It is not disputed that the notification was brought into existence in the year 1963. By that time the Standing Orders Act, 1961 had come into play. If the Standing Orders Act had not come into existence the Board would have been governed by the Central Legislation but the Central Legislation had not provided with regard to the age of superannuation in the Schedule and in that event, the Board would not have been required to get it published in the official gazette as required u/s 13-B of the Central Act The M.P. Industrial Employment (Standing Orders) Act, 1961 came into force and the notification was published in the official gazette. Once it is published the same has to be treated as a part of a Regulation of the Board. The Full Bench decision rendered in the case of Heeralal Ochhelal (supra) has held that unless the regulations are published in official gazette u/s 2 (2) of the Act, the matters pertaining to age of superannuation would be governed by the Standing Orders Act and the rules framed therein. The notification of 1963 has been published on 26.7.2000. Once they are published they form a part of Board''s Regulations. Hence, we are of the considered view that the regulations as far as they relate to the aspects which have been published, would govern the employees. We are not adverting to any other aspect as that is not the lis before us. We may hasten to add that the 1952 Regulations provided with regard to various aspects inclusive of the age of superannuation and the rules incorporated in 1963 notification include fundamental rules and supplementary rules. They were adopted as a part of regulation and that part deals with the age of superannuation. If the age of retirement or superannuation is a part of the regulation and it has been published in the official gazette on 26.7.2000, we would deem it to be the regulation of the Board and conclusively hold that the Board is not covered by the M.P. Industrial Employment (Standing Orders) Act, 1961 or the rules framed therein.

At this juncture, we may mention that the Regulation of 1952 read with 1963 notification has been covering the field and recently the Board has taken steps to concretise it by mkaing it enforceable by getting it published in the official gazette. We may, however, add here, the publication has not been done after issuance of the Annexure P/2 to frustrate it but had been done prior to that. We only say so, as we have opined by such publication, it has become the law having binding force and ousting the Board from the clutches of Special Legislation of the M.P. Industrial Employment (Standing Orders) Act, 1961 and the rules framed thereunder.

At this juncture we may proceed to state that Mr. Jain has commended us to the Full Bench decision rendered in the case of Superintending Engineer, P.W.D. and Another Vs. Dev Prakash Shrivas and Others, , for pyramiding his argument that there has been no exemption by the State Government as far as the Board is concerned. To appreciate the submission it is apposite to quote the paragraph 5 of the judgment wherein it has been held as under :

In the scheme of the Rules, if we go back to sub-section (2) of section 2 of the Act of 1961, question is whether the present Department is governed by any service rules, as notified under sub-section (2) of section 2 or not. Learned counsel for the State has not been able to point out whether the Rules mentioned in sub-section (2) of Section 2 of the Act govern the present undertaking or not nor has been able to bring to our notice any exemption notification issued under this Act. Since the present Department has not been exempted by issuing a notification in accordance with sub-section (2) of section 2 of the Act of 1961, the Act of 1961 read with Rules of 1963, the Standard Standing Orders shall govern the Department.

We have carefully perused the aforesaid decision. In the said case Superintending Engineer of Public Works Department was seeking exoneration from the operation of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, and in that context it was held that Department was not exempted u/s 2 (2) of the Act. The present factual scenario is quite different We have already referred to the fact that the notification of 1963, was published on 24.7.2000 and that deals with the age of superannuation. In the case of N.S. Giri (supra) as well as in the case of Heerallal Ochbelal and others (supra) it has been held that the regulation if published would hold the field. We are not concerned with the aspects that have been left out, but we are only to observe that the age of superannuation has been covered by the notification published by the Government. In view of this the aforesaid, the decision rendered in the case of Dev Prakash Shrivas (supra) is of no assistance to the learned counsel for the appellant.

Though we have already held that the Standing Orders Act and Rules framed thereunder would not apply but as the submissions have been raised by the learned counsel for the parties with regard to other aspects, we feel obliged to deal with the same for the sake of completeness and to put the controversy to rest from all angles.

We may, at this juncture, refer to the alternative submission of Mr. Tankha. It is his contention that even if the Standing Orders Act and Rules apply, the settlement being in violation of the law in force cannot be given the stamp of sacrosanctity. The learned counsel in this regard has commended us to the decision rendered in the case of N.S. Giri Vs. The Corporation of City of Mangalore and Others, . In the aforesaid case a Three Judge Bench of the Apex Court after referring to the decision rendered in the case of D J. Bahadur (supra) in paragraphs No. 11 and 12 held as under :

The learned counsel for the appellant heavily relied on the three-Judges Bench decision in, Life Insurance Corporation of India Vs. D.J. Bahadur and Others, . Vide Para 80 the majority view has been set out as under :

In my opinion, it is difficult to resist the conclusion that the Industrial Disputes Act is a special law and must prevail over the Corporation Act a general law, for the purpose of protecting the sanctity of transactions concluded under the former enactment. It is true that as laid down in Life Insurance Corporation of India Vs. Sunil Kumar Mukherjee and Others, and reiterated 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 Regulations framed under the Corporation Act have the force of law. But that is of little moment if no reference is permissible to the Regulations when considering the validity and operation of the "settlement" contract. Accordingly, Regulation 58, a product of Corporation Act, cannot supersede the contract respecting bonus between the parties resulting from the settlement of 1974.

The abovesaid decision does support the proposition canvassed by the learned counsel for the appellant that an industrial settlement would operate even by overriding a statutory provision to the contrary. However, suffice it to observe that the Constitution Bench decision in the, The New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad and Others Vs. The Textile Labour Association, Ahmedabad, and also the decision of this Court in, The Hindustan Times Ltd., New Delhi Vs. Their Workmen, which is four Judges Bench decision, were not placed before the learned Judges deciding the LIC of India''s case. A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of binding authority more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available. Respectfully following the earlier two decisions referred to hereinabove, we are of the opinion that the award dated 11.01.1996 u/s 10-A of the I.D. Act appointing the age of retirement at 55, cannot be upheld and given effect to by issuing a writ for its implementation. In any case, the award stood superseded by the subsequent statutory rules of 1974 which too appointed the age of retirement at 55 and there is nothing wrong in the appellant having been asked to superannuate at the age of 55 consistently with the service rules as applicable on that day.

The ratio decidendi of the aforesaid case is that if an award is passed in violation of the statutory rules, the same cannot be given effect to by issuing a writ for its implementation. Their Lordships have held so while equating the award with settlement. It is well settled in law that settlement/agreement/award come within the sweep and ambit of the provisions of the Act and, therefore, we need not detain ourselves to get into the subtleties and nuances thereof. What we are required to dwell upon at this juncture is that whether a settlement prescribing the retirement age to be 60 years, could have been entered into between the Board and the Federation. The learned Single Judge has referred to the Regulations and come to hold that such a settlement could not have been entered upon. We have already held that the Special Law has overriding effect over the General Law unless the Regulations are notified as required by the Statute. The learned Single Judge has not referred to the effectiveness of the notification published on 26.7.2000 by virtue of which the Board has been excluded from the ambit and sweep of the Standing Orders Act and Rules framed thereunder but has come to hold that the said notification was redundant. We are conscious, the learned Single Judge has expressed the aforesaid opinion in a different context, to which we shall advert to at a later stage. But, as presently advised, we are addressing ourselves with regard to alternative submission of Mr. Tankha that the settlement could not have been passed in violation of Statutory provisions. Mr. N.C. Jain, learned senior counsel has placed heavy reliance on Rule 14-A of the 1973 Rules. The relevant part of the said rule as amended reads as under :

14-A. Retirement: (1) An employee shall retire from the service of the employer on the date of he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services are necessary in the interest of the undertaking but he shall not be retained in service after the age of 60 years :

Provided that nothing in this clause shall adversely affect the operation of the terms of any contract agreement settlement or award on this subject, if the age of retirement is not less than 58 years.

(emphasis supplied)

It is submitted by Mr. Jain that the Board has discretion to retain the employees upto the age of 60 years and hence, the Board has the authority to enter into agreement/settlement to keep the employees up to the age of 60 years. We have carefully considered the first part of submission of Mr. Jain but we are not persuaded by the same as sub-section (1) clearly stipulates an employee and, therefore, the decision taken by the Board is qua an individual employee and it cannot cover a group or class in entirety. The problem does not rest here. Mr. Jain, learned senior counsel appearing for the appellant sagaciously has taken us to the first proviso. Placing reliance on the same, submits the learned counsel, by proviso exceptions have been carved out to enable an employer to enter into any contract/amendment/settlement or award. The only rider is that the age of superannuation is not less than 58 years. It is urged by him that proviso does not lessen the right conferred on the employer in the main section but enables the employer to confer more benefits with regard to age of the employees. Thus, it is canvassed by Mr. Jain that the proviso enables the Board to enter into a settlement for enhancement of the age. Mr. Tankha, per contra, would require us to interpret the proviso as a saving clause. It is urged by Mr. Tankha that sometimes lawmakers include a proviso to avoid any kind of prohibition and to dispel a sense of fear but as an actual fact, it is a saving clause. The learned counsel would like us to interpret that the contract/agreement/settlement or award which were in the field on the date the provision came into existence, would not be disturbed and duly honoured, but does not confer any right on the Board (if the Standing Orders Act and the Rules apply) to enter into settlement in contravention of the main provision. At this juncture we may note that Rule 14-A was brought into animation in the year 1973. Initially the relevant part of the provision read as under :

14-A. Retirement : (1) An employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of the attainment of the age of 58 years if his services are necessary in the interest of the undertaking but he shall not be retained in service after the age of 60 years :

Provided that nothing in this clause adversely affect the operation of the terms of any contract, agreement, settlement or award on this subject.

From the aforesaid it is perceptible that the main proviso remains as it is, but there was amendment to the language of the proviso as is apparent from earlier quoted portion. If the rule making authority had the intention to retain the existing contract/settlement/agreement or award they would have specifically stated so. In absence of any specific and categorical language or use of the word "existing" we are unable to read the word ''existing'' into the said provision.

Quite apart from the above, the rule making authority also brought into existence the amendment after a period of eight years in the year 1981. The intention is writ large that proviso carves out an exception to enable the employer granting freedom, independence and liberty to enter into an agreement/settlement to confer more benefit to an employee. We are of the considered opinion that it is in tune with the Industrial Law. Hence, we are not persuaded by the submission of Mr. Tankha that the proviso does not enable the Board to enter into settlement to confer more benefit on the employees in regard to age of superannuation beyond 58 years.

In view of the aforesaid discussion, we are of the considered view that the law laid down in the case of N.S. Giri (supra) does not render much assistance to the learned counsel for the Board and it is distinguishable.

Now the question that falls for consideration is whether the Board has, in fact, entered into a settlement conferring the benefit with regard to retirement age of its employees, vide agreement contained in Annexure P/2. We may reproduce Clause (S) of the settlement. It reads as under:

(S): It has been further agreed that the following fringe benefits shall be regulated as per Vth Pay Commission Report after its adoption by Central Government:

House rent allowance.

City compensatory allowance.

Handicap allowance.

Bilingual allowance to Steno/PA/PS.

Cash handling allowance.

Project allowance.

Transfer allowance.

TA/DA.

Age of retirement.

Pension/Gratuity.

Medical reimbursement to retired employees.

Encashment of half pay leave.

Settlement allowance.

All India LTC.

Item No. 9 of the said Clause deals with the age of retirement. It is submitted by Mr. Jain that this agreement was registered u/s 33 of the MPIR Act and hence, it has to be regarded as a settlement having all force of law.

To appreciate the aforesaid submission, we think it apposite to reproduce Section 33 of the MPIR Act. It reads as under:

Agreements : (1) If in regard to a change proposed under sub-section (1) or (2) of section 31, an agreement is arrived at, a memorandum of such agreement shall be forwarded to the Registrar.

(2) On receipt of the memordanum of agreement signed by the parties under sub-section (1), the Registrar shall register the agreement if it is arrived at :

(a) within seven days from the service of a notice under sub-section (1) or sub-section (2) of section 31, of within such further period as may be agreed upon by the parties; or

(b) xx xx

(c) within two months from the completion of conciliation proceedings :

Provided that the Registrar shall not register an agreement which on enquiry he is satisfied is in contravention of the provisions of this Act or was the result of mistake, misrepresentation, fraud, undue influence, coercion or threat.

(3) An appeal shall lie to the Industrial Court against an order of the Registrar refusing to register an agreement under sub-section (2). The provisions of Section 22 shall apply to such appeal.

(4) An agreement registered under this section shall come into operation on the date as specified therein or if no date is so specified on its being recorded by the Registrar.

It is worthwhile to mention that Section 33 of the MPIR Act refers to sub-section (1) or (2) of Section 31. Section 31 deals with notice of change. As there is a reference to Section 31 of the MPIR Act, it is apposite to reproduce the aforesaid provision. It reads as under :

Notice of change : (1) An employer intending to effect any change in respect of an industrial matter specified in the Schedule I shall give notice of such intention in the prescribed form and manner to the representative of employees and to such other person as may be prescribed.

(2) A representative of employees desiring a change in respect of an industrial matter which is neither covered by standing order nor is specified in Schedule II, shall give notice thereof in the prescribed manner to the employers concerned and to such other persons as may be prescribed.

(3) A representative of employees or an employee desiring a change in respect of an industrial matter specified in Schedule II or any other matter arising out of such change may make an application to Labour Court in such manner as may be prescribed.

We have referred to the aforesaid provisions because Mr. Jain, learned senior counsel has referred to the aforesaid provisions and urged with vehemence that the agreement contained in Annexure P-2 is not an agreement of ordinary nature but has been registered as per law governing the field and the changes had occurred as per law. We have no hesitation in mind that the agreement/settlement which had given the life spark to the terms and conditions of service of the employees was done in accordance with the requirement of M.P.I.R. Act.

The moot question that arises for consideration whether vide Annexure P-2 benefit in its conclusiveness has been conferred on employee of the Board relating to the age of superannuation. It has been canvassed before us that the agreement has been registered. There is no dispute with regard to the aforesaid fact. The learned single Judge has interpreted this clause and come to hold that this was still born. Mr. Jain, learned senior counsel has pressed hard upon the language employed in the aforesaid clause and submitted that it should be read in a progressive and pragmatic manner and it should be held that benefit was given and what was required to be done only a formal act by the Board. It is his submission that only condition precedent was that in the event of the Central. Government adopting the Vth Pay Commission''s report, the settlement in that regard would become operational. Mr. Tankha, learned counsel for the Board, on the contrary, has given emphasis on the words "shall be regulated" and submitted that they are futuristic in nature. He has commended us to the meaning of the word ''regulated'' by referring to Black''s Law Dictionary, Law Lexicon-written by Ramnatha Aiyer and Strouds Law Dictionary.

According to Black''s Law Dictionary :

"Regulate : To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection or advancement; to adopt measures to promote its growth and ensure its safety; to foster, protect, control and restrain. Virginian Ry. Co. vs. System Federation No. 40, Railway Employees Department of American Federation of Labour, C.C.A. Va., 84 F.2d 641, 650. It is also power to prescribe Bile by which commerce is to be governed, and embraces prohibitory regulation. United States vs. Darby, 312 U.S. 100, 657, 61 S.Ct 451, 456, 85 L.Ed. 609. Regulate means to govern or direct according to rule or to bring under control or constituted authority, to limit and prohibit, to arrange in proper order, and to control that which already exists.

Farmington River Co. vs. Town Plan and Zoning Commission of Town of Farmington, 25 Conn. Sup. 125,197 A.2d 653, 660.

According to Stroud''s Judicial Dictionary :

(1) To "regulate" a supply of water does not mean to shut it off altogether. Therefore, where an Act required the consumers of water to provide "proper ball or stop-cocks, or other necessary apparatus, for regulating" the supply, that did not include an out-of-door screw-down valve, whereby the water could be shut off from coming into a consumers house.

(2) A power to make a by-law to "regulate and govern" a trade does not authorise the prohibition of such trade; "there is a marked distinction between the prohibition or prevention of a trade and the regulation or governance of it; and, indeed, a power to ''regulate and govern'' seems to imply the continued existence of that which is to be regulated or governed.

(3) Whenever an Act authorises the making of rules for "regulating" matter under it, that does not validate a rule which creates a new jurisdiction (King vs. Henderson [1898] AC 720). According to the Law Lexicon :

Regulate : To regulate means to adjust by rule, method, of established mode; to direct by rule of restriction; to subject to governing principles or laws.

To correct by control; to control govern or direct by rules or regulations; to adjust in respect of time, quantity, etc. with reference to standard of purpose.

To "regulate" a supply of water, does not mean to shut it off altogether.

A power to make a bye-law to "regulate and govern" a trade does not authorize the prohibition of such trade, "there is a marked distinction between the prohibition or prevention of a trade and the regulation or governance of it; and, indeed, a power to ''regulate and govern'' seems to imply the continued existence of that which is to be regulated or governed", [Toronto v. Virgo, (1896) AC 88]

Mr. Jain, learned senior counsel has also referred to Blacks Law Dictionary to show that the meaning given therein do not throw full light on the conceptual eventuality and the aforesaid term has to be appreciated in proper perspective keeping in tune the entire scheme of the settlement The learned counsel has also relied the decision rendered in the case of Jiyajeerao Cotton Mills Ltd. and Another Vs. Madhya Pradesh Electricity Board and Another, . In the aforesaid decision the Apex Court expressed as under:

Section 22-B permits the State Government to issue an appropriate order for regulating the supply, distribution and consumption of electricity. The expression ''regulate'' occurs in other statutes also, as far example, the Essential Commodities Act, 1955, and it has been found difficult to give the words a precise definition. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and the Court while intepreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied. The necessity for issuing the two orders namely, M.P. Electricity (Supply and Consumption Regulation) Order, 1975, and M.P. Electricity (Generation, Control and Consumption) Order, 1975 arose out of the scarcity of electricity available to the Board for supplying to its customers. The situation did not leave any option to the Board but to make limited supply of electricity to its consumers and it must be held to have in the circumstances the right to stagger or curtail the supply. The orders were issued in this background and to make the direction mentioned therein effective it was considered essential to impose sanctions which could take any reasonable form; either disconnection in case of gross violation or the lesser sanction of enchanced tariff. The demand of higher charges/tariff for electricity consumed beyond legally fixed limit under the orders is a reasonable deterrent measure providing an appropriate sanction -not as harsh as disconnection of supply of energy altogether -and cannot be opposed on the ground of public policy. Therefore, none of ground of the two orders is illegal or unreasonable.

(quoted from the placitum)

We may state here with profit that on a perusal of the aforesaid decision we are of the considered opinion that their Lordships were dealing with different face of the terms ''regulate'' and the same does not render much assistance to the learned counsel for the appellant The meaning of the term "regulate" has to depend upon its use in an instrument The context has to be taken cognizance. A court while understanding the terminology need not delve upon the ''etymological chameleon'' but must gather the meaning which, in fact, flows from the document. On a careful scrutiny of the clause in entirety, we are of the considered opinion that no right in prasenti had accrued on 10.6.1996 to the employees and, in fact, a provision was made to take effect on a future date on certain conditions precedent being satisfied. At this juncture, we may hasten to add Mr. Jain, learned senior counsel has submitted that if it is futuristic it has taken a concretised shape as the Board issued a notification, Annexure P/2, dated 27.5.1998. The aforesaid submission of Mr. Jain appears to be quite attractive at a first flash but on a deeper scrutiny it melts into insignificance for the simple reason, we are unable to persuade ourselves that Annexure P/2 is a continuation of Annexure P/1. To elaborate, it cannot be held, Annexure P/2 is to be read into Annexure P/1, as if it forms a part of the settlement. Hence, we are of the considered view that no right as such had flowed from the settlement and, therefore, the proviso to Rule 14-A is not attracted.

The next plank of argument of Mr. Jain is that the learned Single Judge has erred in law by coming to hold on both the Annexures P/2 and P/4, are non est in the eye of law inasmuch as they were not published in the official gazette. It is his further submission, Annexure P/2 having been worked out and the Board having given the benefit, it could not have been taken away the same vide Annexure P/4 in a unilateral and arbitrary manner. We may state here, Annexure P/2 was issued in exercise of power conferred on the Board u/s 79 (c) of the Electricity Supply Act. Mr. Jain would like us to read this document, in a different matter. We may repeat at the cost of repetition. Submission of Mr. Jain is that it is a consequential act of Annexure P/l, though it has been given the nomenclauture under the Statute. As we have already negatived that submission of the learned cunsel, we will go by the language used vide Annexure P/2. True it is, certain employees had taken benefit under the said document but the Board has not taken steps to do any thing which would affeet the beneficiaries of Annexure P/2 but has withdrawn the same, vide Annexure P/4. Both the documents have been issued u/s 79 (c) of the Electricity Supply Act. Section 79 (c) of the said Act was amended by Act No. 20 of 1983 on 15.3.1984. By virtue of this amendment the Board is entitled to make regulations by notification in the official gazette. It is not disputed before us that neither Annexure P/2 nor Annexure P/4 were published in the official gazette. At this juncture, we may note that in the case of The Meghalaya State Electricity Board and Another Vs. Shri Jagadindra Arjun, Two Judge Bench of the Apex Court came to hold as under :

As per Section 79 (c), MSEB may frame regulations not inconsistent with the provisions of the Act and the Rules providing for the duties of officers and other employees of the Board and their salary, allowances and other conditions of service. It is to be stated that this is an enabling provision. The MSEB may frame regulations as provided in Section 79 (c) of the Act, but in the absence of any regulations, the MSEB can lay down service conditions by administrative order/instructions. Section 15 of the Act empowers the Board to appoint its employees as may be required to enable the MSEB to carry out its functions under the Act except the Secretary who is to be appointed with previous approval of the State Government. The power to lay down service conditions by regulations is expressly conferred upon the MSEB, so it has power to prescribe service conditions. Section 78A also provides that except on question of policy for which the State Government has issued directions, the Board is entitled to discharge its functions prescribed under the Act which would include appointment of Staff to enable it to carry out its functions and also lay down service conditions. Hence, if there are no rules or regulations pertaining to service conditions of its employees, same could be prescribed by administrative order and such power of the employer which is a statutory corporation would be implied.

On a perusal of the aforesaid decision it is quite apparent, that the Board can issue administrative instructions in absence of the Regulations holding the field. But once the regulations have been framed, it cannot be amended without taking recourse to law. As far as the Board is concerned the regulations were in existence from the year 1952. After 1984 the Board could not have passed any administrative order without amending the Regulation. We are conscious that Regulation which was prevalent in the year 1952, continued for a long period and the Board has taken steps to frame Regulations and took time in framing of the said regulations and publication in the gazette was not necessary. We may state here that publication by the Government u/s 2 (2) of the M.P. Industrial Employment (Standing Orders) Act, 1961 is quite different than publication the regulation u/s 79 (c) of the Electricity Supply Act. It cannot be said by any stretch of imagination, that the Board did not have a Regulation in the year 1952. Irrefragably the Board did have a Regulation and it was applicable in all spheres of the Board except the sphere which was covered under the Standing Orders Act, but that is a different aspect altogether. The Board has brought into existence these two notifications without publishing in the official gazette which is mandatory because it impaired and affected the regulations of 1952. The learned Single Judge has placed reliance on the Full Bench decision of Kerala High Court rendered in the case of AM. Mani vs. State Electricity Board AIR 1968 Ker 68. We can not do better than to reproduce what the learned Single Judge has quoted.

This should ordinarily have entitled the petitioner to succeed; but the learned Advocate-General confronted us with the position that Ext P-8 proceedings of the Board on which the petitioner''s right of age was founded, is also tarred by the same brush. We were referred to the petitioner''s affidavit in O.P. No. 2560 of 1966 wherein he admitted that the Board by a majority decided not to extend the benefits of any increase in the age of superannuation to its employees. We understand paragraph 8 of the counter-affidavit filed by the Board in this writ petition, as a clear admission that Exts. P-8 and P-9 proceedings of the Board, were also issued under the influence of the Government''s directive Ext. P-5. Such an admission is also contained in paras 11 and 12 of the Board''s counter affidavit in O.P. No. 2560 of 1996 (vide Ext. P-17). If so, Exts. P-8 and P-9 proceedings are also tainted by the same illegality which taints right or title to continue in service upto 58 years of age which alone will entitle him to maintain this writ petition. Nor can we issue the high prerogative writ sought for in this case, if the effect of doing so would be perpetuate the illegal orders Ext. P-8 and P-9.

We concur with the aforesaid finding of the learned Single Judge that both the notifications suffer from same vice and, therefore, both are to be held as non est in law.

In view of the aforesaid, we do not find any right had been conferred on the employees of the Board in a lawful manner, so that they could claim the same as a matter of right.

The next submission of Mr. Iain is that even if the Board is not covered by the M.P. Industrial Employment (Standing Orders) Act, 1961 but the Board by its own Regulation which is a lawful one, has fixed the age of superannuation to be 60 years. To substantiate the aforesaid submission he has referred to the notification dated 19.10.1963. Submission of the learned senior counsel is that Clause (I) of the said notification deals with fundamental rules and supplementary rules having force in the State of Madhya Pradesh and, therefore, the amendments which take place from time to time in fundamental rules and supplementary rules in the State of Madhya Pradesh would automatically become applicable to the Board. Developing his submissions he has putforth that the State of Madhya Pradesh has enhanced the age of retirement of its employees to 60 years and, therefore, the Board has the bounden duty to retire its employees at the age of 60 years and cannot deviate from the same, in view of the language employed in the notification dated 19.10.1963. Mr. Tankha has contended that the Board has incorporated in its regulation the fundamental rules and supplementary rules as is in force in Madhya Pradesh in the order dated 19.10.1963 and hence, the subsequent amendments to the said Rules would hot be attracted.

The question that falls for consideration is whether by virtue of such an adoption the Board is bound to be governed by such amendments that take place in future point of time in the FRSR of the State Government. It is submitted by Mr. Jain as there is only a reference to the Rules in question and hence the furture amendments would have full play and no dent is permissible. Submission of Mr. Tankha is that adoption if read in proper perspective will make it demonstrively perceptible that there has been incorporation and hence, this is one time adoption and would not attract the future amendments to have a play in the Board''s regulations. To buttress his submission he has placed reliance on the decision rendered in the case of Mahindra and Mahindra Limited vs. The Union of India and another, AIR 1979 SC 798. In the case of Mahindra and Mahindra (supra) their Lordhips while dealing with the concept of applicability of amendment of Section 100 of the CPC to an appeal under Monopolies and Restrictive Trade Practice Act (54 of 1969) interpreted Section 55 of the Act and held as under :

We have no doubt that Sec. 55 is an instance of legislation by incorporation and not legislation by reference. Section 55 provides for an appeal to this Court on "one or more of the grounds specified in Sec. 100". It is obvious that the legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to S. 100, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in S. 55. The right of appeal was clearly intended to be limited to the grounds set out in the then existing S. 100. Those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the Legislature intended to restrict the right of appeal. The Legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in Sec. 100 without knowing what those grounds were. The grounds specified in Sec. 100 might be changed from time to time having regard to the legislature policy relating to second appeals and it is difficult to see any valid reason why the Legislature should have thought it necessary that these changes should also be reflected in Sec. 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under Sec. 55 so that Sec. 55 should be inseparably linked or yoked to Sec. 100 and whatever changes takes place in Sec. 100 must be automatically read into Section 55. It must be remembered that the Act is a self-contained Code dealing with the monopolies and restrictive trade practices and it is not possible to believe that the Legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Sec. 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of Sec. 55 with Sec. 100 might be repealed altogether by the Legislature a situation which cannot be regarded as wholly thinkable. If the construction contended for on behalf of the respondents were accepted, Sec. 55 would in such a case be reduced to futility and the right of appeal would be wholly gone, because then there would be no grounds on which an appeal could lie. Could such a consequence ever have been contemplated by the Legislature ? The Legislature clearly intended that there should be a right of appeal though on limited grounds, and it would be absurd to place on the language of Sec. 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. We must, therefore, hold that on a proper interpretation the grounds specified in the then existing Sec. 100 were incorporated in Sec. 55 and the substitution of the new Sec. 100 did not affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law, it is clearly maintainable under Sec. 55....

The same principle was also followed in the case of Rajasthan State Road Transport Corporation, Jaipur Vs. Smt. Poonam Pahwa and others, , wherein their Lordships while following the aforesaid judgment opined further as under :

After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the appellant and by Dr. Dhavan, the learned senior counsel appearing as amicus curiae in this appeal, it appears to us that the State of Haryana has adopted the Punjab Motor Accidents Claims Tribunals Rules 1964 by substituting the word ''Haryana'' for Punjab in Rule 1 Clause (b) and in Rule 2 clause (b). Such adoption in the Punjab Motor Accidents Claims Tribunal, 1964 was made on January 20, 1972. In the Punjab Motor Accidents Claims Tribunal Rules, 1964, amendment was effected on June 21, 1968 by inserting Order XXI of the CPC in Rule 20 framed under Motor Vehicles Act, 1939. In our view, Dr. Dhavan is justified in his submission that when Haryana has adopted the Punjab Motor Accidents Rules in 1972, it must be held that it has adopted the Punjab Rules as it stood on the date of adoption, namely, January 20, 1972. Order XXI of the CPC has been expressly made applicable in Punjab Motor Accidents Claims Tribunal Rules by amending the Punjab Rules in June 1968 which was published in Gazette on July 12, 1968. Therefore, by adopting the Motor Accidents Claims Tribunal Rules, 1964 in 1972, it should be held that Haryana has adopted the Punjab Motor Accidents Claims Tribunal Rules, 1964 as stood amended on the date of adoption. In this connection, reference may be made to the decision of this Court in Mahindra and Mahindra vs. Union of India, AIR 1979 SC 798 and Bolani Ores Ltd., . In Mahindra and Mahindra''s case, it has been held that if there is mere reference to a provision of statute in another without incorporation, then unless a different intention clearly appears, Section 8 (I) of General Clauses Act would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute.

It is putforth by Mr. Tankha that notification dated 19.10.1963 was not by reference but was by incorporation inasmuch as the Board had used different words in respect of different rules. That apart, submission of the learned counsel is that even if it is taken as a reference the intention is unambiguous and categorical that the Board intended to adopt the fundamental rules and supplementary rules ''as in force'' in the State of M.P. The learned counsel has further drawn attention of this Court to show that the Revised Leave Rule in M.P. was adopted. He has also submitted that the Board has directed that rules amended and are in force for the time being shall apply. Thus, the tenor of the language employed in the notification lays immense emphasis on ''in force for the time being'' and if the notification is read in a proper perspective there remains no trace of doubt that the Board had adopted the rules in force by that time and does not commend acceptation that it would be treated as if it was intended to incorporate the amendments that would come into force in furture to be engulfed and encompassed by adoption.

Apart from the above, the learned counsel has submitted that the practice of the Board and the acceptance by its employees also to be taken into consideration. It is put forth by him that the State Government though from time to time, had changed the age of superannuation but the Board did not deviate from adoption of the fundamental rules and supplementary rules, which were in force as on 19.10.1963 for the simple reason that was in consonance with its Regulation, 19, 52. It was demonstrated before us that by way of amendment, the State Government has changed the date of superannuation on many an occasion. Between 1.3.1963 to 14.12.1967 the State Government had fixed the age of superannuation to 58 years and from 15.12.1967 to 24.4.1972 it was 55 years. Thereafter it was again enhanced to 58 years. At this juncture we may profitably refer that the Board had also adopted the notification dated 16.9.1976, the Madhya Pradesh Shashkiya Seva (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 1976 (9 of 1976) published in the M.P. (Extra Ordinary) Rajpatra dated 11th March, 1976. It is not disputed at the Bar, by the said enactment the State Government fixed the age of retirement of its employees at 58 years. We have only referred to that as it was brought to our notice but we are of the opinion that nothing turns on that. As we have interpreted the notification is "dated" 19.10.1963, we conclusively hold that, the future amendments to the rules mentioned therein would not be made applicable to the Board.

We will be failing in our duty if we do not deal with the submission of Mr. Jain, learned senior counsel to the extent that by publication in the official gazette on 14.7.2000 the Board in fact, has accepted the subsequent amendments of the relevant Rules which have been referred to the notification. On a perusal of the gazette notification we find that (sic) was adopted in the year 1963, has been produced in entirety in 2000 and, therefore, we come to the conclusion that the Board has not accepted the subsequent amendment that has taken place in the fundamental rules and supplementary rules, but has adhered to rules which were in force in the State of Madhya Pradesh as in the year 1963. The publication in the year 2000 does not bring any change in the situation.

In view of the aforesaid we are of the considered view that it cannot be held that the Board''s Regualtions as such fixed the age of retirement at 60 years.

Mr. Jain, learned senior counsel has submitted that the Board was aware that the Annexure P/1 is a settlement in completeness and covered the aspect relating to age of superannuation and, therefore, sent the letter dated 22-10-1999 to the Federation. Though this document was not produced before the learned Single Judge and not filed the same along with the memorandum of appeal taking recourse to Order 41 Rule 27 of the Code of Civil Procedure, Mr. V.K. Tankha, learned counsel for the Board did not object to deal with the same. On a perusal of the same, it is seen that the said letter has been communicated to the Federation by the Secretary of the Board ind indicating that there would be no change without negotiation. Be that as it may, from such a letter it cannot be construed that the Board had accepted the settlement to the effect that it had concretised the age of retirement mentioned therein. In any case we have to interpret the written instrument as it is and not follow the letter issued thereafter by the Secretary of the Board. That apart, the Secretary of the Board has not referred to the settlement in question but has only stated therein that the Board had not taken any decision to change the date of superannuation and if at any point of time, it would be so, it shall to be so done after due negotiation. Submission of Mr. Jain is that this letter makes it quite clear that the Board was conscious that the right had accrued in favour of the employees of the Board by virtue of settlement and it cannot be annuled without negotiation. We are afraid, we cannot accept the aforesaid submission inasumuch as we have to give strict construction to the settlement/agreement brought before us and would not be guided by any letter written by the Secretary of the Board.

The last limb of argument of Mr. Jain is that the approach of the Board is unpragmatic as it does not keep in view the changed social milieu. The learned senior counsel has impressed upon us that;i late marriage of employees has led to delayed procreation which creates such a situation that by the time the employees attain the age of superannuation their children are not self reliant and the employees are not freed from their liabilities. Mr. Tankha has replied that till 1998 the employees of the Board were required to be superannuated at the age of 58 and in absence of any legal right a writ of mandamus cannot be issued to the Board to enhance the age of retirement. The learned senior counsel has also highlighted that a social philosophy might be having its bedrock in the social fabric but the Board can not extend the benefit to its employees at the cost of its existence, more so, when it is facing extreme financial crunch. We may hasten to add here that we have noted the submission of the learned counsel for the parties but as we have indicated earlier the same can not be delved into by this Court as it is well settled in law a high prerogative writ can not be issued unless there is an existing right. That apart the date of superannuation has to be fixed by the employers and once that has been fixed in accordance with law we have no hesitation to give the same the stamp of approval of this Court. The such faxation being impeccable, we may further add that the picture that has been frescoed by the appellant before us does not command acceptance for the simple reason the employees have no imprescritible right to claim the benefit or advantage. We can only say "give unto them as law accords" we may not say any thing more on this score.

In view of our preceding analysis we do not find any substance in the appeal and the same stands dismissed. However, as the appellant harboured hope and fostered the aspiration that the employees would retire, at a latter age, which ordinarily a man hopes and aspires to gain while in service, and approached this Court in appeal, we impose no costs.