Oral Judgment: (B.P. Dharmadhikari, J.)
1. These Writ Petitions under Article 226 of the Constitution question action of State Government in bringing down age of superannuation from 60 to 58 years for employees of Maharashtra State Mining Corporation.
2. The Maharashtra State Mining Corporation is a Government company registered under the Indian Companies Act having its office at Nagpur. Provisions of Bombay Shops and Establishments Act, 1948, Industrial Disputes Act, 1947 and Industrial Employment Standing Orders Act, 1946, with Model Standing Orders framed therein apply to it.
3. It is not in dispute that the service conditions of the staff/employees working with Mining Corporation are regulated by Conduct, Discipline and Appeal Rules of said Corporation. These rules are published by Government of Maharashtra in October 1982, after approval of General Administration Department on 16th August, 1982. The petitioners, therefore, claim that rules have come into force on 16th August, 1982. As per Rule (ix) in Part B (v) age of retirement or superannuation is 60- years. This clause (ix) reads as under:
'ix. Age of retirement or superannuation of the employee shall be 60 years or any other as may be agreed upon between the management and employees by any agreement, settlement or award which will be binding on the management and the employee for the time being in force.'
4. The petitioners claim that accordingly their age of superannuation was and even today is 60-years as there is no agreement, settlement or award to the contrary. They submit that in this backdrop when the State Government issued Government Resolution dated 24.10.2001 and brought down age of superannuation from 60 to 58 years, the controversy cropped up.
5. Adv.Marpakwar submits that petitioner no.1- Trade Union in Writ Petition No.2004/2002 approached the Industrial Court in ULP-Complaint No. 787/2001 and claimed violation of Section 9-A of Industrial Disputes Act read with other relevant entries of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act (hereinafter referred to as Act No.1 of 1972). There, an application under section 30(2) for grant of interim relief was also moved and Industrial Court on 3rd May 2002 passed an order observing that in jurisdiction available to it under Act No. 1 of 1972, it could not have examined the legality of Government Resolution (GR) dated 24.10.2001. This order forms subject-matter of Writ Petition No. 2004/2002. In view of additional prayers made therein, the challenge has been placed before the Division Bench. The petitioners in Writ Petition Nos.2004/2002 are members of the petitioner no.1-Trade Union and, therefore, are covered under Section 2(s) of Industrial Disputes Act.
6. Nobody has appeared for petitioner in Writ Petition No. 5223/2004. However at the relevant time, he was working as Assistant Manager, Marketing and Devlepment and, therefore, does not qualify as workman. He has also questioned very same GR urging that he cannot be retired before reaching age of 60 years.
7. It is not in dispute that all petitioners in both these matters have already crossed age of 60 years. This Court has while admitting the matters, not granted any interim relief but then on 24th June 2003, has observed that if petitioners succeed in petition they would be entitled to get benefits as are permissible in law.
8. Adv. Marpakwar submits the Discipline and Appeal Rules mentioned supra, do not permit State Government to amend any clause /rule therein. He has also invited our attention to Articles of Association particularly Article 75 to show that it is duty of company to frame services bye-laws and rules, State Government has been given powers to approve or disapprove it. Hence, amendment necessitating reduction in age of superannuation must also emanate from Company. The State Government of its own cannot suggest such amendment. To substantiate his contentions, he has invited our attention to the powers given to Board of Directors vide Chapter XII Rules, 5,16,17 etc. of Articles of Association. He submits that even after action of Government dated 24.10.2001 bringing down the age of superannuation, Board of Directors of Company has not passed any resolution and has not brought down the age. Therefore, provision of clause (ix) of Discipline and Appeal Rules supra, is still not altered and 60 continues to be the age of superannuation. He, therefore, seeks relief of back wages for all petitioners till they reached the age of 60 years with consequential hike in their gratuity, provident fund and other terminal benefits. He adds that pension is not the condition of service. He points out that in Writ Petition No. 2004/2002 petitioner no.1 is a registered Trade Union and all its members who have retired after filing of this petition are therefore entitled to the benefit of adjudication.
9. Adv. Sudame appearing for company, submits that Discipline & Appeal bye-laws do not come into force of its own but are required to be reserved for consideration of State Government. In terms of Article 75, State Government has power to suggest the alterations, modification and here, that power has been exercised on 24.10.2001. As the employees working in State Government were /are retired after reaching age of 58, to avoid any dichotomy State Government found it proper to prescribe the same age of superannuation and accordingly on 24.10.2001 necessary directions have been issued. The directions are in public interest and, therefore, this Court should not intervene.
10. He submits that petitioner in W.P.No. 5223/2004 is not a workman and hence protection available via section 9-A of Industrial Disputes Act is not attracted in his case. Lastly, he adds that as the action has been taken in the public interest bona fide though this court may find fault with decision of State Government dated 24.10.2001, the age of superannuation may be hiked prospectively and those who have already superannuated, may not be given any benefit - financial or otherwise. The doctrine of 'no work no pay' should be used and unnecessary burden on revenue of company should be avoided. He adds that otherwise survival of respondent-company will be jeopardized.
11. Learned AGP adopts arguments of Adv. Sudame. He stated that State Government has given cogent reasons for providing uniformity and those reasons are not in dispute. Members of petitioner-Union in Writ Petition No.2004/2002 or petitioner in Writ Petition No.5223/2004 have not worked after reaching age of 58 years and hence are not entitled to any wages or other benefits. As there are no allegation of any malice, the petitioners should not be given any relief and petitions should be dismissed.
12. With the assistance of respective counsel, we have perused the papers. The Articles of Association of company i.e. Maharashtra State Mining Corporation Limited are not in dispute. Article 75 on which parties have placed reliance is as under : '75. Without prejudice to the generality of the above provisions, the Board shall reserve for decision of the State Government - (1) rules of the company governing the conditions of service of the employees, Provident Fund and other rules, creation of Reserve and Special Fund; (2) sale, lease or disposal otherwise of the whole or substantially the whole of the undertaking of the company; (3) formation of a subsidiary Company.'
13. The provisions relied upon by Adv. Marpakwar which cloathe Board of Directors of company with power to frame service conditions are contained in chapter XII. In chapter XII in clause (5) power has been given to Board of Directors to appoint and remove, suspend Managers, Secretaries, Officers, Clerks, Agents and servants, for permanent temporary or special services and to fix and determine their duties, salaries, emoluments. It is stipulated that no appointment to a post of which maximum pay is more than 2000 per month can be made without prior approval of State Government. Clause (16) permits Board of Directors to make, vary and repeal from time to time byelaws for regulation of business of company, its officers and servants. Clause (17) empowers Board to give or allow any bonus, pension, gratuity, compensation to any employee of the company. These clauses therefore show that bye-laws to regulate the business of officers or servants including their service conditions need to be framed only by Board of Directors. It is not in dispute that accordingly the Conduct, Discipline and Appeal Rules have been framed by Board of Directors. Article 75 reproduced supra required Board to reserve for decision of State Government Rules of company governing conditions of service of employees, provident fund and other rules. These bye-laws or rules were accordingly sent to State Government and in exercise of these powers, State Government has granted necessary approval through its General Administration Department on 16th August,1982. Approval has been published by Ministry of Industries, Energy and Labour Department of State Government in October, 1982. These Service Rules or Bye-laws titled Conduct, Discipline and Appeal Rules of Maharashtra State Mining Corporation Limited are in force since then. The provision relating to superannuation is contained in these Rules and it is already reproduced by us supra.
14. Thus, the power to frame Service Rules and to decide service conditions with Board of Directors of respondent-company and in exercise of that power, age of superannuation has been determined at 60. The Rules could not have been brought into force without getting it approved from State Government but State Government approved it in August, 1982. Thus, 60 is the stipulated age of superannuation in these Service bye-laws or service rules. Service Rule reproduced supra itself mentions that age of superannuation has to be 60 years or then such other age as may be agreed upon between management and employees by any agreement, settlement or award. Such agreement, settlement or award has to be binding on the Management and the employees for the time being force. Neither petitioners nor management has pointed out any agreement, settlement or award. 60 is the age stipulated in Service Rules approved by State Government and that age therefore is the age of superannuation in terms of various provisions mentioned supra, and remained to be so till 24.10.2001.
15. On 24.10.2001 State Government has come up with a Government Resolution and reduced that age from 60 to 58 years. The reason therefor is the age of superannuation of State Government employees. One fails to understand why employees of State Government needed to be compared with employees of Mining Corporation (company) for this purpose. There is no explanation tendered either by company or then by State Government in this respect.
16. The State Government also has not quoted any power or sanction used by it for issuing this resolution dated 24.10.2001. When the Articles of Association do not empower the State Government to issue any directions and service conditions are to be framed by the Board of Directors of Mining Corporation, the State Government itself for any reason could not have brought down the age of superannuation. This exercise of power by State Government is not supported by any legal provision.
17. The petitioner-Trade Union in Writ Petition No.2004/2002 has gone to Industrial Court and filed ULP (Complaint) under Unfair Labour Practice under item 9 Schedule IV of MRTU & PULP Act, because of violation of Section 9A of Industrial Disputes Act. It appears that if their contention that provisions of Industrial Employment Standing Orders Act and Model Standing Orders framed therein which prescribe age of superannuation to be 60 years, has to prevail over GR dated 24.10.2001 is accepted, the age of superannuation even, in that case, would have been 60 only for all those who qualify as workmen under Section 2(s) of Industrial Disputes Act. Mr. Marpakwar has relied upon the judgment of Hon’ble Apex Court in the case of The U.P. State Electricity Board and another vs. Hari Shankar Jain and others, reported at (1978) 4 SCC 16.
18. Here, as we find that the power to determine age of superannuation is exclusively with the Board of Directors of Mining Corporation and Board of Directors has not resolved either before or after 24.10.2001 to bring it down to 58 years, the age of superannuation stipulated in clause (ix) supra, must operate and prevail.
19. We, therefore, find the direction issued by State Government on 24.10.2001 at Annexure 'A' in Writ Petition No.5223/2004 or at Annexure I of Writ Petition No.2004/2002 unsustainable. It is accordingly quashed and set aside.
20. The petitioners have reached age of superannuation during pendency of petitions and challenge raised by them pointing out correct age or their legal right to continue till then, is very much pending. Pet
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itioners, however, have not worked after reaching the age of 58 years and, in this situation, normally when there are no mala fides pleaded, the principle of 'no work no pay' should apply. However it is to be noted that pension is not the condition of service and hence by denying them wages for period beyond 58 years till their reaching age of 60 years, a substantial loss will be caused to them. Their service conditions has been violated and they were/are legitimately expecting to work till 60 years of age. We also find that it is State Government which has taken impugned decision and forced it upon the Mining Corporation. 21. We, therefore, grant 50% of wages to petitioners from the date on which they have been sent out after reaching age of 58 years till they attained the age of 60 years. Half of this, i.e. 25% shall be paid to petitioners by their employer namely, Maharashtra State Mining Corporation while remaining half shall be paid by State Government. 22. The amount due and payable to each petitioner and member of petitioner no.1-Trade Union shall be computed within a period of six months from today and shall be made over to them within next three months. If it is not so made over, the amount due and payable shall then carry interest at the rate of 8 per cent per annum, from today till its realization by such workman/employee. 23. Writ Petitions are, thus, partly allowed and disposed of. No costs.