w w w . L a w y e r S e r v i c e s . i n



M/s. United Breweries Ltd., Represented by H.R. Prashanth Kumar, H.R. Manager v/s Karnataka Engineering & General Workers Union, Represented by its General Secretary K.S. Subrahmanya & Others


Company & Directors' Information:- UNITED BREWERIES LIMITED [Active] CIN = L36999KA1999PLC025195

Company & Directors' Information:- G M BREWERIES LIMITED [Active] CIN = L15500MH1981PLC025809

Company & Directors' Information:- S S BREWERIES PRIVATE LIMITED [Active] CIN = U45400HR2007PTC037304

Company & Directors' Information:- S V BREWERIES LIMITED [Strike Off] CIN = U74900WB2009PLC133687

Company & Directors' Information:- K K BREWERIES PVT LTD [Active] CIN = U15531WB2006PTC108063

Company & Directors' Information:- BREWERIES INDIA PVT LTD [Strike Off] CIN = U15511KL1968PTC002179

Company & Directors' Information:- S K N BREWERIES LIMITED [Amalgamated] CIN = U74899DL1992PLC050471

Company & Directors' Information:- UNITED ENGINEERING COMPANY PVT LTD [Active] CIN = U34201WB1985PTC038966

Company & Directors' Information:- UNION ENGINEERING PRIVATE LIMITED [Active] CIN = U74210KA1985PTC006829

Company & Directors' Information:- GENERAL ENGINEERING PRIVATE LTD [Strike Off] CIN = U45203AS1992PTC003782

Company & Directors' Information:- THE UNITED ENGINEERING CORPORATION PRIVATE LIMITED [Strike Off] CIN = U00349KA1946PTC000438

Company & Directors' Information:- GENERAL ENGINEERING CORPORATION LTD [Active] CIN = U99999MH1928PLC001400

Company & Directors' Information:- THE WORKERS CORPORATION PVT LTD [Strike Off] CIN = U36900WB1947PTC014001

Company & Directors' Information:- WORKERS CORPN PVT LTD [Strike Off] CIN = U74140WB1947PTC015663

Company & Directors' Information:- INDIA GENERAL ENGINEERING COMPANY LIMITED [Under Liquidation] CIN = U99999MH1955PLC009687

Company & Directors' Information:- U P BREWERIES PRIVATE LIMITED [Under Liquidation] CIN = U99999DL1970PTC005325

    Writ Petition No. 47312 of 2013 (L-RES)

    Decided On, 10 January 2017

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA

    For the Petitioner: Kasturi, Sr. Counsel for Mohan Kumar, Kasturi Associates, Advocates. For the Respondents: R1, K.S. Subramanya, Advocate, R2 & R3, Munigangappa, HCGP.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 of the Constitution of India praying to quash the Order Dated 31.10.2011 passed by the Deputy Labour Commissioner and certifying officer under the Standing Orders Act vide Annexure-F and the Order Dated 23-9-2013 passed by the Additional Labour Commissioner and Appellate Authority under The Industrial Employment Standing Orders Act Annexure-L.

This writ petition coming on for preliminary hearing in ‘B’ Group this day.)

1. The petitioner – United Breweries Limited is before this Court for a writ of certiorari to quash the Order dated 31.10.2011 passed by the Deputy Labour Commissioner and Certifying Officer under the Standing Orders Act vide Annexure-F and the order dated 23-9-2013 passed by the Additional Labour Commissioner and Appellate Authority under the Industrial Employment (Standing Orders) Act in Appeal No.SOA/CR-8/2011-12 vide Annexure-L enhancing the retirement age of employees of the petitioner – Company from 58 to 60 years.

2. It is the case of petitioner that the 1st Respondent Union filed an application dated 28.03.2011 contending that Union has espoused the cause of workers of the petitioner before the Standing Orders Authority – 2nd Respondent and sought deletion of Clause 26 of Standing Orders regarding transfer of workmen from one department to another or one job to another or one officer to another or one unit to another unit in the same town or anywhere in India. The 1st Respondent Union also sought for amendment of clause-29 i.e., the clause which prescribed the age of retirement as 58 years as per the Standing Orders of the petitioner Company. The 1st Respondent Union prayed for enhancing the age of superannuation/retirement age from 58 years to 60 years. After receipt of petition for amendment of standing orders, the petitioner-company filed objections on 05.09.2011. The 1st respondent – Union filed Rejoinder on the same day i.e., 5.9.2011. The 2nd respondent – certifying authority after adjudication of proceedings, by an order dated 31.10.2011 amended Clause-29 of the Standing Orders enhancing the age of retirement of workmen from 58 to 60 years.

3. Being aggrieved by the said order, petitioner-company/Management filed an appeal under section 6 of the Industrial Employment (Standing Orders) Act, 1946 before the 3rd Respondent in Appeal NO.SOA/CR-8/2011-12. After hearing both the parties, by the impugned order dated 23.09.2013 vide Annexure-L dismissed the appeal and confirmed the order passed by the Standing Orders Authority/Deputy Labour Commissioner. Hence, the present writ petition is filed.

4. I have heard the learned counsel for the parties to lis.

5. Sri Kasturi, learned senior counsel appearing for Sri Mohan Kumar, learned counsel for the petitioner has vehemently contended that the settlement was entered into between the petitioner-company and the 1st Respondent/Union on 08.06.2011 and the said settlement was in existence upto 31.08.2013. He brought to the notice of the Court clause-31 of the said settlement, which reads as under:

'It is agreed by and between the parties that during the period of operation of this settlement and thereafter until it is terminated validly, the Union and the Workmen agree that they shall not raise/espouse any fresh demands having financial burden in respect of the workmen covered under this settlement.'

6. Learned senior counsel contended that in view of Clause-31 of the settlement entered into between the parties, the Union and the Workman shall not raise any fresh demands having financial burden in respect of the workmen covered under the settlement. Thus Clause-31 prohibits raising of fresh demand having financial burden either by the workmen or the Union. Learned Senior Counsel further contended that the nature of work in petitioner-company is studious and it is difficult to the workmen to carry out the work efficiently to maintain productivity in case of enhancing the age of retirement. In support of his contentions, he has relied upon the dictum of the Hon’ble Supreme Court in the case of BARAUNI REFINERY PRAGATISHEEL SHRAMIKPARISHAD GENERAL SECRETARY BARAUNI TELSHODHAK MAZDOOR UNIOR .vs. INDIAN OIL CORPORATION LIMITED JOINT CHIEF LABOUR COMMISISONER (CENTRAL) reported in 1991(1) LLJ 46 wherein at paragraph-5, the Hon’ble Supreme Court has held as under:

'5. By clause 21 of the settlement extracted earlier the Union agreed that during the period of the operation of the settlement they shall not raise any demand which would throw an additional financial burden on the management, other than bonus. Of course the proviso to that clause exempted matters covered under section 9A of the Industrial Disputes Act from the application of the said clause. However, section 9A is not attracted in the present case. The High Court was, therefore, right in observing; 'when the settlement had been arrived at between the workmen and the company and which is still in force, the parties are to remain bound by the terms of the said settlement. It is only after the settlement is terminated that the parties can raise any dispute for fresh adjudication'. The argument that the upward revision of the age of superannuation will not entail any financial burden cannot be accepted. The High Court rightly points out: 'workmen who remain in service for a longer period have to be paid a larger amount by way of salary, bonus and gratuity that workmen who may newly join in place of retiring men'. The High Court was, therefore, right in concluding that the upward revision of the age of superannuation would throw an additional financial burden on the management in violation of clause 21 of the settlement. Therefore, during the operation of the settlement it was not open to the workmen to demand a change in clause 20 of the certified Standing Orders because any upward revision of the age of superannuation would come in conflict with clauses 19 and 21 of the settlement. We are, therefore, of the opinion that the conclusion reached by the High Court is unassailable.'

7. In view of the above, learned senior counsel appearing for the petitioner sought to set-aside the impugned orders passed by the certifying authority and the appellate authority by allowing the present writ petition.

8. Per contra Sri K.S. Subramanya learned counsel for the 1st Respondent sought to justify the impugned orders and contended in terms of settlement entered into between parties on 08.06.2011, which was in existence upto 31.8.2013, no fresh demand having financial burden shall be raised either by the workmen or the Union during the existence of settlement. The application was filed as per Annexure-A as long back as on 28.3.2011 for enhancement of age of retirement from 58 to 60 years by amending Clause-29 of the Standing Orders and no new demand was raised during the existence of settlement entered into between 1st respondent – Union and the petitioner. Learned counsel further contended that authorities were justified in enhancing the age of retirement from 58 to 60 years and therefore sought to justify the impugned orders. In support of his contentions, learned counsel for 1st Respondent has relied upon the Judgments of the Hon’ble Supreme Court in the case of BRITISH PAINTS .vs. ITS WORKMEN reported in AIR 1966 SC 732 and in the case of HINDUSTAN ANTIBIOTICS LIMITED .vs. THEIR WORKMEN reported in AIR 1967 I LLJ 114 (SC) and the judgment of the Division Bench of this Court in the case of M/S KENNAMETAL INDIA LIMITED .vs. KENNAMETAL INDIA EMPLOYEES’ ASSOCIATION in Writ Appeal No.2395/2012(L).

9. Learned HCGP sought to justify the impugned orders passed by authorities.

10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition:

'Whether Respondent No.2 and 3 are justified in amending Clause-29 of the Standing Orders by enhancing the age of retirement from 58 to 60 years in the facts and circumstances of present case?'

11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

12. It is not in dispute that members of the 1st respondent-Union were employees under the petitioner – Breweries Company and working since past 15 to 20 years. it is also not in dispute that the 1st Respondent Union – Karnataka Engineering and General Workers Union filed an application before the Certifying Authority on 28.3.2011 to amend Clauses 26 and 29 of the Standing Orders by enhancing the age of retirement from 58 to 60 years. We are concerned in the present writ petition only in respect of Clause 29 of the Standing Orders. The employees have sought for enhancement of retirement age from 58 to 60 years. it is also not in dispute that settlement entered into between the parties on 08.06.2011 which was in force up to 31.08.2013. In terms of clause-31 of the said memorandum of settlement the 1st Respondent – Union or Workmen shall not raise any fresh demand having financial burden in respect of the workmen covered under the said settlement. Admittedly in the present case the 1st Respondent/Union has not raised any fresh demand having financial burden to the petitioner company during the period from 08.06.2011 to 31.8.2013. The application was filed for enhancement of age of retirement from 58 to 60 years by amending Clause-29 of the Standing Orders, on 28.03.2011 i.e., much before the settlement entered into between the parties. Therefore, it is clear that workmen/Union have not raised any fresh demand during the existence of settlement entered into between the parties on 08.06.2011. Therefore the contention of learned Senior counsel appearing for the petitioner that the respondent/Union has raised fresh demand having financial burden during the existence of settlement entered into between the parties on 8.6.2011, cannot be accepted.

13. Section 10 of the Industrial Employment (Standing Orders) Act, 1946 deals with duration and modification of standing orders, which reads as under:-

10. Duration and modification of standing orders.-

(1) Standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen, or a trade union or other representative body of the workmen be liable to modification until the expiry of six months from the date on which the standing orders or the last modification thereof came into operation.

(2) Subject to the provisions of sub-section (1), an employer or workman or a trade union or other representative body of the workmen may apply to the Certifying Officer to have the standing orders modified and such application shall be accompanied by five copies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workmen or a trade union or other representative body of the workmen, a certified copy of that agreement shall be filed along with the application.

(3) The foregoing provisions of this Act shall apply in respect of an application under sub-section (2) as they apply to the certification of the first standing orders.

(4) Nothing contained in sub-section (2) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra.

14. A plain reading of the said provision makes it clear that Standing orders finally certified under the Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation. In the present case admittedly the application filed for amendment of clause-29 on 28.03.2011. Based on the said application to amend Clause-29 of the Standing Order, the Certifying Authority i.e., the 2nd Respondent – Deputy Labour Commissioner considering the entire material on record has enhanced the age of retirement of workmen from 58 to 60 years. In the present case, admittedly petitioner has not produced any substantial evidence or documents to show that there is depletion in the efficiency and performance of the workmen who were above the age of 58 years and a workman above the age of 58 years cannot work to meet out daily production requirements and a mere enhancement of retirement age from 58 to 60 years cause additional financial burden on the Management. The Orders passed by the certifying authority have been re-affirmed by the appellate authority and held that the 1st respondent – Union has not raised any fresh demand after the settlement entered into between the parties on 08.06.2011 and demand was made by the 1st respondent – Union vide application dated 28.3.2011 before the settlement entered into between parties. Accordingly, appeal came to be dismissed.

15. Both the authorities below exercising the powers under Sections 5 and 6 of the Industrial Employees (Standing Orders) Act, 1940 have arrived at a concurrent finding of fact that the respondent/Union has made out a case to amend Clause-29 of the Standing Orders of the petitioner company by enhancing the age of retirement from 58 to 60 years. The petitioner-company has not produced any material documents either before the authorities or before this Court to show that it caused financial burden to the company. It is not their case that workmen are not efficient or fit to continue beyond 58 years. In the absence of any material produced, the contention of the learned senior counsel for the petitioner that Clause-29 of the amended Standing Order enhancing the age of retirement from 58 to 60 years will be financial burden on the company, cannot be accepted.

16. The Hon’ble Supreme Court while considering the retirement age of workmen in the case of BHAGWATI .vs. CHANDRAMAUL reported in AIR 1966 SC 732 held at Para Nos.4 and 7 as under:-

4. Then there is the question as to future workmen and whether their age of retirement should also be fixed at the same level as in the case of existing workmen. We are of opinion that generally speaking there should not be any difference in the age of retirement of existing workmen and others to be employed in future in a case like the present unless there are special circumstances justifying such differences. In this connection our attention is drawn to the case of Guest, Keen, Williams (P) Limited {AIR 1959 SC 1279} where the age of retirement of future workmen was 55 years. In that case however the age of retirement of future workmen was fixed at 55 years by the Standing Order and the question whether that age of retirement should be changed was not before this Court for consideration. All that this Court had to consider in that case was whether the age of retirement of existing employees, before the Standing Order fixing the age of retirement at 55 years was introduced, should be 60 years or not. In the present company, so far there is no age of retirement and unless there are valid and cogent reasons for making a difference in the age of retirement of existing workmen and those employed in future, the future workmen should also have the benefit of the same, age of superannuation.

7. As to the factory workmen, it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Company Limited {1964 (1) Lab. LJ 451(SC) where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particularly arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and sub-ordinate staff. This appears to have been so in the case of Jessop and Company Limited for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might therefore have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore think that even in the case of future factory-workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years; on the other hand with the age of retirement at 60 yeas there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We therefore modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory-workmen, whether existing or future, at the age of 60 years. `17. The Division Bench of this Court in the case of M/s. Kennametal India Ltd –vs- Kennametal India Employees’ Association in W.A.No.2395/2012 (L) disposed of on 29.05.2014 in identical circumstances while considering the amendment of age of retirement from 58 to 60 years has held as under:-

'7. There is no substance in the submission made by the learned counsel for the appellant that the Respondent Association ought to have filed another fresh application after the expiry of period of settlement. The very same application was again considered by the Certifying Authority on merits and came to be allowed enhancing the age of retirement from 58 years to 60 years by a considered order keeping in mind the observation made by the Apex Court in AIR 1959 Supreme Court 1279 (Guest Keen, Williams Pr. Ltd., Calcutta Vs. P.J Sterling and others), AIR 1980 SUPREME COURT 2181 (The Life Insurance Corporation of India Vs. D.J.Bahadur and Others),1970 1 LLJ 336, (Burman –Shell O.S. & D.Cos), SC 1967 1 LLY P 191 (Hindustan Antibiotics Ltd., Vs. Their Workmen) and 1964 II ILJ 644 (Talang (GM) Vs. Shaw Wallace and Company Limited and the various parameters such as, nature of the work assigned to the employees in their course of employment, the nature of wage structure paid to them, the retirement benefit and other amenities available to them, the age of superannuation fixed in comparable industries in the same region, the general practice prevailing in the industry in the past in the matter of retiring its employees etc., The Appellant Authority ratified the decision of the Certifying Authority. The Writ Petition preferred also met with the same result. The learned Single Judge while dismissing the Writ Petition, para 8 and 9 of the judgment, observed as under:-

'8. Secondly, it is contended that the certifying officer committed an illegality in not considering the relevant factors for enhancement of age of retirement. There is no substance in this contention. A perusal of the impugned order passed by the certifying officer specifies that by following the law declared by the Apex Court, this court, the age of retirement in similarly situated industry, the general trade, the model standing orders and other circumstances the certifying officer held that the age is to be enhanced from 58 to 60 years. The certifying officer also noticed that as per the certified standing orders, discretion is vested with the petitioner company to enhance the retirement age from 58 to 60 years. By considering the entire objections filed by the petitioner and also the entire material on record, the certifying officer rightly concluded that the age of retirement is to be enhanced. In the circumstances, I find no justifiable ground to interfere with the impugned order. Accordingly, the writ petition is liable to be dismissed.

9. It is brought to my notice that subsequent to the order of certifying officer on 26.08.2011 some of the employees have retired from service. The order of certifying officer will come into effect on expiry of 30 days from the date of order. Therefore, the petitioners to extend the monetary benefit to such of the employees who have retired form service on the expiry of 30 days from the date of order of certifying officer.'

We have also gone through other documents so as to ascertain the financial viability of the Appellant. It has been running under profit. From the perusal of the aforesaid decisions of the Apex Court, the trend is in favour of enhancement of age of superannuation from 58 years to 60 years since from 1960. Now, we are in 2014. Definitely, the life expectancy has greatly increased in recent years due to healthier living conditions, better food and improved medical facility. It is equally true that the needs of workmen are greater between 50 years and 60 years. They have to look after education and marriages of their children. The retirement age of the Government servant is also increased from 58 years to 60 years. The Appellant Company has not made out any circumstances, much less, special circumstances justifying the fixation of the retirement as 58 years even in the year 2014. It is needless to say that in general, the efficiency of a workman is not impaired till the age of 60 years. It is must be remembered that this Court does not interfere with the order passed by the Certifying Authority which has been ratified by the Appellate Authority and the learned Single Judge in Writ Petition unless it suffers from grave errors. Thus, having regard to the facts and circumstances of the case, we do not find any error committed by the Certifying Authority, Appellate Authority and the learned Single Judge while enhancing the age of retirement of 60 years, which is fair and proper.'

18. In so far as the reliance of the learned Counsel for the petitioner on the decision of the Hon’ble Supreme Court in the case of Indian Oil Corporation Ltd., -vs- Joint Chief Labour Commissioner & Appellate Authority & Others reported in 1990 (1) LLJ Page 408 wherein by virtue of Clause-21 of the settlement was extracted earlier, the Union had agreed that during the period of operation of the Settlement, they will not raise any de

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mand which would throw an additional financial burden on the management other than bonus. In these circumstances, the Hon’ble Supreme Court held that during the operation of the settlement, it was not open to the workmen to demand a change in Clause-20 of the Certified Standing Orders because any upward revision of the age of superannuation would come in conflict with clauses 19 and 21 of the settlement. Admittedly in the present case there is no conflict of Clause-31 of settlement entered into between parties on 08.06.2011 which was in force up to 31.08.2013. Since, the Union filed an application for amendment of Clause-29 on 28.03.2011, much before the settlement entered into between parties, and admittedly, the workmen have not raised any new demand in contravention of Clause-31 of the settlement entered into between parties, the judgment relied upon by the learned Senior Counsel for the petitioner has no application to facts and circumstances of the present case. 19. The material on record depicts that the application is filed by Union on 28.03.2011 for amendment of Clause-29 enhancing the age from 58 to 60 years, but it is contention of learned Senior Counsel for petitioner that amendment of Clause-29 enhancing the age from 58 to 60 years will throw financial burden on the petitioner-Company. The only contention raised is that in view of the settlement, there cannot be any new demand. Admittedly, subsequent to settlement the entered into between the parties from 8.06.2011 and 31.08.2013, the respondent-Union has not raised any fresh demand. The said contention has been considered by both the Certifying Authority as well as the Appellate Authority and have negated the contentions raised. Both the Authorities below have concurrently held that the respondent-Union has made out a case to enhance the age of retirement from 58 to 60 years by amending Clause-29 of the Standing Orders. 20. For the reasons stated above, the point raised in the present petition is answered in the affirmative holding that both the Certifying Authority as well as Appellate Authority are justified in enhancing the age of respondent-Union from 58 to 60 years by amending Clause-29 of the Standing Orders of the Company and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned orders passed under the provisions of Sections 5 and 6 of the Industrial Employment (Standing Orders) Act, 1946 by the Authorities in exercise of writ jurisdiction under Article 226 of the Constitution of India. Accordingly, Writ Petition is dismissed.
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