IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No.33115/2017 (L-RES) Between :
V. Lakshminarayana Setty S/o. Sri Aswathaiah, Aged about 58 years, R/at No.8, Anjandri Nilaya, Dr. Raj Road, Chikkabommasandra, Near Agarwal Eye Hospital, GKVK Post, Bengaluru-560065. …Petitioner (By Sri Vijaya Kumar C., Advocate) And :
1. Deputy Secretary to Government of Karnataka Department of Labour, Vidhana Soudha, Bengaluru-560001.
2. Federal Mogul T. P. India Limited Formerly known as Goetze (India) Ltd &. Escorts Limited, Yelahanka, Bengaluru-560064, Represented by its Head-Human Resources Sri Marulasidda M. C. …Respondents (By Smt. Shwetha Krishnappa, HCGP for R-1; Sri C. K. Subramanyam, Advocate for Sri B. C. Prabhakar, Advocate for C/R) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to pass an order that the respondent No.2 Company permit the petitioner’ continue the service till the completion of age 60 years as the Gazette Notification dated 27.3.2017 at Annexure-C and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following :
ORDER The petitioner has prayed before this Court that the respondent No.2, Federal Mogul T.P. India Ltd., should be directed to continue the petitioner in service till the petitioner reaches the age of 60 years, in accordance with the Gazette Notification dated 27.3.2017, issued by the State.
2. Briefly the facts of the case are that on 10.12.1979, the petitioner was appointed as a semi-skilled workman with the respondent No.2. Subsequently, the petitioner’s appointment was confirmed by order dated 17.6.1980. After the petitioner put in almost thirty years of service, the respondent No.2 informed the petitioner that he shall retire on 31.7.2017, as he would reach the age of superannuation of 58 years. However, according to the petitioner, on 27.3.2017, the Government of Karnataka issued a Gazette Notification with regard to the Model Standing Orders, and declared that the age of superannuation for workmen would be 60 years, instead of 58 years. Hence, the prayer of the petitioner mentioned herein above.
3. Mr. C. Vijaya Kumar, the learned counsel for the petitioner, has vehemently contended that since the Model Standing Orders have been amended by the State Government, since they have been notified in the Official Gazette, it is the Model Standing Orders which cover the field. Therefore, the benefit of the Model standing Orders should be given to the petitioner, and the petitioner cannot be asked to retire at the age of 58 years. Instead, he should be asked to retire at the age of 60 years. Hence, a direction should be issued to the respondent No.2 to continue the petitioner till he reaches the age of 60 years.
Secondly, in 2012, the respondent No.2 had amended their Standing Orders, and according to the amendment, the employees of respondent No.2 were required to retire at the age of 60 years. Therefore, the information given to the petitioner that he would be required to retire having reached the age of 58 years on 31.7.2017 should be interfered with, and the necessary directions should be issued by this Court.
4. On the other hand, Mr. C. K. Subramanyam, appearing for Mr. B. C. Prabhakar, the learned counsel for respondent No.2, submits firstly that, merely because the Government may have amended the Model Standing Orders by Notification dated 27.3.2017, it would not ipso facto amend the Standing Orders of respondent No.2. According to the provisions of the Industrial Employment (Standing Orders) Act, 1946, (`the Act’ for short), certain procedure needs to be followed for amending the Standing Orders of a Company, or an industry. Since the procedure has not been followed so far, the benefit of the Gazette Notification dated 27.3.2017 cannot be claimed by the petitioner. In order to substantiate this plea, the learned counsel has relied on the case of M. C. Raju v. Executive Director {1985 I LLJ 210 (Karnataka)}.
Secondly, although the respondent No.2 had amended their Standing Order, thereby increasing the age of superannuation from 58 to 60 years, although the amendment was approved by the Certifying Authority, and by the Appellate Authority, nonetheless, the respondent No.2 has challenged both the orders of the Certifying Authority, and the Appellate Authority, in Writ Petition Nos.45822- 25/2012. By the order dated 22.11.2012, this Court has stayed the operation of the order passed by the Certifying Authority, as well as by the Appellate Authority. Therefore, as of today, the amendment made in the Standing Orders of the respondent No.2 do not exist in the eyes of law. Hence, the original position contained in the original Standing Order, that the age of superannuation would be 58 years, continues to hold the field. Hence, the petitioner cannot claim that he should be retired at the age of 60 years, instead of at the age of 58 years.
5. Heard the learned counsel for the parties.
6. Sections 3 and 4 of the Act prescribes the procedure for preparation of the Standing Orders, and for its certification. Section 5 of the Act prescribes the procedure for certifying the Standing Order. Section 6 of the Act deals with the Appeals by an employer, or workman, or Trade Union, who is aggrieved by the order passed by a Certifying Officer. Section 10 of the Act deals with the duration, and modification of the Standing Orders. According to Section 10(3) of the Act, in case of any modification of the Standing Orders, the procedure prescribed by Sections 3, 4 and 5 of the Act, needs to be followed. Therefore, it is obvious that even according to Section 10(3) of the Act, any modification in the Standing Orders does not come into effect automatically, but it necessarily needs to follow the procedure established by law.
7. In the case of M. C. Raju (supra), the particular issue before this Court was whether a workman can claim the benefit of the amendment in the Model Standing Orders passed by the State, even if the necessary amendment had not been made in the Standing Orders of the industry. The Learned Division Bench of this Court answered the said issue in the negative. According to the Learned Division Bench, after the Model Standing Orders are modified by the State, the necessary amendment needs to be carried out in the Standing Orders of the industry before the workman can claim the benefit of the amendment made in the Model Standing Order.
8. The same issue is before this Court in the present case. However, the said issue is no longer res integra after the decision of this Court in the case of M. C. Raju (supra).
9. Admittedly, the Government has modified the Model Standing Orders by the Gazette Notification dated 27.3.2017. However, subsequent thereto, no amendment has taken place in the Standing Orders of respondent No.2. Thus, in the light of the decision passed by this Court in the case of M. C. Raju (supra), and considering the requirement of law, the petitioner is not entitled to claim the benefit of the modification made by the Government by increasing the age of retirement from 58 years to 60 years.
10. Moreover, the position taken by the learned counsel for the respondents that the previous amendment made in the Standing Orders, although certified by the Certifying Authority, and upheld by the Appellate Authority, the said order of the Certifying Authority, and the Appellate Authority, has been stayed by this Court by an order dated 22.11.2012, has not been countered by the learned counsel for the petitioner. Thus, presently even the amendment in the Standing Orders of the respondent No.2 does not exist in the eyes of law. Therefore, the petitioner’s case would be covered by the original Standing Orders, wherein the age of superannuation is 58 years. Hence, the respondents are justified in informing the petitioner that he would retire on the date he reaches the age of superannuation, that is 58 years. Hence, the petitioner is not entitled to seek a direction from this Court to the respondents to continue him in service till he reaches the age of 60 years.
For the reasons stated above, this Court does not find any merit in the present Writ Petition. It is, hereby, dismissed. No order as to costs.
Sd/- JUDGE *bk/-