# Appeal dismissed. Hidayalullah ]. I959 Mayz5. GUEST, KEEN, WILLIAMS PRIVATE LTD v. P. J. STERLING AND OTHERS

- **Citation:** [1960] 1 S.C.R. 348
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeal-dismissed-hidayalullah-i959-mayz5-guest-keen-williams-private-ltd-v-p-j-1762
- **Pages:** 20

## Headnote

Industrial Dispute-Fixation of age of superannuation of
employees-If a question of law-Standing order, if open to modification-Principle of acquiescence
and
estoppel-ApplicabilityI ndustrial Disputes (Appellate Tribunal) Act, I950 (48 of Ig50).
s. 7(I)(a)-Industrial Employment (Standing Orders)' Act, Ig46
(XX of Ig46), s. 7.
The appellant company in enforcement of a standing order,
framed under the Industrial Employment (Standing Orders) Act,
r946 (XX of r946), against which the respondent had preferred
no appeal, compulsorily retired 47 of its workmen at the age of 55.
A dispute was raised by the workmen as to the validity of such
retirement and the three questions referred to the Tribunal for
adjudication were, (r) whether f"!rced retirement of workmen at
55 was justified, (2) what relief were the workmen entitled to on
retirement and (3) supposing the forced retirement of the workmen in question was justified, to what relief would they be
entitled. It was urged on behalf of the respondents that the age
of superannuation fixed by the standing order should apply only
to new entrants and in the case of old ones the age should be
sixty with option to them to continue even thereafter. The
Labour Appellate Tribunal on appeal, in reversal of the findings
of the Industrial Tribunal, held that the Standing Order in
question could not bar adjudication as to the propriety of the
system of forced retirement, that in view of the admitted fact
that there was no fixed age of retirement in the appellant's
concern before the Standing Order, it could not be enforced
against workmen recruited prior to it and by its award directed
that the workmen who had been compulsorily retired should be
reinstated on refunding what they had received in the shape of
gratuity and Provident Fund dues. It was urged by way of
preliminary objections on behalf of the appellant that (r) the
S.C.R.
SUPREME COURT REPORTS
349
appeal to the Labour Appellate Tribunal was incompetent as no
substantial question of law was involved in it, and (2) that the
reference to adjudication was itself bad and the delay in raising
the present dispute showed that the respondent had acquiesced in
the relevant standing order.
Held, that the objections must fail.
The question as to what should be the proper age of superannuation for industrial workers was one of general importance
as it affected a large number of employees and involved questions
of industrial policy and principle, so it was a substantial question
of law under s. 7(1)(a) of the Industrial Disputes (Appellate
Tribunal) Act, 1950.
A standing order, even though binding as between the
employer and the employees under s. 7 of the Industrial Employment (Standing Orders) Act, 1946, was open to modification even
under the Act as it stood prior to its amendment in 1956, in an
industrial dispute raised by the workmen for that purpose and as
such the present reference, questioning the propriety and validity
of the system of forced retirement as introduced by the appellant
must be decided on merits.
Mettur Industries Ltd. v. Varma and Others (1958) II L.L.J.
326 and Bharat Starch and Chemicals Ltd. v. The Industrial
Tribunal, Punjab, (1958) II L.L.J. 243, referred to.
The delay, inevitable in raising an industrial dispute, could
be no ground in the instant case for an inference that the respondent had acquiesced in the relevant standing order. In industrial
disputes legal technicalities should be avoided as far as it was
reasonably possible to do so and industrial tribunals should be
cautious in applying the principle of acquiescence and estoppel in
the adjudication of such disputes.
Held, further, that it was evident in the instant case that it
was unfair to fix the age of superannuation of previous employees
by a subsequent standing order which should apply in that matter
only to future entrants. In view of the fact however, that the
previous employees had agreed that such age_ for them should be
sixty, with option to continue th

## Text

_Characters 0–39,637 of 46,157. This is a partial read: ask again with offset=39637 for what follows._

348
SUPREME COURT REPORTS [1960(1)]
r959
pro~ts were clearly agricultural income being actually
M•h•••i•dhir•i derived from land. The answer to the question by
Sir Kameshwar the High Court was thus correct.
Singh
The result is that the appeal must fa.ii, and it is
v.
accordingly dismissed with costs.
The Slate of Bihar
·
-
Appeal dismissed.
Hidayalullah ].
I959
Mayz5.
GUEST, KEEN, WILLIAMS PRIVATE LTD.
v.
P. J. STERLING AND OTHERS
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. WANCHOO, JJ.)
Industrial Dispute-Fixation of age of superannuation of
employees-If a question of law-Standing order, if open to modification-Principle of acquiescence
and
estoppel-ApplicabilityI ndustrial Disputes (Appellate Tribunal) Act, I950 (48 of Ig50).
s. 7(I)(a)-Industrial Employment (Standing Orders)' Act, Ig46
(XX of Ig46), s. 7.
The appellant company in enforcement of a standing order,
framed under the Industrial Employment (Standing Orders) Act,
r946 (XX of r946), against which the respondent had preferred
no appeal, compulsorily retired 47 of its workmen at the age of 55.
A dispute was raised by the workmen as to the validity of such
retirement and the three questions referred to the Tribunal for
adjudication were, (r) whether f"!rced retirement of workmen at
55 was justified, (2) what relief were the workmen entitled to on
retirement and (3) supposing the forced retirement of the workmen in question was justified, to what relief would they be
entitled. It was urged on behalf of the respondents that the age
of superannuation fixed by the standing order should apply only
to new entrants and in the case of old ones the age should be
sixty with option to them to continue even thereafter. The
Labour Appellate Tribunal on appeal, in reversal of the findings
of the Industrial Tribunal, held that the Standing Order in
question could not bar adjudication as to the propriety of the
system of forced retirement, that in view of the admitted fact
that there was no fixed age of retirement in the appellant's
concern before the Standing Order, it could not be enforced
against workmen recruited prior to it and by its award directed
that the workmen who had been compulsorily retired should be
reinstated on refunding what they had received in the shape of
gratuity and Provident Fund dues. It was urged by way of
preliminary objections on behalf of the appellant that (r) the
S.C.R.
SUPREME COURT REPORTS
349
appeal to the Labour Appellate Tribunal was incompetent as no
substantial question of law was involved in it, and (2) that the
reference to adjudication was itself bad and the delay in raising
the present dispute showed that the respondent had acquiesced in
the relevant standing order.
Held, that the objections must fail.
The question as to what should be the proper age of superannuation for industrial workers was one of general importance
as it affected a large number of employees and involved questions
of industrial policy and principle, so it was a substantial question
of law under s. 7(1)(a) of the Industrial Disputes (Appellate
Tribunal) Act, 1950.
A standing order, even though binding as between the
employer and the employees under s. 7 of the Industrial Employment (Standing Orders) Act, 1946, was open to modification even
under the Act as it stood prior to its amendment in 1956, in an
industrial dispute raised by the workmen for that purpose and as
such the present reference, questioning the propriety and validity
of the system of forced retirement as introduced by the appellant
must be decided on merits.
Mettur Industries Ltd. v. Varma and Others (1958) II L.L.J.
326 and Bharat Starch and Chemicals Ltd. v. The Industrial
Tribunal, Punjab, (1958) II L.L.J. 243, referred to.
The delay, inevitable in raising an industrial dispute, could
be no ground in the instant case for an inference that the respondent had acquiesced in the relevant standing order. In industrial
disputes legal technicalities should be avoided as far as it was
reasonably possible to do so and industrial tribunals should be
cautious in applying the principle of acquiescence and estoppel in
the adjudication of such disputes.
Held, further, that it was evident in the instant case that it
was unfair to fix the age of superannuation of previous employees
by a subsequent standing order which should apply in that matter
only to future entrants. In view of the fact however, that the
previous employees had agreed that such age_ for them should be
sixty, with option to continue thereafter, the age of superannuation for them should be fixed at sixty, but without the option,
which must be held to be wholly unreasonable and inconsistent
with the basic idea of a retirement age.
]amadoba Colliery of Messrs. Tata Tron and Steel Co. Ltd. v.
Shri Nasiban, 1955 L.A.C. 582, referred to.
Guest, Keen, Williams Private Ltd. v. Its Workmen, The
Calcutta Gazette, Pt. I, dt. 24-9-53, p. 326!; M/s. Calcutta Exchange
Gazette & Daily Advertiser v. Shri Uma Prasanna Bhattacharjee,
The Calcutta Gazette, Pt. I, dt. 16-9-1954, p. 31n and Bengal
Chamber of Commerce v. Its Employees, Govt. of West Bengal,
Labour Deptt., "Award made by the Tribunals" for quarter
ending March 1949, p. u6, distinguished.
z959
Guest, Keen,
Williams Private
Ltd.
v.
P. ]. Sterling
and Others
350
SUPREME COURT REPORTS [1960(1)]
r959
In fixing the age of superannuation, however, industrial
tribunals should take into consideration various relevaut factors,
Guest, Keen,
such as the natq.re of the work, the wage-structure, retirement
Williams Privat• benefits and other amenities available, the climate of the locality,
Ltd.
age of superannuation in comparable industries and the past
v.
practice prevailing in the industry.
P. ]. Sterling
C
a.a Others
!VIL APPELLATE JURISDICTION: Civil Appeal No.
403 of 1957.
Appeal by special leave from the judgment and
order dated August 2, 1956, of the Labour Appellate
Tribunal of India, Calcutta, in Appeal No. Cal. 52 of
1956, arising out of the Award dated January 7, 1956,
of the Court of Judge, Fifth Industrial Tribunal, West
Bengal.
M. 0. Setcilvwl, Attorney-General for India and
A. N. Kripcil, for the appellant.
0. K. Daphtary, Solicitor-General of India, D. L. Sen
Gupta and Dipak Datta Ghoudhri, for respondents
Nos. l-48.
1959.
May 15. The Judgment of the Court was
delivered by
Gajendragadkar f•
GAJENDRAGADKAR J.-This appeal by special leave
arises from an indutrial dispute between Guest, Keen,
Williams Private Ltd., (hereafter called the appellant)
.and its workmen represented by Guest, Keen, Williams
Staff Association (hereafter called the respondent)
which was referred for adjudication to the Fifth Industrial Tribunal, West Bengal, Calcutta, by the Government of West Bengal on December 29, 1954. Three
questions were the subject-matter of the reference :
"(1) If the system of forced retirement of workmen at
the age of 55 as introduced by the management in May
1954 is justified ? (2) To what relief the workmen
are entitled on retirement ? and (3) If the forced
retirement of the workmen named in the attached list
is justified ?-To what relief including reinstatement
and/or compensation are they entitled ?"
These three
questions were answered substantially in favour of the
appella~t by the tribunal ; but on appeal by the
respondent, the Labour Appellate Tribunal has reversed the findings of the tribunal and has substantially
S.C.R.
SUPREME COURT REPORTS
351
answered the questions in favour of the respondent.
The correctness of this decision is challenged by the
appellant by its present appeal.
r959
Guest, Keen,
Williams Privalt
Ltd.
The appellant is a company incorporated with
limited Ji::i.hilitv under the Indian Companies Act. It
v.
-
P. J. Sterling
carries on birniness at 41, Chowringhee Road, Calcutta.
and Others
Its business i8 engineering and manufacturing of
engineering products. It has a factory at Howrah Gajendragadkar J.
where about 5000 workmen are employed.
After the Industrial Employment (Standing Orders)
Act, 1946 (Act 20 of 1946) (hereafter called the Act)
came into force on April 23, 1946, the appellant submitted its draft standing orders for certification to
to the certifying officer.
On December 19, 1953, the
certifying officer duly certified the said orders after
giving the trade unions of the appellant's workmen
an opportunity to be heard and after considering
their objections. Against the said orders no-appeal
was preferred by the respondent, and so they became
final and operative as conditions of service between
the parties.
The standing order in regard to retirement of the
appellant's employees provides that "workmen shall
retire from the service of the company on reaching the
age of 55 years but the company ma,y at its sole
discretion offer an extension of service beyond this age
to anybody." In pursuance of this standing order
the appellant examined the cases of 56 of its
,employees who according to. their service records
appeared to have attained the age of superannuation.
The objection raised by two workmen about the
correctness of the age shown in their service records was
examined and ultimately upheld; their records were
accordingly corrected on the strength of the certificates
granted to them by the Civil Surgeon, Howrah. Seven
were allowed extention of service up to March 31, 1955,
while the remaining 47 who were over the age of 55
were retired with effect from May 31, 1954, after giving
each one of them a notice in that behalf on May 11,
1954. These 4 7 workmen are shown in the list attached
to the reference and it is in respect of them that
question No. 3 has been referred to the tribunal.
352
SUPREME COURT REPORTS (1960(1))
'95Y
The said 47 workmen were paid all the emoluments
due to them in respect of Provident Fund contributions
w~z~::::s ~;:~te made by the appellant in respect of them and by
' ' Ltd.
themselves; they were also paid gratuities at the rate
v.
of' 15 days' pay for each year of their service prior to
P. J. Sterling
their becoming the members of the Provident Fund.
and Others
Besides they were given valuable presents by the
--
·
appellant in appreciation of their services; and in a
Gajendragadkar J. large number of cases the appellant offered employment to the sons or other relatives of the said workmen.
Even so the respondent raised a dispute about the
compulsory retirement of the said workmen and in
fact challenged the validity of the relevant standing
order itself. It is after this dispute was referred to
the tribunal for adjudication that the present proceedings commenced.
The tribunal held that the system of forced retirement introduced by the appellant under its relevant
standing order was perfectly justified. It observed
that the respondent had given no convincing reason
why the age limit of retirement should by fixed not
at 55 but at 60 years as alleged by it; and it referred
to the fact that in the case of a dispute between the
appellant and its head-office staff the retirement age
had been fixed at 55 years by consent in proceedings
before the Second Industrial Tribunal on September 24,
1953. Reference was also made to the award in the
Calcutta Exchange Gazette and Daily Advertiser And One
of their employees (1) where the age of superannuation
had been similarly fixed at 55.
Incidentally the
tribunal was impressed by the appellant's argument
that the respondent had not preferred an appeal
against the relevant standing order though an appeal
was competent under the Act. Having held that the
compulsory retirement at the age of 55 fixed by the
standing order was justified the tribunal proceeded to
consider the two other questions and issued some
directions as to the compensation to be given to the
47 workmen. With these directions we are not concerned in this appeal. It is, however, necessary to
(1) The Calcutta Gazette, Pt. I. dt. 16-9-1954, p. 3111.
S.C.R.
SUPREME COURT REPORTS
353
refer to the fact that in dealing with issue No. 3 the
r959
tribunal examined the argument of the respondent
Guest, Keen,
that the age of superannuation fixed by the standing Williams Pi'ivate
order should be made applicable to new entrants and
Limited
not to the old; but it held that there was no substance
v.
in the said contention.
"Unemployment among
P. I Sterling
youths ", observed the tribunal, " is certainly more
and Other<
reprehensible and unfortunate than unemployment Gajendra;.dkar 1
among old men "; and it thought that to accept the
·
respondent's contention would mean the impairment
of the efficiency of the industry to which, as a tribunal, it can never be a party. According to it, there
was no question of any breach of faith or understanding qua the 47 workmen who had been compulsorily
retired. It appears from the judgment of the tribunal
that these contentions which it has rejected in dealing
with issue No. 3 were in fact more relevant to issue
No. 1 which is a general issue.
The Labour Appellate Tribunal has taken a contrary view on the main question of principle covered
by issue No. 1.
According to the appellate tribunal
the fact that the system of forced retirement was
based on the relevant standing order does not ipso
facto bar adjudication on the question of justness and
propriety of the system itself. It held that the appellant had admitted that there was no fixed a.ge of
retirement obtaining in its concern before the standing
orders were certified, and that in fact in some cases the
appellant had employed persons who had passed the
age of superannuation. That is why the appellate
tribunal came to the conclusion that it would not be
unreasonable to assume that all workmen who joined
the appellant's service prior to the framing of the
standing orders had naturally and legitimately expected that they would be allowed to continue in service as
long as they remain physically fit ; and so it held that
the new scheme cannot be justly enforced against the
workmen who had been recruited by the appellant
before the introduction of the said orders. In the
result the appellate tribunal answered the first issue
by holding that the age of compulsory retirement
should be 55 in regard to persons employed by the
45
354
SUPREME COURT REPORTS [1960(1)]
z959
appellant subsequent to the certification of the standing orders ; but that there should be no age of retireGuest, Keen,
•
d
h
·
l
f h
II
t
Williams Private ment m regar to t e pr10r emp oyees o t e appe an
Limited
Consistently with this finding the appellate tribunal
v.
has directed that the 47 workmen who had been comP. f.Sterling
pulsorily retired by the appellant should be reinstated
and Others
on condition that they refund whatever money they
G . d
dk 1 might have received from the appellant in the shape
a7e• raga :ar · of gratuity or Provident Fund dues. It is this decision which has given rise to the present appeal.
The first point which has been urged before us by
the learned Attorney-General on behalf of the appellant is that the appeal preferred by the respondent
before the Labour Appellate Tribunal was incompetent and should not have been entertained by it.
Under s. 7(l)(a) of the Industrial Disputes (Appellate
Tribunal) Act, 1950. (48 of 1950), an appeal lies to the
appellate tribunal from any award or decision of an
industrial tribunal inter alia if the appeal involves
any substantial question of law. The argument is
that the respondent's appeal did not satisfy this
requirement, and so the appellate tribunal has exceeded its jurisdiction in entertaining it. We are not impressed by this argument. It is clear that issue No. I
which was referred to the tribunal is a general issue
affecting more than 5,000 employees of the appellant;
and it is an issue the decision of which would necessarily raise questions of industrial policy and principle;
whether or not the appellant was entitled to introduce
an age of superannuation, and if it was entitled so to
do, would the introduction of the system affect the
rights of .persons who had joined the appellant's
service in the legitimate expectation that they would
not be subject to any such rule? What would be the
proper age of superannuation in a concern like the
appellant's?
In our opinion, questions like these
which necessarily a.rose in deciding issue No. 1 are
questions of law and since they affect a large number
of the appellant's employees it cannot be said that the
respondent's appeal before the Labour Appellate
Tribunal did not involve a substantial question of
law. The challenge to the validity of the decision of
S.C.R.
SUPREME COURT REPORTS
355
the Labour Appellate Tribunal on this preliminary
r959
ground must, therefore, fail.
Guest, It.en,
It is then urged that the present. reference itself is Williams Private
bad ; and this contention is based on the provisions of
Limited
s. 7 of the Act which makes the standing orders bindv.
ing between the employer and his employees. There
P. f. Sterling
and Others
is no doubt that under s. 7 ~tanding orders would
__
bind all the employees of the employer without any Gajendragadkar ].
distinction. As soon as the standing orders become
operative they bind both the employer and all the
employees then in his service. The learned AttorneyGeneral contends that the 47 employees who have
been retired on the ground that they had exceeded the·
age of superannuation were bound by the relevant
standing order which fixed the age of superannuation
at the age of 55; and until the said standing order is
modified according to law it would not be open to
them to question the validity of their compulsory
retirement. In support of this argument he has relied
on the decision of the Madras High Court in M ettur
Industries Ltd. v. Varma & Ors. (1)
In that case Balakrishna Aiyer, J., has held that "where an industrial
dispute relates to a particular individual and the
question is whether he has been improperly dealt with,
then that question must be determined within the
framework of the existing agreement and the existing
rules. Employees can raise a dispute and ask that
the standing orders be amended but till the standing
orders are amended they hold the field and any dispute that may arise in an undecided case must be
disposed of in accwdance with the standing orders as
they happen to be at the relevant time". A similar
view has been expressed by Bishan Narain, J., of the
Punjab High Court in Bharat Starch and Chemicals Ltd.,
And The Industrial Tribunal, Punjab (2).
This argument assumes that the present reference
has been made primarily if not solely by reference to
the cases of the 47 workmen who have been compulsorily retired by the appellant. In our opinion such an
assumption is clearly not wellfounded.
The reference
shows that the main question which the industrial
(I) (1958) II L.L.J. 326.
(2) (1958) II L.L.J. 243.
356
SUPREME COURT REPORTS [1960(1)]
'959
tribuw.al has been called upon to decide is the general
question affecting the large number of the. appellant's
Guest, J(een,
Williams Private employees who had accepted its service before the
Limited
relevant standing orders were framed.
In terms it
v.
covers all the employees of the appellant and for decidP. f. Sterling
ing it the tribunal would have to examine the matter
and Others
on the merits and consider whether the relevant standGajendra;;.dkar J. ing order as it stands is valid or whether it needs any
modification:
The second question also has reference
to workmen other than those who have been compulsorily retired ; and the answer to this question would
naturally depend upon the conclusion which the tribu-
-nal may reach on the merits of the first issue.
It is
only the third question which has reference to the 47
workmen who have been compulsorily retired; and
this question is framed on the hypothesis that the
forced retirement of the appellant's employees under
the system introduced by the relevant standing order
is upheld by the tribunal.
On that hypothesis the
third question requires the tribunal to decide whether
the 47 workmen are entitled to any compensation
and/or reinstatment. It is thus clear that the reference
is primarily concerned with the main industrial dispute
raised by the respondent about the propriJty and the
validity of the system of forced retirement introduced
by the appellant and this question had to be decided
by the tribunal on the merits.
Indeed, as the judgment of Balakrishna Iyer, J., points out in the case
of Mettur Industries Ltd. (1) it is open to the employees to raise a dispute and ask that the standing
orders be amended.
That is precisely what the respondent seeks to do by raising the present dispute as
disclosed in issue No. I. We must therefore, hold that
the argument about the invalidity of the reference is
unsound.
It is relevant at this stage to consider the scheme
and effect of the relevant provisions of the Act.
The
Act came into force on April 23, 1946, and it was
intended to require employers in industrial establishments to define with sufficient precision the conditions
of employment under them and to make the said
(1) (1958) II L.L.J. 326.
S.C.R.
SUPREME COURT REPORTS
357
conditions known to the workmen employed by them.
z959
The matters which had to be provided in standing
Guest, Keen,
orders are enumerated under 11 items in the Schedule Williams Private
to the Act.
The expression " Standing Orders " as
Limited
used in the Act means rules relating to matters set out
v.
in the Schedule.
When the draft standing orders are
P. J. Sterling
submitted to the certifying officer, the said officer has to
and Others
satisfy himself that they make provision for every GaJendragadkar 1
matter set out in the schedule and that they are other-
·
wise in conformity with the provisions of the Act. It
is significant that originally under s. 4 it was not
competent to the certifying officer to adjudicate upon
the fairness or reasonableness of the provisions of any
standing orders. The same disability was imposed on
the appellate authority. This section has, however, been
subsequently amended by Act 36 of 1956, and the
effect of the amendment is that it ,has now been made
the function of the certifying officer or the appellate
authority to adjudicate upon the fairness or the reasonableness of the provisions of the standing orders.
Prior to this amendment, however, all that the certifying officer had to do before certifying the said standing
orders was to see that all the matters in the schedule
are covered and that they are not' otherwise inconsistent with the provisions of the Act. Under s. 7 standing orders when certified come into operation subject
to its other provisions. S. IO lays down that standing
orders finally certified 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. Sub-s. (2) of s. 10
prior to its amendment in 1956 authorised only the
employer to apply for the modification of the standing
orders. Subsequent to the said amendment workmen
also have been given the rights to apply for such
modification. It is thus clear that the scope for the
enquiry before the certifying officer and the appellate
authority under the original Act was extremely limited,
and the right to claim a modification of the standing
orders was not given to the employees prior to the
amendment of s. 10(2).
Nevertheless the standing
358
SUPREME COURT REPORTS [1960(1)]
I959
orders when they were certified became operative and
bound the employer and all his employees.
Guest, J( een,
Williams Private
There can be no doubt that before the amendment
Limited
of 1956 if the employees wanted to challenge the
v.
reasonableness or fairness of any of the standing
P. J. Sterling
orders the only course open to them was to raise an
and Othm
industrial dispute in that matter.
This position h?·S
Gajendragadkar 1. been substantia~ly altered by the two amendments to
whicr we have JUSt referred ; but we are concerned
in the present appeal with the state of the law as it
prevailerl prior to the said amendments, and so it
cannot url denied that the employees had a right to
claim a modification of the standing orders on the
ground that they were unreasonable or unfair by
raising an industrial dispute in that behalf. Subsequent
to the amendment of the Act the !lmployees can raise
the same dispute before the certifying officer or before
the appellate tribunal and may in a proper case apply
for its modification under s. 10(2) of the Act.
The
position then is that though the relevant standing
order about the age of superannuation came into operation under s. 7 and was binding thereafter upon the
employer and all his. employees the right of the respondent to challenge the validity or propriety of the
standing order and to claim a suitable modification in
it cannot be disputed. The standing orders certified
under the Act no doubt become part of the terms of
employment by operation of s. 7; but if an industrial
dispute arises in respect of such orders and it is referred to the tribunal by the appropriate government,
the tribunal has jurisdiction to deal with it on the
merits. This position is not, and cannot be, disputed.
It is, however, contended that the delay made by
the respondent in raising the present dispute, shows
that the respondent had acquiesced in the relevant
standing orders and that in substance is pleaded as a
bar to the validity of the present reference. We do
not think that this contention can be upheld. In
dealing with industrial disputes the application of
technical legal principles should as far as is reasonably
possible be avoided .. Take the present argument of
acquiescence which in ordinary civil litigation may
S.C.R.
SUPREME COURT REPORTS
359
justify a plea of estoppel. An industrial dispute has
x959
to be raised by the union before it can be referred ; and
Guest, Keen,
it is not unlikely that the union may not be presuaded Williams Private
to raise a dispute though the grievance of a particular
Limited
workman or a number of workmen may otherwise be
v.
wellfounded; then again, even if the union takes up a
P. J. Sterling
dispute the State Government may or may not refer
and Others
it to the industrial tribunal. The discretion of the Gajendragadkar J.
State Government under s. 10 of the Industrial Disputes
Act is very wide. Thus, workmen affected by standing
orders may not always and in every case succeed in
obtaining a reference to the industrial tribunal on the
relevant points. That is why the tribunals should be
slow and circumspect in applying the technical principles of acquiescences and estoppel in the adjudication
of industrial disputes. If a dispute is raised after a
considerable delay which is not reasonably explained
the tribunal would undoubtedly take that fact into
account in dealing with the merits of the dispute. But
unless the relevant facts clearly justify such a course
it would be inexpedient to throw out the reference on
preliminary technical objections of the kind raised by
the appellant under the present contention. In the
present case the relevant rule was certified in December 1953, and came into operation in January 1954.
The present dispute was raised by the respondent as
soon as the appellant sought to enforce it in May 1954.
That is why it is difficult to accept the argument that
the respondent has been guilty of latches or acquiescence. We would, therefore, hold that the respondent
was entitled to raise the present industrial dispute and
that the present reference does not suffer from any
infirmity.
The learned Attorney-General has then argued that
the Labour Appellate Tribunal has completely misunderstood the scope of the enquiry contemplated by
issue No. I. His case is that under issue No. I all thatthe
tribunal was called upon to decide in the abstract was
the propriety of the standing order fixing the age of
superannuation at 55. The tribunal was not required
and was not expected to consider the impact of this rule
on the workmen employed by the appellant. Should any
360
SUPREME COURT REPORTS [1960(1)]
z959
age of superannuation be fixed, and if yes, what should
be the limit in that behalf? These are the only questions
Guest, Keen,
Williams Private which called for the decision of the tribunal on issue
Limited
No. 1. In fact the learned Attorney-General suggested
v.
that in deciding issue No. l the tribunal has merely to
P. J. s1 .. 1ing
say yes oc no. That is the substance of his contention.
and Others
We are satisfied that this contention is misconceived.
Gajendragadkar J. There is no doubt that in dealing with issue No. 1 the
tribunal had to consider not only the propriety,
reasonableness and fairness of the rule, but it had also
to deal with the question as to whether the said rule
could and should be made applicable to employees who
had already been employed by the appellant in service
without any limitation as to the age of retirement. In
fixing the age of superannuation industrial tribunals
have often enough considered this dual aspect of the
question and it is the same dual aspect that was
intended to be examined when issue No. 1 was framed.
Indeed both the industrial, and the appellate, tribunals
have considered this twofold aspect of the matter,
though it may be conceded that the discussion in both
the judgments is somewhat confused and mixed up.
There is, however, no doubt that the respondent's
grievance about the application of the rule to the
previous employees of the appellant was specifically
urged before the tribunals.
That takes us to the merits of the dispute. It is
not denied by the appellant that before the present
standing orders were certified the appellant had not
introduced any age of superannuation while employing
its workmen. In its statement before the tribunal
the respondent had specifically averred that there
was no fixed age or period of service for retirement
and that the implied condition of service was that the
workman would continue in service so long as he
lived, if not invalidated earlier for reasons of health;
and it was also alleged by it that for the first time in
its history the appellant suddenly thought of giving
effect to the relevant standing orders by compulsorily
retiringthe 47 workmen in question. It may, however,
be added that amongst remedies suggested by the
respondent in its written statement it had expressly
S.C.R.
SUPREME COURT REPORTS
361
stated that 60 should be fixed as the age of retirement
z959
for persons already in the employment of the appelGuest, Keen,
lant with option to further continue subject to physiWilliams Private
cal fitness. In support of this plea the respondent
Limited
had relied upon the statement filed by the appellant
v.
giving details of the 47 retired workmen; this stateP. J. Sterli11g
k
h d b
d
a11ti Others
ment showed that some wor men a
een employe
_
for the first time even after they had passed the age Gajendragadkar J.
of 55 and that a large majority of them had passed
the age of a5 much before their actual retirement.
It is significant that though the respondent had
made these specific allegations the appellant did not
suggest that there was any age of retirement in force
before the framing of the standing orders. It is true
that the appellant put in a general denial of all the
allegations made by the respondent in its statement
but such a general denial cannot have much value.
In paragraph 5 of its statement the appellant has
referred to the fact that it is the usual practice to
fix the age of retirement at 55 in the public and private sectors of industry and that it is in line with the
provisions of the Employees' Provident Fund Act. It
is obvious that, though the appellant referred to the
usual practice of fixing the age of superannuation
in the private and public sectors, it made no such
averment in regard to any such practice prevailing in
the case of its own employees. Even in the stat.ement
of its case before this court the appellant has said that
there was no fixed age of retirement before the standing orders were introduced but it sought to add that
ordinarily workmen were made to retire at the age
of 55. This latter statement is an allegation of fact
made for the first time before this Court. There is
nothing on the record which would justify or substantiate it. Thus the Labour Appellate Tribunal was
perfectly right in dealing with the merits of the dispute on the basis that the large number of employees
who had been engaged by the appellant prior to the
making of the standing orders were not subject to any
rule of superannuation.
It is, however, contended on behalf of the appellant
that both the tribunals have agreed that it is
46
362
SUPREME COURT REPORTS [1960(1))
'959
reasonable to fix the age of superannuation at 55; and
in a sense the appel11tnt is justified in raising this
Guest, I\ecn,
Williams Private contention. The Labour Appellate Tribunal, however
Limited
has held that this age cannot be applied retrospectively
v.
so as to affect the prior employees of the appellant
P. J. Sterling
and it is only this aspect of the matter which calls
and Others
c
d · ·
f
Th
d
d
1or a
ems10n rom us.
e respon ent
oes not
Gajendmgadkar J. deny that the relevant standing order fixing the age
of superannuation at 55 will and should bind the
future entrants into the service of the appellant. The
learned Solicitor-General, however, contends that it
would be unreasonable and unfair to apply this rule
to the workmen who were already in the employment
of the appellant.
In regard to the workmen already in the employment of the appellant it has been brought to our
notice by the appellant that the workmen themselves
wanted that the age of superannuation should be
fixed ; and it is also urged that fixing the age of
superannuation at 60 as suggested by the respondent
would be inconsistent with paragraph 69 of the Employees' Provident Fund Scheme, 1952; notified under
s. 5 of the Employees' Provident Fund Act, 1952 (Act
19 of 1952). The argument that the workmen themselves wanted the age of superannuation to he fixed
ignores the fact that this demand was coupled with
the claim that the age should be fixed at 60 and
option should be given to the employees to continue
thereafter. Therefore the alleged admission of the
workmen cannot be pressed into service by the
appellant in support of the fixation of the age of
retirement at 55.
The argument based on paragraph 69 is, in our opinion, wholly invalid because
the said paragraph does.not make it obligatory on the
employer to fix the age of retirement of the employees at 55. Explanation II to the said paragraph
provides that a member shall be deemed to have
attained the age of superannuation on completing
the age of 55 years; hut this deeming clause does
not mean that in every case the employee must
retire at the age of 55. Paragraph 69 (1) specifically
authorises the member to withdraw the full amount
S.C.R.
SUPREME COURT REPORTS
363
standing to his credit in the fund on retirement from
r959
service in the industry at any time after the attain-
.
I
h
d
Guest, Keen,
ment of the age of superannuat10n.
n ot er wor s, Williams Private
two conditions have to be satisfied before the member
Limited
can withdraw the fund; he must have attained the
v.
age of superannuation and he must have actually
P. J. sterling
retired from service. This position was fairly concedand Others
ed by the learned Attorney-General during the course Gajendragadkar J.
of his argument.
On the other hand the learned Solicitor-General contends that making the rule of superannuation applicable
to the prior employees would be obviously unfair and
unreasonable.
He no doubt sought to invoke the
assistance of s. 2 (00) of the Industrial Disputes Act
which defines retrenchment. His argument was that
the wrongful retiremenp of the prior employees on the
ground that they had attained the age of 55 would
amount to retrenchment within the meaning of the
said provision, and that would entitle them to make a
claim for retrenchment benefit under s. 25(F) of the
said Act. This, according to him, would constitute
prejudice to the prior employees. However, he fairly
conceded that this argument of prejudice would not
be valid in view of the decision of this Court in
Hariprasad Shi11shankar Shukla v. A.». Divikar(1). That
is why we do not propose to deal with this argument.
That takes us to the question as to whether the fixing of the age of superannuation at 55 in regard to the
prior employees can be~aid to be reasonable and fair
having regard to the fact that when they entered
service there was no such limitation. The Labour
Appellate Tribunal has held that it would both be unreasonable and unfair to introduce this condition in
respect of these workmen. This view is supported by
the decision of the Labour Appellate Tribunal in
Jamadoba Colliery of Messrs. Tata Iron and Steel Go.,
Ltd. v. Shri Nasiban (9). In that case the respondent
Nasiban had joined the services of the colliery before
the rules of superannuation were introduced; and when
she ·was sought to be retired on the strength of the
said rules the action of the employer was challenged
(1) [1957] S.C.R. 121.
(2) 1955 L.A.C. 582.
364
SUPREME COURT REPORTS [1960(1)]
z959
before the industrial tribunal. The tribunal and the
Labc;mr Appellate Tribunal both held that the responGuest, Keen,
Williams Private dent having entered the service of the colliery before
Limited
the new rules came into force could not be prejudicially
v.
affected by the conditions made thereunder when she
P. J. Sterling
did not exercise her option to be governed by the said
and Othm
rules. In other words, the view taken by the tribunals
Gajendragadkar J. was that in the case of prior employees an option
should be given to them to be governed by the new
orders or rules ; and it is only if they exercise the said
option that the new orders or rules should be made
applicable to them.
In this connection the learned Attorney-General has
referred us to some other awards where the age of
superannuation has been fixed generally by reference
to all the employees. The first award on which he has
relied was passed in the dispute between the present
appellant and its employees at the heail-office at Calcutta(').
This award is of no assistance to the appellant because
·it is clear that the age of superannuation was fixed by
the award solely on the basis of the agreement between
the parties. If the employees agree that a particular
age of superannuation should be fixed in regard to
all of them there can be no difficulty in upholding the
validity of the agreement. An award by agreement
cannot therefore assist the appellant in its present contention. The other award to which our attention has
been drawn was in respect of an ·industrial dispute
between the Bengal Chamber of Commerce And Its
Employees(•). This award did fix the age of retirement
at 55; but it is not clear from the award that this age
came to be fixed for the first time. The question as to
whether the rule as to the age of superannuation can be
fixed for the first time in regard to both the past and
future employees of the concern has not been considered
in this award. The third award which was cited before
us was passed in an industrial dispute between
M/s. Calcutta Exchange Gazette & Daily Advertiser and
Shri U ma Prasanna Bhattacharjee {•).
The dispute in
(1) The Calcutta Gazette, Pt. I, dt. 24-9-53, p. 3261.
(2) Govt. of West Bengal, Labour Deptt., "Awards made by the Tribunals" for quarter ending March 1949, p. 116 at p.131.
l3) The Calcutta Gazette, Pt. I, dt. 16-9-1954, p.