Our company has a certified standing orders wherein one of the clause of the CSO states that the Age of retirement would be 55 years. We have also signed a Long Term Settlement with the Unions wherein the Retirement age has been mutually agreed to be 55 years under section 12(p) of the ID Act which is also registered with the Appropriate Govt.
Now the union has filed a case ULP before the Labour Court and the Assistant Labour Commissioner wherein they have asked for amendment of the CSO and to enhance the retirement age from 55 to 58 years.
Kindly let me know whether the stand taken by the union can be upheld and whether the LTS arrived at between the management with the union will override the provision of Model Standing orders. Whether the authority before whom the CSO was signed has the power to review it and order amendment of CSO enhancing the age from 55 to 58 years. The matter is subjudice and pending for argument. Kindly provide me some citations (SUPRA) where in I can advance my argument in consonance with the relevant citations.
there can not be a complaint on unfair labour practiced but union can definitely demand extension of retirement age. You have a bipartitie settlement with the union. In all such settlements there is duration during which period the settlement shall be binding and thereafter it can be terminated. The right course therefore for union is to terminate the settlement as per termination clause and then put a fresh demands on the mgmt whih may include the one on retirement age. The matter if not settled bipartite or with the intervention of ALC shall be referred to Industrial Tribunal. Region -cum- Industry formula is applicable in deciding the dispute.
a settlement of conditions of service between the parties providing better benefits than contained in CSO shall over ride.
Certifyng authority can modify the standing orders on an agreement between the manangement and the union of workmen otherwise no.
The matter can not be a complaint of unfair labour practiced but union can definitely demand extension of retirement age. You have a bipartitie settlement with the union. In all such settlements there is duration during which period the settlement shall be binding and thereafter it can be terminated. The right course therefore for union can demand the management wherein to amend the retirement age as 58 years instead 55 years. The matter has to filed before the Authority ALC and the subject matter will be taken appropriate Authority JLC. Region -cum- Industrial formula is applicable in deciding the dispute.
Certifyng authority can modify the standing orders on an agreement between the manangement and the workers' representative like union.
No Court of Law can impose on the Owner of a Company to extend or shorten the retirement age of the Company .employees.
When State or Central Govt cannot be forced to extend or reduce the retirement age (when its a matter of policy and is of the sole discretion of the Employer ) . how a Company can be.
In this case as an Agreement has been reached , the employer is BOUND NOT TO REDUCE THE RETIREMENT AGE DUE TO THE AGREEMENT.
Courts cannot force you to increase it .
Only they can intervene if different yardestick is applied to different lots of people . Like freshly employed people , two categories of employees being retired differently who are covered in the same Agreement .
The Courts cannot force the employer to enhance the age as he will argue that by doing so efficiency will be effected and Company cannot bear losses . Or simply its my prerogative at what age I will retire my employees .
If there would have been no Agreement , the Company could have retired at different ages in the same category on number of reasons.
Seems the Staff/Labour Union has been misled by Advocates , of course it EARNS THEM BREAD
Tell them , after this completion of agreement , We are going to reduce the retirement age from 55 to 54 or 53 , who wants to remain stay or leave
If these things happen , Courts will start saying , even if the MAN is inefficient , keep him till 60 yrs and bear the brunt.
But if you feel that enhancing age to 58 is good , then you can call them and have another settlement .
I am sorry Mr. Godbole , you are not fully acquinted with industrial law. The industrial law as per directive principles of state strive to achieve a living wage for employees. Only hurdles in the way is employer's capacity to pay and comparision with other industry so that anomalies are not created to endanger industrial peace. On the basis of the above principle the Industrial tribnals are empowered to award better service conditions to the workers. The discreation of the employer is not unchallenged. After all the employer's increased profitability is the result of hard work of labour. Why he should not share the fruits of hard work done by his employees with them. The employer however exploits the workmen where there is lack of collective bargaining in them and they are unorganised. Industrial law even protects the existing service conditions of the workers and same can not be altered to their prejudiced arbitrarily.
My answer to modification of service conditions by a review of certified standing orders is that any such application has to be decided by an established procedure of adjudication which further is subject to an appeal. It can not be done arrbitrarily.
Show which provision of any ACT compels the Owner to decide the Retiring Age to be decided by any Court of Law
Working Conditions , Serivice conditions are a diffrent set of Causes and do not Engulf Retiring Age or something like that
Tommorrow anyone will go to The Courts and ask to increase the Maximum age limit for Appearing in IAS or Age limit for getting employment in Govt Sevice
These conditions like Age limit, retiring age , requisite qualification , the date of implementation of Pay Commission , requisite experience, Reservation for a certain job are PURELY DECISIONS TO BE TAKEN BY THE ADMINISTRATION AND NOT COURTS
COURTS CAN ONLY SEE THEIR IMPLEMENTATION IS PROPER AND JUST OR NOT
In this case Honble Courts has the jurisdiction to oversee the proper and just implementation of the Agreement reached between the parties and not to decide which does not find place in the Agreement
Mr. Godbole as i SAID EARLIER , you don't happen to have an inner knowledge of Industrial Law. I just come back on this subject because I have vast experience in handling industrial disputes. Nothing personal but I feel that you must understand that the Industrial Law is different from service law. The object of Industrial law is to maintain industrial peace so that production does not suffer. Industrial tribunals have been given vide powers, even power to reinstate a worker back in service and to alter punishment to an employee by the employer. I would like you to read Bharat Petroleum case 1984 AIR 356 . Feel free to have further discussion on the matter.
There is a provision in the Bombay Industrial Employment Standing Orders Clause No.27 which is quoted below :
" The age for retirement or superannuation of the workmen may be sixty years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award which may be binding on the employer and the workmen under any law for the time being in force."
Whereas in our case the certifying authority has certified the CSO with the age of retirement as 55 years. As per the settlement i.e. LTS it is also signed by both the parties wherein the retirement age has been fixed at 55 years. The LTS was valid till 31.03.2011. It has been terminated by the Union. However, negotiations are going on on the fresh charter of demand. In this case till the new settlement is arrived at between both the parties the earlier settlement continues to be alive. Further in the last settlement it has been agreed by the union that they will not raise any additional issues which will burden the management financially.
In the intervening period the Certifying authority has pronounced his order wherein the age of retirement has been enhanced to 58 years from 55 years.
The management has preferred an appeal against the said order and the matter is subjudice in the court of law pending appeal.
We had relied upon the said judgement before the Certifying authority. However, he has ruled in favour of the Union.
GIST OF THE JUDGEMENT RELIED UPON BY US.
1.Tulsiram K.Gothad V/s. The Superintendent, Maharashtra Gandhi Memorial Hospital & Anr.
2007 III CLR 718 (Bom. D.B.) (High Court Mumbai)
The Division Bench of the Hon’ble Bombay High Court has in detailed interpreted the Model Standing order No. 27 in this judgement.
Ratio : The Model Standing Orders No.27 in clear terms lays down the age of retirement of workman MAY BE 60 years or it can be such other age as may be agreed between the parties by an agreement. It is thus clear that age of retirement can be 60 years only if there is no contract, which is to be contrary between the parties. In view of the provision of Model Standing Order No.27, the position is clear that the age of retirement mentioned in that provision will apply only if there is no other age of retirement mentioned in the agreement between the parties.
It is well settled principal in law that the court cannot ready anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself.
Ratio : When there is an existing settlement under which no demand can be made which would throw additional burden on the management, during the operation of the said settlement, it was not open to the workman to demand an upward revision of the age of superannuation, provided by certified Standing Orders.
The Apex Court also held that the sanctity of the settlement reached between the parties to be uphold and the individual employees or the union to be discouraged from scuttling the settlement.
3.Herbertsons Ltd. V/s. Their Workmen and ors
1976 (33) FLR Page 398 (S.C.) (Supreme Court)
Ratio : If the recognized union has signed a settlement, individual workers have no right to challenge it, unless in exceptional cases of fraud, malafides or corruption
4.Sarva Shramik Sangh V/s. V.V.F. Limited and Anr.
2002 II LLJ 434 (Bom. H.C.)
Ratio : When majority of workmen signatories to settlement, and accepting it – Court justified in presuming terms thereof to be just and fair, in absence of allegations of fraud or corruption.
Ratio : The Conciliation Officer cannot be set to have abdicated or failed in his duty, nor can be settlement said to be unfair, unjust or unreasonable, unless the Petitioners have not discharged the onus, which lies on them to point out the circumstances or material from which, it can be inferred any dereliction of duty on the part of the Conciliation Officer. In exceptional cases where there may be allegations of mala fides, fraud, corruption etc., the validity of the settlement could be gone in. No such allegations are proved in the present case.
No employee is allowed to appear or act or allowed to be represented in any proceeding under Central Act, save and except proceeding relating to legality and propriety of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension etc., except through the recognized union.
In this judgement of Bombay High court, Hon’ble Mr. Justice Shri. B.N. Srikrishna has held that retiring an employee at the age of 55 years on the basis of the provisions of Standing orders certified in accordance with the provisions of law is full justified and did not amount to unfair labour practices.
1994 I LLJ Page No.318 to 324 (S.C.) Supreme Court.
In this judgement, the Chief Justice of Supreme Court held that the delay and laches in seeking alteration cannot be allowed. The law of limitation may operately harshly, but it has to be applied with all its rigour and the Court and tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire.
The Apex Court held that the employee should retire at the age of 55 years, as per the terms of employment applicable. Retaining some employees by the employer after the age of retirement does not mean that it must retain every employee.
9.Cochin Shipyard Ltd V/s. Iqbal
2006 II LLJ 1095 (Ker) (Kerala High Court)
It is held that the settlement arrived at would prevail over the Standing orders in respect of the matter covered by the later settlement.
10.PRTC Workers Union, Patil V/s. Pepsu Road Transport Corpn. Patiala. 1997 II LLJ 899 (Punjay & Haryana High Court)
It is held that when the age of superannuation could be mutually agreed between the management and workmen, every workman on reaching the age of superannuation had to retire from service.
11. Bharat Petroleum Corporation Limited V/s. Maharashtra General Kamgar Union & Ors.
1999 I CLR 518 (S.C.) Supreme Court
Ratio : The Standing orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair.
12. Ammunition Factory Co-operative Credit Society Ltd. Vs. Badrinarayan R. Sharma 2009 MHLJ -3 – 359 (Bom.H.C.)
Ratio: As per Model Standing Orders, 60 years is not the Minimum Age of Retirment. Such view has already been over-ruled by the Court. The retirement age can be any other age as agreed/settled by the parties.
13. Balmer Lawrie and Co.Ltd. V/s.Engineering Workers
Association.
As per the Bombay Industrial Employment Standing order Rule No.27 the age of retirement or superannuation of the workmen may be sixty years or such other age as may be agreed upon between the employer and the workman by an agreement, settlement or award which may be binding on the employer and the workmen under any law for the time being in force – Hence it cannot be said that any agreement entered into between the Employer and the Union should be for extending the age to 60 years but can also be made for lowering the age.
Balmer lawrie case is the recent judgement of the Bombay high court wherein Mr.Jamshedji cama appearead for the management and it is ruled that the clause in the standing order i.e. 27 is not only meant for extending the age to 60 years but can also be made for lowering the age if there is a settlement between both the parties.
Now the case is at the appellate stage and we are now relying on the same judgement as cited above. Request to throw light on the above and if possible quote some citations which are latest on the above matter
Learned experts/members have enriched the forum with their valuable contributions.
Learned Mr. Thukral has clarified the query with his valuable opinions like "a settlement of conditions of service between the parties providing better benefits than contained in CSO shall over ride."
The continued contributions by learned experts having expertise, mastery, resources is sought. It shall help many who visit the forum.
But certain basic things in World of Constitution , Daily Life , Criminal , Law and any Law , Spiritual World , World of Emotions and Relations between Man and Man DEPEND SQUARELY ON NOTHING BUT SIMPLE LOGIC .
The Judgement , Constitution , and all other above aspects of Life which do not pass the Litmus test of SIMPLE LOGIC have failed in due course of Time
And that is Why one Letter from Anna Hazare opens a Pandora's Box and all including the PM to common man is awakened from DEEP SLEEP and suddenly wants to do something for Our own Great and beloved NATION
It states 60 yrs or the agreement reached between the two
Nothing else
What agreement has been reached will be FOLLOWED till new agreement is reached
(Guest)
Good discussion, of course! But, what is the objection and hitch of the management in considering the demand or getting the Certified Standing Orders amended amicably, if the union has some point in their demand. The management should not overlook the possibility of huge loss likely to be incurred by the company in the event of any industrial unrest, if any dispute erupts between the management and the unions. Egoism on the side of the management is just like penny wise, pound foolish.
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