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Collective Bargaining and Uniform Conditions of Employment
(Being a case-comment on U.P. Electric Supply Co. v. Workmen, (1972) 2 SCC 34)
by Dr M.L. Upadhyaya *
Cite as : (1972) 2 SCC (Jour) 20
It was considered to be expedient in 1946 by the then Government of India to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them.1 With this end in view, an Act called the Industrial Employment (Standing Orders) Act, 1946, was passed. The Act was to be applicable mainly to industrial establishments employing more than one hundred workmen.2 It required all such employers to submit to the certifying officer within six months from the date on which the Act became applicable to them, five copies of the draft standing orders proposed for adoption in a particular industrial establishment.3 The draft standing orders were to define with sufficient precision the conditions of employment in relation to matters enumerated in the schedule to the Act.
A number of matters relating to conditions of employment of industrial workers were enumerated in the said schedule. There were in all eleven such heads detailing various matters in the statute. Of course the appropriate Government had the power to include additional matters in the schedule.4
The subject 'age for retirement or superannuation' was not there in the schedule at the time the Act was enacted. The erstwhile State of Bombay was first to insert it in the schedule.5 The State of Uttar Pradesh did not do it until November 17, 1959. Until then, as far as the State of Uttar Pradesh was concerned, there was no provision for the age of retirement or superannuation either in the model standing orders framed by the Central Government or in the ones framed by the State Government.
However, strange as it may seem, the electric supply undertakings at Agra, Allahabad and Benaras, subsequently merged in the United Provinces Electric Supply Company and now taken over by the Uttar Pradesh Electricity Board, provided in the draft standing orders for the age of retirement and superannuation vide Standing Order 32. The standing orders were duly certified in 1951 by the certifying officer and became binding on both the employers and the workmen.6
In July 1959 the employers decided to retire certain workmen for their having attained the age of superannuation. The workmen affected by this decision first raised the plea that since they had joined the employment much before the date in 1951 when Standing Order 32 prescribing the age of retirement or superannuation was certified, the same would not apply to them. But this plea was of no avail to them in view of a Supreme Court ruling in an earlier case.7 It was held in that case that the standing orders when certified were binding on the employers as well as all the workmen who were in employment at the time the standing orders came into force and those employed thereafter as uniform conditions of service. The Act in question was a beneficient piece of legislation and after it came into force, it was not possible for an employer to have different contracts of employment with his workmen as it was incompatible with the principle of collective bargaining. In order to safeguard against possible discriminatory treatment, it was obligatory for an employee to have uniform conditions of work for all workmen alike. Accordingly it was held that the Act was meant to ensure that the standing orders bind not only those who were employed subsequent to their certification but also those who were already in employment.
However, the trouble in the present case was that the draft standing order provided for a matter namely age of superannuation which was not one of the matters specified in the schedule to the Act. Of course after the 1956 amendment of the Act, it is possible to argue that provision could be made and the certifying officer could certify a standing order providing for a matter not so specified in the schedule. But Standing Order 32 in the present case was certified in 1951 when the certifying officer was not competent to do so. It was possible for this officer to certify any standing order with respect to retirement on attaining the age of superannuation only after November 17, 1959 the date when the Government of Uttar Pradesh included the said item in the schedule to the Act.8
But the manner did not end there. On June 15, 1960, the workmen through their trade union moved an application for amendment and modification of the said standing order. The certifying officer modified the same on April 22, 1961 and fixed the age of retirement at 58 years. On September 10, 1961, the appellate authority refixed the age of retirement at 55 years.9
It should be noted that the certifying officer was well within his powers after the 1956 amendment of the Act to fix validly the age of retirement and hence his certification of April 22, 1961 which came after the U.P. amendment of November 17, 1959 was legally valid. The Supreme Court, therefore, held this provision fixing the age of retirement at 58 years as applicable to the said workmen,10 notwithstanding the fact that the age of retirement on the date they were to retire was fixed at 55 vide the order, dated September 10, 1961 and not at 58 as was certified earlier.
The Court did not give any convincing reason for such a differential treatment knowing it fully well that a great deal of irritation and annoyance between employers inter se would result if any such discrimination is made with regard to conditions of service, and that this would only lead to industrial unrest and not industrial peace, the latter being the principal object of the legislation.11
There is yet another point of trouble. The Industrial Tribunal to which the dispute was referred after September 10, 1961, gave its award on May 19, 1967, which held the retirement of the workmen to be wrong and unjustified. It seems that the workmen were asked to retire on September 16, 1964 and that is why the tribunal ordered that the workmen should be deemed to be in service till September 1964 and should be taken to have been retrenched thereafter.
But this was no reason for the Supreme Court to fix the age of retirement of the said workmen at 58 instead of 55 which was the one fixed for other employees in that particular employment. It is, another, thing that they had already continued in employment until September 16, 1964 whereas they were initially asked to retire on September 1, 1959.
In view of the above, the decision of the Supreme Court that the proper age of retirement in the case of those employees who joined service prior to April 22, 1961, should be 58 years12 does not seem to be correct. Strangely enough the court does it while concurring with the view expressed in an earlier case that it was not intended by the legislation that different sets of conditions should apply to employees depending on whether a workman was employed before the standing orders were certified or after, which would defeat the very object of the legislation. It is indeed unfortunate that this was not pointed out to the Court. Had it been done, it would have resulted in uniform age of retirement for all workmen working in the said establishment irrespective of their date of joining and would have also strengthened the principle of collective bargaining.
It, however, appears that the Court fixed the age of retirement at 58 years because this was the age fixed by the certifying officer on April 22, 1961. The Certifying Officer had done it validly and the Supreme Court upheld his order. But the appellate authority had on appeal revised it and refixed it at 55 which was uniformly being applied to all the other workmen working in the same establishment. Unless it is shown that the appellate authority had no power in this case to revise and refix or that the decision of the appellate authority was subject to revision by the Supreme Court on a point of law, the decision of the Supreme Court leaves much to be discussed and debated apart from weakening the principle of uniformity of conditions of employment.
It should, however, be noted that in terms of Section 5 of the Act, the order of the Appellate Authority fixing the age at 55 years was to be final. This means that but for the provision in Article 136 of the Constitution of India there was to be no appeal from the final order of the appellate authority either on a point of law or a point of fact. The order could, of course, be varied or quashed by the High Court and the Supreme Court in exercise of their supervisory jurisdiction. The Court could in such cases issue an appropriate writ only on certain limited grounds such as want of jurisdiction, error on the face of record, violation of the principles of natural justice, bias and so on. In this particular case, the Supreme Court did not quash the order of the appellate authority on any such ground.
The case came up before the Supreme Court with its special leave under Article 136 of the Constitution. In such a case one would expect that the Court would interfere with the award of a tribunal only on an error of law. The Court while quashing the award did not say any such thing. There can always be two views as to an issue of fact but that is no reason for the Court to interfere with the award of a tribunal. It is indeed strange that the Court did not give any reason as to why it preferred the view of the certifying officer as against that of the appellate tribunal. In fact, after the tribunal had given its award, the order of the Certifying Officer had ceased to exist. Thus what the Court did was to revive an order which did not legally exist.
- See the preamble to the Act.
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- Section 1(3) of the Act.
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- Section 3(1) of the Act.
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- Section 15(2)(a) of the Act.
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- Vide Section 19 of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957.
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- U.P. Electric Supply Co. v. Workmen, (1972) 2 SCC 54, 57.
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- Agra Electric Supply Co. Ltd. v. Sri Alladin, (1969) 2 SCC 598.
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- Supra Note 7, p. 62.
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- Ibid., p. 58.
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- Ibid., p. 65.
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- Ibid., p. 62.
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- Ibid., p. 66.
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