U.P. STATE ELECTRICITY. BOARD AND ANOTHER v. THE LABOUR COURT (I) l:J.P., KANPUR AND OTHERS

The Judgment of the Court was delivered by E

.. VARADAR•JAN, J. This t\ipeal by special leave is directed _against the award of the Labour Court, Kanpur in Adjudiction Case No. 8 of 1980 holding that the retirement of the second respondent Jag Dutt from 31.3.f979 is unjustifiable and directing his reinstate· ment with back wages with a right to work so long as he is physically fit.

The second respondent entered service as a coolie on I L4.1945 under the then Kanpur Electricity Supply Corporation Limited. No date of birth was mentioned in his ·service card and there was no ·age of retirement for employees in that concern. That establishment was nationalised on 15.9.1947 and thereafter it became a department of the Government Of Uttar Pradesh. The i:tew management Kanpur Electricity Supply Administration filled up the second respondent's age as 20 years 9 months without asking him for any certificate regarding his date of birth. His date of birth is 24.6.1924_ and an entry about R his date of birth has been made in the Police Station, Chawani Basti at the instance of the Chowkidar of that village. The new manage- ment got its standing orders certified wi\hqut makih!l any -provis\011

284 • SUPUMB COURT REPORTS• [1984] 1 s.c.R.

for age of retirement. The State Government made it clear that the A workmen to whom the Industrial· Employment (Standing Order•) Act! 1946 applied would not be governed by the Civil Service (Classification, Control and Appeal) Rules. The Electricity Board . constituted under the Electricity (Supply) Act, 1948 took over the workmen of' the erstwhile Kanpur Electricity B Supply Admmistration from 1.4 ..1949 making it clear that their · service conditions will not be adversely affected. That poaition regarding the service conditions of the employee• was reiterated in Government Order No. 3679-E/71-21-PB dated 1.4.1971 and th• Electricity Department's Chief Engineer's letter dated 2.3.1972. The initial condition was that the second respondent should work so Ion& c as he was physically fit to work without any age of retirement. However, the Kanpur ElectricitySupply Administration retired the second respondent from 31.3.1979 on the ground that he has comple- ted '58 years. This retirelllJ'rit is invalid for two reasons, namely tliat his date of birth is 24.6.1924 and that there is. no . age of retirement D so far as employees like the secopd respondent who had joined service under the Kanpur Electricity Supply Corporation Limited are concerned.. The new management had. allowed 19 named workmen to retire when they were 60 to 75 years old. The second respondent has thus been retired not only before he completed 5S years, his date· of birth being 24.6.1924 but also in contravention of his conditions E .of service, according to ·which there is no age of retirement. This was -- the second respondent's case b.cfore !tie Labour Cciurt. ·

The defence of the appellant-management was that though ~hen the Electricity Board was constituted and the management of the Kanpur Electricity Supply Administration was taken over in· 1948· no age of retirement was prescribed for the employees the Electricity - ·Board framed regulations under s.79C of the Electricity (Supply) .> Act, 1948 subsequently prescribing the age of retirement as 58 years . ~ and 60 years and the second respondent was retired on 31.3.1979 under those regulations. it is open in law for the Electricity Board to G frame regulations prescribing the age of retirement of its employees even· where initally there was no age of retirement, as has beeu held by the Allahabad High Court and this Court. The second respondent's retirement is valid and cannot be set aside.

B The Labour Court found that the. second respondent joined service as a cooly under the Kanpur Electricity Supply Corporation Limited on 11.5.1945 and he became. the State Government's ~mployee oo. 16.9.1947 w]l,en ~at establishment was taken over by

U.P.S.E. B~ARD v.·LABOUR COURT (Var~arajan, .T.) -'2ss -Kanpur. Electricity Supply Administraiion and the employees · ' of . that Administration . became the . employees of the. State - : A : Elettricity Board 'when it ·took --over that . Undertaking- after .. -

!hat Board was constituted - cin 1.4.1959. --It was not disputed that • by the Regulations framed under s. 79C of the Electricity (Supply) age Act, 1948, of retirement fued at. 58 or _60 years and that those Regtlations .were notified on 28.5.1972 under-. s. 138B of the Indus- - _. l3 ·trial -Employment (Standing_ Orders) Act, 1946c __ But: the La~our Court found that even after the. publication of those Regulations the. -new.management made it clear to the employees by _Govern-· _ - ·_ ment's Order No. 3679-E/71·23-PB dated - 1.7.1979 that even after - - - absorption of the employees their old. conditions of service would .'r continue in the same wai and that a _similar assurance• had been•_ ·c - ' given to the second respondent by tho documents marked as ·Ex.B-9 to B-15 that the Regulations would not apply to him '.and he could - -work so long as he .was physically .fit without any age - of reiirement.. Jn this view the Labour Court held · that the second repondent's . retirement from 31.3.1979 inspite of the fact, that he is physically fit is ·invalid in law and it accordingly allowed the -s·cc6nd reipon-- · D dent's claim as menti<?ned -above. ·- · ·

-The. Labour Court ~s not recorded any finding: regarding :the . .·~· '.second respondent's ac~ual date of birth.• In this Court.no argument - was·advanced by the learned counsel on either side on that question. The only point _argued before this -Court by Mr. S.·Markendeya; E learned counsel for the_ appellants and Mr. Hari Swarup, learned Senior Counsel appeaiing for, thcsecond respondent was as fo the .- -binding natllre of the Regulations framed by the Electricity Board· under s.79C of theEleciricity (Supply) Act, 1948 fiixing age of reiire- -ment as 58 years in _regard to workmen like the _second· respondent F who were originally_ employees· of the' Kanpur Electricity Supply • ·Corporation Limited: By· Order dated 3.10.1978 of the General - Manager of the U.P. State Electricity Board i_n the department of _ Kanpur Electricity Supply Adminisfration eleven employees including, -·the second respondent were retired'o11 attaining the age of .superan- . nuation _with effect from 31.3.- 1979 on the basis that according to the .G - .Board's records they were completing 58 years on that date.· There is no dispute tha\ the Board.has framed Regulations under s.79C of · · : the Electricity_ (Supply) Act, 1948 fixing· the' age of retirement "of · ·employees like ihe secon.d respondent at 58 years and_ that the Regu- · lations have been notified under s.l3B of the Industrial Employment - H (Standing Orders) Act, 1946._ Mr. Hari Swarup admitted before us that the Regulations have statutory force. T)ie Member S~cretary of _ - '

~86 SUPREME COURT REPORTS (1984] f s.C.Jl..

the U.P. State Electricity Board had informed the government emp- A loyees whose Services had been lent to the Board on deputation that their salary, allownces and other conditions of service shall be gove-rn ed by Regulations made by the Board under s. 79C of the Electricity (Supply) Act, 1948 from time to time. It is not disputed that th~ second respondent had thereafter exercised his option .to serve in the . B U.P. State Electricity Board. The second respondent is, therefore, bound by the Regulation by which the age of retirement has been fixed in regard to employees like him at 58 years. A similar ques- tion arose before a Diviaion Bench of the Allahabad High Court in Bhat Lal and·ano1her v. 'Superintending Engineer, Allahabad(!) where it has been held as follows : c "Once the regulations framed under s. 79(c) of the Electricity (Supply) Act, 1948 have been notified by the State Government under s.13-1,l of the Industrial Employ- • ment (Standing Orders) A~ the standing orders framed by the erstwhile licence,to .the~extent they concerned the subject qealt with by the regulations became ineffective and inoperative and that in respect of .. uch matter, the right of the parties would be governed only by the regula- tion so notified". In the circumstances even if it ~e a fact that the standing orders framed by the erstwhile licencee contained a clause specifying an age higher then 58 years, • · as age of superannuation for its employees, the employee . w.ould none-the-less, as provided in the notified regula- tion, be superannuated at"the age o.f 58 years.''

A similar question• arose b~fore .thiS Court in U.P. Stott F Electricity 'Board and others v. Hori Shanker Jain and others(') to whiCh - two of us were parties. There it has been held that the Industrial Employment (Standing Orders) Act, !946(is'a special Jaw in. regard to the matters enumerated in the schedule and the regulations made by the El°"tricity Board with respect to any of those matters a~e of -~ G no effect unless such regulations are either notified hy the Govern- .men! under s. !3B or certified by the Certifying Officer under s; 5 of the .Industrial Employme~t (Standing Orders) Act, 1946. In regard to matters in respect of which regulations made· by the Board have not been notified by the Governor or in respect of which no regulatioµs have been made by the Board, the Industrial Employment (Standing

· (l)"l 1979 Labour and Industrial Cases 110. ~ . .. t (2) (1979] l~S.C.R. 3$~.

ti.P.S.E. BOARD v. LABOUR coui.u (Ji'araJaraj1111, J.) 281 ' Orders) Act shall continue to apply. In that case the regulation made by the Board with regard to the age of superannuation had been duly notified by the Government and it has been held that the ,., .. regulation had effect notwithstanding the fact that it was a matter which could be the subject matter of standing orders the Industrial Employment (Standing Orders) Act, 1946 and that the respondents in that appeal had been properly retired when they attained the age of 58 years. In view of th.e admitted fact that the regulations framed . by the Board under s.79C of the Electricity (Supply)Act, 1948 have been notified. by the Government under s. 13B of the Industrial Employment (Standing Orders) Act, 1946 we hold that .the second respondent is bound by those regulations in which the age of retire- ment has bean admittedly fixed at 58 years and that he has no reason c to complain against his retirement on that basis with effect from 31.3.1979. The appeaJ.is accordingly allowed and the order of the a?pellant retiring the second respondent with effect from 31.3.1979 is upheld. It is, however, made clear •that the second resp<Jlldent sliall not be liable to refµnd any amount paid to him under ortlers of the Court pending these proceedings and that he is entitled to draw the D sum of Rs. 2,000 which ha• been directed to be deposited towards his costs in this appeal.

T .- P.B.R. Appear allowed. .'