Full Judgment Text
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CASE NO.:
Appeal (civil) 2510 of 2002
PETITIONER:
M.P. Vidyut Karamchari Sangh
RESPONDENT:
M.P. Electricity Board
DATE OF JUDGMENT: 18/03/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Introduction :
Whether an agreement despite expiry would prevail over a regulation
made under Section 79(c) of the Electricity (Supply) Act, 1948 (for short
’the Act’) as regard the age of superannuation of an employee of the
Respondent-Board is the primal question involved in this appeal which
arises out of a judgment and order dated 11.9.2001 passed by the High Court
of Judicature of Madhya Pradesh at Jabalpur in L.P.A. No. 34 of 2001.
FACTUAL BACKGROUND:
The appellant is a registered Union of the employees of the Madhya
Pradesh State Electricity Board (for short ’the Board’). The erstwhile
Electricity Board framed regulations in the year 1952 under Section 79(c) of
the Act known as General Service Conditions of Board Servants. In the year
1957, the respondent-Board came into existence on re-organisation of the
State.
The State of Madhya Pradesh enacted the Madhya Pradesh Industrial
Relations Act, 1960 (for short ’the 1960 Act’) with a view to regulate the
relations of employers and employees in certain matters, to make provisions
for settlement of industrial disputes and to provide for matters connected
therewith. In the year 1961, the State of Madhya Pradesh also enacted
Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (for
short ’the 1961 Act’) to provide for rules defining with sufficient precision
of certain matters relating to the conditions of employment of employees in
the State of Madhya pradesh. The Schedule appended to the 1961 Act
provided for the standard standing orders and item No. XV thereof relates to
’age of retirement’.
On or about 19.10.1963, the Board purported to have adopted
fundamental rules, supplementary rules and other service conditions as in
force in Madhya Pradesh Civil Services (Temporary Service) Rules, Civil
Services (Classification, Control and Appeal) Rules. The said rules,
however, had no application as regard work-charged employees. On or
about 16.9.1976 by a notification issued under Section 79(c) of the Act, the
Board adopted Madhya Pradesh Shasakiya Sevak (Adhivarshiki Ayu)
Sanshodhan Adhiniyam, 1972 relating to the retirement age of government
employees under FR 56(3) prescribing 58 years as the age of
superannuation. It is not in dispute that the parties hereto entered into an
agreement on or about 10.6.1996 whereby and whereunder the age of
superannuation of the employees was made at par with the employees of the
Central Government as other fringe benefits were to be the same as might be
accepted by the Central Government while enforcing the Report of the Fifth
Pay Commission. The Central Government while accepting the
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recommendations of the Fifth Pay Commission fixed 60 years as the age of
superannuation of its employees. In the said agreement, it was stipulated :
"(S) It has been further agreed that the following
fringe benefits shall be regulated as per Vth Pay
Commission Report after its adoption by Central
Government.
*
9. Age of retirement."
The said agreement was registered in terms of Section 33 of the 1960
Act. The Board Thereafter issued a notification dated 22.5.1998 adopting
the notification issued by the Central Government dated 13.5.1998 as a
result whereof the age of retirement of the officers and employees of the
respondent Board was enhanced to 60 years. The said order came into force
with effect from 13.5.1998. By reason of the impugned notification dated
26.12.2000, the Board reduced the age of superannuation of its employees,
except class IV employees, to 58 years. Questioning the said notification,
the appellant herein filed a writ petition before the High Court of Judicature
of Madhya Pradesh at Jabalpur which was marked as Writ Petition No. 7255
of 2000. The said writ petition was dismissed by a learned Single Judge of
the High Court whereagainst the appellant herein preferred a Letters Patent
Appeal marked as Letters Patent Appeal No. 34 of 2001. By reason of the
impugned judgment dated 11.9.2001, the Division Bench dismissed the said
appeal.
HIGH COURT JUDGMENT:
The Division Bench of the High Court in its judgment held:
(i) As notification was not published under Section 2(2) of the 1961
Act by the State Government in the official gazette, the Act would
apply to the parties to the lis. However, as the said notification has
been published on 26.12.2000, it became a part of the Board’s
regulations and as such the conditions of service of the employees
of the Board would be governed thereby.
(ii) Rule 14-A was brought into animation in the year 1973 but it was
brought into existence the amendment after a period of 8 years in
the year 1981. The intention is writ large that proviso carves out
an exception to enable the employer granting freedom,
independence and liberty to enter into an agreement/settlement to
confer more benefit to an employee which is in tune with the
Industrial Law.
(iii) As the Board is empowered to make regulation in exercise of its
power under Section 79(c) of the Act, it is also entitled to issue
administrative instructions in absence of the regulation holding the
field. As after 1984 the Board could not have passed any
administrative order without amending the regulation and having
regard to the fact that the relevant notifications were not published
in the official gazettee, they would be non est in law. As by reason
of the notification dated 14.7.2000, the Board had adopted the
regulations made in the year 1963, subsequent amendments which
had taken place in the regulations and supplementary rules
increasing the age of superannuation to 60 years will have no
effect. The submissions of the appellant to the effect that the
settlement/ agreement should be construed with reference to a
letter dated 22.10.1999 issued by the Secretary of the Board to the
Federation being unpragmatic cannot be accepted.
SUBMISSIONS:
Dr. Rajeev Dhawan, learned senior counsel appearing on behalf of the
appellant would submit that the High Court went wrong in passing the
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impugned judgment insofar as it failed to take into consideration that the
regulations made under the Electricity (Supply) Act being a general law and
the terms and conditions laid down under the Certified Standing Order being
a special law, the latter shall prevail over the former. Strong reliance in this
behalf has been placed on The U.P. State Electricity Board and Another Vs.
Hari Shankar Jain and Others [(1978) 4 SCC 16].
The learned counsel would contend that a manifest error has been
committed by the Division Bench of the High Court insofar as it despite
having held that a notification issued by the State of Madhya Pradesh was
necessary to exclude the application of the Standing Order in terms of
Section 2(2) of the 1961 Act, relying on or on the basis of the notification
issued by the respondent Board although the same was issued by the Board
only and not by the State Government under Section 2(2) of the 1961 Act.
Dr. Dhawan would submit that the regulations framed by the Board in
in the year 1976 applying the fundamental and supplementary rules could
not have excluded the application of the Standing Order as the same had
been published in the official Gazette by the Board in the year 2000 only and
that too by the Board and not by the State Government.
Section 79(c) of the Act, Dr. Dhawan would contend, is merely
implemental in nature and do not have the character of substantive law and
in that view of the matter the settlement arrived at by the parties in terms of
Sections 31 and 33 of the Industrial Relations Act would prevail thereover.
Despite expiry of the said settlement, Dr. Dhawan would urge, the
agreement would continue to operate unless the same is terminated by a
notice and in that view of the matter no notification altering the terms and
conditions of service could be validly issued in derogation of the terms of
the said agreement having regard to the provisions contained in Rule 14A of
the Rules.
Mr. P.P. Rao, learned senior counsel appearing on behalf of the
respondent, on the other hand, would submit that the decision of this Court
in Hari Shankar Jain (supra) cannot be said to have laid down good law
inasmuch as therein it had not been considered that the Electricity (Supply)
Act, 1948 is a law relatable to Entry 38 of List III of Constitution of India;
and the 1960 Act and the 1961 Act having been made in terms of Entries 22,
23 and 24 of List III, Article 254 (2) of the Constitution of India would not
have any application and in that view of the matter the agreement dated
10.6.1960 cannot override the statutory power conferred upon the Board
under Section 79 (c) of the Act in terms whereof the Board can make
regulations laying down duties of its officers and other employees and fixing
their salaries, allowances and other conditions of service.
For enforcing the 1963 Regulations, Mr. Rao would urge, there was
no statutory requirement to notify the same in the gazette as prior to
15.3.1984, there did not exist any such statutory requirement. It was urged
that as the Board by a notification dated 19.10.1963 adopted fundamental
rules for its employees except those in work-charged establishments and
further adopted M.P. Act No.9 of 1976 by a notification dated 16.9.1976, in
terms whereof the age of retirement was prescribed at 58 years for all classes
of employees except Class IV employees in terms of FR 56 and 60 years for
Class IV employees. In any event, Mr. Rao would submit, as the agreement/
settlement expired on 31.3.1999, the impugned notification dated 26.12.2000
cannot be faulted as the agreement by itself did not specify any age of
retirement and, thus, the employer had a right to reduce the age of retirement
which became necessary due to financial conditions of the Board.
Mr. Rao would argue that the decisions of this Court interpreting
Section 19(2) of the Industrial Disputes Act, 1947 cannot be applied to the
industrial settlements governed by the 1960 Act inasmuch in terms of
Section 99 thereof an agreement shall cease to have effect on the date
specified therein and the said act does not contain any provisions like
Section 19(2) of the Industrial Disputes Act, 1947 in terms whereof an
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agreement is to continue to be binding on the parties until the expiry of two
months from the date of service of notice terminating the said agreement.
STATUTORY PROVISIONS:
The relevant entries of List III of Seventh Schedule of the
Constitution of India read thus:
"22. Trade unions; industrial and labour disputes.
23. Social security and social insurance;
employment and unemployment.
24. Welfare of labour including conditions of
work, provident funds, employers’ liability,
workmen’s compensation, invalidity and old age
pensions and maternity benefits.
38. Electricity."
Sections 33 and 99 of the 1960 Act are as under:
"33. Agreements \026 (1) If in regard to a change
proposed under sub-section (1) or (2) of section
31, an agreement is arrived at, a memorandum of
such agreement shall be forwarded to the
Registrar.
(2) On receipt of the memorandum of agreement
signed by the parties under sub-section (1), the
Registrar shall register the agreement if it is
arrived at \026
(a) within seven days from the service of a
notice under sub-section (1) or sub-
section (2) of section 31, or with such
further period as may be agreed upon by
the parties; or
(b) *
(c) within two months from the completion
of conciliation proceedings:
Provided that the Registrar shall not register
an agreement which on enquiry he is satisfied is in
contravention of the provisions of this Act or was
the result of mistake, misrepresentation, fraud,
undue influence, coercion or threat.
(3) An appeal shall lie to the Industrial Court
against an order of the Registrar refusing to
register an agreement under sub-section (2). The
provisions of section 22 shall apply to such appeal.
(4) An agreement registered under this section
shall come into operation on the date specified
therein or if no date is so specified on its being
recorded by the Registrar."
"99. Agreements etc., when to case to have effect:-
(1) A registered agreement or a settlement or
award shall cease to have effect on the date
specified therein or if no such date is specified
therein on the expiry of the period of two months
from the date on which notice in writing to
terminate such agreement, settlement or award, as
the case may be, is given in the prescribed manner
by any of the parties thereto to the other parties:
Provided that no such notice shall be given
till the expiry of six months after the agreement,
settlement or award comes into operation.
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(2) Nothing in this section shall prevent the terms
of a registered agreement or a settlement or an
award in terms of an agreement being changed or
modified by mutual consent of the parties affected
thereby and the registered agreement, settlement or
award shall be deemed to be changed or modified
accordingly.
(3) *
(4) The party giving notice under sub-section [1]
shall send a copy of it to the Register and the
Labour Officer of the local area concerned.
(5) If a registered agreement or a settlement or an
award is terminated under sub-section [1] or if the
terms of a registered agreement or a settlement or
an award are changed or modified by mutual
consent, notice of such termination, change or
modification shall be given by the parties
concerned to the Registrar and the Labour Officer.
The Registrar shall enter the notice of such
termination, change or modification in a register
kept for the purpose."
Section 79 (c) of the Electricity (Supply) Act, 1948 reads as under:
"79. Power to make regulations \026 The Board may
by notification in the Official Gazette, make
regulations not inconsistent with this Act and the
rules made thereunder to provide for all or any of
the following matters:-
(c) the duties of officers and other employees of
the Board, and their salaries, allowances and other
conditions of service;"
Sub-Section (2) of Section 2 of the 1961 Act reads thus:
"2(2) Nothing in this Act shall apply to the
employees in an undertaking to whom the
Fundamental and Supplementary Rules, Civil
Services (Classification, Control and Appeal)
Rules, Civil Services (Temporary Service) Rules,
Revised Leave Rules, Civil Service Regulations or
any other rules or regulations that may be notified
in this behalf by the State Government in the
official Gazette apply."
The relevant part of Rule 14A of the 1973 Rules reads as under:
"14-A: Retirement: (1) An employee shall retire
from the service of the employer on the date he
attains the age of 58 years. He may, however, be
retained inservice by the employer after the date of
attaining the age of 58 years if his services are
necessary in the interest of the undertaking but he
shall not be retained in service after the age of 60
years:
Provided that nothing in this clause shall
adversely affect the operation of the terms of any
contract, agreement, settlement, or award on this
subject, if the age of retirement is not less than 58
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years."
Issues :
(i) Whether the regulations made under Section 79 (c) of the Act would
prevail over the Standing Order framed under the 1961 Act.
(ii) Whether regulation dated 19.10.1963 issued by the Board adopting
fundamental and supplementary rules for its employees except those
in work-charged establishment and published in gazette on
26.12.2000 the application of the 1961 Act by reason of Section 2(2)
thereof stand excluded.
(iii) Whether the respondent Board acted illegally and without jurisdiction
in issuing the notification dated 26.12.2000 reducing the age of Class
III employees to 58 years.
FINDINGS:
It is trite that India being a Union of State both the Parliament and the
State Legislature can frame laws having regard to their respective legislative
competence enumerated in the three Lists contained in the Seventh Schedule
of the Constitution of India.
Before analyzing the relevant provisions of the State Acts vis-‘-vis
’the Act’, we may have an overview of the constitutional scheme. Articles
245 and 246 of the Constitution of India read with the Seventh Schedule and
Legislative Lists contained therein prescribe the extent of legislative
competence of Parliament and State Legislatures. Parliament has exclusive
power to make laws with respect of any of the matters enumerated in List I
in the Seventh Schedule. Similarly, State Legislatures have exclusive power
to make laws in respect of any of the matters enumerated in List II.
Parliament and State Legislatures both have legislative power to make laws
with respect to any matter enumerated in List III, the Concurrent List.
The various entries in the three Lists are fields of legislation. They
are designed to define and delimit the respective areas of legislative
competence of the Union and State Legislatures. Since legislative subjects
cannot always be divided into water tight compartments; some overlappings
between List I, II and III of the Seventh Schedule is inevitable.
Notwithstanding the fact that great care with which the various entries
in the three lists have been framed; on some rare occasions it may be found
that one or the other field is not covered by these entries. The makers of our
Constitution have, in such a case, taken care by conferring power to legislate
on such residuary subjects upon the Union Parliament including taxation by
reason of Article 248 of the Constitution.
Doctrine of pith and substance, however, is taken recourse to when
examining the constitutionality of an Act with respect to competing
legislative competence of the Parliament and the State Legislature qua the
subject matter. Incidental entrenchment however is permissible.
As in a federal Constitution division of legislative powers between
the Central and Provincial Legislatures exists, controversies arise as regards
encroachment of one legislative power by the other particularly in cases
where both the Union as well as the State Legislation have the competence
to enact laws. Article 254 provides that if any provision of a law made by
the Legislature of a State is repugnant to any provision made by the
Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent
List then subject to provisions of clause (2), the law made by the Parliament
shall prevail to the extent of the repugnancy required.
In terms of clause 2 of Article 254 of the Constitution of India where
a law made by the legislature of a State with respect to one of the matters
enumerated in the Concurrent List contains any provisions repugnant to the
provisions of an earlier law made by the Parliament or an existing law with
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respect to the matters, then the law so made by the Legislature of such State
shall, if it has been reserved for consideration of the President and has
received its assent, prevail in that State. It is not in dispute that the 1961 Act
has received the assent of the President of India and, thus, would prevail
over any parliamentary law governing the same field.
It is no doubt true that the entire field relating to ’Electricity’ is
covered under Entry 38 of List III pursuant whereto the Indian Electricity
Act and Electricity (Supply) Act, 1948 were enacted but thereby the State’s
legislative competence to exercise its legislative power under Entries 22, 23
and 24 was not taken away. Section 79 (c) of the Electricity (Supply) Act
provides for an incidental power upon the Board. The same would,
therefore, not prevail over the specific legislative competence granted to the
State to regulate the conditions of service between an industrial undertaking
and its employees nor thereby the State Government would be denuded of
its legislative power relating to regulation of the industrial relations.
Furthermore, both the Parliament and the State within their own
respective legislative competence may make legislations covering more
than one entries in the three Lists contained in the Seventh Schedule of the
Constitution of India. Article 254 of the Constitution of India would be
attracted only when legislations covering the same ground both by Centre
and by the Province operate in the field; both of them being competent to
enact.
[See Deep Chand vs. State of Uttar Pradesh and Others. [AIR 1959
SC 648] and M. Karunanidhi Vs. Union of India, [AIR 1979 SC 898] and
The State of West Bengal Vs. Kesoram Industries Ltd. And Ors., [2004 (1)
SCALE 425].
Recourse to the said principles, however, would be resorted to only
when there exists direct conflict between two provisions and not otherwise.
Once it is held that the law made by the Parliament and the State Legislature
occupy the same field, the subsequent legislation made by the State which
had received the assent of the President of India indisputably would prevail
over the parliamentary Act when there exists direct conflict between two
enactments. Both the laws would ordinarily be allowed to have their play in
their own respective fields. However, in the event, there does not exist any
conflict, the Parliamentary Act or the State Act shall prevail over the other
depending upon the fact as to whether the assent of the President has been
obtained therefor or not. (See. Bharat Hydro Power Corp. Ltd. & Ors. Vs.
State of Assam and Anr., 2004(1) SCALE 211).
Keeping in view of the fact that the State Government has the
exclusive power to enact a law regulating industrial relations and resolution
of labour disputes, as has been held by this Court in Christian Medical
College Hospital Employees’ Union and Another Vs. Christian Medical
College Vellore Association and Others [(1987) 4 SCC 691], the same shall
prevail over the regulations framed by the Board in exercise of its power
under Section 79 (c).
This brings us to the question as regard the effect of the 1961 Act. In
terms of Section 2, the 1961 Act, applies to every undertaking wherein the
number of employees on any day during the twelve months preceding or on
the day the said Act came into force or any day thereafter was or is more
than twenty and such other class or classes of undertakings as the State
Government may, from time to time, by notification, specify in this behalf.
The undertaking of the Board indisputably was in existence in 1961. Per se,
therefore, the provisions of the 1961 Act shall apply to the undertakings of
the Board. Sub-Section (2) of Section 2 of the 1961 Act makes an exception
to the applicability of the Act stating that nothing therein shall apply to the
employees of an undertaking to whom the Fundamental and Supplementary
Rules, Civil Services (Classification, Control and Appeal) Rules, Civil
Services (Temporary Service) Rules, Revised Leave Rules, Civil Service
Regulations or any other rules or regulations that may be notified in this
behalf the State Government in the official gazette apply. For excluding the
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operation of the 1961 Act, it is imperative that an appropriate notification in
terms of Section 2(2) of the 1961 Act is issued.
The Board adopted Fundamental and Supplementary Rules which per
se were not applicable to the employees of their undertaking. They were
adopted by the Board. The provisions of Fundamental and Supplementary
Rules to the extent it was made applicable, having regard to the provisions
contained in Section 79 (c) would, thus, be deemed to be the regulations
governing the terms and conditions of the employees of the Board. The
requisite notification under Section 2(2) of the 1966 Act was, thus, required
to be issued by the State Government.
It is not in dispute that the State Government has not issued any
notification in terms of Section 2(2) of the 1961 Act and in that view of the
matter the provisions thereof shall apply to the employees of the State. The
1961 Act is a special law whereas the regulations framed by the Board under
Section 79 (c) are general provisions. The maxim ’generalia specialibus non
derogant’ would, thus, be applicable in this case. [See D.R. Yadav and
Another Vs. R.K. Singh and Another, (2003) 7 SCC 110 and Indian
Handicrafts Emporium and Others Vs. Union of India and Others, [ (2003) 7
SCC 589].
The question need not detain us long in view of a 3-Judge Bench
decision of this Court in Hari Shankar Jain (supra). This Court therein in no
uncertain terms held that the provisions of the Standing Order Act are
special laws in regard to the matters enumerated in the Schedule and, thus,
the regulations made by the Electricity Board with respect to any of those
matters are of no effect unless the regulations are either notified by the
Government or certified by the certifying officer, holding :
"18\005 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
regulations have been made by the Board, the
Industrial Employment (Standing Orders) Act shall
continue to apply. In the present case the
regulation made by the Board with regard to age of
superannuation having been duly notified by the
Government, the regulation shall have effect
notwithstanding the fact that it is a matter which
could be the subject matter of Standing Orders
under the Industrial Employment (Standing
Orders) Act..."
[See also U.P. State Electricity Board and Another Vs. Labour Court (I),
U.P., Kanpur and Another (1984) 1 SCC 147]. We do not find any infirmity
in the said decisions of this Court and respectfully agree with the ratio laid
down therein.
This leads us to the question as to the applicability of the Rule 14A
vis-a-vis the agreement/ settlement entered into by and between the parties
dated 10.6.1996. In terms of Rule 14A of the 1973 Rules the age of
superannuation was fixed at 58 years. The proviso appended to Rule 14A of
the 1973 Rules, however, postulates that nothing therein shall adversely
affect the operation of the term of any agreement on the subject if the age of
retirement is not less than 58 years. We have noticed that Clause (S) (9) of
the settlement refers to the age of retirement which was registered in terms
of Section 33 of the 1960 Act. The said agreement, keeping in view of the
proviso appended to Rule 14A and having been issued in compliance of the
requirements of the Act will operate in the field. In terms of the said
agreement the age of retirement was to be the same as that of the employees
of the Central Government on acceptance of the recommendations of the
Fifth Pay Commission. The Central Government in exercise of its power
conferred by the proviso to Article 309 of the Constitution and Clause (5) of
Article 148 made rules known as Fundamental (Amendment) Rules, 1998 in
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terms whereof Clause (a) was amended in the following terms:
"(a) Except as otherwise provided in this rule,
every Government servant shall retire from service
on the afternoon of the last day of the month in
which he attains the age of sixty years:
Provided that a Government servant whose
date of birth is the first of a month shall retire from
service on the afternoon of the last day of
preceding month on attaining the age of sixty
years."
Having regard to the said agreement, indisputably the Board also
enhanced the age of retirement of its employees by a notification dated
22.5.1998 which reads thus:
"Sub: Enhancement in age of retirement.
In exercise of the powers conferred under
clause (c) of section 79 of the Electricity (Supply)
Act, 1948, the M.P. Electricity Board is pleased to
adopt the orders as contained in Government of
India, Ministry of Personnel, Public Grievances &
Pensions (Department of Personnel & Training),
notification No. 25012/2/97-Estt.(A) dated
13.8.1998 (copy enclosed) for application to the
Board’ officers/ employee with effect from
13.5.1998."
It is, however, not in dispute that the agreement dated 10.6.1996
expired on 31.3.1999 as would appear from the following:
"(W) The wage structure and fringe benefits shall
be effective for a period of 5 years upto 31.3.99
and no demand whatsoever shall be made or
considered in respect of the items already agreed
to."
Section 99 of the 1960 Act, as referred to hereinbefore, postulates that
a registered agreement or a settlement or award shall cease to have effect on
the date specified therein and only in the event no date is specified on the
expiry of two months from the date on which notice in writing to terminate
such agreement, settlement or award, as the case may be, is given in the
prescribed manner by any of the parties thereof to the other parties. By
reason of the said provision, therefore, the settlement comes to end
automatically on the date specified therefor and only in the event no date of
expiry thereof is specified, a notice contemplated thereby is required to be
issued. The provisions of the 1960 Act shall apply to the undertakings of the
electricity, generation and distribution in terms of notification 31.12.1960
issued by the State.
Section 19 of the Industrial Disputes Act, 1947, however, has been
couched in a different language in terms whereof a settlement will be
binding as is agreed upon by the parties and shall continue to be binding
despite expiry thereof until the expiry of two months from the date on which
a notice in writing of an intention to terminate the settlement is given by one
of the parties to the other party or parties to the settlement.
The decisions of this Court in South Indian Bank Ltd. Vs. A.R.
Chacko [1964 (5) SCR 625], Life Insurance Corporation and Others Vs.
D.J. Bahadur [(1981) 1 SCC 315] and Karnataka State Road Transport
Corporation vs. Vs. KSRTC Staff and Workers’ Federation and Another
[(1999) 2 SCC 687] which have been rendered having regard to the
phraseology used in Sub-Section (2) of Section 2 of the 1961 Act will thus
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have no application to the fact of the present case.
The proviso appended to Rule 14A of the 1973 Rules would, thus,
operate provided there exists a valid agreement. Furthermore, the terms and
conditions laid down in the certified order may have the force of law but
they by themselves do not constitute statutory provisions. [See Rajasthan
State Road Transport Corporation and Another Vs. Krishna Kant and
Others, [ (1995) 5 SCC 75].
Rule 14A of the 1973 Rules prescribes the age of superannuation to
58 years. It can be enhanced upto the age of 60 years if the services of the
person are necessary in the interest of the undertaking but he shall not be
retained in service after the age of 60 years unless in terms of the proviso,
there exists any agreement/settlement or award to the contrary. The
enhanced age of superannuation of members of the appellant Association
was, therefore, subject to any law that may operate in the field. The
respondent Board, as noticed hereinbefore, issued the notification dated
22.5.1998 whereby and whereunder it had given a seal of approval to the
aforementioned agreement, which was to continue to operate in view of the
agreement, until the same is replaced by another valid notification. The
Board has issued such a notification on 26.12.2000 in exercise of its
statutory power under Section 79(c) of ’the Act’.
It is one thing to say that when there exists a conflict between a
regulation made under Section 79(c) of the Act and a certified standing order
or a rule made under the 1961 Act, the latter shall prevail; but it is another
thing to say that in absence of any statutory provision governing the age of
retirement, the statutory regulations framed by the respondent Board shall
have no application. It is not in dispute that the impugned notification dated
26.12.2000 had been issued by the Board in exercise of its power under
Section 79(c) of Electricity Supply Act. Section 15 of the Act empowers the
Board to appoint a Secretary and such other officers as may be required to
enable the Board to carry out its functions. Section 79(c) empowers the
Board to make regulations inter alia as regard the duties of officers and other
employees of the Board, and their salaries, allowances and other conditions
of service. The Board, therefore, was empowered to make regulations which
are not inconsistent with the provisions of the Act and the Rules providing
for the duties of officers, their salaries, allowances and other conditions of
service.
The power of the Board, therefore, to lay down the conditions of
service of its employees either in terms of regulation or otherwise would be
subject only to any valid law to the contrary operating in the field.
Agreement within the meaning of proviso appended to Rule 14A is not a law
and, thus, the regulations made by the Board shall prevail thereover.
The Board has power to make regulations which having regard to the
provisions of General Clauses Act would mean that they can make such
regulations from time to time.
Alterations in the age of retirement by the employer is a matter of
executive policy and for sufficient and cogent reasons, the same is
permissible. [See K. Nagaraj and Others Vs. State of Andhra Pradesh and
Another [(1985) 1 SCC 523], Osmania University Vs. V.S. Muthurangam
and Others [(1997) 10 SCC 741], N. Lakshmana Rao and Others Vs. State
of Karnataka and Others [(1976) 2 SCC 502] and Chandra Singh vs. State of
Rajasthan [(2003) 6 SCC 545].
We, therefore, are of the opinion that the High Court has rightly
dismissed the writ petition filed by the appellant.
For the reasons aforementioned, we are of the opinion that there is no
merit in this appeal, which is accordingly dismissed. No costs.