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Bombay High Court
Indo Count Industries Ltd vs Shankar Mahadev Takmare on 30 April, 2025
2025:BHC-AS:19759
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4630 OF 2025
Indo Count Industries Ltd.
D-1, MIDC, Industrial Area,
Gokul Shirgaon, Kolhapur - 416 234 ....Petitioner
V/S
Shankar Mahadev Takmare
Age 58 years, Occ. Nil,
having address at Baba Nagar,
B-14, Uchgaon, Tal. Karveer
District Kolhapur ....Respondent
WITH
WRIT PETITION NO.4631 OF 2025
Indo Count Industries Ltd.
D-1, MIDC, Industrial Area,
Gokul Shirgaon, Kolhapur - 416 234 ....Petitioner
V/S
Sanjay Pandurang Ghorpade
Age 58 years,
having address at Narhari Galli,
Gadmudshingi, Tal. Karveer
District Kolhapur ....Respondent
_________
Mr. Avinash Jalisatgi with Mr. T.R. Yadav and Ms. Divya Wadekar
for Petitioners in both Petitions.
Mr. Dilip B. Shinde with Mr. Mohan C. Kumbhar for Respondent in
both Petitions.
__________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON : 23 APRIL 2025.
PRONOUNCED ON : 30 APRIL 2025.
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JUDGMENT:
1. Rule. Rule is made returnable forthwith. With the consent of
the learned counsel appearing for parties, the Petitions are taken up
for hearing and final disposal.
2. The Petitioner-employer has filed these Petitions challenging
the judgments and orders dated 20 February 2025 passed by the
learned Member, Industrial Court No.1, Kolhapur, dismissing its
Revision Applications and confirming the orders dated 3 April 2024
and 19 June 2024 passed by the Labour Court, Kolhapur. By orders
dated 19 June 2024, the Labour Court has allowed Applications at
Exhibit U-2 filed by the Respondent-employees and has temporarily
restrained the Petitioner-employer from superannuating the
Respondents until they attain the age of 60 years. The Petition is thus
filed challenging the interim orders passed by the Labour Court, as
confirmed by the Industrial Court.
3. Briefly stated, facts of the case are that Petitioner-employer is
engaged in manufacturing of cotton yarn (Spinning Mill) in its factory
at Kolhapur. There are about 805 employees employed in the said
factory. Shahu Soot Kapad Kamgar Sangh has been registered as
representative and approved Union for Karveer Taluka. Respondent-
Shankar Mahadeo Takmare was appointed with the Petitioner-
employer on 1 January 1994 as Helper and later on promoted as
Assistant Fitter. Respondent-Sanjay Pandurang Ghorpade joined the
employment on 25 August 1991 as a Reliever. According to the
Petitioner-employer, the age of retirement of employees employed in
the Spinning Mill is 58 years. According to the Petitioner, an
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agreement was executed on 15 April 2006 between the Petitioner-
Management and the employees under which the age of retirement
was agreed as 58 years. That Respondent-employees accepted all the
benefits under the agreement and were fully aware that they were
due to retire on attaining the age of 58 years. Respondent-Shankar
Mahadeo Takmare was to retire on attaining the age of 58 years on
20 June 2024 whereas Respondent-Sanjay Pandurang Ghorpade was
to retire on attaining the age of 58 years on 5 April 2024. Accordingly,
letters were issued by both the Respondents informing them about
their retirements. Both the Respondents however approached Labour
Court by filing Complaint (ULP) Nos. 19 of 2024 and 9 of 2024
seeking restraint order against the Petitioner-employer from retiring
them before attaining age of 58 years. The Complaints were resisted
by Petitioner-employer by filing Written Statements. Respondent-
employees filed Applications at Exhibit U-2 seeking interim relief
under Section 30(2) of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (MRTP &
PULP Act). By orders dated 3 April 2024 and 19 June 2024 the
Labour Court allowed the Applications at Exhibit U-2 and has
restrained the Petitioner-employer from superannuating the
Respondents till they attain the age of 60 years during pendency of
the Complaints.
4. Petitioner-employer filed Revision Application (ULP) Nos.18 of
2024 and 25 of 2024 and before Industrial Court, Kolhapur
challenging the interim orders passed by the Labour Court on 3 April
2024 and 19 June 2024. By judgments and orders dated 20 February
2025, the Industrial Court has dismissed both the Revision
Applications. Petitioner-employer has filed the present Petitions
challenging the orders passed by the Industrial Court.
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5. Mr. Jalisatgi, the learned counsel appearing for the Petitioner-
employer would submit that the Labour Court has grossly erred in
granting interim relief in favour of the Respondent-employees by
directing their continuance in service till attaining age of 60 years. He
would submit that under the Settlement Agreement dated
15 April 2006, all the employees of the Petitioner-employer specifically
agreed that age of retirement would be 58 years. That Respondents
accepted all the benefits flowing through the Agreement dated
15 April 2006 and cannot selectively question applicability of covenant
relating to age of retirement of 58 years. He would submit that the
Respondents-employees were fully aware about the factum of their
retirement on attaining the age of 58 years. He has invited my
attention to few documents in which Respondents themselves
declared their retirement on attaining the age of 58 years. He would
also rely on consent letters given by the Respondent-employees in
September 2023 while accepting wage rise in which again they
accepted age of superannuation at 58 years.
6. Mr. Jalisatgi would further submit that the main reason
recorded by the Labour Court for grant of interim relief was expiry of
tenure of agreement dated 15 April 2006 by 31 December 2010. That
the said reason has been found to be erroneous by the Industrial
Court. This would mean that the Agreement dated 15 April 2006
continues to govern the age of retirement of the employees of the
Petitioner. That the Labour Court has erred in holding that the
Agreement dated 15 April 2006 was not registered, certified or settled
by the Commissioner of Labour. That there is no provision for such
registration certification or settlement. He would further submit that
the Industrial Court has grossly erred in misinterpreting provisions
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of Model Standing Order (MSO) 25A under the Maharashtra
Industrial Relations Act, 1946 (MIR Act). That under MSO 25A it is
lawful for the employer and employee to agree for different age of
retirement than the one prescribed in the MSO. In support of his
contentions, Mr. Jalisatgi would rely upon following judgments:
i) Balmer Lawrie and Co. Ltd. Bombay and another vs.
Engineering Workers Association, Thane and another,
2011 (4) Mh.L.J. 776,
ii) Tulsiram K. Gothod vs. Superintendent, Mahatma
Gandhi Memorial Hospital and another, 2001 (13) Mh.L.J.
662,
iii) Tulsiram K. Gothod vs. Superintendent, Mahatma
Gandhi Memorial Hospital and anr, 2007 SCC OnLine
1522.
7. Mr. Jalisatgi would pray for setting aside the orders passed by
the Labour and Industrial Courts.
8. The Petitions are opposed by Mr. Shinde, the learned counsel
appearing for the Respondents. He would submit that Respondents
are not parties to the Agreement shown to have been executed on
15 April 2006. That the said Agreement is not executed as per the
provisions of MIR Act and is otherwise invalid. He would rely upon
provisions of Section 35 of the MIR Act in support of his contention
that the Agreement of 2006 was required to be registered with the
Labour Commissioner. That provisions of MSO 25A prescribing the
age of retirement of 60 years would prevail over any private
Agreement executed by the employer. He would invite my attention to
the Agreement executed by the Petitioner-employer with the Union on
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6 February 2025, under which Petitioner-employer finally agreed to
raise the age of retirement as 60 years. That since Petitioner-employer
has agreed to make age of retirement as 60 years in the Settlement
Agreement executed on 6 February 2025, this Court need not
interfere in the impugned interim order granted by the Labour Court
as confirmed by the Revisional Court. He would submit that since
only interim order is challenged in the present Petitions, this Court
would be loathe to interfere in the same particularly considering the
fact that concurrent findings are recorded by the Labour and
Industrial Courts. He would submit that all other colleagues of the
Respondents are now allowed to retire at the age of 60 years and it
would be otherwise too iniquitous to interfere in the impugned
interim order and retire the Respondents before they attaining the
age of 60 years. He would therefore pray for dismissal of the Petitions.
9. Rival contentions of the parties now fall for my consideration.
10. Respondent-employees have filed Complaints of unfair labour
practices seeking restraint order against the Petitioner-employer from
retiring them before attaining the age of 60 years. In those
Complaints, interim stay has been granted in favour of the
Respondents by the Labour Court by restraining the Petitioner from
retiring the Respondents before attaining the age of 60 years. The
sheet-anchor of the Petitioner in support of its contention of age of
retirement of employees is 58 years is the Agreement dated
15 April 2006. It is a bulky Agreement dealing with terms and
conditions of services of various categories of employees. It
comprehensively deals with various aspects relating to salaries,
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allowances, leave, attendance, gate pass, industrial relation,
regularization, retirement, disciplinary measures etc. The Agreement
was signed by the 23 employees in a representative capacity. Under
clause 6 of the Agreement, the same was to remain in effect from
1 January 2006 to 31 December 2010. Under Annexure-C to the said
Agreement under the heading ‘Works Personal Manual’, the age of
retirement was fixed at 58 years.
11. The Labour Court has however refused to take cognizance of
Agreement dated 15 April 2006 holding that the tenure thereof had
come to an end on 31 December 2010 and that terms and conditions
thereof relating to retirement became inoperative. The Industrial
Court has however not agreed with the said finding recorded by the
Labour Court and has held that the Agreement dated 15 April 2006
would continue to apply till execution of the new Agreement. The
Industrial Court has thus reversed finding of the Labour Court about
applicability of the Agreement dated 15 April 2006 beyond
31 December 2010. Thus, the Industrial Court has accepted the
position that the Agreement dated 15 April 2006 would continue to
remain valid.
12. However, the Industrial Court has held that under MSO 25A
under the MIR Act, the age of retirement is 60 years and that an
Agreement executed in breach of MSO 25A would be non-est. In short,
the Industrial Court has held that age of retirement fixed under
Agreement contrary to the provisions of MSO 25A would be invalid.
13. The State Government has notified Model Standing Orders in
exercise of power under Section 35(5) of the MIR Act applicable inter
alia in respect of cotton textile industry. MSO 25A provides thus:
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"25A. The date of compulsory retirement of an operative shall be
the date on which he attains the age of 60 years or such other age as may
be agreed upon between the employer and the employees by any agreement;
settlement or award which may be binding on the employer and the
employees under any law for the time being in force.”
14. Thus, the age of compulsory retirement prescribed under MSO
25A is 60 years or such other age as may be agreed upon between the
employer and the employees by any agreement, settlement or award.
Thus, it is lawful for employer and employee to agree by way of an
agreement, settlement or award to prescribe different age of
retirement than 60 years provided for under MSO 25A. The
entitlement of employer and employee to agree upon age of retirement
different than the one prescribed under MSO 25A is no more res
integra. In Tulsiram K. Gothad (supra) Co-ordinate Bench of this
Court has held in paragraph 8 as under:
“8. The model standing order Clause No. 27 is ex facie very clear
and it can be analysed as under:
(a) the age for retirement or superannuation of the workmen
may be 60 years; or
(b) 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 forceI have already held that the appointment order issued by the respondent
management appointing the petitioner as a plumber and the petitioner
having accepted the same and having worked for such a long period, it
cannot be said that it was not an agreement between the respondent
employer and the petitioner. The retirement age as reflected in Clause (a)
above is 60 years or as would be agreed between the parties. It does not
mandatorily say that the retirement age would be 60 only. The clause in
fact contemplates an agreement between the two parties. It could be
58 years or it could be 60 years or even more. The petitioner was issued an
appointment order wherein he was informed that he would be governed by
the rules and regulations framed and amended from time to time by the
respondents. The said appointment order amounts to an agreement,
as contemplated by the present standing order, I fail to understand
if it is not an agreement what else it could be. Shri Bukhari is,
therefore, right in his submissions that the respondents have not contested
the claim that the model standing orders do not prevail over the service
regulations in the case of inconsistency. He has, therefore, rightly
submitted that the appointment order being an agreement as contemplated
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agreed specifically is within the four corners of the said standing order. I
am not able to agree with Shri Deshpande when he has submitted that the
agreement, settlement or award as mentioned in the said standing order
has to be such only when there is a specific clause in respect of the age of
retirement or with the union or with the large number of workmen and
that an appointment order is not contemplated as an agreement within the
said standing orders. There is nothing in the standing order to read
that an appointment order individually issued to an employee
cannot be an agreement. I, therefore, hold that the appointment
order issued to the petitioner and every such appointment order
issued to every such employee does constitute an agreement within
the meaning of clause 27 of the standing order and both the parties
are bound by such an agreement unless, it is in any way contrary
to the law or inconsistent with any provisions of law. In the present
appointment order I do not find anything which is inconsistent or contrary
to the law. The appointment order is clear enough to inform the employee
that he would be bound by the service regulations present and as amended
from time to time. There is second aspect of this matter. Even the service
regulations which are framed by the board of management and which are
governing the service conditions of the employees have statutory flavour
and have binding force, so long as they are not contrary to any provisions of
law, including the model standing orders. At the same time, we cannot
forget that they are not the service rules privately framed by any employer
and kept in his cupboard. The respondent management is a responsible
organisation formed under the declaration of trust deed. In its organisation,
there have been very highly placed dignitaries consisting of representatives
of the mill owners, employees, the E.S.I. Corporation and also the State
Government. The trust deed elaborately provided for all the rules and
regulations and the procedure. The board of management is not allowed to
amend the rules and regulations unilaterally. It has to pass a resolution
and approach the Government for its approval. Such rules and regulations
or amendments therein can be enforced only after the State Government
grants approval. In these circumstances, it cannot be said that the rules
and regulations have no binding effect or have no statutory force. I have
already observed that the rules and the regulations of the respondent have
statutory flavour. It cannot be said that the management has followed the
rules and regulations and therefore, it has committed an unfair labour
practice. The decision of the management is not arbitrary or whimsical.
The management followed unilaterally the rules and regulations which are
not contrary to any law and which are not shown to be arbitrary or
unreasonable. We, further, cannot lose sight of a fact that about 304
employees of the respondent had made a representation to the Industrial
Court that the age of retirement was 58 years and 60 years for class I, II
and III and Class IV employees respectively. It was complained by large
number of employees that the union was acting not in favour of the
employees but only for the benefit of a few and mala fide. There is a third
dimension to the matter. Standing Order No. 32 reads as under:–
“32. Nothing contained in these Standing Orders shall operate in
derogation of any law for the time being in force or to the prejudice of
any right under a contract of service, custom or usage or an agreement,
settlement or award applicable to the establishment.”
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Under this standing order what is expected is any order which would
operate in derogation of any law in the time being in force or to the
prejudice of any right under the contract of service. According to this
standing order the respondents have acted on the basis of the appointment
order which is a contract of service or which is an agreement between the
parties. It is, therefore, clear that anything which is contrary to the
appointment order would be hit by the aforesaid standing order
No. 32. It is a contract of service that the petitioner would retire at
the age of 58 years. The contention of the petitioner, therefore, would
straightway attract the aforesaid provisions of standing order which would
be prejudicial to the right of the management to retire the petitioner at the
agreed age of 58 years…..
(emphasis added)
15. Thus, in Tulsiram K. Gothad (supra) this Court has held that
even a term in the appointment order prescribing the age of
retirement as 58 years would constitute an agreement within the
meaning of clause 27 of the MSO formulated under the provisions of
Industrial Employment (Standing Orders) Act, 1946. The provisions
of MSO 27 under the Industrial Employment (Standing Orders) Act,
1946 is pari materia with MSO 25 under the MIR Act. Thus in
Tulsiram K. Gothad (supra) Co-ordinate Bench of this Court has
upheld the right of employer to prescribe the age of retirement of 58
years by way of a term in the appointment letter, which is held to
constitute an agreement.
16. The Division Bench of this Court has upheld the judgment of
the learned Single Judge in Tulsiram K. Gothad (supra) by
dismissing the appeal preferred by the employee. The Division Bench
has held in paragraphs 6 and 10 as under :
“6. Perusal of the above Model Standing Order itself shows that it
prescribes 60 years as age of retirement if some other age of retirement
is not agreed upon between the employer and the workmen by any
agreement or settlement or award which may be binding on both the
parties. Thus, the age of retirement is prescribed by the Model
Standing Order no. 27 as 60 years only if there is no contrary
provision to be found in an agreement between the parties. It iskatkam Page No. 10 of 18
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agreement between the parties which is binding on both the
parties prescribing different age of retirement then the Model
Standing Order no. 27 will not operate because of the language
in which the Model standing order has been couched. …….
10. It was contended, as observed above, on behalf of the appellant that
the contract of employment between the appellant and the respondent
no. 1 which prescribed the age of retirement as 58 years for class III
employees is void because it is contrary to the provisions of Section 23 of
the Indian Contract Act and reliance is placed on the judgment “Central
Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguli, (1986)
2 CLR 322.” In our opinion, the submission is devoid of any merit.
Prescribing age of retirement as 58 years for a class of employees can by
no stretch of imagination be said to be opposed to any public policy. In
any case, the Model Standing Order no. 27 which according to the
appellant is law on the point itself allows a different age of retirement
being agreed upon between the parties. In our opinion, therefore, the
submission has no substance.”
(emphasis added)
17. Thus, the Division Bench of this Court in Tulsiram K. Gothad
(supra) has rejected the argument of prescription of age of retirement
as 58 years being opposed to public policy while upholding the
judgment of the learned Single Judge.
18. In Balmer Lawrie and Co. Ltd. Bombay & Anr. (supra) the
argument before Division Bench of this Court was that MSO 27 under
Industrial Employment (Standing Order) Act, 1946 permitted
execution of agreement prescribing only higher age of retirement than
60 years and that it was impermissible to agree on age of retirement
of less than 60 years. The Division Bench rejected the argument by
holding in paragraph 12 as under :
“12. Learned counsel for the respondent further submitted that the present
respondents were not parties before the aforesaid’ Division Bench and this
Court may take contrary view or may refer the matter to Larger Bench for
reconsidering the said view. We cannot accept the said submission
canvassed by the learned counsel for the respondent Union, as being a co-
ordinate Bench this Court is bound by the view taken by the earlier
Division Bench. Apart from the aforesaid aspect, it is required to be noted
that the present respondent Union itself has raised various demands in the
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age in connection with the workmen serving in the Container Division and
the said demand was withdrawn while settling the dispute at the time
when the Management accepted other demands. As per the Model Standing
Order 27, the age of retirement is fixed at 60 years or any other age which
may be agreed between employer and the workmen. It is not possible to
accept the submission of the learned counsel for the respondents that the
agreement can only be arrived at only for the purpose of extending the age
beyond 60 years and not for reducing the age from 60 to 58 years or that
such agreement will have no effect in the eyes of law. Reading of the Model
Standing Order 27, it is clear that the age of retirement would be 60 years,
but the same shall be subject to specific agreement between employer and
workmen in a given case. It is not the case of respondent Union that in the
appointment order, no specific age was mentioned i.e. 58 years and when it
is not in dispute that by virtue of settlement under the Industrial Disputes
Act, the age of retirement serving in the Container Division was fixed at 58
years. In our view, such agreement cannot be said to be contrary to the
Model Standing Order 32, in view of the clear provision in the Model
Standing Order 27. When Model Standing Order 27 itself provides for an
agreement by which particular age can be fixed, it is not possible to give
restrictive meaning to Standing Order 27 as contended by the learned
counsel for the respondent. In our view, considering the provisions
prescribed in the said Model Standing Order, it is clear that in absence of
agreement or settlement between Management and workmen, the
retirement age shall be 60 years. However, the same shall be subject to any
agreement or Award or custom which shall prevail in the field. We agree
with the submission of Ms. Buch that in case of conflict between Model
Standing Orders and any other agreement, the former shall prevail over
any agreement between the parties. However, in the instant case, Model
Standing Order 27, itself provides for an agreement between the employer
and workmen. In a given case, if by an agreement some better rights are
given to the workmen, then such better service conditions or rights
provided by the agreement or by any law or contract or custom, the same
shall prevail over the Standing Order. But, by reading Model Standing
Order 32, it cannot be said that even though Standing Order No. 27 itself
provides for an agreement, such agreement can be arrived at only for the
purpose of increase in the age and not for reducing the age from 60 years.
As stated earlier, in the absence of agreement between the parties, as per
Model Standing Order 27, the age of retirement is to be considered as 60
years. In any case, since this Court is bound by the Judgment of the earlier
Division Bench in the case of Tulsiram K. Gathod (supra), the submission
of the learned counsel for the respondent cannot be accepted, as this Court
being a Co-ordinate Bench cannot take different view interpretating the
same Model Standing Order 27.”
19. In my view, the law appears to be fairly well settled that it is
lawful for the employer and employee to agree upon age of retirement
of less than 60 years under the MSO. The age of retirement
prescribed under MSO would apply only in the absence of agreement,
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settlement or award. The Labour Court has thus erred in recording a
finding that the age of retirement prescribed in Agreement dated
15 April 2006 is contrary to provisions of MSO 25A under MIR Act.
20. It is otherwise inconceivable that Respondent-employees can
enjoy all the benefits flowing out of Agreement dated 15 April 2006
but can selectively question the age of retirement prescribed therein,
that too at the fag end of their services. Mr. Jalisatgi has invited my
attention to some of the documents, in which Respondent-employees
themselves declared their ages of retirement as 58 years. To illustrate,
the recognized Union was clearly given an intimation vide letter dated
15 July 2015 that age of retirement was 58 years as agreed in the
Agreement. Respondent-Shankar Mahadeo Takmare apparently
applied for loan and sought verification of details of his employment
from the Petitioner. The verification form was signed by the General
Manager (Personnel) on 28 December 2007 declaring the age of his
retirement that 58 years. Petitioner-employer has relied on loan
application form of Respondent-Shankar Mahadeo Takmare, in which
he declared his date of his retirement as 20 June 2024. It appears
that in September 2023, there was an Agreement for wage rise and
Respondent-employees submitted ‘understanding’ dated 4 September
2023 in which they agreed that the age of the retirement would be in
accordance with previous practice and the Agreement. There is thus
overwhelming prima facie evidence indicating that the Respondents
were always aware of their age of retirement as 58 years.
21. Reliance by Respondent-employees on Memorandum of
Settlement dated 6 February 2025 is completely misplaced. The said
Settlement is arrived at between the Petitioner-employer and the
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Union on 6 February 2025 and the same has come into effect from 1
January 2025. Under the said Settlement Petitioner-employer and
Union have agreed that the age of retirement of employees would be
60 years. However, both the Respondents had attained the age of
retirement of 58 years much prior to the execution of the said
Memorandum of Settlement dated 6 February 2025. Respondent-
Shankar Mahadeo Takmare attained the age of retirement of 58 years
on 20 June 2024 whereas Respondent-Sanjay Pandurang Ghorpade
attained the age of retirement of 58 years on 5 April 2024. In that
view of the matter, subsequently executed Memorandum of
Settlement dated 6 February 2025 cannot govern the age of
retirement of the Respondent-employees.
22. The contentions raised on behalf of the Respondents that they
are not signatories to the Agreement dated 15 April 2006 is
completely misconceived. It is not necessary that all 800 odd
employees must sign the Memorandum of Settlement. The same is
signed by 23 representatives on behalf of all the 800 odd employees. It
is not the case that the Respondents have refused to accept any
benefits flowing through the said Agreement dated 15 April 2006.
Therefore, mere absence of signature of the Respondent-employees on
the said Agreement would not be a reason to believe that the same
does not bind the Respondents. In any case, neither Labour Court or
Industrial Court have held that the Agreement is not binding on
account of absence of signatures of the Respondents thereon.
23. Reliance by Mr. Shinde on provisions of Section 35 of the MIR
Act is also completely misplaced. What is required to be approved by
the Commissioner of Labour is the draft Standing Orders under
provisions of Section 35. Section 35 of the MIR Act provides thus:
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“35. Settlement of Standing Orders by Commissioner of Labour.-
(1) Within six weeks from the date of the application of this Act to an
industry, every employer therein shall submit for approval to the
Commissioner of Labour in the prescribed manner draft standing orders
regulating the relations between him and his employees with regard to the
industrial matters mentioned in Schedule 1:
Provided that where an undertaking in an industry is started after
the application of this Act to such industry, the draft standing orders shall
be submitted within six months of the starting of the undertaking.
(2) On receipt of the draft standing orders the Commissioner of
Labour shall, after consulting in the prescribed manner the representatives
of employees and employers and such other interests concerned in the
industry and making such inquiry as he deems fit, settle the said standing
orders.
(3) The Commissioner of Labour shall forward a copy of the
standing orders so settled to the Registrar who shall within fifteen days of
their receipt record them in the register kept for the purpose.
(4) Standing orders so settled shall come into operation from the
date of their record in the register under sub-section (3).
(5) Until standing orders in respect of an undertaking come into
operation under the provisions of sub-section (4), model standing orders, if
any, notified in the Official Gazette by the State Government in respect of
the industry shall apply to such undertaking.”
24. Thus, if Standing Orders, different than the Model Standing
Orders, are adopted by the employer, the same are required to be
approved by the Commissioner of Labour under provisions of Section
35 of the MIR Act. Provisions of Section 35 of the MIR Act do not
apply to Agreements executed between the employer and the
employee/their Union.
25. The Labour and Industrial Courts have ought to have
considered the fact that the Respondent-employees filed Complaints of
unfair labour practice at the fag end of their service. To illustrate,
Respondent-Shankar Mahadeo Takmare was to retire on
20 June 2024 and filed Complaint of unfair labour practice only after
receipt of letter dated 3 June 2024 communicating him the date of his
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retirement. One day before his retirement, the Labour Court granted
stay order in his favour on 19 June 2024. This Court does not
appreciate the approach on the part of the Labour Court in
entertaining applications for interim relief which has the effect of
continuation of the employees beyond date of retirement decided by
the employer. In my view, no interim relief could have been granted
where the employees move proceedings at the fag end of their service
and seek a declaration that they are entitled to retire at a different
age then the one prescribed by the employer. In such cases no interim
relief directing continuation of the employment can be granted. In the
event the employee succeeds in the proceedings initiated by him,
Labour/Industrial Courts can always pass consequential orders for
payment of wages. However, grant of interim order directing
continuation of employment beyond the prescribed age of retirement
is something which cannot be countenanced in law.
26. In Burn Standard Co. Ltd. v. Dinabandhu Majumdar,
(1995) 4 SCC 172 the Hon’ble Apex Court has held that it is
imprudent to grant interim stay in cases relating to change of date of
birth, which has the effect of continuing the employees in service
beyond the age of retirement. The Apex Court has held thus :
11. Prudence on the part of every High Court should, however, in
our considered view, prevent it from granting interim relief in a
petition for correction of the date of birth filed under Article 226 of
the Constitution by an employee in relation to his employment, be-
cause of the well-settled legal position governing such correction of date of
birth, which precisely stated, is the following:
12. When a person seeks employment, he impliedly agrees with the terms
and conditions on which employment is offered. For every post in the ser-
vice of the Government or any other instrumentality there is the minimum
age of entry prescribed depending on the functional requirements of the
post. In order to verify that the person concerned is not below that pre-
scribed age he is required to disclose his date of birth. The date of birth is
verified and if found to be correct is entered in the service record. It is ordi-
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narily presumed that the birth date disclosed by the incumbent is accurate.
The situation then is that the incumbent gives the date of birth and the em-
ployer accepts it as true and accurate before it is entered in the service
record. This entry in the service record made on the basis of the employee’s
statement cannot be changed unilaterally at the sweet will of the employee
except in the manner permitted by service conditions or the relevant rules.
Here again considerations for a change in the date of birth may be diverse
and the employer would be entitled to view it not merely from the angle of
there being a genuine mistake but also from the point of its impact on the
service in the establishment. It is common knowledge that every establish-
ment has its own set of service conditions governed by rules. It is equally
known that practically every establishment prescribes a minimum age for
entry into service at different levels in the establishment. The first thing to
consider is whether on the date of entry into service would the employee
have been eligible for entry into service on the revised date of birth. Sec-
ondly, would revision of his date of birth after a long lapse of time upset the
promotional chances of others in the establishment who may have joined on
the basis that the incumbent would retire on a given date opening up pro-
motional avenues for others. If that be so and if permitting a change in the
date of birth is likely to cause frustration down the line resulting in causing
an adverse effect on efficiency in functioning, the employer may refuse to
permit correction in the date at a belated stage. It must be remembered
that such a sudden and belated change may upset the legitimate expecta-
tion of others who may have joined service hoping that on the retirement of
the senior on the due date there would be an upward movement in the hier-
archy. In any case in such cases interim injunction for continuance
in service should not be granted as it visits the juniors with ir-
reparable injury, in that, they would be denied promotions, a dam-
age which cannot be repaired if the claim is ultimately found to be
unacceptable. On the other hand, if no interim relief for continu-
ance in service is granted and ultimately his claim for correction
of birth date is found to be acceptable, the damage can be repaired
by granting him all those monetary benefits which he would have
received had he continued in service. We are, therefore, of the
opinion that in such cases it would be imprudent to grant interim
relief.
(emphasis added)
27. The Apex Court as well as this Court has repeatedly frowned
upon attempts made by employees in seeking continuation of
employment after attaining the age of retirement by instituting
proceedings at the fag end of the service. In my view therefore, no
case was made out for grant of any interim relief in favour of the
Respondent-employees by the Labour Court. The Labour Court has
grossly erred in passing the impugned orders dated 3 April 2024 and
19 June 2024. The Revisional Court has erred in not correcting the
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error committed by the Labour Court and by dismissing the Revisions
filed by the Petitioner-employer. The orders passed by the Labour and
Industrial Courts are thus unsustainable and are liable to be set
aside.
28. Petitions succeed accordingly. Orders dated 3 April 2024 and 19
June 2024 passed by the Labour Court as well as orders dated 20
February 2025 passed by the Industrial Court are set aside. It is
however clarified that the findings recorded in the present judgment
are prima facie and the Labour Court shall proceed to decide the
Complaints on their own merits without being influenced by those
findings.
29. With the above directions, both the Writ Petitions are allowed.
Rule is made absolute. There shall be no order as to costs.
SUDARSHAN RAJALINGAM KATKAM (SANDEEP V. MARNE, J.) Digitally signed by SUDARSHAN RAJALINGAM KATKAM Date: 2025.04.30 20:06:39 +0530 katkam Page No. 18 of 18 ::: Uploaded on - 30/04/2025 ::: Downloaded on - 30/04/2025 22:45:07 :::
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