Chairman, Gujarat Electricity Board and Others vs Sunil Dhanraj Kapadia

S.R. Brahmbhatt, J

The petitioners herein and the respondents in Appeal (IC) No. 18/97 from the Industrial Court, Surat have approached this Court by way of

this petition under Articles 226 and 227 of the Constitution of India and in the matter of Bombay Industrial Relations Act, 1946 challenging the

order passed by the Industrial Court, Surat on 18th May, 1995 allowing the appeal of the workman by quashing and setting aside the order

passed by the Labour Court on 28th February, 1986 in Application (T) No. 233/80 where under the workman had made grievances qua his

compulsory retirement before the age of superannuation. The appellate Court directed that the compulsory retirement, which was brought about on

30th April, 1980 was illegal and hence the workman was ordered to be treated to have been in service till 30.4.1983 and be given all dues

admissible on that basis. This order passed by the appellate Court on 18.5.1995 is assailed in this petition under Articles 226 and 227 of the

Constitution of India.

The facts in brief leading to this petition as could be culled out therefrom deserve to be set out as under:--

The petitioner happened to be the Electricity Board, wherein the workman was working as a Store-keeper at Tapi Sub-Station. The respondent-

workman was born on 14.4.1925, as recorded by the Board in its service record. In view of the Standing Order No. 22, the inefficient employee

and workman could be made to compulsorily retire before the regular date of superannuation on attaining the fixed age of superannuation and in

accordance there with, the workman was made to retire compulsorily on 30.4.1980, at the age of 55 years, in exercise of the discretion and

power under Standing Order No. 22 (9) (1). The workman being aggrieved and dissatisfied with this compulsory retirement, moved Application

(T) being No. 233/80 after following the requisite procedure and the labour Court vide its order dated 28th February, 1986 held that the

Application (T) deserved to be rejected as Standing Order No. 22 permitted such compulsory retirement and when it was not brought about by

way of victimization then, the order of compulsory retirement passed on 30.4.1980 did not call for any interference. This order of the labour Court

rejecting the Application (T) vide order dated 28th February, 1986 was carried out into an Appeal (IC) No. 18/87 before the competent appellate

Court that is Industrial Court, Surat and the Industrial Court, Surat in Appeal (IC) No. 18/87 came to the conclusion that the order of compulsory

retirement not being inconsonance with the provision of Standing Order No. 22 (9) (1), the same was found to be illegal and hence, it was ordered

that the workman was required to be treated as if he was continued in service upto regular age of superannuation. The findings recorded by the

tribunal are based upon the material adduced before the Court and thereafter, the Court has come to this conclusion. Being aggrieved and

dissatisfied with the said order, the present petition is preferred under Articles 226 and 227 of the Constitution of India.

The fact remains to be noted that during the pendency of this petition, the workman died and the legal heirs were brought on record. Both the legal

heirs were served, as recorded by this Court on earlier occasion, but, none appears on their behalf. The learned advocate for the Board placed on

record the communication received from his client intimating him that one of the heir namely Shri Sunil Dhanraj Kapadia i.e. respondent No. 1.1 is

not interested in prosecuting this matter any more or defending the order impugned and he is not interested in outcome of the petition. The same is

taken on record. The learned advocate for the petitioner has invited this Court''s attention to the earlier order passed by this Court (Coram: Ravi

R. Tripathi, J.) on 25.11.2011, wherein the Court has noted that the Labour Officer concerned with the area, who ascertain from the heirs as to

whether they are interested in continuing as respondents and outcome of the matter and the Labour Officer was to report it to the Government

Pleader Office, High Court of Gujarat, but, nothing is produced on record and therefore, this Court (Coram: S.R. Brahmbhatt, J.) on 5.9.2012

issued a notice once again. Today, when the matter was called out, the learned advocate for the Board placed on record the aforesaid

communication dated 14.2.2012, which indicated that one heir is not interested in the outcome of the said matter and as there was no

communication or information or intimation from respondent No. 1.2 the second heir, the Court deemed it fit to decide the matter on merits.

On merits, learned advocate for the petitioner has submitted that the order impugned is contrary to the provision of law as the Court has gone

into examining the justification for passing the order impugned namely order of compulsory retirement, when the relevant provision namely Standing

Order 22 (9) (1) unequivocally provided for Board''s power for compulsorily retire an employee before he attains the regular age of

superannuation, at the age when he is found to be inefficient and/or not fit to be retained till the regular age of superannuation. Then, in such a

situation, no further inquiry into the grounds were warranted and hence, the findings recorded by the appellate Court while quashing and setting

aside the order passed by the competent labour Court on Application (T) was incorrect and requires interference.

This Court is of the considered view that the present petition is required to be dismissed for following reasons.

The elaborate findings recorded by the appellate Court are based upon the material adduced on record and the grounds for bringing out

compulsory retirement are enumerated in the provision itself, then the non-mentioning or non-indicating the ground and when the same is

challenged, it was duty cast upon the employer to adduce those facts and justify the order in question. In the instant case, the Court though has not

accepted the plea of the workman that the Standing Order 22 was not in consonance with the provision of the Standing Order Act, it was not

found as correct submission. The fact remains to be noted that the age of regular superannuation as prevalent in GEB, as per the GEB rules all

along is 58 years and the provision of Standing Order 22 was in vogued. The provision contains several eventualities as noticed by the appellate

Court and therefore, it was duty cast upon the authority to justify its compulsory retirement order when the same is subject matter of challenge,

mere invoking the order in itself would not be sufficient as discussed by the appellate Court elaborately with regard to various authorities and

decisions of this Court and Supreme Court. The Court is therefore, of the view that the present petition is not entertained.

Before parting with the judgment, it is required to be noted that the petition is though styled and filed under Article 226 of Constitution of India, the

petition under Article 226 of Constitution of India cannot be said to be maintainable as the tribunal, whose order is under challenge is not joined as

a party, as required under the law declared by the full Bench of this Court in the case of ""(The) Bhagyodaya Co-operative Bank Limited v.

Natvarlal K. Patel and another 2011 (3) GLH (FB) 39."" and therefore, this petition is required to be treated as one to have been filed only under

Article 227 of the Constitution of India and bearing in mind the inherent limitation of interfering with the Order of Industrial Court so far as Article

227 of Constitution of India is concerned, the petition is required to be dismissed, as those findings recorded are based upon the material on

record and when the Court has relied upon the decision of the Apex Court and when it is established that their exists no perversity therein and as

no misjustice is pleaded, the interference would not be called for. Hence, on this ground also the order impugned does not call for any interference

and the petition merits rejection and accordingly the petition is rejected. However, there should be no order as to costs. Rule is discharged.