Management of the "Hindu", Madras vs Secretary Hindu Office and National Press Employees Union and Another

Balakrishna Ayyar, J.—In 1927, the Management of the ""Hindu"" framed various rules defining some of the terms and conditions of service

of their employees. One of these Was contained in Rule 45, which ran:

Every employee shall ordinarily retire from service on his completing the age of 58 years or thirty years of unbroken service, whichever is earlier.

When the Industrial Employment (Standing Orders) Act, 1946, came into force, the management submitted the rules they had drawn up for

certification and on 4th May, 1949, the Labour Commissioner, who is the certifying officer under the Act, certified the rules and they became

standing orders"". In 1957, the Management considered it desirable to make certain minor changes in these standing orders and applied for their

modification in certain respects.

The National Press Employees'' Union took advantage of this occasion and moved the certifying officer to amend para 45 so as to read as follows:

Every employee shall retire on attaining the age of 58 which shall be fixed as the age of super annuation.''''

If this amendment became effective, the position would be that employees who had put in 30 years of continuous unbroken service, but who had

not attained the age of 58 years, could remain in service till they became 58 years old.

The Management objected to the modification, but their objections were overruled and the certifying officer certified the amendment as prayed for

by the National Press. Employees'' Union, The Management of the ""Hindu"" preferred an appeal u/s 6(1) of the Industrial Employment (Standing

Orders) Act, to the Labour Court, Madras; but that appeal failed. The Management has, therefore, come to this Court for the issue of an

appropriate writ to quash the order of the authorities below, so far as it relates to the amendment of Standing Order 45.

The first contention which Mr. Ramamur thi Aiyar, the learned counsel for the petitioner, raised was this. The Schedule to the Industrial

Employment (Standing Orders) Act enumerates all the matters in respect of which the statute requires that the provision should be made in

Standing Orders. The matter for which provision was made in Standing Order 45, is not such a matter; it is outside the scope of the Schedule.

Standing Order 45 provides for the retirement of an employee who has attained the age of 58 years or who has put in an unbroken service of 30

years, Item 8 of the Schedule no doubt reads:

Termination of employment, and the notice thereof to be given by employer and workmen."" If the words used in this item had only been

termination of employment"" it might have been permissible to say that retirement on attaining a Certain age Or on completing a certain number of

years of service is also comprised in it. But then, in the Schedule, the expression ""termination of employment"" does not stand alone; it is followed

by the words ""and the notice thereof to be given by employer and workmen"".

Words must be always understood in the context in which they arc placed, and regard being had to the context and also to the collocation of the

words, the more appropriate way of reading this item is by taking all the words in it together.

If we do that, it will be appreciated that the termination referred to in item 8 is the termination brought about by the issue of a notice by ''once'' side

or other. Mr. Ramamurthi Aiyar attempted to reinforce this reasoning by referring to the Model Standing Orders framed under the Act.

Paragraph 13 of these model Standing Orders bears the heading ""termination of employment"" and it then proceeds to say that for terminating the

employment of a permanent workman, one month''s notice shall be given in certain cases and two weeks'' notice in certain other cases.

Sub-paragraph (2) of para 13 provides that no temporary workman shall be entitled to any notice Or pay in lieu thereof if his services are

terminated. The language of this paragraph suggests. Mr. Ramamurthi Aiyar said, that the termination of employment envisaged by item 8 is the

termination of employment by the issue of notice. He then went on to explain that the expression ""termination of service"" is inappropriate to

describe a case where an employee retires on attaining a particular age or after completing the prescribed years of service.

The expression ""termination of employment"" would be wholly unsuitable to describe the cases where an employee honourably retires from service

in the usual course of events. He then contended that the question what age should be fixed for the compulsory retirement of an employee is a large

question, and a very different one -- about which there is endless dispute. It is also a question in which the interests of different categories Of

employees inter se are in conflict.

Employees who are getting on in years naturally want the age of retirement to be raised; but persons at the bottom would naturally like it to be

reduced since the natural consequence thereof would be to accelerate their promotion. It is not likely that the Legislature intended to leave a matter

raising issues of this kind to be decided by the certifying officer. Be it remembered that the appeal from him lies only to the Labour Court. Besides,

Standing Orders are liable to revision very six months, and it is not to be supposed that the Legislature intended that a question of this kind should

be reopened and re-agitated every six months.

There is, of course, some force in all this. Nevertheless, I am not sure that it will be the proper way of reading the entry in question. Mr.

Ramamurthi Aiyar wants the words ""notice thereof to be given by employer and workmen"" to be read as qualifying, limiting and colouring the

scope of the expression ''termination of employment"", which immediately precedes these words. If that were so, the entry would apply only to

either such forms of termination of service as are brought about by the issue of a notice by one side or the Other or only to the notices themselves.

To produce such a detail, a very different set of words would have been more appropriate.

I am inclined to read the words disjunctively and as comprising two distinct, but connected matters. Termination of employment would be the

principal or primary subject. Notices in relation thereto would form an ancillary or subsidiary subject. To read the entry as Mr. Ramamurthi Aiyar

invited me to do would leave a sizeable gap in the area which the Schedule is apparently intended to cover.

Termination of employment may be brought about in various ways. In the case of a concern which belongs to a single individual, he may the and

there may be no one able to carry on the undertaking, or, there may be too many who want to do so, and by their quarrels and fights, they may

stop the entire work of the concern. Or, again, the employer may have reached the bankruptcy court. On the other side, an employee may have

contracted some physical or mental infirmity which makes it impossible for him to remain further in employment. Or, again, he may be convicted of

rioting or of some other offence and locked up in jail.

Yet again, he may absent himself from work without leave or overstay leave for several days. The conditions of service drawn up by a concern of

some size and standing generally contain a clause to the effect that an employee who is absent without leave or who overstays his leave for certain

number of days shall be deemed to have voluntarily left the service of the concern. There will be no provision in such cases for the issue of notice

by the Management terminating the services of the employee; the termination of service becomes automatic.

If the view for which Mr. Ramamurthi Aiyar, contended were right, these and several other situations would be left unprovided for by the

Schedule. I recognise that it is open to the parties concerned to include in the Standing Orders matters which are outside the Schedule. But then,

the purpose of the Schedule is to insist that provision shall be made for certain matters and some of the questions of the kind I have mentioned are

questions for which one would expect the Legislature to insist on provision being made.

The argument that It is inappropriate to say of persons who have retired in the usual course by completing the prescribe years of service or the

prescribed age, that there has been ""termination"" of their employment would have had more force if the words used in the Schedule had been

termination of service"". The suggestion of Mr. Ramamurthi Aiyar was that there is a vague undefined taint attaching to the expression ""termination

of employment or service. No doubt, in itself, the word, ""termination"" may be said to be a neutral word. Still, some odium has come to surround

the word. Now, it will be noticed that the words used in the item are ""termination of employment"" and not termination of service and, in respect of

the word ""employment"" this argument of Mr. Ramamurthi Aiyar would not be as strong as if the words used had been ""termination of service"".

On the argument of Mr. Ramamurthi Aiyar based on the model Standing Orders, I would make two observations. One is that the model

Standing Orders have been drawn up by the Central Government and not by the Legislature, and that at the most, they only show how law officers

of the Government understood the words. Besides, there is para 16 in the very same model Standing Orders, which runs:

Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

Retirement from service by superannuation on attaining prescribed age or on completing the prescribed period of service would thus seem to be

contemplated even by the model Standing Orders as a form of termination of service. I may explain how that, in para 16 of the model Standing

Orders, the expression used is ""termination of service"" and, in para 13 ""termination of employment"". As regards the argument of Mr. Uamamurthi

Aiyar that the Legislature would not have intended to confer such large powers on the certifying officer and the appellate authority, this is a matter

completely in the wisdom of the Legislature. The frequency with which laws relating to labour are passed and the frequency with which they, are

amended is apt to leave the impression that sometimes a piece of legislation reaches the statute book before all its aspects and implications are fully

envisaged and appreciated. Even in the statute which I am now dealing with, Section 12 provided:

It shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of

any Standing Orders.

But in 1956, the Legislature reversed itself in this respect and said that:

it shall be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of the

Standing Orders.

One comment which Mr. Dolia made is relevant here. He pointed out that the Schedule to the Act enumerates only those matters in respect of

which it is obligatory to make provision in the Standing Orders and that there is no bar to the Standing Orders making provision for other matters.

Once such provision is made, they are liable to be modified on the motion of either the employer or the workmen u/s 10(2) of the Act. In the

present case, the provision relating to retirement on attaining the age of 55 years or on completing an unbroken service of 30 years was inserted by

the Management and this was approved in the first instance by the certifying officer in 1949. That being so, it is open to the workmen concerned to

move that the provisions in this regard should be amended. I consider that this reasoning is sound, and I accept it.

Mr. Ramamurthi Aiyar next contended that, Standing Orders could not be given retrospective effect and that the effect of the amendment now

made is to do so. But, if we examine the subjects enumerated in the Schedule, it will be seen that some of them are such that, of necessity, they

must apply to workmen or employees already in service. For instance, item 6 of the Schedule reads: ""Requirement to enter premises by certain

gates, and inability to search"". I do not think that when an amendment is made of an Order covered by this claim, any employee can reasonably

insist that he has a right to enter by the gate which he had been previously using.

Apart, item 5 reads: ""Conditions of procedure in applying for, and the authority which may grant, leave and holidays"". One set of rules may have

provided that the authority competent to grant casual leave would be the manager of the institution. The Standing Orders may be amended so as to

confer the power to grant casual leave on, say, the assistant manager. Can an old employee reasonably insist that his application for casual leave

should still be dealt with by the manager and that the assistant manager should have nothing to do with it?

This is not all u/s 10 of the Act, Standing Orders are liable to be revised every six months at the instance of the employer or the workmen. The

labour force, in no properly conducted concern, is likely to be changed in its entirety in six months. This circumstance by itself makes it plain that it

could not have been intended that the Standing Orders should apply only to future employees and not to previous employees. Besides, the rights

given to workmen to move for an amendment of the Standing Orders would seem to imply that it is intended also for the benefit of workmen

actually in service and not merely for those who may succeed them, probably several years later.

The last contention of Mr. Ramamurthi Aiyar was based on certain observations which the appellate authority made in the course of its order It

said:

As the gratuity is based upon the years of service, persons who are retained till the end of their 58th year will have to he paid larger sums and this

again is mentioned as an additional liability. Though there is some force in this contention the additional liability is not likely to be very much

especially for a huge organisation like the ""Hindu"" with its vast resources and solid reserves.

Mr. Ramamurthi Aiyar contended that there was no material whatever, on the basis of which the appellate authority could have stated that the

additional liability would not be large or that the resources of the Management were vast and its reserves solid. In considering whether the age of

retirement or superannuation should be raised, the ability of the employer to meet the additional commitments that would be involved Is a relevant

factor, and the appellate authority was certainly entitled to take it into account. But the point is that, in the present case, there was no material

bearing on that matter. Mr. Dolia commented that the financial implications of the proposal were not in controversy before the certifying officer.

In view of that, the appellate court could properly have declined to go into the question. If, however, it was inclined to examine that aspect of the

matter, it should have either taken evidence or remanded the matter for disposal after taking evidence. On the ground that the order of the

appellate authority is in part based on considerations and assertions which are not supported by any evidence whatever, its order is ''table to be set

aside. As I said before, it would be open to him either to refuse to go into the question on the ground that the matter was not taken before the

certifying authority or to take evidence itself or remand the case. No infirmity of this nature has been shown to attach to the order of the certifying

officer.

In the result, the writ petition is allowed, so far as it relates to the order of the appellate authority. There will be no order as to costs.

(These petitions having been posted for being mentioned, the ""Court made the following order in W. P. No. 893 of 1958):

Art appeal was preferred to the Labour Court from the decision of the Commissioner for Labour. So till that appeal is disposed of, the

Standing Orders as certified by the Commissioner for Labour will not take effect. In view of that no order is necessary on this petition. No costs.