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Judgment
P.R. Gokulakrishnan, O.C.J.
In these writ appeals, the two substantial questions that arise for consideration are (1) Whether a department of a municipality dealing in the
distribution of electricity will come under the Industrial Employment (Standing Orders) Act, 1946(Central Act 20 of 1946) and if so, whether the
provisions of the said Act are applicable and (2) Whether a department of the Municipality which is within the municipal administration having
various other departments like that, can be singled out for the purpose of applying the provisions of the Industrial Employment (Standing Orders)
Act, 1946. A Division Bench of this Court in Coimbatore Municipality v. Thiruvenkataswami, ILR (1973)1 Mad. 405 : 87 L.W. 462, has held in
respect of the very same municipality which is now litigating the matter, that the District Municipalities Act, being a special law, is applicable and
not the Industrial Employment (Standing Orders) Act, 1946, which is a general law. The view that the Industrial Employment (Standing Orders)
Act, 1946 is general law as compared to the District Municipalities Act is no longer good law in view of the categorical decision of the Supreme
Court in U.P. State Electricity Board v. Hari Shankar Jain,(1978) 4 S.C.C. 16 :(1979)1 S.C.R. 355 : (1978) 2 L.L.J. 399 : 1978 L I.C. 1657 :
AIR 1979 S.C. 65, to the effect that the Industrial Employment (Standing Orders) Act, 1946 is a special enactment and the District Municipalities
Act has to be construed only as a general one. The view of a Division Bench of this Court in Coimbatore Municipality v. Thiruvenkataswami, 87
L.W. 462 : ILR (1973) Mad. 405, that the particular department within the municipality cannot attract the benefit under the Industrial Employment
(Standing Orders) Act, 1946, has to be decided by a Fuller Bench of this Court in view of the decisions rendered by the Supreme Court in
Ardeshir H. Bhiwandiwala Vs. The State of Bombay, , The Corporation of the City of Nagpur Vs. Its Employees, , and Dr. Devendra M. Surti
Vs. The State of Gujarat, . Since we are of the view that the rendered by a Division Bench of this Court in Coimbatore Municipality v.
Thiruvenkataswami, 87 L.W. 462 : ILR (1973) Mad. 405, requires reconsideration in the light of the decisions of the Supreme Court referred to
above, we direct that this matter may be posted before a Fuller Bench on 5-4-1982 for a decision on the question raised.
S. Gopalaratnam, for K. Sarvabhauman and R. Nandakumar, M.P. Subbiah of Row and Reddy, for Petitioners.
Govt. Pleader, for 1st Respondent.
C. Chinnaswamy, for 2nd Respondent.
The Order of the Court was pronounced by V. Ratnam, J.: This batch of writ petitions and appeals has been posted for hearing before a Full
Bench on a reference made by a Division Bench owing to doubts raised at the Bar about the correctness of the decision of the Division Bench of
this Court consisting of Ismail and Palanisami, JJ., in Coimbatore Municipality v. Thiruvenkataswami, 87 L.W. 462 : ILR (1973) Mad. 405, in
view of the decisions of the Supreme Court in U.P. State Electricity Board v. Hari Shankar Jain (1978)4 S.C.C. 16 : (1979)1 S.C.R. 355 :
(1978)2 L.L.J. 399 : AIR 1979 S.C. 65; Ardeshir H. Bhiwandiwala Vs. The State of Bombay, ; The Corporation of the City of Nagpur Vs. Its
Employees, , Dr. Devendra M. Surti Vs. The State of Gujarat, , etc. The three common questions which arise for consideration in these matters
may be set out as follows:
(1) Whether the Electrical undertaking of a Municipality will be an ""Industrial Establishment within the meaning of the Industrial Employment
(Standing Orders) Act, 1946(hereinafter referred to as the Standing Orders Act) and if so, whether the provisions of the Standing Orders Act and
the Model Standing Orders thereunder, are applicable to the workmen therein?
(2) Whether a department of a Municipality like its own Electrical undertaking, forming part of the entire Municipal Administration, can be
subjected to the provisions of the Standing Orders Act, and
(3) Whether the provisions of the Standing Orders Act will prevail over the provisions of the Tamil Nadu District Municipalities Act and the rules
framed thereunder in their applicability to such municipal electrical undertakings.
The facts may now be broadly, yet, briefly, noticed. The petitioners in these writ petitions and the appellants in the writ appeals, who were
employed in the Electrical undertakings of the Coimbatore and Madurai Municipalities (now Corporations) and Thanjavur Municipality, claiming
that they were workmen under the Industrial Disputes Act, 1947 and that the municipal Electrical undertakings would be ""industrial establishment
within the meaning of the Standing Orders Act, challenged the validity of the notices issued to them by the Municipalities intimating that they will
have to retire on the completion of 55 years. According to them, to the Municipal Electrical undertakings in which they were working, Standing
Order 21 of the Model Standing Orders under the Standing Orders Act applied so that they could remain in service in the municipal electrical
undertakings till they attained 58 years. This was resisted by the Electrical undertakings on the ground, among others, that the petitioners in the writ
petitions and the appellants in the writ appeals are not workmen, that the municipal Electrical undertakings will not be industrial establishments
within the meaning of the Standing Orders Act and the provisions of the Standing Orders Act would not at all apply and therefore, the benefit of
the extension of the age of superannuation to 58 from that prescribed viz., 55 cannot be availed of. Reliance was placed by the municipal.
Electrical undertakings in support of this upon the decision of the Division Bench in The Coimbatore Municipality represented by its Commissioner,
Coimbatore v. K. Thiruvenkataswami, 87 L.W. 462 : ILR (1973)1 Mad. 405.
Normally, these matters should have been dealt with and disposed of applying the decision in The Coimbatore Municipality represented by its
Commissioner, Coimbatore v. K. Thiruvenkataswami, 87 L.W. 462 : ILR (1973) Mad. 405. However, before the Division Bench which initially
dealt with these matters, counsel submitted that certain vital facts and other relevant considerations touching upon the question whether these
municipal electrical undertakings would be ""industrial establishments"" for purposes of the applicability of the Standing Orders Act, had not been
placed before the Division Bench in The Coimbatore Municipality represented by its Commr., Coimbatore v. K. Thiruvenkataswami, 87 L.W.
462 : ILR (1973) Mad. 405 and that those aspects would necessitate a reconsideration of the correctness of that decision. Further, according to
learned Counsel certain decisions of the Supreme Court having a material bearing upon the questions that arise for consideration in these matters
were not brought to the notice of this Court when the decision The Coimbatore Municipality reptd. by its Commr. Coimbatore v. K.
Thiruvenkataswami, 87 L.W. 462 : ILR (1973) Mad. 405 was rendered. In view of these submissions, the matters were directed to be posted
before a Full Bench and that is how they have come up before us.
We may now advert to one important circumstance which has a material bearing on the disposal of these matters and it is this. All the petitioners
in these writ petitions and the appellants in the writ appeal without exception have not only attained the age of 55 years, but had, during the
pendency of these proceedings, also completed 58 years. We would revert to this later.
We now proceed to refer to the relevant provision of the Standing Orders Act. Section 2(e) of the Standing Orders Act.
defines an ""Industrial Establishment"" thus:
Industrial establishment"" means
(i) an industrial establishment as defined in Clause (ii) of Section 2 of the Payment of Wages Act, 1936(4 of 1936), or
(ii) a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948(63 of 1948), or
(iii) a railway as defined in Clause (4) of Section 2 of the Indian Railways Act, 1890(9 of 1890), or
(iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen;
It would be necessary to notice the definition of ""workman"" in Section 2(i) which runs as under:
(i) ""workman"" means any person (including an apprentice) employed in any industrial establishment to do any skilled or unskilled manual,
supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include any such
person.
(i) who is subject to the Army Act, 1950(46 of 1950), or the Air Force Act, 1950(45 of 1950), or (the Navy Act, 1957(62 of 1957), or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises either by the nature of
the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.)
Under the Standing Orders Act, provision has been make for the preparation of a draft Standing Order with reference to the matters set out in
the schedule to that Act and for submission of the same for certification to the certifying officer. The certifying officer after considering the same and
hearing the representatives of the employees certifies the same. Provision has also been made for an appeal against the orders of the certifying
officer.
Section 12A(1) of the Standing Orders Act is as follows:
Notwithstanding anything contained in Sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an
industrial establishment and ending with the date on which the Standing Orders as finally certified under this Act come into operation u/s 7 in that
establishment, the prescribed model Standing Orders shall be deemed to be adopted in that establishment, and the provisions of Section 9, Sub-
section (2) of Section 12 and Section 13-A shall apply to such model Standing Orders as they apply to the Standing Orders so certified.
Section 13-B declares that the provisions of the Standing Orders Act will not apply to certain industrial establishments and that reads as under:
Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons 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, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any
other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply).
We are not referring to other provisions of the Standing Orders Act in detail since they are not very material for the purpose of a decision in these
cases.
The definition of an ""industrial establishment"" in the Standing Orders Act is with reference to definitions contained in other enactments like, the
Payment of Wages Act, 1936, Factories Act, 1948, Indian Railways Act, 1890 etc., We are thus thrown back to the definitions in the other
enactments referred to earlier. Section 2(ii) of the Payment of Wages Act, 1936, defines ""industrial establishment"" as meaning-
(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;
((sic)) air transport service other than such service belonging to, or exclusively employed in the military, naval or air forces of the Union or the Civil
Aviation Department of the Government of India;)
(b) dock, wharf or jetty;
(c) inland vessel, mechanically propelled;
(d) mine, quarry or oil-field;
(e) plantation;
(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale;
(g) establishment in which any work relating to the construction, development or manufacture of buildings, roads, birdges or canals, or relating to
operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or
any other form of power is being carried on;)
Section 2(m) of the Factories Act, 1948 defines a ""factory"" as meaning any premises including the precincts thereof-
(i) wherein ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a
manufacturing process is being carried on with the aid of power, or is ordinarily so carried on; or
(ii) wherein twenty or more workers are working, or were working on any day of the proceeding twelve months and in any part of which a
manufacturing process is being carried on without the aid of power or is ordinarily so carried on, ... but does not include a mine subject to the
operation of the Mines Act, 1952(35 of 1952), or (a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel,
restaurant or eating place);
Manufacturing process"" which occurs in the definition of a ""factory"" u/s 2(m) of Factories Act, 1948 is defined u/s 2(k) of that Act as meaning any
process for...
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breakup, demolishing or otherwise treating or adapting any
article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types of printing, printing by letter press, lithography, photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage;
In the light of the aforesaid provisions of the Standing Orders Act and other Act, Kailasam, J., (as he then was) in Thiruvenkataswami (K.) Vs.
Coimbatore Municipality, , had to consider the question whether the municipal electrical undertaking of the then Coimbatore Municipality would be
an ""industrial establishment"" within the meaning of the Standing Orders Act. In that case, the petitioner, who was a wireman and who had joined
the electrical undertaking of the Coimbatore Municipality, claimed that the establishment would be an ""industrial establishment"" and that by virtue of
the application of the Standing Orders Act and the Model Standing Orders framed thereunder, he could continue in service till the completion of
58 years. Taking into consideration the circumstance that the Coimbatore Municipality was a bulk consumer, which obtained electrical energy from
the State Electricity Board, the learned Judge was of the view that such a municipal Electrical undertaking was an establishment in which work
relating to the generation or relating to transmission and distribution of electricity was carried on and would, therefore, be an ""industrial
establishment"" within Section 2(ii) of the Payment of Wages Act, 1936 and would also fall within the definition in Clause (e) of Section 2 of the
Standing Orders Act. Considering the nature of the municipal electrical undertaking in the light of Section 2(m) of the Factories Act, 1948, it was
found that the undertaking had been engaged in the process of transmitting power and as such, it would also fall within the definition of Section
2(m) of the Factories Act read with Section 2(k) so as to attract Clause (e) of Section 2 of the Standing Orders Act. The Standing Orders Act,
being a later special enactment, was held by Kailasam, J., (as he then was) to prevail over the provisions of the earlier general Act viz., The District
Municipalities and the rules framed thereunder. Dealing with the argument that Section 13-B of the Standing Orders Act operated to exempt the
industrial establishment"" on the ground that the Revised Leave Rules are applicable and that the municipal rules would be rules notified by the
appropriate Government for the purpose of exemption u/s 13-B, the learned Judge took the view that the employees of the Coimbatore
Municipality were not governed by the Revised Leave Rules and that the municipal rules were not notified for purposes of excluding the
applicability of the Standing Orders Act and further that Section 13-B of the Standing Orders Act can be availed of by industrial establishments in
respect of which the Government is authorised to frame rules and regulations relating to the conditions of the employment and it cannot govern the
relationship in an industrial establishment under private management or in a statutory corporation. Finally, the electrical undertaking of the
Coimbatore Municipality was held to be an ""industrial establishment"" to which the Standing Orders Act would apply, that the provisions of the
District Municipalities Act and the rules framed thereunder and the Section 13-B cannot be availed of for securing an exemption from the operation
of the provisions of the Standing Orders Act with reference to the electricity department of the Coimbatore Municipality. The writ petition was,
accordingly allowed. However, on appeal by the Municipality in The Coimbatore Municipality reptd. by the Commr., Coimbatore v.
Thiruvenkataswami, 87 L.W. 462 : ILR (1973) Mad. 405, the Division Bench did not agree with the conclusions arrived at by Kailasam, J., (as he
then was)
On a consideration of the definition of ""Industrial Establishment"" as found in the Standing Orders Act and in the Payment of Wages Act, 1936
and the Factories Act, 1948, the Division Bench took the view that the primary requisite for constituting an ""Industrial Establishment"" under the
Standing Orders Act is a fixed place or site, either open or with a building and that this question was not at all considered in the writ proceeding
and therefore, in its absence, the Standing Orders Act cannot be held to be applicable to the Electrical undertaking of the municipality. Construing
the words ""generation, transmission and distribution of electricity"" occurring in Section 2(ii)(g) of the Payment of Wages Act, 1936, the Division
Bench was of the opinion that the use of a comma after the word ""generation"" was with a view to avoid the use of the word ""and"" between
generation and transmission and that therefore, in the absence of the carrying on of all the three processes viz., of generation, transmission and
distribution in the municipal electrical undertaking, the requirement of the definition cannot be stated to be satisfied. Dealing with the question
whether the electrical undertaking of the Coimbatore Municipality would be a ""factory"" within the meaning of Section 2(m) read with Section 2(k)
(iii) of the Factories Act, 1948, the Division Bench concluded that there was no finding as to the number of persons working on the premises and
that in the absence of such a finding, the premises cannot be said to be a ""factory"" within the meaning of Section 2(m) of the Factories Act, 1948
so as to attract the provisions of the Standing Orders Act. Proceeding to consider the question whether the Standing Orders Act will prevail over
the provisions of the District Municipalities Act and the rules framed thereunder, the Division Bench was of the view that the municipality cannot
itself be an ""industrial establishment"" as it can notes the corporate personality of the municipal council under the provisions of the District
Municipalities Act and that it is not possible even to hold that some departments of the Municipality would be ""industrial establishments"" as the
different departments of a municipality were intended only for the convenient performance and discharge of the duties of the municipality and that
indefiniteness and uncertainty would result with reference to the age of superannuation, if, one, out of the several departments in a municipality,
should be held to be an ""industrial establishment"" to which the Standing Orders Act would apply. The provisions of the District Municipalities Act,
according to the Division Bench, would constitute ""special law"" and the Standing Orders Act would be ""general law"" applicable throughout the
territory of India in respect of ""Industrial Establishments"" coming within its purview. In view of this, the rules framed u/s 74 of the District
Municipalities Act fixing the age of retirement as 55 for the employees of municipal council were held to be applicable to the employees of the
municipal electrical undertaking also but not the Standing Orders Act or the Model Standing Orders thereunder and the writ appeal was allowed.
We may even at this stage notice the decision of the Supreme Court in The U.P. State Electricity Board and Anr. v. Hari Shanker Jain and Ors.
(1978)4 S.C.C. 16 : (1979)1 S.C.R. 355 : AIR 1979 S.C. 65, as it has a direct bearing on the decision of the third question set out earlier. There,
the dispute arose with reference to the age of retirement of two workmen, who were the employees of Messrs. Seth Ram Gopal and Partners,
licensees under the Indian Electricity Act, 1910 and which business was purchased and taken over by the U.P. State Electricity Board. Under the
certified Standing Orders of Messrs. Seth Ram Gopal and Partners, no age of superannuation for the employees was prescribed and that
according to the workmen, would enable them to work as long as they were fit and able to discharge their duties. The U.P. State Electricity Board
did not make or get certified any Standing Orders. However, the U.P. Electricity Board made a regulation u/s 79(c) of the Electricity Supply Act,
1948 to the effect that an employee of the Board shall retire on the attainment of the age of 58 years and this was notified on 28-5-1970 u/s 13-B
of the Standing Orders Act. Acting on this, the U.P. Electricity Board sought to retire two workmen on their attaining the age of 58 years and this
was challenged in writ proceedings, the contention being that the U.P. Electricity Board was incompetent to make a regulation in respect of matters
covered by the Standing Orders Act. The writ petition was dismissed but on appeal, the matter was dealt with by a Full Bench which answered the
three questions referred to it in the following terms:
(1) The Industrial Employment (Standing Orders) Act, 1946 applies to the industrial establishments of the State Electricity Board,
(2) The Standing Orders framed in an industrial establishment by an electrical undertaking do not cease to be operative on the purchase of the
undertaking by the Board or on framing of the regulations u/s 79(c) of the Electricity (Supply) Act, 1948;
(3) Section 13-B of the Industrial Employment (Standing Orders) Act, 1946 applies only to the industrial establishments of the government and to
no other establishments.
In this view, the appeal was allowed and the notification dated 28-5-1970 was quashed and the U.P. Electricity Board was directed not to
enforce the regulation against the two workmen. Before the Supreme Court, among others, one of the points raised was that the Standing Orders
Act was an Act specially designed to define and secure reasonable conditions of service for workmen and to secure that end, employers were
compelled to draft Standing Orders and get them certified also and would thus be a special Act with reference to the subject matter, while the
Electricity Act, on the other hand, was general one for the purpose of rationalising the production and supply of electricity and also for taking
measures conducive to electrical developments, and therefore the provisions of the special Act, viz., the Standing Orders Act would prevail over
the provisions of the Electricity Supply Act. On an examination of the provisions of the Standing Orders and the Electricity Act and the purposes
for which they had been enacted and applying the principle of generalia speciali bus non derogate, the Supreme Court held that a general provision
should yield to a specific provision, that the Industrial Establishment Standing Orders Act is a special Act dealing with a special subject viz.,
conditions of service enumerated in the Schedule of Workmen in ""Industrial Establishments"", that the provisions of the Electricity Act which is a
general one cannot be taken to pro tanto repeal the Standing Orders Act and that the provisions of the Standing Orders Act would prevail over
Section 79(c) of the Electricity (Supply) Act in regard to matters to which Standing Orders Act would apply. Dealing with the point based on
Section 13-B of the Standing Orders Act to the effect that the provision can be applied only to Industrial Establishments in which the workmen
employed could be properly described as Government servants, the Supreme Court did not agree with this and pointed out that the use of the
expression ""rules and regulations"" in Section 13-B had come to acquire a special meaning i.e., they are used to describe subordinate legislation
made by authorities to whom the statute delegates that function and cannot have any other meaning and that the expression cannot be construed
narrowly as to mean Government servants only nor so broadly as to mean workmen employed by whomsoever including private employers, so
long as their conditions of service are notified by the Government u/s 13-B. In the course of considering this aspect, the Supreme Court in
paragraph 15 of its judgment (at page 73 and 74 of the report) referred to the decisions in Raman Nambisan (P.) and Others Vs. Madras State
Electricity Board and Others, , and Thiruvenkataswami (K.) Vs. Coimbatore Municipality, . According to the Supreme Court, in the former case,
it was held that the mere fact that the Electricity Board had adopted the rules and regulations of the Government of Madras as its transitory rules
and regulations did not bring the workmen employed in industrial establishments under the Board within the mischief of Section 13-B of the
Industrial Employment (Standing Orders) Act while with reference to the latter case, the Supreme Court stated that it was held therein that rules
made by the Government under the District Municipalities Act could not be considered to be rules notified u/s 13-B of the Standing Orders Act
merely because the rules were made by the Government and published in the Government Gazette. The Supreme Court also expressed its
agreement with the conclusion in both the cases. Referring to the observations of Kailasam, J. (as he then was), in Thiruvenkataswami (K.) Vs.
Coimbatore Municipality, , that the Industrial Employment (Standing Orders) Act was a special Act relating exclusively to the service conditions of
persons employed in industrial establishments, and, therefore, its provisions prevailed over the provisions of the District Municipalities Act, the
Supreme Court expressed its agreement with those observations. However, the Supreme Court expressed its disagreement, with the following
observations of Kailasam, J., (as he then was) at page 364 in Thiruvenkataswami (K.) Vs. Coimbatore Municipality, :
Section 13-B cannot be availed of for purposes of framing rules to govern the relationships in an industrial establishment under private management
or in a statutory corporation. This rule can apply only to industrial establishments in respect of which the Government is authorised to frame rules
and regulations relating to the conditions of employment in industrial establishments.
The Supreme Court further clarified the extent of disagreement by pointing out that it disagreed with the observations of Kailasam, J., (as he then
was) extracted above in regard to Industrial Establishments under Statutory Corporations authorised by statute to make rules and regulations and
not in regard to those under Statutory Corporations not so authorised nor in regard to those under private management.
Finally, in paragraph l6 of the judgment, the Supreme Court has reiterated that the Standing Orders Act is a special law in regard to matters
enumerated in the schedule and the regulations made by the Electricity Board with respect to any of those matters are of no effect, unless, such
regulations are either notified by the Government u/s 13-B or certified by the Certifying Officer u/s 5 of the Industrial Employment (Standing
Orders) Act.
In the light of the decision of the Supreme Court referred to earlier, it will be convenient now to take up question No. 3 set forth at the outset.
Earlier, we had seen how Kailasam, J., (as he then was) in considering the question whether the Standing Orders Act would be a special
enactment relating exclusively to the service conditions of persons employed in Industrial Establishments and such a special Act, would prevail over
the provisions of the District Municipalities Act generally dealing with the administration of municipalities, concluded that the Standing Orders Act
would prevail over the provisions of the District Municipalities Act. This view was not accepted by the Division Bench in Coimbatore Municipality
by its Commr. Coimbatore v. K. Thiruvenkatahwami 87 L.W. 462 : ILR (1973)1 Mad.(405).In doing so, the Division Bench examined in extenso
the contention raised that by virtue of Section 107 of the Government of India Act, 1935 corresponding to Article 254 of the Constitution of India,
the provisions contained in the District Municipalities Act, will have to give way to the provisions of the Standing Orders Act and held that the
Standing Orders Act and the model Standing Orders thereunder would be a general Central enactment applicable through out the territory of India
in respect of ""industrial establishments"" coming within its scope and that the rules framed in the exercise of the powers conferred u/s 74 of the
District Municipalities Act would constitute special law and on the application of the principles that special will exclude the general, the rules made
by the Government u/s 74 of the District Municipalities Act will prevail over the Standing Orders Act or the Model Standing Orders there-under.
This view of the Division Bench does not appear to have been brought to the notice of the Supreme Court at the time when the decision in the U.P.
State Electricity Board v. Hari Shankar (1978) 4 S.C.C. 16 : (1979)1 S.C.R. 355 : I.LR 1979 S.C. 65 , was rendered by it. Even so, the
attention of the Supreme Court had been drawn to the decisions of this Court in Raman Nambisan (P.) and Others Vs. Madras State Electricity
Board and Others, and Thiruvenkataswami (K.) Vs. Coimbatore Municipality, , and the Supreme Court while expressing, its agreement with the
conclusions in both these cases, had made a pointed and, particular reference to the observations of Kailasam, J.,(as he then was) in
Thiruvenkataswami (K.) Vs. Coimbatore Municipality, , and stated at page 74 that the Standing Orders Act was a special act relating exclusively
to the service conditions of persons employed in industrial establishments and therefore, its provisions will prevail over the provisions of the District
Municipalities Act or the rules framed by the State Government u/s 74. In view of the approval by the Supreme Court of the view expressed by
Kailasam, J., (as he then was) with reference to the provisions of the Standing Orders Act, being a special enactment prevailing over the provisions
of the District Municipalities Act, the decision contra by the Division Bench in Coimbatore Municipality represented by its Commr. Coimbatore v.
Thiruvenkataswami, 87 L.W. 462 : ILR (1973) 1 Mad. 405, to the effect that the provisions of the District Municipalities Act or the rules framed
in the exercise of the powers conferred u/s 74 of the Act would constitute special law and would exclude the applicability of the Standing Orders
Act, which would be in the nature of general law applicable to all industrial establishments through out the territory coming within its scope cannot
be sustained.
Applying the ratio of the decision of the Supreme Court in the U.P. State Electricity Board and Anr. v. Hari Shankar Jain and Ors. (1978)4
S.C.C. 16 : (1979)1 S.C.R. 355 : AIR 1979 S.C. 65, referred to earlier, we hold on the third question set out at the beginning that the provisions
of the Standing Orders Act, if applicable to a municipal undertaking as an ""industrial establishment"" defined in the Standing Orders Act, being in the
nature of a special enactment, will prevail over the provisions of the District Municipalities Act and the rules thereunder and to this extent, the
decision of the Division Bench in The Coimbatore Municipality reptd. by its Commr., Coimbatore v. Thiruvenkataswamy, 87 L.W. 462 : ILR
(1973)1 Mad. 405, is not correct. We are of the opinion that in the events which have taken place since the filing of this batch of writ petitions and
writ appeals, it will be a totally futile and purely academic exercise to proceed to consider and answer questions 1 and 2 set out in the beginning of
this judgment. The challenge in the writ petitions as well as the writ appeals by the petitioners and the appellants was against the orders of the
concerned municipalities to the effect that all of them should retire on the attainment of the age of 55 years. This was based on the ground that the
municipal electrical undertakings will be ""industrial establishments"" within the meaning of the Standing Orders Act, 1946 and Model Standing
Order No. 21 would apply so that the benefit of a higher age of superannuation at 58 would be available to them. At the time when these writ
petitions as well as the writ appeals had been filed, the petitioners in the writ petitions as well as the appellants in the writ appeals had almost
completed 55 years of age and since the filing of the writ petitions and the writ appeals, all of them had completed 58 years also. In other words,
the petitioners in the writ petitions as well as the appellants in the writ appeals have not only crossed the retirement age of 55 years in accordance
with the municipal rules but also the higher age limit of 58 years, if the provisions of the Standing Orders Act were to apply to the municipal
electrical undertakings in which they were employed. It is not in dispute that on the completion of 58 years, the petitioners in these writ petitions as
well as the appellants in the writ appeals had retired from service. As none of the petitioners in these writ petitions and the appellants in the writ
appeals continued to remain in service, as pointed out earlier, it would be an exercise in futility to go into the question whether the municipal
electrical undertakings of the erstwhile Coimbatore and Madurai Municipalities and Thanjavur Municipality would be industrial establishments
within the meaning of the Standing Orders Act, as even on the assumption that they are so, the petitioners in the writ petitions and the appellants in
the writ appeals cannot be granted any relief, as the only relief asked for by them was that they should have the benefit of the higher age of
superannuation at 58 instead of 55. That they have already secured. It is also not the case of any of the petitioners in these writ petitions or the
appellants in these writ appeals that though as on date they had completed 55 years they had not attained 58 years and therefore, question Nos. 1
and 2 set out earlier would still be relevant and remain alive for consideration. A faint attempt was no doubt made by the learned Counsel for the
petitioners in these writ petitions as well as the appellants in the writ appeals that they may be eligible for some higher or better retirement benefits
and therefore, question Nos. 1 and 2 should also be considered and decided. We are not inclined to consider those questions merely from the
point of view of the possibility of the writ petitioners in these writ petitions and the appellants in the writ appeals securing some better retirement
benefits, for, we do not know that they are, as in none of the writ petitions or even in the writ appeals, that question had been raised. To the extent
to which the petitioners in the writ petitions and the appellants in the writ appeals wanted the benefit of the higher age of superannuation at 58
years, they have already secured it during the pendency of the writ petitions and writ appeals and therefore, no useful purpose will be served by an
academic consideration of the correctness or otherwise of the decision of the Division Bench in The Coimbatore Municipality, reptd. by its
Commr., Coimbatore v. Thiruvenkataswamy, 87 L.W. 462 : I.L.R.(1973) Mad. 405, on the other two questions viz., whether the municipal
electrical undertakings would be industrial establishments within the meaning of the Standing Orders Act and whether a department of the
Municipality like the municipal electrical undertaking can be subjected to the application of the provisions of the Standing Orders Act. In view of
this, we are of the opinion that question Nos. 1 and 2 referred to earlier do not require to be considered and answered. Consequently, we dismiss
all the writ petitions as well as the writ appeals. There will be, however, no order as to costs.