AI Structured Summary
Not yet generated for this judgment
Judgment
K. Lahiri, A.C.J.
By this application under Article 226 of the Constitution of India, the Petitioner questions the validity of the order compulsorily retiring him from government service with effect from 15.10.75, while he was serving as a Compositor Grade-II of the Government Press, Meghalaya, Shillong.
Since August 1953, the Petitioner was working in the Government Press, Meghalaya, which was formerly known as the Assam Government Press, The Superintendent of the Government Press by an order dated October 15, 1975, in exercise of the powers conferred by FR 56(b) of the Meghalaya Fundamental Rules and Subsidiary Rules, compulsorily retired the Petitioner. It may be stated here that the Government Press, Meghalaya is a Government "undertaking". The Petitioner has contended that at all relevant time, he was a workman of the press as contemplated u/s 2(s) of the Industrial Disputes Act, 1947, hereinafter "the Act", and, he was working as such in "the industry" known as "Government Press, Meghalaya". The case of Government is that he was compulsorily retired on the ground that he had attained the age of 50 years, or at least he had completed 25 years of service by that date. The Petitioner contents that in his Service Book, the date of birth was recorded as 3.9.1936 but without affording him any opportunity whatsoever and behind his back, the Government altered the date of birth to 3.9.1924, which was violative of the principles of natural justice as well as violative of the provisions of the relevant Fundamental Rules and Subsidiary Rules. The contention of the Petitioner is that as he was a workmen as contemplated under "the Act" the provisions of the Fundamental Rules and Subsidiary Rules were inapplicable in his case and as such, the order is illegal. The Petitioner also contends that the service conditions of the workmen are governed by the relevant Standing Orders and the Rules and, in the absence of any power contained therein to compulsorily retire a workman on his attainment of 50 years of age, or on completion of 25 years of service, the impugned order is illegal and void.
Mr. A. Sarma, learned Government Advocate, Meghalaya, appearing on behalf of the State submits that it is the case of the Petitioner that he is a workman as defined in Section 2(s) of the Industrial Disputes Act, so his remedy is to raise an industrial dispute and have his case determined by the appropriate. adjudicatory body under "the Act".
It is the admitted position that the Government Press is an "Industry" and the employees of the Press are "workman" governed by the provisions of the Industrial Disputes Act and other cognate Acts and Rules. It is also not disputed that any dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person is "an Industrial dispute", as defined in Section 2(k) of "the Act". The Petitioner, who claims to be a workman, contends that the order of compulsory retirement was in breach of the service conditions as no such order of compulsory retirement on attainment of 50 years of age or on completion of 25 years of service is envisaged in the standing orders, applicable to the establishment or any other rules or contract governing the service conditions of the workmen of the Industry. The Petitioner also contends that the order of compulsory retirement is mala fide, a colorable exercise of a non-existent power. It has also been contended that even assuming the provisions of Rule 56(b) of Fundamental Rules and Subsidiary Rules are applicable to the workman, the alteration of the date of birth in the Service Book of the Petitioner was made in breach of the principles of natural justice as well as in contravention of the express provisions contained in the Rules, and, as such the impugned order is bad.
The object of the Industrial Disputes Act is to make exclusive provisions for the investigation and settlement of industrial disputes and for certain other purposes. The Act is primarily meant for regulating the relations of employers and workmen. It is calculated to ensure social justice to the employers and the employees and advance the progress of the industry by bringing about harmony and cordial relationship in the industry. The Act is an independent and self contained one which provides for suitable and exclusive machinery for deciding the disputes that arise between the employers and employees by adjudication or arbitration. The "raison deter" of creation of adjudicative bodies under the Act is to provide a forum which may, unhindered by many legalistic considerations, attempt to secure harmony and efficient working of industry by resolving disputes through the medium of arbitration and adjudication.
Now, when it is the common case of the parties that the Petitioner is a workman and there is a subsisting dispute between the workman and the employer of the Government Press, it is the obligation of the State Government to make a Reference under the provisions of ''the Act'', u/s 2A of the Act, discharge, dismissal, retrenchment or termination of the service of an individual workman is also an industrial dispute and the may be raised by An employee notwithstanding that no other workman, nor any Union of Workman is a party to the dispute. Under these circumstances, when a poor Compositor Grade-II had raised an industrial dispute, the Government should have made a reference of "the dispute" to the appropriate adjudicating authority to uphold the cause of justice. There has been a long delay, but the Petitioner-workman has been all along pursuing actions to obtain relief since he was compulsorily retired by the impugned order. In our opinion the Government, on receipt of his appeal or representation should have realised that it was an industrial dispute and ought to have referred the matter to the appropriate authority for holding conciliation and/or to refer the dispute to the appropriate adjudicating authority constituted by the Industrial Disputes Act or it should have given order refusing to refer the disputes.
It has been urged that the age of superannuation of workmen is governed by different set of rules and the provisions of the fund a mental Rules and the Subsidiary Rules are not applicable. It has further been contended that the impugned order is in breach of the provisions contained in Note to S.R. 8 under F.R. 10 of the Meghalaya Fundamental Rules. We extract the relevant portion:
No alteration in the date of birth of a Government Servant should be allowed except in very rare case where a manifest mistake has to be made. Such mistake should be rectified at the earlier opportunity in the course of (1) periodical re-attestation of the entries in the first page of service book and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. 11) in which is noted the date of incumbent''s birth. In no case request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained.
It appears to us that only in very rare cases, the date of birth of Government servant can be altered and it could be done only when a manifest mistake at the time of recording the date of birth in the service book is detected. Such mistakes should be rectified at the earliest opportunity. We are also in doubt as to whether the Government could change the date of birth on a date within three years of the date of actual superannuation of the employee. In any view of the matter, if the date of birth is altered or changed to the prejudice of an employee, we are of the tentative opinion that the employee should be given an opportunity, if it works to his prejudice. In our opinion, the principles of natural justice demands that the employee should be given a show cause notice and or may be heard before any adverse order is rendered against him. In the instant case, the contention of the Petitioner is that the date of birth as recorded in the Service Book was altered from 3.9.36 to 2.9.24, without any rhyme or reason, and without giving the Petitioner any hearing or show cause, and, as such, the impugned order is bad. We do not propose to decide as to whether the provisions of the Fundamental Rules and Subsidiary Rules are applicable to the workmen of the Government Press, nor do we desire to express any view as to whether the impugned order of compulsory retirement is bad because of the breach of principles of natural justice. We leave all these for determination by adjudicatory authority constituted under the Industrial Disputes Act. It will be open for the Petitioner to make an application u/s 2(A) of ''the Act''. The State government may on the application take necessary steps to hold conciliation proceedings, if necessary, and thereafter shall consider the case of the workman and make a Reference to the appropriate adjudicating authority for disposal of the disputes under the Industrial Disputes Act or may act otherwise, if so permissible under the Act. We direct the Government to dispose of the case of the Petitioner as early as possible. Similarly, we direct the adjudicating body, to whom a Reference may be made, to hear and dispose of the industrial dispute as expeditiously as possible, preferably within six months from the date of receipt of the Reference. It shall be open to the Petitioner to take up all the points, which he has taken in the present writ application before the Government and/or other authority or authorities under "the Act".
In the result, the petition if disposed of with the above directions. However, we make no order as to costs.