The Indian Expressp Ltd v. The Indian Express Newspapers Workers Union Regd and Anr

11. Having heard in extenso the contentions of both the parties, this Court considers it necessary to first deliberate on the issue of determination of the age of retirement, from its very genesis.

12. The age of retirement is undoubtedly a condition of service and employment. Admittedly, thepetitioner is an ‘industrial establishment’. The conditions of employment to be defined by industrial establishments are governed by the IndustrialEmployment(StandingOrders)Act, 1946 (having been referred to as SO Act). In this regard, it would be useful to extract relevant partsofits Statements ofObjects andReasonsoftheSO Actas under: “Experience has shown that ‘StandingOrders’ defining the conditions of recruitment, discharge, disciplinary action, holidays, leave, etc., go a long way towards minimising friction between the management and workers in industrial undertakings. Discussion on the subject at the tripartite Indian LabourConferencerevealed a consensusofopinion in W.P.(C) 11128/2023 15/53 favour of legislation. The Bill accordingly seeks to provide for the framing of "Standing Orders" in all industrial establishments employing one hundred or more workers. … … Within six months from the date on which the Act becomes applicable to an industrial establishment, the employer is required to frame draft ‘Standing Orders’ and submit them to the Certifying Officer for certification. The draft should cover all the matters specified in the Schedule to the Act and any other matter that Government may prescribe by rules. The Certifying Officer will be empowered to modify or add to the draft Standing Orders so as to render them certifiable undertheAct. It will notbehis function (norofthe AppellateAuthority) to adjudicate upon their fairness or reasonableness. There will be a right of appeal against the decisions of the Certifying Officers.”

13. Legislation itself prefaces the provisions of the Act as “An Act to require employers in industrial establishments formally to define conditions of employment underthem”. It furtherstates that “Whereasit is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them”.

14. The concept employed, therefore, is that the employer is required to frame draft standing orders and submit them to the Certifying Officer for certification. The draft was to cover matters specified in the Schedule of the Act or any other specifications subject to the applicable Rules. Post submission to the Certifying Officer, the said Officer was empowered to modify or add to thedraft standingorders to render them certifiableunder the SO Act. He would not adjudicateon thefairness orreasonableness ofthesaid W.P.(C) 11128/2023 16/53 Standing Orders (This position was changed by the amendment in 1956). Against the same, an appeal would lie to the Appellate Authority. More specifically, this process is embedded in Section 3 (Submission of draft standing orders); Section 4 (Conditions for certification of standing orders); and Section 5 (Certification of standing orders).

15. For ease of reference, these three sections of the SO Act are extracted as under: “Section 3. Submission of draft standing orders. — (1) Within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment. (2) Provision shall be madein such draft for every matter set outin the Schedulewhich may be applicableto the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model. (3) The draft standing orders submitted under this section shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong. (4) Subject to such conditions as may be prescribed, a group of employers in similar industrial establishmentsmay submit a joint draft of standing orders under this section. Section 4. Conditionsfor certification of standing orders. —Standing orders shall be certifiable under this Act if— (a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and W.P.(C) 11128/2023 17/53 (b) the standing ordersare otherwise in conformity with the provisions of this Act; and it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. Section 5. Certification of standing orders.—(1)On receiptofthe draft under section 3, the Certifying Officer shall forward a copy thereof to the trade union, ifany, ofthe workmen, orwhere there is no such trade union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed form requiring objections, if any, which the workmen may desire to make to the draft standing orders to be submitted to him within fifteen days from the receipt of the notice. (2) After giving the employer and the trade union or such other representatives of the workmen as maybe prescribed an opportunityof being heard, the Certifying Officer shall decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orderscertifiable underthis Act, and shall make an order in writing accordingly. (3) The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications therein which his order under sub-section (2)mayrequire, and shallwithin seven daysthereafter send copies of the certified standing orders authenticated in the prescribed manner and of his order under sub-section (2) to the employer and to the trade union or other prescribed representatives of the workmen.” (emphasis added)

16. Section 3(2) of the SO Act mandates that the draft Standing Orders proposed by the establishment will provide for every matter set out in the Schedule of the SO Act, as applicable to the concerned establishment; and if model Standing Orders have been prescribed, it shall be in conformity with thesame, “so farasis practicable”. Theseaspectsofconformity, etc. arewhat W.P.(C) 11128/2023 18/53 would be overseen by the Certifying Officer under Section 4. Objections to the draft Standing Orders are then invited under Section 5.

17. Pursuant to that, an opportunity for a hearing is to be given and modifications tothedraft, ifany, aremadeas perthedecision oftheCertifying Officer (as per Section 5(2) of the SO Act) and thereafter, the draft Standing Orders would be duly certified.

18. Provision of appeal is provided under Section 6 of the SO Act, by any employer, worker, trade union, or other prescribed representatives of the worker to appeal against the order of the certifying officer. The appellate authority is also empowered to amend the Standing Orders by making modifications, as it may consider necessary. Consequently, the Standing Orders come into operation (as per Section 7) and are filed in the form of a register maintained by the Certifying Officer (Section 8), followed by the posting of the Standing Orders (Section 9).

19. Section 10 of theSO Act provides for thedurationand modification of the Standing Orders. The relevant provision is extracted as under: “Section 10. Duration and modification of standing orders. — (1) Standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen or a trade union or other representative body of the workmen, be liable to modification untiltheexpiry ofsix monthsfrom thedate on which thestanding orders or the last modifications thereof came into operation. (2) Subject to the provisions of sub-section (1), an employer or workman ora tradeunion orother representative bodyofthe workmen may apply to the Certifying Officer to have the standing orders modified, and such application shall be accompanied by five copies of the modificationsproposed to be made, and where such modifications are proposed to be made by agreement between the employer and the W.P.(C) 11128/2023 19/53 workmen ora trade union orotherrepresentative bodyofthe workmen, a certified copy of that agreement shall be filed along with the application. (3) The foregoing provisions of this Act shall apply in respect of an application under sub-section (2) as they apply to the certification of the first standing orders. (4) Nothing contained in sub-section (2) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra.”

20. It is to be noted at this stage, that the SO Act mandates that Standing Orders thatarecertified shallnot, excepton agreement between theemployer and employee (worker), be liable to modification for at least 6 months from when they came into force or since the last modification took place.

21. Section 10 (2)provides fora processofmodification ofStandingOrders which can be triggered by an employer or workmen or a trade union or a representativebody of theworkmen, through an applicationto theCertifying Officer. In the event there is an agreement between the employer and the workmen,thatshallalso befiled. In respect ofthis application, theprocessof determination of the appropriateness of that modification proposal will be processed in the same manner as prescribed under Sections[4], 5, and 6 of the SO Act.

22. It is also noted that Section 10(4) mandates that provisions of Section 10(2) shall not apply to an industrial establishment in respect of the State of Gujarat and the State of Maharashtra.

23. Since the reference is made to the Schedule of the SO Act and The IndustrialEmployment(StandingOrders)CentralRules, 1946for aspectsthat W.P.(C) 11128/2023 20/53 must be taken care of while drafting the Standing Orders or reviewing them, it is noted that Schedule I applies to MSOs in respect of industrial establishments, (not being industrial establishments in coal mines) and ScheduleIA applies to theMSOs for industrialestablishmentsin coal mines. It is an admittedpositionthat, as regards newspaper establishments, Schedule IB provides for MSOs on additionalitems that areapplicableto all industrial establishments.

24. Clause[3] ofScheduleIB specifies theage ofretirement. Thesaidclause is extracted as under: “(3) AGE OF RETIREMENT The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workman under an agreement or as specified in a settlement or award which is binding on both the workman and the employer. Where there is no such agreed age, retirement or superannuation shall be on completion of 58 years of age by the workman.”

25. Clearly, it provides thattheage of retirement shallbeas decided under an agreement between an employer and the workmen or as specified in a settlement or an award. Whereit was notso agreed, theretirement agewould be 58 years. This substitution of 58 years was done by GSR 1040 dated 12.09.1984, before which the age was 60.

26. Hence, for an establishmentlikethepetitioner, theMSOs in ScheduleI along with additional items in Schedule IB would apply. The petitioner establishment had accordingly floated their SO which, in clause 15(d) provides: “The employment of an employee shall terminate on his attaining the age of superannuation(58 years) and one months’notice will be given in W.P.(C) 11128/2023 21/53 such cases. Theemployer may, however, at his discretion extend the period of his service orre-employ him on such terms and conditionsasmaybemutually agreed upon.”

27. The said StandingOrderswere duly certified by theCertifyingOfficer and accordingly, becameapplicableto theestablishmentandits workers. This certified StandingOrder relates to their office in New Delhi and therefore, in the present case, would apply to the workers in question.

28. One of the contentions of the petitioner was that any issue relating to the application or interpretation of a certified Standing Order can be referred by an employer/ workman/ trade union/ representative body of the workmen to theLabourCourtsconstituted undertheID Act. This is providedby Section 13A of the SO Act. Section 13 of the SO Act lays down, inter alia, penalties for an employerwho modifies StandingOrders, otherwisethanin accordance with Section 10. The Labour Court, after giving opportunity to parties of being heard, decides the question and such a decision would be final and binding on the parties.

29. What needs to be focused on, at this stage of discussion, is whether a changeof retirementagefrom 58 yearsto 60 yearsis an issueof“application” or “interpretation”or invites a “modification”. It would bedifficult to accept any contentionthatpleadsthata variation of58 yearsto 60 yearsas theageof retirement, would not amount to seeking a “modification” of a certified Standing Order. A modification necessarily entails “make partial or minor changes to; alter without radical transformation”. The phrase “application” on the other hand would entail something which requires “putting into use”, W.P.(C) 11128/2023 22/53 and “interpretation” would necessarily involve “the action of explaining the meaning of something”.

30. Aside from these definitions, applying a commonsensical view, it would be obvious from the usage of these phrases that a variation from 58 years to 60 yearswouldamount to“modification”. Accordingly,thequestion of it being a matterwhich could bereferred to under Section13A by either an employer ora worker doesnotarise. Thesubmissionofthepetitioner thatthe reference could have possibly been under Section 13A of the SO Act, therefore, does not merit any further consideration.

31. It will haveto bestressed herethat“modification”is provided for under Section 10 (2) of the SO Act, as has been noted above. This aspect would be adverted to later after further discussion on various other submissions made by the parties.

32. In relation to the process of modification, the petitioner submitted that such a processofmodificationoftheretirementagehad indeed takenplacein Haryana. A notification dated 10.07.2012 had been issued by the Labour & Employment Department, Government of Haryana where a proposal was madeto add the item “age of superannuationofworkmen” in theSchedule to theAct as wellas a Clause17A in theMSO providingfor theageofretirement to be 60 years.

33. The industry in Haryana filed its objections after the government conducted oral hearings and thereafter, a decision was taken by the government to notify 58 years as the age of superannuation vide notification W.P.(C) 11128/2023 23/53 dated 06.08.2013. The said Clause 17A was introduced in Schedule I of the MSO, produced as under: “17A, Age of Superannuation - The age for retirement or superannuation of the workman shall be as may be agreed upon between the employer and the workman under an agreement or as specified in a settlement of award which isbindingon boththeworkman and the employer. Where there is no such agreed age, retirement or superannuationshallbe on completion offifty eight years of ageby the workman.”

34. This, as perthepetitioner, oughtto betheidealprocessfor modification of the age of retirement i.e. a proposal must be put forward by one of the stakeholders(in thecaseof Haryana, it was thegovernment)andafter hearing the objections of the parties, a decision will be made. The petitioner also pointed outthattheageof retirement in other States is also similar,likein the State of Uttar Pradesh wherein, Clause 31 of the MSO fixes the age of superannuationat 58 years;in Maharashtraand Gujarat, theMSO fix the age of superannuation at 60 years in Clause 27.

35. As to thestatutory sanctityofa StandingOrder, referencewas madeto thedecision oftheHon’bleSupremeCourtin Bharatiya KamgarKarmachari Mahasangh (supra).

36. In contrast, Senior Counsel for the respondent heavily relied upon the decision of the Gujarat High Court in SCA 10141/2001 (supra) dated 28.07.2014 wherein a decision, relating to the retirement age in petitioner establishmentwas raisedfrom 58 years to 60 years. GujaratHigh Court was dealingwith a reference madeto it for fixing theage of retirementofworking journalistsofthepetitioner establishmenttherein to 60 years. It was relatedto W.P.(C) 11128/2023 24/53 the branch of Indian Express at Ahmedabad. In 1986, the Union in Ahmedabad made a demand that their retirement age should be enhanced to 60 years.Thisdemandwas referredtotheTribunal.Subsequentdemandswere also made and were finally referred to the Industrial Tribunal.

37. Gujarat High Court referred to MSO framed by the State Government under the SO Act, particularly Clause 27 which provided that the age of retirement ofworkmen may be60 years or such other age as has been agreed upon. The said SO Act was considered applicable to the newspaper establishmentas per Section14 oftheWJ Act which providesthattheSO Act would apply to a newspaper establishment. Therefore, it was held that the Tribunal had not committed any error in relying upon the MSO and the petition filed by Indian Express was therefore dismissed, thereby upholding the retirement age as 60 years.

38. Reliance of Senior Counsel for the respondent on the decision of GujaratHigh Court was madeto contend thatonce the age of retirement was accepted as 60 years in one State of the country where the newspaper establishment was functioning, it would serve as a necessary benchmark for other States as well. However, this Court is of the view that the decision by the Gujarat High Courtcannotact as inviolableprecedent, inter alia, because thesaid decision arisingoutofreferencein Gujarat, wasbasedsquarely onthe MSO propounded by the State Government in Gujarat which provided for retirement ageas 60 years. It is not thesameas in theinstantmatter,sincethe MSO in Delhi prescribetheretirementageas 58 years. Moreover, theGujarat W.P.(C) 11128/2023 25/53 High Courtdoes not go into thedetailed merits ofthematterand only affirms the decision of the Tribunal in that regard.

39. Be that as it may, the decision by the Gujarat High Court at best only fortifies the petitioner’s submission that the age of retirement has to be in consonance with the MSO.

40. Therefore, wenow haveto addressthevexed andmuch arguedissueas to whether theissue regardingtheage of retirement could havebeen referred to an Industrial Tribunal.

41. Reference dated 15.10.2009 by the GNCTD reads as: " Whether the demand of the workmen represented by the Indian Express Newspaper Workers Union for increasing the retirement age of the workmen from 58 years to 60 years is legal and justified and if so to whatrelief are they entitled and what directions are necessary in this regard? "

42. As a starting point, it would be undeniable that the certified Standing Orders issued undertheSO Act havea statutoryforce. Thishasbeen recently reiterated by the Hon’ble Supreme Court in Bharatiya Kamgar Karmachari Mahasangh (supra) a decision of 2023, wherein the Apex Court has, inter alia, made the following observations:

43. As discussed above, thefocus ofour discussion would beon whether a certified StandingOrderwith a statutory force, can bemodified, and bywhich process. It may be useful to consider the decisions on this issue rendered by the Hon’bleSupremeCourtand otherCourtsthathad been referred to by the respectivecounsel. Thefollowingdecisions arereferred to in a chronological sequence.

(i) In a decision of 18.09.1967, the Hon’ble Supreme Court speaking through 3 Hon’ble Judges in Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen, (1968), 1 SCR 581, was dealing with a reference by theStateGovernmentwas related to theentitlement of leavebenefits includingprivilegeleave, casualleave, andsick leave. When the matter was being adjudicated before the Industrial Tribunal, the management raised an objection as to the jurisdiction oftheIndustrialTribunaltoadjudicateuponthis question,interalia, that leave facilities having been provided by certified Standing Orders, a modification could only be in the manner provided under the SO Act. The Industrial Tribunal answered these issues against themanagement. TheHigh Court ofKarnatakaalso agreed withthe W.P.(C) 11128/2023 27/53 findings of the Tribunal and held that the scope of the Standing Orders was limited and there is no conflict between the ID Act and StandingOrders andthatit wasopen toa Tribunaltoadjudicateupon these matters as referred to it. Having made an assessment of the contentionsofthe parties, theCourtassessed thelaw as it existed at that time, particularly in light of the amendment to the SO Act in

1956. In para 22 and 23 of the said decision, the Hon’ble Supreme Court stated as under: ”22. Noneoftheabovedecisionslend supportto thecontentions of the learned counsel for the appellant that, after the amendment effected in 1956, to the Standing Orders Act, the Industrial Tribunal will have no jurisdiction, under the Act, to adjudicateupon anydisputes in relation to matters, covered by the standing orders, framed under the Standing Orders Act.

23. Further, accepting the contention of the learned counsel for the appellant, willbe to practically wipeout the existence of the Act, so far as industrial establishments, governed by the Standing Orders Act, are concerned. The legislature, in 1956, amended, by the same Act viz. Act 36 of 1956, both the Act and the Standing Orders Act. Schedules were also incorporated in the Act, and, in particular, thesameitem, which is referred to in Section 13-A, of the Standing Orders Act, is again referred to, as Item 2 of the Second Schedule to the Act, over which the Labour Court has jurisdiction. Item 5, of the Schedule to the Standing Orders Act, as interpreted, by this Court, gives jurisdiction to the authorities under that Act, to frame standing orders with reference, not only to the procedure for grant of leave and holidays, but also in respect of the quantum ofleave, and allied matters. The legislature, in Item 4 of the Third Schedule to the Act, dealing with “leave with wages and holidays”, has conferred jurisdiction, in that regard, on the W.P.(C) 11128/2023 28/53 Industrial Tribunal. TheStandingOrders Act which, has for its object, the defining, with sufficient precision, the conditions of employment, under the industrial establishments and to make the said conditions known to the workmen employed by them, has provided more or less a speedy remedy to the workman, for the purpose of having a standing order modified, or for having any question relating to the application, or interpretation of a standing order, referred to a Labour Court. But there is no warrant, in our opinion, for holding that merely because the Standing Orders Act is a self-contained statute, with regarded to the matters mentioned therein, the jurisdiction of the Industrial Tribunal, under the Act, to adjudicate upon the matters, covered by the standing orders, has been, in any manner abridged or taken away. It will always be open, in a proper case, for the Union or workmen to raise an “industrial dispute”, asthatexpression is defined in Section 2(k) of the Act, and, ifsuch a disputeis referred by the Government, concerned, foradjudication, theIndustrialTribunalorLabourCourt, asthe case maybe, will havejurisdiction to adjudicate, uponthesame. But, it must also be borne in mind that an “industrial dispute” hasto be raised by the Union, beforeit can be referred and, it is notunlikely thata Union mustbepersuaded to raisethe dispute, though the grievance of a particular workman, or a member of the Union, be otherwise well-founded. Even if the Union takes up the dispute, theState Governmentmay, ormaynot, refer it to the IndustrialTribunal. Thediscretion of the StateGovernment, under Section 10 of the Act, is very wide. It may be that the workmen, affected by the standing orders, may not always, and in every case, succeed in obtaininga reference to the Industrial Tribunal, on a relevant point. These are some of the circumstances for giving a right and a remedy, to the workman, under the Standing Orders Act itself, butthere is no indication, in the scheme of the Standing Orders Act, that the jurisdiction of the Industrial Tribunal, to entertain an “Industrialdispute”, bearing uponthestandingordersofan industrialestablishment, and to adjudicate upon the same, has in any manner been W.P.(C) 11128/2023 29/53 abridged, ortaken away, bytheStandingOrdersAct. Therefore, on thisaspect, wearein agreementwith theconclusions, arrived at, by the Industrial Tribunal, and the High Court.” It is quite clear from the passages extracted above, particularly the portion underscored, that the Apex Court was of the opinion that notwithstanding the SO Act being a self-contained statute, the jurisdictionoftheIndustrialTribunalto adjudicateupon thematters governed by the Standing Orders has not been taken away or abridged in any manner. The Union or workmen would be fully within their right to raise an “Industrial Dispute” as defined under section 2(k)oftheID Act and theIndustrialTribunal uponreference, will have the jurisdiction to adjudicate. The Apex Court further reiterates that the SO Act itself does not have any provision to take away the jurisdiction of an Industrial Tribunal to entertain an industrial dispute bearing upon the SO Act and to adjudicate upon the same.

(ii) Another decision that may have bearing on the present matter, but was not cited by the parties, is Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union, 1968 SCC OnLine SC 79, a decision rendered on 18.09.1968. The relevant portions are extracted as under, which usefully traverse the journey of evolution of the SO Act:

8. As the Act stood prior to 1956, there was thus a prohibition against the Certifying Officer going into the question of reasonableness or fairness of the draft Standing Orders submitted to him by the employer. His only function was to see that the draft made provisions for all matters contained in the Schedule and that it was otherwise certifiable under the Act. Therefore, though theworkmen through theUnion orotherwise were served with the copy of the draft and had theright to raise objections, the objections could be of a limited character, namely, that the draft did not provide for all matters in the Schedule or that it was not otherwise certifiable under the Act. Even in an appeal under Section 6, the only objections they could raise were limited to the two aforesaid questions. The workmen thus could not object that the draft Standing Orders were notreasonableorfair. UnderSection 10, therightto apply for modification was conferred on the employer alone and in view of sub-section 3 the onlyconsideration which thecertifying authoritycould applyto such modification wastheonewhich he could apply under Sections 4 and 6. Therefore, no question whetherthemodification wasfairorreasonablecould beraised. It is thus clear that the workman had verylittle say in the matter even if he felt that the Standing Orders or their modifications were either not reasonable or fair. They could, of course, raise an industrial dispute. But that remedy was hardly satisfactory. Such a disputehad to be first sponsored bya union orat least a substantial number of workmen; it had next to go through the process of conciliation and lastly the appropriate Government mayor may notbe prepared to refer such a disputeto industrial W.P.(C) 11128/2023 32/53 adjudication. Even if it did, the entire process was a protracted one.

9. In 1956, Parliament effected radical changes in the Act widening its scope and altering its very complexion. Section 4, as amended by Act 36 of 1956, entrusted the authorities under the Act with the duty to adjudicate upon fairness and reasonablenessof the StandingOrders. The enquiry when such StandingOrdersare submitted for certification is now twofold: (1) whether the Standing Orders are in consonance with the model Standing Orders, and (2) whether they are fair and reasonable. The workmen, therefore, can raise an objection as to the reasonableness or fairness of the draft Standing Orders submitted for certification. By amending Section 10(2) both the workmen and the employer are given the right to apply for modification and by reason of the change made in Section 4 a modification has also now to be tested by the yardstick of fairness and reasonableness. The Act provides a speedy and cheap remedy available to the individual workman to have his conditions of service determined and also for their modifications. By amending Sections 4 and 10, Parliament not only broadened the scope of the Act but also gave a clear expression to the change in its legislative policy. Parliament knew that the workmen, even as the unamended Act stood, had the right to raise an industrial dispute, yet, not satisfied with such a remedy, it conferred by amending Sections 4 and 10 the rightto individualworkmen to contestthedraftStandingOrders submitted by the employer for certification on the ground that they are either not fair or reasonable, and moreimportantstill, the rightto applyfor their modification despitethefinalityof the order of the Appellate Authority under Section 6. Parliament thusdeliberately gave a dualremedyto theworkmen both under this Act and under the Industrial Disputes Act. This fact has in recent decisions been recognised by this Court. (cf. Bangalore Woollen, Cotton &SilkCo. Ltd. v. Workmen [(1968)1 LLJ555] W.P.(C) 11128/2023 33/53, Buckingham & CarnaticCo. Ltd. v. Workmen [ CA No. 674 of 1968 decided on 25th July, 1968]and Hindustan BrownBoveri Ltd. v. Workmen [ CA No. 1631 of 1966 decided on 31st July, 1967].” This relates to thescopeofSection 10(2)of theSO Act. TheUnion therein had applied for certain modificationsto a certified Standing Order which was partly allowed by the Regional Labour Commissioner and thereafter appealed against the same by the Union. The Appellate Authority altered the modifications. The impugned order was challenged on the scope of power of modification under Section 10(2) of the SO Act. The Apex Court usefully traversed the history of the SO Act which is reflected in paras 7 to 9 of the said decision. The underscored/ highlighted portionin para 9 extracted abovenotes thattheattentionoftheApex Court had been invited, inter alia, to the decision rendered in Management Of Bangalore Woollen, Cotton & Silk Mills Co. v. The Workmen & Anr., (supra) which statesthattheParliament had deliberately given dual remedy to the workmen, both under the SO Act and the ID Act. Further, it was noted in para 11: “11.…Apart from the right to apply for modification under the Act, the workmen,can raise an industrialdisputewith regard to the standing orders. There is nothing in the Industrial Disputes Act restricting the right to raise such a disputeonly when a new set of circumstances hasarisen. If thatright is unrestricted, can it bepossiblethatthevery legislature which passed boththeActs could have, while conferring the right on the workmen individually, restricted that right as suggested by counsel ? To W.P.(C) 11128/2023 34/53 illustrate, a new industrialestablishmentis set up and workmen are engaged therein. Either there is no union orif there is oneit is not yet properly organised. The standing orders of the establishment are certified under the Act. At the time of certification, the union or the workmen's representatives had raised either no objections or only certain objections. If subsequently the workmen feel that further objections could have been raised and if so raised the authority under the Act would have taken them into consideration, does it mean that because new circumstances have since then not arisen, the workmen would be barred from applying formodification ? Let us take anotherillustration. Where, after the standing ordersor their modificationsare certified, it strikes a workman after they havebeen in operation forsometimethata further improvement in his conditions of service is desirable, would he be debarred from applying for a further modification on the ground that no change of circumstances in the meantime has taken place? Where the standing orders provide 10 festival holidays, if counselwere right, theworkmen can neverapplyforan addition in their numberas they would be faced with the contention that the festivals existed at the time ofthe last certification and there was therefore no change of circumstances.” The rest of the decision is mostly related to the modifications itself and may not be relevant to our determination. Notably, a separate opinionauthored by Hon’bleMr. JusticeV. Bhargavain additionto themain opinionby Hon’bleMr. JusticeJ. M. Shelatnotes asunder: “26. ThepurposeoftheAct, asit wasoriginallypassed in 1946, was merely to require employers in industrialestablishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to the workmen employed by them. To give effect to this purpose, Section 3 of the Act gave the powerexclusively to the employers W.P.(C) 11128/2023 35/53 to submitdraftStanding Ordersforcertification. The Certifying Officer had to certify the Standing Orders, if provision was made in them for every matter set out in the Schedule and the Standing Orders were otherwise in conformity with the provisions of the Act. In addition, sub-section (2) of Section 3 also laid down thatthe provision to be madewas to be as far as practicable, in conformity with model Standing Orders prescribed by the appropriateState Government. Thus, the Act, in its original form, was designed only for the purpose of ensuring that conditions of service, which the employer laid down, became known to the workmen and the liberty of the employer in prescribing the conditions of service was only limited to the extent that the Standing Orders had to be in conformity with the provisions of the Act and, as far as practicable, in conformity with model Standing Orders. The Certifying Officer or the Appellate Authority were debarred from adjudicating upon thefairnessorthereasonablenessofthe provisions of the Standing Orders. Then, as noticed in the case of Rohtak Hissar District Electricity Supply Co. Ltd. [(1966) 2 SCR 863], the legislature made a drastic change in the policy of the Act by amending Section 4 and laying upontheCertifying Officer the duty of deciding whether the Standing Orders proposed bytheemployer were reasonableand fair, and also by amending Section10(2)so asto permiteven a workman to apply for modification of the certified Standing Orders, while, in the original Act, the employer alone had the right to make such an application. It is, however, to be noticed that the Preamble of the Act was notaltered, so thatthe purposeof the Act remained as before. While the Act was in its unamended form, if the workmen had a grievance, they could notapplyformodification of certified Standing Orders and, even at the time of initial certification, they could only object to a Standing Order on the ground that it was not in conformity with the provisions of the Act or model Standing Orders. After amendment, the workmen were given the rightto object to the draftStanding Ordersatthe time of first certification on the ground thattheStandingOrders W.P.(C) 11128/2023 36/53 were not fair and reasonable and, even subsequently, to apply for modification ofthe certified Standing Ordersafter expiry of the period of six months prescribed under Section 10(1) of the Act. These rights granted to the workmen and the powers conferred on the Certifying Officer and theAppellateAuthority, however, still had to beexercised forthe purposeofgiving effect to the objectofthe Actasit continued to remain in thePreamble, which was not altered. Before the amendment of the Act, if the workmen had any grievance on the ground of unfairness or unreasonableness of the Standing Orders proposed by the employer, their only remedy lay under the Industrial Disputes Act. By amendmentin 1956, a limited remedy was provided for them in the Act itself by conferring on the Certifying Officer the function of judging the reasonableness and fairness of the proposed Standing Orders. Theseamendmentscannot, however, affect the alternative remedy which the workmen had ofseeking redress under the Industrial Disputes Act if they had grievance against any of the Standing Orders certified by the Certifying Officer (see BangaloreWoollen, CottonandSilkMillsCompany Ltd. v. Workmen [(1968) 1 LLJ 555], and Buckingham and CarnaticCo. Ltd. v. Workmen [ CA No. 674 of1968 decided on 25th July, 1968]. Itis, therefore, clear that, aftertheamendment in 1956, the workmen have now two alternative remedies for seeking alterations in the StandingOrders proposed oralready certified. They can object to the proposed Standing Orders at the time of first certification, or can ask for modification of the certified Standing Orders under Section 10(2) on the limited ground offairnessorreasonableness. But, forthesamepurpose, they also have the alternative remedy of seeking redress under the Industrial Disputes Act, in which case the scope of their demand would be much wider. If the proceedings go for adjudication under the Industrial Disputes Act, the workmen can claim alterations of the Standing Orders not merely on the ground of fairness or reasonableness, but even on other grounds, such as further liberalisation of the terms and conditionsofservice, even thoughthecertified StandingOrders W.P.(C) 11128/2023 37/53 may be otherwise fair and reasonable. The remedy provided by the Act has, therefore, a limited scope only. ….………… ….…………

28. Thisinterpretation, ofcourse, doesnotaffect the rightof the workmen to seek an amendmentofthe StandingOrders, even if certified asreasonableand fairbytheAppellateAuthorityunder Section 6, by appropriate proceedings under the Industrial Disputes Act. In fact, it appears to me that the power of a Tribunal dealing with an industrial dispute under that Act relating to direct alteration of a Standing Order held to be reasonableand fairbya StandingOrderwill, ofcourse, be wide enough to permit the Tribunalto direct alteration of a Standing Order held to be reasonableand fairby the AppellateAuthority underSection 6 of the Act, in case a dispute aboutit is referred to the Tribunal; and that is the only remedy available if either the workman or the employer desires to have modification without any fresh grounds, material or circumstances. The validity of the order of the Appellate Authority in the present appeal has to be judged on this basis.”

(iii) Yet another decision ofthis Courtthat is relevant asregardstheissue in question, but has not been cited by the parties, is Indian Oil Corporation Ltd. v. Joint Chief Labour Commissioner And Appellate Authorities and Ors., (1989)SCC OnLine Del 339. The issuebeforetheCourtwas whether thecertifyingauthorityunderthe SO Act has jurisdictiontoentertain an application foramendmentof theStandingOrderwhich fixes theageofretirementoftheworkmen at 58 years and enhances the same to 60 years, without first giving any finding whether it is practical to give effect to the MSO. Considering that the issue in this decision of 1989 was similar to W.P.(C) 11128/2023 38/53 what is beingraisedhere, referenceto thesamewillbeapposite. The Court considered the scope of the right to seek modification under Section 10 of the SO Act and held that post the 1956 amendment, power was given to the Certifying Officer to adjudicate upon the reasonableness or fairness of the Standing Orders. The Division Bench of this Court cited thedecision rendered in Rohtak& Hissar Districts Electric Supply Company Ltd. v. State Of Uttar Pradesh And Others, AIR 1966 SC 1471. It was noted that the contention raised in Rohtak (supra)was whethertheMSOsshouldbeconfined to the matterswhich do not fall within the purview ofthe ID Act. It was noted thatthecontentionwas repelled by theHon’bleSupreme Court and it was held that the two Acts do not conflict with each other. It was stated that: “22. Oneof the contentionsraised in the said case was that the Model Standing Orders permissible under the Standing Orders Act should be confined to matters which do not fall within the purview of the provisions of the Industrial Disputes Act, 1947. This contention was repelled by the Supreme Court and it was held that the two Acts do not conflict with each other. One Act purports to secure to industrial employees clear and unambiguousconditionsoftheir employmentwhilethe object of the otherAct is to dealwith the problemsposed bythe industrial disputes which have actually arisen or are apprehended, and naturally the nature of the industrial disputes which may arise or which maybeapprehended,relatesto items larger in number than the items covered by the first Act and it may be also true thatsomeof theitems are common to both theActsbutthescope of the provisions of the two respective Acts and the fields covered by them from that pointof view are notthe same. Then referring to the amended provisions of the Standing Orders W.P.(C) 11128/2023 39/53 Act the Supreme Court opined that it is true that the original scopeofthe Actwas'narrow and limited buteven afterthescope of the Act has been madewider even then it cannotbe said that the said Act conflicts with the provisions of the other Act. The Division Bench of this Court held that the authorities had not exceeded the jurisdiction in allowing the modification of the Standing Orders and changing the age of superannuation from 58 years to 60 years even though the MSOs provided for the age of 58 years.

44. This finally leads us to the decision rendered in Bharatiya Kamgar (supra) of 2023 which has already been referred to above. This aspect of the StandingOrders havingstatutorypoweris furtherfortified bya recentdecision of theSupremeCourtin Union ofIndia v. K. SuriBabu, (2023)SCC OnLine SC 1591. Reference be made to para 16 of the said decision:

W.P.(C) 11128/2023 40/53

45. Despite the detailed submissions of the counsel for the petitioner relating to the jurisdiction of the Industrial Tribunal to adjudicate upon an issueconcerningtheretirementage, prescribedunder theStandingOrders,the position in this regard stands stated, clarified and reiterated by both the Hon’ble Supreme Court and this Court, throughout the decisions referred herein above. To reiterate, it has been statedby theHon’bleSupremeCourtin Management Of Bangalore Woollen, Cotton & Silk Mills Co. v. The Workmen & Anr., (supra) and subsequent decisions that, as a matter of principle, there is no conflict between the SO Act and the ID Act, and while the SO Act may be more specific to the issues it deals with, the ID Act is a more beneficial piece of legislation dealing with a larger canvas. There was no exclusion in the SO Act relating to the possibility of adjudication of a service condition under the ID Act.

46. No doubt, the process under Section 10(2) of the SO Act could have been adopted and may seem to be a more natural recourse considering that there is an established procedure for seeking modification in a certified Standing Order (as discussed in paras above). However, applying the principles aslaid down by theHon’bleSupremeCourt,theIndustrialTribunal would also be empowered to adjudicate upon the said issue, if so, raised by the workmen/Union and if considered fit for reference by the government to the IndustrialTribunalfor adjudication. Even from a practicalviewpoint, at theend of theday, it is a specialcourt thatis empowered tohear andentertain labour disputes andadjudicateupontheappropriatenessof thedemand ofthe workmen in relation to their service conditions. W.P.(C) 11128/2023 41/53

47. In light ofthelaw, as clearly enunciatedby theHon’bleSupremeCourt, the contention of the petitioner regarding the jurisdictional issues, therefore, cannot be accepted. WJ Act

48. Coming to the submission of the petitioner, made on a demurrer, that thepetitioner was a ‘newspaperestablishment’under theWJ Actandtherefore had to be treated as a single establishmentand theappropriategovernment to refer should betheCentralGovernmentandnottheStateGovernment,it must be noted thatthepetitionerestablishment did notobject to this issuewhen the matter was beforetheGujaratHigh Courtand neitherdid it challengethesame before the Hon’ble Supreme Court. If it considers itself as governed by the WJ Act only and therefore requires a reference from the central government, it ought to haveraised this issueby challengingthereferencein thefirst place. Admittedly, there was no challenge to the reference in this matter by the establishment and therefore, this contention cannot be accepted at this stage. Having acquiesced in the reference and the determination therefore, the petitioner establishment cannot approbate and reprobate, and challenge it at this stage. Even otherwise, the WJ Act is an Act for regulating the service conditions of the journalists and other persons employed in newspaper establishments. The WJ Act does not preclude the application of the ID Act in relation to industrial disputes.

49. Reference to the Majithia Wage Board and other similar wage boards relatingto wages ofemployees in newspaper establishments, in theopinionof W.P.(C) 11128/2023 42/53 this Court, maybeout ofcontext because – firstly, thejurisdictionto consider the demand ofretirement agewas taken away from theMajithiaWageBoard after an objection was taken by newspaper employers and the Hon’ble SupremeCourt haddeclined to go into that issue;and secondly, the existence of a Wage Boardon a nationalleveldoes not in anymannerprecludetheState wise reference of an industrialdisputeunder theID Act or even modification of the certified Standing Order prevalent in a particular State. Going by the contention of the petitioner, it was not denied by the petitioner that modification of the certified Standing Order could have potentially been triggered through Section 10 (2) application or Section 13A reference under the SO Act. Both of these, in any event, would have gone to the specified processthrough theStategovernment.Yet again thiscouldhavebeen a ground to challenge the reference in the first place, which was not done by the petitioner establishment. Espousal

50. We now dealwith theissueoflack oflegitimateespousal, ascontended by thepetitioner. Petitioner to support his contention that themanagementhas a right to question the process followed by the Union, placed his reliance on thedecision ofthis court in VoltasLimited Vs. VoltasEmployees'Union and Another, 2007 SCC OnLine Del 53. Tribunal in its impugned award took noticeofthemanagement’scontentionrelatingto theespousalbutwasunable to find thebasis for thesame, as workmen hadplaced on recordtheresolution dated 20.06.2008 passed by the Indian Express Newspapers Workers Union. W.P.(C) 11128/2023 43/53 The Union unanimouslyresolved to raisean industrialdisputeconcerningthe raisingofretirement ageandlegaldemand noticedated14.07.2008was issued on theletterhead oftheUnion, andthestatementofclaim was filed beforethe conciliation officer by the same Union. Tribunal made note of a judgment of Hon'ble Kerala High Court, Division Bench in the matter of Mangalam Publications(India)Pvt. Ltd. v. Saju George, W.A.No. 964 of2020, decided on 01.12.2020on similar issueand also considered thefindings in the case of Pratap Singh & Anr. vs. MunicipalCorporation of Delhi, a decision of this Court in WP(C)No. 676/2013 wherein videorder dated 04.02.2013, this Court reversed thefindingoftheLabour Courton theissueofespousalcategorizing it as hyper-technical.

51. Respondent Union and the Tribunal also placed reliance on Omji Srivastava & Others Vs P.W.D./C.P.W.D., 2023 SCC OnLine Del 1726, a judgment dated 17.03.2023, wherein this Court held: “As held by Hon’bleSupremeCourt in J.M JhadavVs Forbes Gokak Ltd reported as 2005 (3) SCC 202, there is no particular form prescribed to effect theespousal. Generally, Union passesresolutions, however sometimes proof of support by the Union may also be availablealiunde. It would depend uponthefacts of each case. In the present case, even though no resolution was placed on record on behalf of the Union, from the documents placed on record by the Petitioners/Workmen, i.e. Exhibit WW2/1 to WW2/7, it is evident that the Hindustan GeneralMazdoorUnion hasespoused thecause of the Petitioners/Workmen.”

52. Tribunal videits impugnedawardfound thatthereis amplematerialon record i.e. Ex. WWI/4 i.e. copy ofthelegal demand noticewhich was sent on the letterheadofthe Indian ExpressNewspapersWorkers Union(Regd.), Ex. W.P.(C) 11128/2023 44/53 WWl/9 i.e. thecopy oftheStatementofClaim filed by the sameunion before the conciliation officer of Govt. ofNCT of Delhi, Ex. WWl/2 i.e. copy ofthe resolution on espousal dated 20.06.2008 passed by the Indian Express NewspapersWorkersUnion, wherein theUnionunanimouslyresolvedtoraise an industrial dispute concerning the raising of retirement age. In addition to this, the General Secretary of the Union himself appeared in the witness box and was duly cross-examined by the AR for the management. Tribunal also noted that no such objection has been taken by the management when the proceedings were conducted before the conciliation officer and the same cannot betaken at this belated stage, moreso in the absenceof a basis/reason for stating that the present dispute is not properly espoused by the Union. Tribunal also noticed that the dispute pertains to the general demands of the workmen for raising their retirement age and the technicalities of espousal would not come into the picture. Similar establishments

53. Petitioner contended that Paragraph 35 of the impugned Award is perverse in light of the cross-examination of MW[1], MW[2], and MW[3]. The paragraph 35 of the impugned order reads:

54. Petitioner contends that this finding is not correct as in crossexamination of MW-1 it was recorded: “… The retirement age fixed at 58 year in Telegraph, Statesman, DainikJagran, India Today, NDTVand even in Hindustan Timesand Times of India retirement age is 58 years which can be increased by two years i.e. 60 yearsif found medicallyfitand performanceisOK...” The cross-examination of MW-2 on 24.05.2017 reads as: “.…I cannotsay anything abouttheretirement ageof non journalists in Times of India, Hindustan Times, Statesman, The Hindu, PTI and UNI.…The retirement age for both journalist and non-journalist in Dainik Jagran, India Todayand Telegraphis 58 years. It is wrong to suggest that the retirement age of both journalist and non-journalist in above mentioned newspaper is 60 years….It is wrong to suggest thatin other newspapersthe retirement age of the journalistand nonjournalist is 60 years….” In cross-examination, MW-3 stated: “The retirement age of the employees in the daily newspapers Times of India, Statesman, Hindustan Timesand Dainik Jagran is 58 years. I am deposing in this regard on the basis of survey conducted by me……It is wrong to suggestthat the retirement ageof the employees in daily newspapers Times of India, Statesman and Hindustan Times is 60 years…..” W.P.(C) 11128/2023 46/53

55. The impugned award relied upon these findings, inter alia in that comparableindustries like Times of India, Hindustan Times, Statesman, The Hindu, PTI, and UNI having its offices in Delhi as well as outside Delhi continue to employ journalists and non-journalists even after 58 years till attaining 60 years of age; 5th Central Pay Commission, Central Government, and State PSUs have also raised the retirement age from 58 to 60 years; admission in cross-examinationby MW that theretirementage in Telegraph, Statesman, Dainik Jagran, India Today, NDTV, Hindustan times and Times of India is extendableto 60 yearson basisofmedicalfitness and performance; instancesofretired personnelbeingre-hired;financialburden to be increased because of new hiring and training and increase in life expectancy due to improved nutrition and well-being.

56. The impugned order, in its analysis, firstly rejected the reliance on the Majithia Wage Board; and secondly, the application of the Gujarat order as well (since theGujaratorder was restricted primarily to Gujaratand Bombay regions); and, thirdly, accepted the principle that the industry-cum-region concept would have to be applied. However, simpliciter, relying merely on the basis thattheretirement age in some other newspapers was extendableto 60 years, as well as based upon its opinion that extending the retirement age to 60 years would benefit the establishment (since they won’t have to pay wages to new recruits to do the same work) it reached its conclusion.

57. This assessmentis flawed, inadequate, insufficient andignores thewellestablished law relating to the assessment of service conditions in industrial establishments. Reliance of the petitioner on a series of decisions inter alia W.P.(C) 11128/2023 47/53 Novex Dry Cleaners (supra), Kamani Metals & Alloys (supra), Hindustan Antibiotics (supra), and ConceptPharmaceuticalsLtd (Supra)is appositein this context. The relevant portions of these decisions are as under.

58. In Novex Dry Cleaners (supra), the Hon’ble Supreme Court held as under: “5. In our opinion, this conclusion is open to serious criticism. In dealing with thequestion asto whether theappellantestablishmentwas comparable to Snowhite and Band Box, it was obviously necessary to comparethe three institutionsin respect of their standing, theextent of the labour force employed by them, the extent of their respective customers and, what is more important, a comparative study should have been made of the profits and losses incurred by them for some years before the dateof the award. Unfortunately, theTribunalhasnot even considered the balance-sheetsproduced by the appellantshowing the position of the profit and loss of the appellant itself. These documents are Exts. M/2, M/4, M/6, M/8 and M/10. The financial position ofthe two other concernshasnotbeen referred to in the award and presumably no evidence about the said point was adduced before the Tribunal. On the question of the strength of the labour force, it appearsthattheappellantengages109 permanentemployeesand 20 to 30 temporary employees, whereas the Snowhite appears to have 258 persons on its rolls; aboutthelabourforce of the Band Box, there is no evidence. The oralevidence given by someof the witnesses on behalfof the respondents is very vague and cannot at all serve to support the finding about the financial position of the appellant. Therefore, in our opinion, the Tribunal was in error in making a finding about the financialposition oftheappellantin comparisonto thatoftheSnowhite and the Band Boxwithoutapplying its mind to the relevant factors and without calling upon the parties to adduce relevant and material evidence in thatbehalf. Itis well known thatin fixing thewagestructure on a fair basis, an attemptis generally madein assessing the additional liability imposed upon the employer by the new wage structure and trying to anticipate whether the employer would be able to meet it for reasonablylong period in future. Sincethe Tribunalhasnotconsidered W.P.(C) 11128/2023 48/53 these aspects of the matter at all, we cannotuphold its award whereby it hasmerely adopted thewagescale fixed by the two awardsin respect of the Snowhite and the Band Box.”

59. In Kamani Metals & Alloys (supra), the Hon’ble Supreme Court observed while considering its decision in Novex Dry Cleaners (supra): “10. The next part of the inquiry involved the application of the principle of industry-cum-region. This principle is that fixation or revision of scales of wages, paysordearness allowancemustnotbeout of tune with the wagesetc. prevalent in the industryor the region. This is always desirable so that unfair competition may not result between an establishment and anotherand diversity in wagesin the region may not lead to industrial unrest. In attempting to compare one unit with another care must be taken that units differently placed or circumstanced are not considered as guides, without making adequate allowancefor the differences. The same is true when the regional level of wages are considered and compared. In generalwords, comparable units may be compared but not units which are dissimilar. While disparity in wages in industrial concerns similarly placed leads to discontent, attempting to level up wages without making sufficient allowances for differences, leads to hardships.”

60. In Hindustan Antibiotics (supra), a ConstitutionBench of the Hon’ble Supreme Court observed: “5. The Industrial Tribunal made the following findings among others: Rejecting the contention oftheCompanythatin fixing the wagescales different considerations and standards should apply to public sector undertakingsasdistinct from private sector undertakings, theTribunal fixed the wagescaleson region-cum-industrybasis. On a scrutinyofthe comparativestudy of the wagestructures of companiesin the region, it found that the Companywasa very large and prosperousconcern and its wagescales were on thelow side, particularlyin regard to the lower W.P.(C) 11128/2023 49/53 categories of workers, taking into consideration the duties and qualificationsprescribed for them. TheTribunalfixed the wagescales, having regard to the Companys financial position, its productive capacity, a comparative study of its wage structure with that in the neighbouring industries, and similar other relevant factors. It retained the existing dearness allowanceschemeexcept for a small alteration in the slab of dearnessallowanceforthe paygroup Rs301-500;itmerged a proportion of what would normally be paid in the shape of dearness allowancein the basic pay in the case of lower categories of workmen by giving increases wherever necessary in the basic pay only. It linked the dearness allowance with the cost of living index for Poona. It evolved a gratuity scheme for the workmen. It gave retrospective operation to the award. The findings of the Tribunal on other points need notbementioned heretheywill bedealtwithin appropriateplaces. In the result, pursuant to the said directions, the Tribunal had worked out the figures in detail and given its findings on the various demands made by the workmen. ….. …..

9. At the outset, it will be convenient to consider the question of principle. The object of the industrial law is two-fold, namely, (i) to improve the service conditionsof industrial labourso as to provide for them the ordinary amenities of life, and (ii) by that process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country, in its turn, helps to improve the conditions of labour. By this process, it is hoped that the standard of life of the labour can be progressively raised from the stage of minimum wage, passing through need found wage, fair wage, to living wage. Industrial adjudication reflected in the judgmentsoftribunalsandthecourtshaveevolved some principles governing wage fixation though accidentally they related only to industries born in the private sector. The principle of regioncum-industry, the doctrine that the minimum wage is to be assured to the labour irrespective of the capacity of the industry to bear the expenditure in thatregard, the conceptthat fair wageis linked with the capacity of the industry, the Rule of relevancy of comparableconcerns, W.P.(C) 11128/2023 50/53 and the recognition of the totality of the basic wage and dearness allowance that should be borne in mind in the fixation of wage structure, are all so well settled and recognised by industrial adjudication that further elaboration is unnecessary……….. ……… Thatapart, whatever may be said aboutproprietary firms, it cannotbe asserted that every company born in the private sector only functions on private motives; it may earn profits, pay reasonable dividends and plough back the balance of the profits into the industry for its further growth. So too, it cannotbe asserted thatalways a State will utilise the profits earned for the good ofthe country. There are manyinstances in the world where the national resources were frittered away. In the ultimate analysis, the character of the employer or the destination of profits has no relevance in the fixation of wages. Whoever may be the employer, he has to pay a reasonable wage to the employees. The incongruity of the alleged distinction in the matter of wages is further exemplified if we comparesimilar industries in the same region owned by the State and by the Union. Now, if the argument be accepted, the pattern of wage structure between these also must differ, for, the pay scales now obtaining in the State Governments and the Central Government radically differ. On the other hand, if the doctrine of region-cum-industry is accepted, all the employees of industries of similar nature, irrespective of the character of the employers, will get a fair deal without any discrimination which will certainly be conducive to the industrial development of our country.”

61. In the case of Concept Pharmaceuticals Ltd (supra), High Court of Bombaymadethefollowingobservation andremanded thematterback to the Tribunalfor a denovo enquiryanddecision ongrounds,interalia, therebeing no discussionwithregardto theevidenceincludingmaterialfor a comparison: “9. (i) Precise recapitulation of above referred judicial pronouncements would clearly reveal that in the matter of application of industry-cum-region formula, the comparison ofwage scales should W.P.(C) 11128/2023 51/53 bein relation to the similarconcernsin theregion. Ordinarilyspeaking, similar concerns would be those in the same line of business, indeed, the Apex Courtin French Motor case (1962 II LLJ 744), while dealing with the class of employees consisting of drivers, sweepers, peons, clerks, godown-keepers, typist and stenographers, held that it may be possible to take into accounteven those concerns which are engaged in an entirely different line of’ business, becausework of the employees of that class is more or less similar in all the concerns. This exception is related only to the extent of dissimilarity in the concerns in the matter of comparison while applying the said formula of industry-cum-region and it does not extend or relate to exemption from comparison itself or from the obligation to apply the said formula. The Tribunal is under obligation and has to assess the additional liability which will be imposed upon the employer by the new wage structure and try to anticipate whether the employer would be able to bear the same for a reasonably sufficient period in future. Failure on the part of the Tribunal to approach the issue on the settled lines would constitute serious infirmity rendering the award bad in law.”

62. The IndustrialTribunal, therefore, does not sit in an easy arm-chairfor thepurposesofthisassessment, and merely on extremelyslim andlightweight reasonsreach a findingthattheretirementageought to beincreased. Increase in retirement age has a vast and far-reachingimpact on theestablishmentand the manner in which it runs its own business andplans for future. Increasing the retirement age across all cadres of employees in a large establishment involves a very high economicimpact and therefore, it is necessaryto analyze it threadbare, assess comprehensively on various relevant parameters. Some of the parameters have been usefully employed in decisions noted above.

63. Comparison, ifat all, with other institutions, has tobein respect oftheir relative standing, extent of the labour force, extent of respective customers, W.P.(C) 11128/2023 52/53 profits andlossesfor a few years, financialposition,productivecapacity, wage structure in neighboring industries, inflexibility or flexibility of retirement age, totality of the basic wage structure, additional liability which would be imposed upon the employer, consideration whether the employer would be able to bear it for a sufficient period in the future, and thedifferent classes of employees for which it is sought to be employed.

64. Thelist aboveis merely illustrativeand certainly notexhaustive. These and other parameters becomenecessaryfor any assessmentwhich has a large financial impact. Needless to say, if it was an issue that was so obvious, the retirement agewould havebeen increasedto 60 yearsacrosstheboardfor this establishmentand others. TheIndustrialTribunalhas also erred in takingthe option of extendibility of the retirement age from 58 to 60 years in other newspaper establishments, as a fixed retirement age of 60 years. There is a clear difference between a fixed retirement age and the option of extending the same by 2 years based on the health, performance, and other factors relatingto theemployee. Importantly it is noted, thatexistingModelStanding Order stilldefines theageofsuperannuationat 58years.Therefore, displacing the same in its application to the establishment, necessitates proper consideration of materials, keeping in view above-mentioned observations and findings. Thisis further necessitated in view ofthefact thatan application for adducing additional evidence was made by the respondent herein which was subsequently rejected by the Tribunal. W.P.(C) 11128/2023 53/53

65. Therefore, this Court is of the opinion that even while the Industrial Tribunalwas correct in theexerciseofits jurisdiction(as already held above), it did not exercise its jurisdiction in the proper manner, considered irrelevant materials, ignoredor did not requisition relevant materials, madean irrational, fragile, perfunctory and cursory assessment in order to reach its conclusion. Clearly, this necessitates interference in the supervisory and extraordinary jurisdiction of this Court. The Industrial Tribunal ignored all the established parameters for revising the service conditions/ wages of an establishment, as is noted above.

66. Accordingly, theimpugned order is setasideandthematter is remanded back to the Industrial Tribunal for fresh adjudication after considering all materials which may be placed by the parties in detail to be examined with a fresh nuanced outlook and robustreasoning, takinginto account decisions of the Hon’ble Supreme Court and this Court, as noted above, and as may be presented by the parties.

67. The petition standsdisposed ofwith theabove-mentioned observations and directions.

68. Pending applications, if any, also stand disposed of.

69. Judgment be uploaded forthwith on the website of this Court.

JUDGE JANUARY 15, 2023