In the matter of Engineering Workers Association V/S J.D. Jamdar and others [2005 (2) Bom CR 479], the facts are mentioned as follows; ‘the company that is respondent No. 2 was carrying on business of the Grease Division in Mumbai Steel Containers Ltd. and Industrial Containers Ltd. were merged with the respondent company in 1975. After merger, this was known as Container Division. Both the Container Division and the Grease Division were treated as separate entities by the respondent company. According to the respondent-company, after the merger the service conditions which prevailed in the erstwhile Steel Containers Ltd. applied to the Container Division. These conditions of service were stipulated in an agreement which had been entered into with their workers on 3-6-1964. Under this settlement, the retirement age of the workers was 58 years. Even after merger, the respondent company continued to retire the workmen employed in the Container Division at the age of 58 years.’
Around 1977 certain demands were raised by the workmen out of which two had remained unsettled, the issue of payment of Bonus and retirement age. Upon the matter being referred to the Industrial Tribunal for adjudication whereby the retirement age was stipulated at 60 years. However, the company continued to retire their workmen in the container division at 58 years, against which Complaint (ULP) No. 914 of 1989 was filed, alleging that the respondent company had committed an unfair labour practice by retiring persons in the Container Division at the age of 58 years although there was an award of 1980 which prescribed the age of retirement as 60 years.
Upon the matter reaching the Hon’ble Bombay High Court via Writ Petition, the Hon’ble Court in holding that the respondent-company has committed an unfair labour practice under Item 9 of Schedule IV of the Act, observed that;
“The Standing Order 27, stipulates that the age of retirement should be 60 years or such other age as may be agreed upon between the employer and the workmen by any agreement, settlement or award. If the submission of the Counsel for respondent Nos. 2 and 3 is correct that any age could have been the retirement age, there was no need for the Legislature to stipulate the age of 60 years in the Standing Order 27. This has obviously been done in order to ensure that the retirement age of the workman is at least 60 years. Any settlement or agreement or award stipulating any age of retirement which is above the age of 60 years is permissible under the Standing Orders. Standing Order 32 makes it amply clear that the Standing Orders cannot operate in derogation of any law for the time being in force or to the prejudice of any right under the contract of service, custom or procedure or agreement, settlement or award. Therefore, if the contract of service under an agreement, settlement or award stipulates that age of retirement should be something other than 60 years, the agreement is saved by this Standing Order which when read with Standing Order 27 lends credence to the submission of the Advocate for the petitioner. If the retirement age was not to be at least 60 years, there was no need for the Legislature to mention this figure in Standing Order 27 and the Standing Order could have read as “the age of retirement or superannuation of the workmen may be such age as may be agreed upon between the employer and the workmen by any agreement, settlement or award”. By stipulating the age as 60 years in the Standing Order, obviously the Legislature meant that the minimum, age of retirement would be 60 years.
Having held that the retirement age as specified in Model Standing Orders is 60 years and that the Model Standing Orders would prevail over the agreement which fixes a lower age of retirement, it is axiomatic that by retiring the workmen at the age of 58 years, the respondent company has committed an unfair labour practice under item 9 of Sch. IV of the Act.”