BHEL Electrical Machines Ltd v. BHEL EML Employees Association, BHEL EML Employees Union, BHEL EML Independent Employees Union, Regional Labour Commissioner (Central) Kendriya Shram Sadan, Kakkanad, Kochi, and Deputy Labour Commissioner (Central) Kendriya Shram Sadan, Kakkanad, Kochi, and P.K. Mohanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938 WA.No. 2579 of 2015 () IN WP(C).32073/2014 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 32073/2014 of HIGH COURT OF KERALA DATED 12-10-2015 APPELLANT/PETITIONER IN WP(C): -----------------------------------------------------BHEL ELECTRICAL MACHINES LTD BEDRADKA POST, KASARAGOD-671124, REPRESENTED BY ITS MANAGING DIRECTOR, MR.S. BASU. BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.P.BENNY THOMAS SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH RESPONDENTS/RESPONDENTS IN WP(C)/ADDL.6TH RESPONDENT : ------------------------------------------------------------------------------------------------ 1. BHEL EML EMPLOYEES ASSOCIATION, BEDRADKA POST, KASARAGOD 671124, REPRESENTED BY ITS GENERAL SECRETARY. 2. BHEL EML EMPLOYEES UNION, BEDRADKA POST, KASARAGOD 671124, REPRESENTED BY ITS GENERAL SECRETARY. 3. BHEL EML INDEPENDENT EMPLOYEES UNION, BEDRADKA POST, KASARGOD 671124. REPRESENTED BY ITS GENERAL SECRETARY. 4. THE REGIONAL LABOUR COMMISSIONER (CENTRAL) KENDRIYA SHRAM SADAN, KAKKANAD, KOCHI-682030. CERTIFYING OFFICER UNDER THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT. 5. THE DEPUTY LABOUR COMMISSIONER (CENTRAL) KENDRIYA SHRAM SADAN, KAKKANAD, KOCHI-682030, APPELLATE AUTHORITY UNDER THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT. 6. P.K.MOHANAN, AGED 58 YEARS, S/O.P.G.KARUNAKARAN WORKING AS CHARGE HAND, BHARAT HEAVY ELECTRICALS LTD, ELECTRICAL MACHINES LTD., KASARAGOD & RESIDING AT PAINUMKAL HOUSE, PUNNAYAM, ASAMANNOOR PO, ERNAKULAM DISTRICT 683 549. R6 BY ADV. SRI.N.UNNIKRISHNAN R4 &5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1 TO 3 BY SRI.V.B.HARINARAYANAN,SC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2017, ALONG WITH WA.2634/2015 & WA.2600/2015 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & A.M.BABU, JJ. --------------------------------------------W.A.Nos.2579, 2600 & 2634 of 2015 ---------------------------------------------Dated this the 8[th] day of February, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. These three Writ Appeals are filed against the common judgment of the learned Single Judge dated 12.10.2015, finally disposing of W.P.(C).Nos.32073, 28749 & 34277 of 2014. Writ Appeal No.2579 of 2015 is filed by the petitioner in W.P.(C). No.32073 of 2014. The said appeal is treated as the leading case and all the appeals are disposed of together, since the issues raised are common. The other appeals are filed by the appellant in the leading case and one of its functionaries who were respondents 2 and 5 in the writ petitions. 2. The appellant is M/s.BHEL Electrical Machines Ltd., a subsidiary of the Bharat Heavy Electricals Ltd. ('BHEL' for short). The company was formerly a Kerala Government undertaking known as Kerala Electrical and Allied Engineering Company Ltd. The Kasargode Unit of the establishment was taken over as a joint venture company with the share participation of the Government of Kerala. The BHEL have 51% share in the Company and is a Government of India undertaking. The Government of Kerala retains 49% of the shares. 3. After takeover of the Company as stated above, the W.A.Nos.2579, 2600 & 2634 of 2015 2 appellant approached the fourth respondent for certification of the Draft Standing Orders. As per the Draft Standing Orders, age of retirement of the workmen was fixed at 58 years. However, the fourth respondent, while certifying the Standing Orders, passed Ext.P6 order dated 19.08.2014 enhancing and fixing the retirement age of workmen at 60 years. Though an appeal was filed by the appellant before the fifth respondent, by Ext.P11 order, the appeal was dismissed. The aggrieved appellant thereupon filed W.P.(C). No.32073 of 2014 challenging Exts.P6 and P11 orders. W.P.(C). Nos.34277 of 2014 and 28749 of 2014 were writ petitions filed by the workers seeking enforcement of the order enhancing the retirement age to 60 years. All the three writ petitions were considered by the learned Single Judge together and W.P.(C). No.32073 of 2014 has been dismissed confirming Exts.P6 and P11 orders. Therefore, W.P.(C).No.28749 of 2014 and 34277 of 2014 were allowed, entitling the workers to continue in service until they attain the age of 60 years. The petitioner has filed these three appeals, challenging the said judgment. 4. According to the learned Senior Counsel Sri.E.K.Nandakumar, the Company itself was purchased only in the year 2011. As per the Draft Standing Orders that were submitted for approval, retirement age of the employees was fixed at 58 years. The fourth respondent had no power or authority to enhance W.A.Nos.2579, 2600 & 2634 of 2015 3 and fix the retirement age at 60 years. The decision to fix retirement age of the workers at 58 years was a decision taken by the Board of Directors of the Company. The retirement age has been enhanced to 60 by the fourth respondent, on the basis of extraneous considerations. Though the authority had proceeded on the assumption that Exts.P3 and P4 circulars were binding, they are in fact not binding on the petitioner Company. The Company has never earned profits during the period of its operation from 2011 onwards. It is still incurring losses. Though the Company had preferred an appeal against Ext.P6, apart from noticing the contentions put forward by the petitioner, Ext.P11 does not disclose any consideration of the said contentions. Therefore, it is contended that Ext.P11 is vitiated by non application of mind. The learned Senior Counsel places reliance on the decision of the Apex Court in ## _**Sureshchandra Singh and Others v. Fertilizer Corporation of**_ _**India and Others [2004 (1) SCC 592]**_ to point out that, Exts.P3 and P4 are in the nature of guidelines issued by the Central Government. Unless such guidelines are issued under the signature of the President of India, they are not binding. Exts.P3 and P4 are, therefore, according to the learned Senior Counsel, only advisory in nature. The learned Single Judge has proceeded to hold that Exts.P3 and P4 were _per se_ binding on the appellant. The said finding, according to the learned counsel, is wrong and liable to be W.A.Nos.2579, 2600 & 2634 of 2015 4 set aside. 5. Adv.Sri.V.B.Harinarayanan appears for respondents 1 to 3 in Writ Appeal No.2579 of 2015. According to the learned counsel, even the petitioner Company did not have a case that Exts.P3 and P4 guidelines were not binding on the said Company. The counsel places reliance on Ext.P7 appeal filed by the Company against Ext.P6 order to point out that, the only contention put forward there was, Ext.P3 guidelines had been superseded by Ext.P4. The said contention also, according to the learned counsel, is unsustainable. It is contended that, Ext.P4 is only clarificatory of Ext.P3. The learned counsel contends that, Ext.P4 in so far as it is binding on the petitioner, Exts.P6 and P11 orders are perfectly legal and therefore, the learned Single Judge was right in declining to interfere with them. 6. Adv.Sri.N.Unnikrishnan, who appears for the sixth respondent in Writ Appeal No.2579 of 2015, also supports the impugned orders Exts.P6 and P11 as well as the judgment of the learned Single Judge. A counter affidavit has been filed by the sixth respondent, producing Ext.R6(A) document, which evidences that, in BHEL, the retirement age of all employees has been fixed at 60 years. The counsel also points out that, as per Ext.P14 in W.P.(C). No.34277 of 2014, from which Writ Appeal No.2634 of 2015 has been filed, it has been clarified that, the decision of the Central W.A.Nos.2579, 2600 & 2634 of 2015 5 Government, contained in Ext.P3, is binding on all undertakings. In case any administrative Ministry or Public Sector Undertaking does not want to increase the age of retirement of its employees, specific exemption from operation of the aforesaid decision would be necessary. It is, therefore, contended that there are absolutely no grounds to interfere with the judgment of the learned Single Judge. 7. Heard. In essence, the contention of the petitioner is that, Exts.P3 and P4 are not binding on the Company. A perusal of Ext.P3 shows that, it relates to the retirement age of below Board Level Employees of Central Public Sector Enterprises (CPSE). As per Ext.P3, it is made known that, the Central Government has decided to enhance the age of retirement of all below Board level employees of Public Sector Enterprises in the manner mentioned below. The relevant portion of Ext.P3 is extracted hereunder for convenience of reference : _“(a) Except as otherwise provided specifically every employee at below board level in the Central Public Enterprises whose age of retirement is currently 58 years shall now retire from the services of the enterprise on the afternoon of the last date of the month in which he/she attains the age of 60 years. However, below board level employees of public sector enterprises whose date of birth is the first of the month shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 60 years.”_ A perusal of the above shows that, the age of retirement of below W.A.Nos.2579, 2600 & 2634 of 2015 6 Board level employees has been enhanced to 60 years, in the case of Central Public Sector undertakings. Ext.P4 further provides as follows : ## _“40. DPE/Guidelines/II(b)/40_ _Enhancement of age of retirement of Board and below Board level employees of profit earning Central Public Sector Enterprises (CPSEs)_ _The Government had taken a decision to increase the age of retirement from 58 to 60 years of Board level and below Board level employees of Central Public Sector Enterprises (CPSEs) in May 1998. In May 2000, sick/unviable CPSEs were permitted to roll back the age of retirement from 60 to 58 years with the approval of the Cabinet. Subsequently in August 2001, the Cabinet delegated the authority to Minister-incharge to approve proposals for roll back of age of retirement from 60 to 58 years for all CPSEs and all categories of employees, which are duly approved by their Board of Directors. This decision was reviewed in April 2005 and it was decided that the power for roll back of age of retirement of all categories of employees of CPSEs would thereafter vest with the Cabinet.”_ An examination of the above Office Memorandum shows that, some of the Central Public Sector Enterprises that were sick/unviable had been permitted to roll back the retirement age from 60 to 58 years with the approval of the Cabinet. The above Office Memorandum presupposes that the decision in Ext.P3 was binding on all Central Public Sector Enterprises and that some sick enterprises were W.A.Nos.2579, 2600 & 2634 of 2015 7 permitted to roll back the age of retirement with the approval of the Cabinet. It has been provided that, such power would after the date of the said Office Memorandum vest in the Cabinet. Ext.P4 further goes on to provide the manner in which the retirement age of the workers of such sick enterprises could be enhanced to 60 years. A combined reading of Exts.P3 and P4 leaves no doubt in our mind that the said orders were binding on all Central Public Sector Enterprises and that, any exemption from the operation thereof, could be granted only with the approval of the Central Cabinet. In Ext.P6, the fourth respondent has addressed the above issue and noticed that the appellant Company in the present case has not obtained exemption from the operation of Exts.P3 and P4. The learned Senior Counsel attacks the above conclusion in Ext.P6 by pointing out that, the appellant Company had come into existence or started operations only on 28.03.2011. However, nothing prevented the Company from obtaining permission for exemption from Exts.P3 and P4, after the said date. It is not in dispute that no such exemption has been obtained as on date. Therefore, we are not satisfied that the fourth respondent has exceeded his authority in enhancing the retirement of the workers from 58 to 60 as per Ext.P6. Consequently, the appellate order Ext.P11 confirming Ext.P6 also cannot be found fault with. 8. The learned Senior Counsel has placed reliance on the W.A.Nos.2579, 2600 & 2634 of 2015 8 decision of the Apex Court in _**Sureshchandra Singh**_ 's case (supra). According to the learned Senior Counsel, the said case involved the sustainability of the decision of the Board of Directors of the Fertilizer Corporation of India Ltd. However, we notice from paragraph 1 of the said judgment that, after the Board had unanimously decided not to raise the retirement age from 58 to 60, the decision was communicated to the Ministry concerned and the Department of Fertilizers, Ministry of Chemicals and Fertilizers and the Government of India had granted exemption from enhancing the age of retirement from 58 to 60 years. The above fact has been noted in the said judgment. In view of the above, the contention that Exts.P3 and P4 are only advisory, is not acceptable. We have gone through the judgment of the learned Single Judge. We find that the learned Single Judge has approached the issues in the proper perspective. We do not find any infirmity warranting an interference therewith in appeal. For the above reasons, these Writ Appeals are dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **A.M.BABU JUDGE** AV /True Copy/ P.A to Judge