Dismissed

Rajani Harishchandr Hire v. the Staet of Maharashtra and Anr.

Bombay HC25 Nov 2014WP/2143/2011

Case brief

AI extract

What is this about?

Petitioner challenged her retirement at age 58 by Dhule Municipal Corporation. Court held Industrial Employment (Standing Orders) Act, 1946 does not apply as Model Standing Orders were not notified under Section 2-A. Maharashtra Civil Services Rules apply, making retirement age 58. Writ petition dismissed.

What did the court decide?

Writ petition dismissed with no order as to costs.

Rajani Harishchandr Hire Vs the Staet of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2143 OF 2011

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Sau. Rajani Harishchandra Hire, Age: 54 years, Occu: Service, R/o. Galli No. 1, Subhash Nagar, In front of School no. 22, Old Dhule, Dhule

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...Petitioner

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Versus

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The State of Maharashtra Through the Secretary, Urban Development Department Mantralaya, Mumbai – 400 032.

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The Commissioner, Dhule Municipal Corporation, Dhule.

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...Respondents

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Advocate for Petitioners : Mr. S.S. Patil AGP for Respondent 1 : Mr. S.K.Kadam Advocate for Respondent 2 : Mr. S.P.Shah

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CORAM : S. V. GANGAPURWALA AND V. K. JADHAV, JJ.

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Date of Reserving the Judgment : 25.11.2014

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Date of Pronouncing the Judgment : 09.12.2014

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JUDGMENT ( PER S.V.GANGAPURWALA, J. ) :-

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The petitioner is challenging the action of the respondent No. 2 retiring the petitioner at the age of 58 years as per Notice dated 15.11.2010 and further rejecting the representation of the petitioner to correct the date of birth.

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Mr. Patil, the learned counsel submits that the real date of birth of the petitioner is 27.03.1956 as per the birth register maintained by the Jalgaon Municipal Council. The petitioner had requested to correct the said date of birth in the service record. In the service record, wrong date of birth is notified i.e. 27.03.1953. The learned counsel submits that representation was made to that effect, but the same was rejected. The learned counsel, in alternate submits that, even if the date of birth is not corrected, the petitioner can not be made to retire at the age of 58 years. In view of the Model Standing Orders, the age of retirement is 60 years. The learned counsel relies on Sec. 2-A of The Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as 'the said Act'). The learned counsel further submits that the rules of respondents are also not published in the official gazette nor are notified under Sec. 13-B of the said Act. In light of that, the said rules relied by the respondent will not have overriding effect. The learned counsel relies on the judgment of the learned Single Judge of this Court in the case of Pyarelal v. The Municipal Council, Ramtek & Anr. reported in 1992 (I) CLR 327 so also, the judgment of the Apex Court in the case of U.P. State Electricity Board v. Hari Shankar Jain reported in 1978 (37) F.L.R. 280.

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Mr. Shah, the learned counsel submits that at the fag end of her service career, the representation was made seeking

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correction in date of birth, which is not permissible. According to the learned counsel, Sec. 2-A of the said Act would not apply in as much as there is no notification published in the official gazette regarding the model standing order being made applicable to the respondent – establishment. According to the learned counsel, the respondent – establishment has its own rules which are framed under the statute in its delegated legislation. As per the said rules, the age of retirement is 58 years. The learned counsel submits that the said rules are notified and the notification is published. According to the learned counsel, as the model standing orders does not apply, the age of retirement is rightly considered as 58 years. The learned counsel relies on the judgment of the learned Single Judge of this Court in case of Sangli Miraj Kupwad Cities Municipal Corporation Versus Mahapalika Kamgar Sabha reported in 2012 (6) All M.R. 90.

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Before we proceed to deal with the contentions canvassed by the learned counsel for the respective parties, it would be appropriate to refer to the relevant provisions relied by the learned counsel. Section 2-A of the Bombay Industrial Employment ( Standing Orders) Act, 1946 reads thus :

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“[2-A. Application of model standing orders to every industrial establishment.

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Where this Act applies to an industrial establishment, the model standing order for every matter set out in the Schedule applicable to such

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establishment shall apply to such establishment from such date [as the State Government may by notification in the Official Gazette appoint in this behalf:

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Provided that nothing in this section shall be deemed to affect any Standing Orders which are finally certified under this Act and have come into operation under this Act in respect of any industrial establishment before the date of the coming into force of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957]

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[(2) Notwithstanding anything contained in the proviso to sub-section (1) Model Standing Orders made in respect of additional matters included in the Schedule after the coming into force of the Act referred to in that proviso (being additional matters relating to probationers or badlis or temporary or casual workmen) shall, unless such Model Standing Orders are in the opinion of Certifying Officer less advantageous to them than the corresponding Standing Orders applicable to them under the said proviso, also apply in relation to such workmen in the establishments referred to in the said proviso from such date as the State Government may, by notification in the Official Gazette appoint in this behalf.]

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13-B Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification,

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Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulation, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other Rules or Regulations that may be notified in this behalf by the appropriate Government in the official Gazette, apply)

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The petitioner joined the services of the respondent as a Clerk in Health Department as Class-IV employee on 1.1.1994. His date of birth recorded in the service book is 27.03.1953. According to the petitioner, the Jalgaon Municipal Council has issued the birth certificate showing date of birth as 27.3.1956. In view of the said birth certificate issued the petitioner claimed change in the date of birth in the service record. The school leaving certificate shows the date of birth of petitioner as 27.3.1953. On the basis of the said school leaving certificate the petitioner's date of birth is recorded in the service book as 27.3.1953. For the first time the petitioner represented for change in the date of birth on 28.1.2011 i.e. just few days before her retirement. It would be too late in the day to consider the case of the petitioner when date of birth in the service book is recorded pursuant to the school leaving certificate. The date of birth recorded in service book and school leaving certificate is one and the same. The birth certificate said to have been issued by the Jalgaon Municipal Council, it appears, is subsequently issued.

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The main thrust of the argument of the learned counsel for the petitioner is regarding the age of retirement. According to the petitioner, the Industrial Employment (Standing Orders) Act, 1946 would apply and govern the age of retirement and heavy reliance is placed on Section 2-A of the said Act of 1946. Perusal of Section 2-A of the said Act, it is manifest that if the Act applies to an industrial establishment the model standing orders and every matter set out in the schedule applicable to such establishment shall apply to such establishment from such date on which the State Government may by notification in the Official Gazette appoint in this behalf. It is not disputed that notification in the official gazette thereby applying the model standing orders to the Respondent Establishment has not been published in the official gazette. In absence of the publication of any notification in the official gazette thereby making model standing orders for the matters set out in the Schedule applicable to the respondent establishment, it cannot be said that the said provisions in the model standing orders would apply.

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Section 13-B relied by the petitioner would be inapplicable in the present matter. Section 13-B of the said Act of 1946 specifically lays down that Act would not apply to the Industrial Establishment as named therein or any other rules that may be notified in this behalf by the appropriate Government in the Official Gazette. The Respondent Establishment has its own rules. vide order dated 14.5.1984 the Directorate of Municipal

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Administration has passed the order thereby applying the Maharashtra Civil Service Rules. So far as service conditions are concerned, it has also been shown that the order applying the provisions of the Maharashtra Civil Services Rules has been published in the official Gazette. It is not disputed that as per the Maharashtra Civil Services Rules, age of retirement of a Class-IV employee is 58 years.

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The judgment in case of Pyarelal Vs. The Municipal Council, Ramtek and Anr. relied by the learned counsel for the petitioner, it was held that when there is a variance between the General Law and Industrial Law, Industrial Law will have to be treated as Special Law and must prevail over the General Law. So also in a case of U.P. State Electricity Board Vs. Hari Shankar Jain (referred supra) it was held by the Apex Court that, provisions of standing orders Act would prevail over Section 49 (1) of the Electricity Supply Act. The Apex Court observing that the matters in respect of which no regulations have been made or if made have not been notified by the Government u/s 13-B of the Standing Orders Act, then Industrial Employment standing orders Act will continue to apply. In the said case, regulations were notified by the Government and the Apex Court held that the Act of 1946 is not applicable to the Local Authority i.e. Municipal Corporation.

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In a case of Sangli Miraj Kupwad Cities Municipal Corporation referred supra the learned Single Judge of this Court held that Industrial Employment (Standing orders) Act, 1946 is not

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applicable to local authority.

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In the present matter, first of all it is admitted by the petitioner also that notification as is required under Section 2-A of the said Act of 1946 has not been published in the official gazette thereby notifying that the matters set out in the Schedule applicable to such establishment shall apply to the such establishment. In absence of any such notification, it would not be possible to hold that the matters set out under the Schedule of the said Act would apply to the Respondent Establishment. In the official gazette the order has been published thereby applying the provisions of the M.C.S.R. with regard to the service conditions including the age of superannuation. In none of the judgments referred to herein above, the Court was required to consider the applicability of the matters set out in the Schedule of the Establishment without notification of the same being published in the official gazette.

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Considering the aforesaid aspect of the matter, the contentions of the petitioner that age of Retirement would be 60 years as per the Schedule of the Act of 1946 cannot be accepted. As such the Writ Petition is dismissed, however, with no order as to costs.

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( V.K. JADHAV, J. ) ( S V GANGAPURWALA, J. ) ..... aaa/-

Rajani Harishchandr Hire v. the Staet of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Rajani Harishchandr Hire v. the Staet of Maharashtra and Anr.

Case brief

What is this about?

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