CIVIL APPEAL 18612 of 2000 on 31 August 2000

1. D.Purushothaman

2. K.Kuppachari3. G.Jagadeesan4. R.Manikam5. G.Ethiraj6. B.Sivalingam7. K.Bhaskaran .. Petitioners in W.P. No.18612 of 20001. N.Kallappan2. A.Govindasamy3. M.S.Lakshminarayanan4. D.Jyothi5. S.Raman6. M.Shanmugam7. P.Dayanidhi8. K.L.Narasimhan .. Petitioners in W.P. No.20255 of 20001. S.Sadasivam2. R.Kalyanaraman3. M.V.Mukundaraman4. P.Gopi5. S.Ramakrishnan6. C.N.Malupillai7. V.Raghavan8. T.R.Raghu9. N.Thirunavukarasu10. M.Balasubramanian11. S.Krishnan12. S.Ramamurthy13. S.Sarada14. S.Sankaralingam15. V.N.Srinivasaraghavan16. Md.Sulaiman .. Petitioners in W.P. No.380 of 2001V.S.Elango .. Petitioner in W.P. No.640 of 2001

Chennai Dock Labour BoardEmployees' Progressive UnionRegd. No. 2294, MDSRep. by its General SecretaryN.Mahadevan .. Petitioner in W.P. No.11991 of 2002

vs.

1. The Government of India

Rep. by Secretary to GovernmentMinistry of Surface TransportNew Delhi .. R1 in W.P. Nos.18612 & 20255 of 2000, 380 of 2001 and 11991 of 2002 & R2 in W.P.No. 640 of 2001

2. Chennai Port TrustRep. by its ChairmanChennai .. R1 in W.P. No. 640 of 2001 and R1in W.P. Nos.18612 & 20255 of 2000, 380 of 2001 and 11991 of 2002

3. The SecretaryChennai Port TrustChennai .. R3 in W.P. No.640 of 2001

4. The Financial Advisor &The Chief Accounts OfficerChennai Port TrustChennai .. R4 in W.P. No.640 of 2001

W.P. Nos. 18612 and 20255 of 2000 filed under Article 226 of the Constitution of India seeking forissuance of writ of Certiorarified Mandamus calling for the records relating to the resolution No.72(Item No.12 on the agenda) of the meeting No.4 of the year 2000-2001 dated 31.8.2000 andresolution No. 133 of Meeting No. 7 of the year 2000-2001 of the Board of Trustees of the secondrespondent relating to the reduction of the age of superannuation for the employees of the secondrespondent from 60 to 58 and quash the same and forbear the respondents from giving effect to anysuch amendment or change.

W.P. No. 380 of 2001 filed under Article 226 of the Constitution of India seeking for issuance of writof Certiorarified Mandamus calling for the records of the first respondent in D.O. No.PR12016/12/2000-PE1 dated 17.4.2000 and quash the same and consequently call for the records ofthe second respondent relating to resolution No.72 dated 31.8.2000 and resolution No. 133 dated24.11.2000 with reference to the rolling back the age of retirement of the employees of the secondrespondent and quash the same and direct the second respondent not to amend the Rule — 3 of theMadras Port Trust Employees' Retirement Regulations 1976 until FR 56 is amended.

W.P. No. 640 of 2001 filed under Article 226 of the Constitution of India seeking for issuance of writof Certiorari calling for the records of the second respondent connected with the notification dated05.01.2001 approving the amendment of Port Trust Employees' (Retirement Amendment) Regulation2000 wherein the retirement age of the employees of the Port Trust was reduced from 60 years to 58years and quash the approval of the amendment.

W.P. No. 11991 of 2002 filed under Article 226 of the Constitution of India seeking for issuance ofwrit of Certiorarified Mandamus calling for the records relating to the letter dated 08.3.2001 inreference No. 622/98-A3 dated 08.3.2001, consequentially the Note No. 18/2002 — P4 dated02.02.2002 on the file of the second respondent, quash the same and directing the secondrespondent to permit the Members of the petitioner's union till they are attaining age of 60 years.

W.P. Nos. 18612 and 20255 of 2000:For Petitioners : Mrs. AL. Gandhimathi For Respondent 1 : Mr. T.S.Sivagnanam, ACGSC

W.P. No. 380 of 2001:

For Petitioners : Ms. Chitra Sampath

For Respondents 1&2 : Mr. K. Rajendran, SCGSC

W.P No.640 of 2001:

For Petitioner : Mr.S.Kumar, SCfor Mr.R.Loganathan For Respondents 1&2 : Mr. K. Rajendran, SCGSC

For Respondents 3&4 : Mr. G.Venkatarakan,for Mr.R. Arumugam

W.P. No. 11991 of 2002:

For Petitioner : Mr.S.Doraisamy

For Respondent 1 : Mrs. Meera Gupta, ACGSC

For Respondent 2 : Mr. G.Venkatarakan,for Mr. V. Kalyanaraman C O M M O N O R D E R

In W.P. No. 18612 of 2000, there are 7 petitioners and in W.P. No. 20255 of 2000, there are 8petitioners and they are all working in the Chennai Port Trust, belonging to non-workmen category.The challenge in these two petitions is to item No.12 on the agenda of Resolution No. 72 passed inMeeting No.4 of the year 2000-2001 dated 31.8.2000 and Resolution No. 133 of Meeting No. 7 of theyear 2000-2001 of the Board of Trustees of the second respondent relating to the reduction of theage of superannuation for the employees of the second respondent Port Trust from 60 to 58 years.2. According to the petitioners, originally, when they entered into service, the Service Regulationsprovided that the employees will get their superannuation on attaining the age of 58 years.Subsequently, by an amendment made to the Regulations with effect from 31.5.1998, the age ofsuperannuation was increased from 58 to 60 years. Excepting the eighth petitioner in W.P. No.20255 of 2000, all the other petitioners were continuing the service on the basis of the amendedRegulations. However, once again, the Port Trust rolled back the age of retirement from 60 to 58years by their meeting held on 31.8.2000 and the age of superannuation was reduced with effectfrom 01.12.2000. The amended Regulations was sent for approval by the first respondent Union ofIndia by virtue of Section 28 of the Major Port Trusts Act. It is at this stage, W.P. Nos. 18612 and20255 of 2000, have been filed.

3. In W.P. No. 380 of 2001, there are 16 petitioners challenging the roll back of age of retirementfrom 60 to 58 years.

4. In W.P. No. 640 of 2001, there is only one petitioner,who again challenges the Resolution No.133of the Chennai Port Trust dated 30.11.2000.

5. In W.P. No. 11991 of 2002, the petitioner is the Chennai Dock Labour Board Employees'Progressive Union, represented by the General Secretary, challenging the letter dated 08.3.2001 aswell as Note dated 02.02.2002 by which the retirement age has been rolled back from 60 to 58years.

6. I have heard the arguments of Mrs. AL. Gandhimathi, learned counsel appearing for thepetitioner, Mr. T.S.Sivagnanam, learned Additional Central Government Standing Counselrepresenting the first respondent and Mr. G.Venkatarakan leading Mr.R. Arumugam, learnedcounsel appearing for the second respondent Port Trust in W.P. Nos. 18612 and 20255 of 2000 andfor the respondents 3 and 4 in W.P. No. 640 of 2001, Ms. Chitra Sampath, learned counsel appearingfor the petitioner W.P. No. 380 of 2001 and Mr. K. Rajendran, learned Senior Central GovernmentStanding Counsel appearing for the respondents in W.P. Nos. 380 and 640 of 2001, Mr. S. Kumar,learned Senior Counsel leading Mr. R. Loganathan, counsel appearing for the petitioner in W.PNo.640 of 2001 and Mr. S. Doraisamy, counsel for the petitioner, Mrs. Meera Gupta, learnedAdditional Central Government Standing Counsel representing the first respondent and Mr.G.Venkatarakan, leading Mr. V. Kalyanaraman, learned counsel appearing for the second respondentin W.P. No. 11991 of 2002 and have perused the records.

7. In the present batch of cases, some of the petitioners are workmen within the meaning of Section2(s) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'] and their service conditions aregoverned by the Certified Standing Orders framed under the Industrial Employment (StandingOrders) Act, 1946.

8. It is an admitted fact that originally, the age of superannuation was 58 years and pursuant to thepolicy of the Government as well as the recommendations of the Fifth Pay Commission, the age ofretirement of the Central Government employees was increased to 60 years. All the Public SectorUndertakings including major Port Trusts were given the liberty to increase the retirement age as 60years. Therefore, the Chennai Port Trust, in exercise of the power conferred under Section 28 of theMajor Port Trusts Act, 1963 [for short, 'Act'], amended the Regulations and increased the age ofretirement as 60 years. Correspondingly, the Certified Standing Orders were also amended bybringing the age of retirement on par with the other employees, viz., 60 years.

9. However, due to a change of policy by the Central Government, once again, all the Public SectorCorporations and Statutory Boards were given power to roll back the age of retirement to 58 from60 years. The Chennai Port Trust also accordingly, rolled back the age of retirement by theimpugned Resolution passed by the Board of Trustees and the age of superannuation was reduced to58 years. In the light of the change in the statutory Regulations, even the Certified Standing Orderswere also amended.

10. The first submission of the learned counsel appearing for the petitioners is that the serviceconditions of the petitioners, being employees came from the Central Government service, arecovered by Section 29(f) of the Act. Therefore, it cannot be altered. Section 29(f) of the Act statesthat the employees' services were taken up on the terms and conditions of service, unless and untilthe service was altered by the Board. Even otherwise, as per Section 28(c) of the Act, the Board hasalso been empowered to alter the terms and conditions of service of persons, who becomesubsequently employees of the Board, in terms of Section 29(1)(f) of the Act. Therefore, this argument does not hold good.

11. The second submission of the learned counsel appearing for the petitioners is that Section 9-A ofthe I.D. Act is attracted. Therefore, inasmuch as the Board had not given any notice to all theemployees in terms of Section 9-A of the I.D. Act, the challenge made by them is illegal. Some of thepetitioners are not workmen and, therefore, they do not have the protection in terms of the I.D. Act.Even assuming that such provisions are covered by the I.D. Act and requires a notice under Section9-A of the I.D. Act, the question has to be answered against them. Though Section 9-A of the I.D. Actcontemplates 21 days notice, the proviso to the said Section clearly states that if there are statutoryregulations, no notice is required. The only criteria is that those statutory Regulations have to bepublished in the Government Gazette. As stated already, the amendments have been published in theGovernment Gazette and hence, the question of any notice being given under Section 9-A does notarise.

12. In the present case, even the Certified Standing Orders were also amended in tune with theService Regulations. Even though a contention was raised that the workers were not given individualnotice as required under law for amending the Standing Orders, no appeal was filed by anyworkman against the Certified Standing Orders. As such, it has become final. Therefore, such a pleacannot be raised for the first time before this Court.

13. Even though the matters were argued at length and several decisions were cited by both sides, itis enough to refer to the decisions rendered by various High Courts with reference to the roll back ofage of retirement in respect of various Port Trusts functioning under the Major Port Trusts Act.

14. The Orissa High Court dealt with a similar question in respect of the workmen of Paradip PortTrust in an unreported judgment in a batch of cases in CJC 13265 of 2000, etc., disposed on21.3.2001 and a learned Judge of the Orissa High Court upheld the roll back in retirement age ofemployees of the Port Trust. (See Narayan Chandrasahoo and others v. Union of India and others).

15. Further, a Division Bench of the Bombay High Court (presided by the Hon'ble Justice A.P. Shah,as he then was) in a matter relating to the Bombay Port Trust, by its judgment dated 30.01.2001,repelled the contentions of the workmen advanced against the roll back in retirement age. [See W.P.No. 719 of 2000 (Transport and Dock Workers' Union v. Board of Trustees of the Port of Bombay)].

16. Subsequently, in a judgment reported in 2002 (III) L.L.J. 1098 relating to Calcutta Port ShramikUnion and others v. Board of Trustees of Calcutta Port and others], the Calcutta High Court has alsoupheld the decision of the Port Trust in rolling back the age of retirement of its employees. If that isthe State of the Law for three Major Ports, the petitioners, by no stretch of imagination, can advancefancy arguments to take a different view in respect of the Chennai Port alone. This Court is notpersuaded to take a different view.

17. Under the above circumstances, the objections raised by the petitioners with reference to theimpugned Resolution does not stand to reason. Similar view was taken by this Court in W.P. (MD)No. 8162 of 2005, etc. batch cases, vide common order dated 09.7.2007 in respect of S. Perumal v.The Government of India and others relating to Tuticorin Port Trust. Therefore, no different view canbe taken in respect of the Chennai Port Trust.

18. In the light of the above, all the writ petitions fail and deserve to be dismissed. Accordingly, theyare dismissed. However, there will be no order as to costs.

Index : Yes 16..11..2007Internet : YesgriTo

1. The Secretary to GovernmentGovernment of IndiaMinistry of Surface TransportNew Delhi

2. Chennai Port TrustRep. by its ChairmanChennai

3. The SecretaryChennai Port TrustChennai4. The Financial Advisor &The Chief Accounts OfficerChennai Port TrustChennai K.CHANDRU, J.

gri

Pre-Delivery Common order in

W.P. Nos.18612 of 2000, etc. batch

Delivered on16..11..2007