TaxTMI 
TaxTMI 
2004 (3) TMI 742
X X X X Extracts X X X X
X X X X Extracts X X X X
....-organisation of the State. The State of Madhya Pradesh enacted the Madhya Pradesh Industrial Relations Act, 1960 (for short 'the 1960 Act') with a view to regulate the relations of employers and employees in certain matters, to make provisions for settlement of industrial disputes and to provide for matters connected therewith. In the year 1961, the State of Madhya Pradesh also enacted Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (for short 'the 1961 Act') to provide for rules defining with sufficient precision of certain matters relating to the conditions of employment of employees in the State of Madhya pradesh. The Schedule appended to the 1961 Act provided for the standard standing orders and item No. XV thereof relates to 'age of retirement'. On or about 19.10.1963, the Board purported to have adopted fundamental rules, supplementary rules and other service conditions as in force in Madhya Pradesh Civil Services (Temporary Service) Rules, Civil Services (Classification, Control and Appeal) Rules. The said rules, however, had no application as regard work-charged employees. On or about 16.9.1976 by a notification issued under Secti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as such the conditions of service of the employees of the Board would be governed thereby. (ii) Rule 14-A was brought into animation in the year 1973 but it was brought into existence the amendment after a period of 8 years in the year 1981. The intention is writ large that proviso carves out an exception to enable the employer granting freedom, independence and liberty to enter into an agreement/settlement to confer more benefit to an employee which is in tune with the Industrial Law. (iii) As the Board is empowered to make regulation in exercise of its power under Section 79(c) of the Act, it is also entitled to issue administrative instructions in absence of the regulation holding the field. As after 1984 the Board could not have passed any administrative order without amending the regulation and having regard to the fact that the relevant notifications were not published in the official gazettee, they would be non est in law. As by reason of the notification dated 14.7.2000, the Board had adopted the regulations made in the year 1963, subsequent amendments which had taken place in the regulations and supplementary rules increasing the age of superannuation to 60 years will ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing on behalf of the respondent, on the other hand, would submit that the decision of this Court in Hari Shankar Jain (supra) cannot be said to have laid down good law inasmuch as therein it had not been considered that the Electricity (Supply) Act, 1948 is a law relatable to Entry 38 of List III of Constitution of India; and the 1960 Act and the 1961 Act having been made in terms of Entries 22, 23 and 24 of List III, Article 254 (2) of the Constitution of India would not have any application and in that view of the matter the agreement dated 10.6.1960 cannot override the statutory power conferred upon the Board under Section 79 (c) of the Act in terms whereof the Board can make regulations laying down duties of its officers and other employees and fixing their salaries, allowances and other conditions of service. For enforcing the 1963 Regulations, Mr. Rao would urge, there was no statutory requirement to notify the same in the gazette as prior to 15.3.1984, there did not exist any such statutory requirement. It was urged that as the Board by a notification dated 19.10.1963 adopted fundamental rules for its employees except those in work-charged establishments and further adopted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the provisions of this Act or was the result of mistake, misrepresentation, fraud, undue influence, coercion or threat. (3) An appeal shall lie to the Industrial Court against an order of the Registrar refusing to register an agreement under sub-section (2). The provisions of section 22 shall apply to such appeal. (4) An agreement registered under this section shall come into operation on the date specified therein or if no date is so specified on its being recorded by the Registrar." "99. Agreements etc., when to case to have effect:- (1) A registered agreement or a settlement or award shall cease to have effect on the date specified therein or if no such date is specified therein on the expiry of the period of two months from the date on which notice in writing to terminate such agreement, settlement or award, as the case may be, is given in the prescribed manner by any of the parties thereto to the other parties: Provided that no such notice shall be given till the expiry of six months after the agreement, settlement or award comes into operation. (2) Nothing in this section shall prevent the terms of a registered agreement or a settlement or an award in terms of an agreemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the Standing Order framed under the 1961 Act. (ii) Whether regulation dated 19.10.1963 issued by the Board adopting fundamental and supplementary rules for its employees except those in work-charged establishment and published in gazette on 26.12.2000 the application of the 1961 Act by reason of Section 2(2) thereof stand excluded. (iii) Whether the respondent Board acted illegally and without jurisdiction in issuing the notification dated 26.12.2000 reducing the age of Class III employees to 58 years. FINDINGS: It is trite that India being a Union of State both the Parliament and the State Legislature can frame laws having regard to their respective legislative competence enumerated in the three Lists contained in the Seventh Schedule of the Constitution of India. Before analyzing the relevant provisions of the State Acts vis-`-vis 'the Act', we may have an overview of the constitutional scheme. Articles 245 and 246 of the Constitution of India read with the Seventh Schedule and Legislative Lists contained therein prescribe the extent of legislative competence of Parliament and State Legislatures. Parliament has exclusive power to make laws with respect of any of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w with respect to the matters, then the law so made by the Legislature of such State shall, if it has been reserved for consideration of the President and has received its assent, prevail in that State. It is not in dispute that the 1961 Act has received the assent of the President of India and, thus, would prevail over any parliamentary law governing the same field. It is no doubt true that the entire field relating to 'Electricity' is covered under Entry 38 of List III pursuant whereto the Indian Electricity Act and Electricity (Supply) Act, 1948 were enacted but thereby the State's legislative competence to exercise its legislative power under Entries 22, 23 and 24 was not taken away. Section 79 (c) of the Electricity (Supply) Act provides for an incidental power upon the Board. The same would, therefore, not prevail over the specific legislative competence granted to the State to regulate the conditions of service between an industrial undertaking and its employees nor thereby the State Government would be denuded of its legislative power relating to regulation of the industrial relations. Furthermore, both the Parliament and the State within their own respective ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... existence in 1961. Per se, therefore, the provisions of the 1961 Act shall apply to the undertakings of the Board. Sub-Section (2) of Section 2 of the 1961 Act makes an exception to the applicability of the Act stating that nothing therein shall apply to the employees of an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations or any other rules or regulations that may be notified in this behalf the State Government in the official gazette apply. For excluding the operation of the 1961 Act, it is imperative that an appropriate notification in terms of Section 2(2) of the 1961 Act is issued. The Board adopted Fundamental and Supplementary Rules which per se were not applicable to the employees of their undertaking. They were adopted by the Board. The provisions of Fundamental and Supplementary Rules to the extent it was made applicable, having regard to the provisions contained in Section 79 (c) would, thus, be deemed to be the regulations governing the terms and conditions of the employees of the Board. The requisite notificati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the term of any agreement on the subject if the age of retirement is not less than 58 years. We have noticed that Clause (S) (9) of the settlement refers to the age of retirement which was registered in terms of Section 33 of the 1960 Act. The said agreement, keeping in view of the proviso appended to Rule 14A and having been issued in compliance of the requirements of the Act will operate in the field. In terms of the said agreement the age of retirement was to be the same as that of the employees of the Central Government on acceptance of the recommendations of the Fifth Pay Commission. The Central Government in exercise of its power conferred by the proviso to Article 309 of the Constitution and Clause (5) of Article 148 made rules known as Fundamental (Amendment) Rules, 1998 in terms whereof Clause (a) was amended in the following terms: "(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of preced....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsurance Corporation and Others Vs. D.J. Bahadur [(1981) 1 SCC 315] and Karnataka State Road Transport Corporation vs. Vs. KSRTC Staff and Workers' Federation and Another [(1999) 2 SCC 687] which have been rendered having regard to the phraseology used in Sub-Section (2) of Section 2 of the 1961 Act will thus have no application to the fact of the present case. The proviso appended to Rule 14A of the 1973 Rules would, thus, operate provided there exists a valid agreement. Furthermore, the terms and conditions laid down in the certified order may have the force of law but they by themselves do not constitute statutory provisions. [See Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, [ (1995) 5 SCC 75]. Rule 14A of the 1973 Rules prescribes the age of superannuation to 58 years. It can be enhanced upto the age of 60 years if the services of the person are necessary in the interest of the undertaking but he shall not be retained in service after the age of 60 years unless in terms of the proviso, there exists any agreement/settlement or award to the contrary. The enhanced age of superannuation of members of the appellant Association was, theref....