Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 16..11..2007Coram: The Hon'ble Mr. Justice K.CHANDRUW.P. Nos.18612 and 20255 of 2000, 380 and 640 of 2001 and 11991 of 20021.D.Purushothaman2.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 2001G.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 https://hcservices.ecourts.gov.in/hcservices/ vs.

The Government of IndiaRep. by Secretary to Government Ministry 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 20012.Chennai Port TrustRep. by its ChairmanChennai.. R1 in W.P. No. 640 of 2001 and R2in 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 20014.The Financial Advisor &The Chief Accounts OfficerChennai Port TrustChennai.. R4 in W.P. No.640 of 2001W.P. Nos. 18612 and 20255 of 2000 filed under Article 226 ofthe Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to theresolution No.72 (Item No.12 on the agenda) of the meeting No.4 ofthe year 2000-2001 dated 31.8.2000 and resolution No. 133 of Meeting No. 7 of the year 2000-2001 of the Board of Trustees of thesecond respondent relating to the reduction of the age ofsuperannuation for the employees of the second respondent from 60to 58 and quash the same and forbear the respondents from givingeffect to any such amendment or change.

O R D E RIn W.P. No. 18612 of 2000, there are 7 petitioners and in W.P.No. 20255 of 2000, there are 8 petitioners and they are all workingin the Chennai Port Trust, belonging to non-workmen category. Thechallenge in these two petitions is to item No.12 on the agenda of Resolution No. 72 passed in Meeting No.4 of the year 2000-2001dated 31.8.2000 and Resolution No. 133 of Meeting No. 7 of the year2000-2001 of the Board of Trustees of the second respondentrelating to the reduction of the age of superannuation for theemployees of the second respondent Port Trust from 60 to 58 years.

According to the petitioners, originally, when theyentered into service, the Service Regulations provided that theemployees will get their superannuation on attaining the age of 58years. Subsequently, by an amendment made to the Regulations witheffect from 31.5.1998, the age of superannuation was increased from58 to 60 years. Excepting the eighth petitioner in W.P. No.20255 of 2000, all the other petitioners were continuing theservice on the basis of the amended Regulations. However, onceagain, the Port Trust rolled back the age of retirement from 60 to58 years by their meeting held on 31.8.2000 and the age ofsuperannuation was reduced with effect from 01.12.2000. Theamended Regulations was sent for approval by the first respondentUnion of India by virtue of Section 28 of the Major Port TrustsAct. It is at this stage, W.P. Nos. 18612 and 20255 of 2000, havebeen filed.

In W.P. No. 380 of 2001, there are 16 petitionerschallenging the roll back of age of retirement from 60 to 58 years.

In W.P. No. 640 of 2001, there is only one petitioner, whoagain challenges the Resolution No.133 of the Chennai Port Trustdated 30.11.2000.

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

I have heard the arguments of Mrs. AL. Gandhimathi, learned counsel appearing for the petitioner, Mr. T.S.Sivagnanam, learned Additional Central Government Standing Counsel representing https://hcservices.ecourts.gov.in/hcservices/ the first respondent and Mr. G.Venkatarakan leading Mr.R. Arumugam, learned counsel appearing for the second respondent Port Trust inW.P. Nos. 18612 and 20255 of 2000 and for the respondents 3 and 4in W.P. No. 640 of 2001, Ms. Chitra Sampath, learned counselappearing for the petitioner W.P. No. 380 of 2001 and Mr. K.Rajendran, learned Senior Central Government Standing Counselappearing for the respondents in W.P. Nos. 380 and 640 of 2001, Mr.S. Kumar, learned Senior Counsel leading Mr. R. Loganathan, counselappearing for the petitioner in W.P No.640 of 2001and Mr. S.Doraisamy, counsel for the petitioner, Mrs. Meera Gupta, learnedAdditional Central Government Standing Counsel representing thefirst 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.

In the present batch of cases, some of the petitionersare workmen within the meaning of Section 2(s) of the IndustrialDisputes Act, 1947 [for short, 'I.D. Act'] and their serviceconditions are governed by the Certified Standing Orders framedunder the Industrial Employment (Standing Orders) Act, 1946.

It is an admitted fact that originally, the age ofsuperannuation was 58 years and pursuant to the policy of the Government as well as the recommendations of the Fifth PayCommission, the age of retirement of the Central Governmentemployees was increased to 60 years. All the Public SectorUndertakings including major Port Trusts were given the liberty toincrease the retirement age as 60 years. Therefore, the ChennaiPort Trust, in exercise of the power conferred under Section 28 ofthe Major Port Trusts Act, 1963 [for short, 'Act'], amended the Regulations and increased the age of retirement 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.

However, due to a change of policy by the CentralGovernment, once again, all the Public Sector Corporations and Statutory Boards were given power to roll back the age ofretirement to 58 from 60 years. The Chennai Port Trust alsoaccordingly, rolled back the age of retirement by the impugnedResolution passed by the Board of Trustees and the age ofsuperannuation was reduced to 58 years. In the light of thechange in the statutory Regulations, even the Certified StandingOrders were also amended.

The first submission of the learned counsel appearing forthe petitioners is that the service conditions of the petitioners, being employees came from the Central Government service, arecovered by Section 29(f) of the Act. Therefore, it cannot bealtered. Section 29(f) of the Act states that the employees'services were taken up on the terms and conditions of service, https://hcservices.ecourts.gov.in/hcservices/ unless and until the service was altered by the Board. Evenotherwise, as per Section 28(c) of the Act, the Board has also beenempowered to alter the terms and conditions of service of persons, who become subsequently employees of the Board, in terms of Section29(1)(f) of the Act. Therefore, this argument does not holdgood.

The second submission of the learned counsel appearingfor the petitioners is that Section 9-A of the I.D. Act isattracted. Therefore, inasmuch as the Board had not given anynotice to all the employees in terms of Section 9-A of the I.D.Act, the challenge made by them is illegal. Some of the petitionersare not workmen and, therefore, they do not have the protection interms of the I.D. Act. Even assuming that such provisions arecovered by the I.D. Act and requires a notice under Section 9-A ofthe I.D. Act, the question has to be answered against them. Though Section 9-A of the I.D. Act contemplates 21 days notice, theproviso to the said Section clearly states that if there arestatutory regulations, no notice is required. The only criteriais that those statutory Regulations have to be published in the Government Gazette. As stated already, the amendments have beenpublished in the Government Gazette and hence, the question of anynotice being given under Section 9-A does not arise.

In the present case, even the Certified Standing Orderswere also amended in tune with the Service Regulations. Eventhough a contention was raised that the workers were not givenindividual notice as required under law for amending the StandingOrders, no appeal was filed by any workman against the CertifiedStanding Orders. As such, it has become final. Therefore, such a plea cannot be raised for the first time before this Court.

Even though the matters were argued at length and severaldecisions were cited by both sides, it is enough to refer to thedecisions rendered by various High Courts with reference to theroll back of age of retirement in respect of various Port Trustsfunctioning under the Major Port Trusts Act. 14. The Orissa High Court dealt with a similar question inrespect of the workmen of Paradip Port Trust in an unreportedjudgment in a batch of cases in CJC 13265 of 2000, etc., disposedon 21.3.2001 and a learned Judge of the Orissa High Court upheldthe roll back in retirement age of employees of the Port Trust. (See Narayan Chandrasahoo and others v. Union of India andothers).

Further, a Division Bench of the Bombay High Court(presided by the Hon'ble Justice A.P. Shah, as he then was) in amatter relating to the Bombay Port Trust, by its judgment dated30.01.2001, repelled the contentions of the workmen advanced https://hcservices.ecourts.gov.in/hcservices/ against the roll back in retirement age. [See W.P. No. 719 of2000 (Transport and Dock Workers' Union v. Board of Trustees ofthe Port of Bombay)].

Subsequently, in a judgment reported in 2002 (III) L.L.J.1098 relating to Calcutta Port Shramik Union and others v.Board of Trustees of Calcutta Port and others], the Calcutta HighCourt has also upheld the decision of the Port Trust in rollingback the age of retirement of its employees. If that is the State of the Law for three Major Ports, the petitioners, by nostretch of imagination, can advance fancy arguments to take adifferent view in respect of the Chennai Port alone. This Courtis not persuaded to take a different view.

Under the above circumstances, the objections raised bythe petitioners with reference to the impugned Resolution does notstand to reason. Similar view was taken by this Court in W.P.(MD) No. 8162 of 2005, etc. batch cases, vide common order dated09.7.2007 in respect of S. Perumal v. The Government of India andothers relating to Tuticorin Port Trust. Therefore, nodifferent view can be taken in respect of the Chennai Port Trust.

In the light of the above, all the writ petitions failand deserve to be dismissed. Accordingly, they are dismissed. However, there will be no order as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The Secretary to Government Government of IndiaMinistry of Surface TransportNew Delhi2.The Chairman, Chennai Port TrustChennai3.The SecretaryChennai Port TrustChennai 600 001. https://hcservices.ecourts.gov.in/hcservices/

4. The Financial Advisor &The Chief Accounts OfficerChennai Port TrustChennai 600 001.1 cc to M/s. A.L. Gandhimathi, Advocate, Sr. 680251 cc to mr.S. Doraisamy, Advocate, sr. 678721 cc to M/s. Chitra Sampath, Advocate, sR. 679351 cc to M/s. Aiyar and Dolia, Advocate, Sr. 678551 cc to Mr.R. Loganathan, Advocate, Sr. 679151 cc to Mr.R. Arumugam, Advocate, Sr. 678681 cc to mr.T.S. Sivagnanam, SCCG, SR. 67836W.P. Nos.18612 of 2000, etc. batchRS (CO)kk 27/11