Decided on December 02,1954


Cited Judgements :-



Chagla, C.J. - (1.)A short question has been raised in this appeal which however interesting is really not capable of very great elaboration. The petitioners, which are two limited companies, submitted certain draft standing orders to the Commissioner of Labour and the Commissioner certified them with certain, modifications. The petitioners objected to the modifications made by the Commissioner and appealed against his decision. The Appellate, Authority confirmed the decision of the Commissioner of Labour, and the petitioners applied for a writ of 'certiorari' against the decision of the appellate authority, and Coyajee J. quashed the order of the appellate authority, and the Commissioner of Labour has come in appeal.
(2.)In order to decide the rights of the parties we have to consider and construe a very short, and in our opinion a very simple Act passed by the Indian Legislature being the Industrial Employment (Standing Orders) Act (20 of 1946). The Act is entitled: "An Act to require employers in industrial establishments formally to define conditions of employment under them." . The preamble of the Act is in the following terms: "Whereas it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them." Section 1 deals with the application of the Act. Section 2 is the interpretation section, and the only relevant definition which may be referred to is in Clause (g) which defines "standing orders" as rules relating to matters set out in the Schedule, and when we turn to the Schedule it deals with 11 matters which have got to be provided in the standing orders under this Act. Then comes Section 3 and Sub-section (1) casts an obligation upon every employer of an industrial establishment to whom the Act is made applicable to submit to the certifying officer, who in this case is the Commissioner of Labour, five copies of the draft standing orders proposed by him for adoption in his industrial establishment. Sub-section (2) deals with what provision has got to be made in this draft, and it lays down: "Provision shall be made in such draft "for every matter set out in the Schedule which, may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model." It is clear from the language used by the Legislature that a duty and obligation is cast upon the employer to make provision for every matter embodied in the Schedule, and also where model standing orders have been prescribed, to bring this draft in conformity with such model, the only qualification being that the conformity with the model should be so far as is practicable. In other words, unless it is impracticable it is incumbent upon the employer to prepare a draft which is in conformity with the model prescribed. Then Section 4 deals with conditions for certification of standing orders. Two conditions are laid down which it is necessary to comply with in order that the standing orders should be certified. The first condition is that provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and the second condition is that the standing orders are otherwise in conformity with the provisions of this Act. It will be noticed that really Section 4(a) deals with the first obligation cast upon the employer under Section 3(2) which is to deal with every matter set out in the Schedule, and Section 4(b) deals with the second obligation cast upon the employer and which is to have the draft conform to the model. Section 4(b) requires the standing orders to be Otherwise in conformity with the provisions of this Act and one of the clear provisions of the Act is that the standing orders shall, so far as practicable, be in conformity with the model standing orders. Then there is a proviso to Section 4 which lays down that it shall not be the function of the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. If the draft submitted by the employer complies with the two conditions laid down in Clauses (a) and (b), then the certifying officer cannot sit in judgment upon that draft and investigate it from the point of view of reasonableness or fairness. But the proviso only comes into operation after the two conditions laid down in Section 4 have been complied with. It would not be open, for instance, to the certifying officer to say that although the standing orders conform to the model, in his opinion even sol the standing orders arc not fair or reasonable. The Act does not permit the employee to challenge a standing order on the ground of its being unfair or unreasonable, but an employee can challenge the standing orders either on the ground that there is an omission in them with regard to any matter included in the Schedule or, which is more important, that any one of the standing orders docs not conform to the model standing orders. It the challenge is made by the employee, that challenge can be repelled by the employer if the employer satisfies the certifying officer that he has not compiled with the model standing orders because it was not practicable to do so.
(3.)Section 5 deals with the procedure that the certifying officer has to follow on receipt of the draft standing orders. He has got to send a copy to the trade union, and where there is no trade union, to the workmen in such manner as he may prescribe. Sub-section (2) of Section 5 confers the power upon the certifying officer after hearing the employer and the employee to decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under the Act and shall make an order in writing accordingly. Therefore the certifying officer has been given the jurisdiction to modify or add to the draft, but his jurisdiction is limited to seeing that the draft complies with the conditions laid down in Section 4. It is only for that limited purpose that he has the jurisdiction to amend or modify the draft. Therefore, if he finds that a draft does not conform to the model and if he also finds that it is not impracticable to conform to that model, then it is open to him under this sub-section to amend or modify the draft in order to bring it in conformity with tile model standing orders. Sub-section (3) of Section 5 provides for the certifying officer certifying the draft standing orders after making the modifications referred to in Sub-section (2) and to sending copies of it to the employer and to the trade union or other prescribed representatives of the workmen.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.