Shelat, J. - (1.) This appeal, by special leave, is by the employer and raises the question as to the scope of Section 10(2) of the Industrial Employment (Standing Orders) Act, 20 of 1946, as amended by Act 36 of 1956 (referred to hereinafter as the Act.)
(2.) The Standing Orders of the Appellant-company were certified on August 7, 1962 by the Regional Labour Commissioner, Central, under Section 4 of the Act. Both the company and the workmen filed appeals against the said order which were disposed of by the Appellate Authority under Section 6. Sometime thereafter the respondent-union applied for certain modifications, some of which were certified by the Regional Labour Commissioner by his order dated December 28, 1963. The Appellant-company filed an appeal against the said order which was disposed of by the Chief Labour Commissioner in April 1964. On April, 25, 1965 the respondent union made a further application for modifications. The Regional Labour Commissioner by his order dated September 2, 1965 allowed certain modifications but rejected the rest. The union thereupon appealed against the said order. After hearing the parties the Chief Labour Commissioner passed his impugned order dated October 27, 1967 ordering certification of certain modifications. Though the Appellant-company objected at first to all the modifications, Counsel pressed the appeal in respect of four modifications only. The first modification challenged is in Standing Order 9, clause (a) which, as unamended, read as follows: "The railway under the terms of employment has the right to terminate the services of a permanent workman on giving him one month's notice in writing or one month's pay may be paid in lieu of notice." The union claimed that the management should give reasons even when they terminated the services of an employee by a discharge simpliciter. The modification allowed directed reasons to be recorded in writing and communicated to the workman if he so desires at the time of discharge but not if the management considers it inadvisable. The second modification is in Standing Order 12, clause (A), which, in its unamended form, read as follows: "When any of the penalties specified in O. 9 is imposed upon a workman an appeal shall lie to the authority next above that imposing the penalty. An appeal shall lie to the Managing Agents only on original orders passed by the General Manager ********** " The union's plea was that some time limit was necessary for the disposal of the appeals as the Managing Agents who are the Appellate Authority against the orders of the General Manager took months to dispose of such appeals thereby delaying the workman from raising an industrial dispute in time and seek timely relief. The modification allowed was that every such appeal shall be disposed of by the Appellate Authority within 60 days from the date of its receipt. The third modification is in Standing Order 11 (vii) which read as follows: "Removal from service:A workman shall be liable to be removed from service in the following circumstances: (a) Inefficiency. ********** " The modification allowed was as follows: "In case of inefficiency due to physical unfitness the workman whom the management considers suitable for some alternative employment shall be offered the same on reasonable emoluments having regard to his former emoluments." The modification contains, it will be noticed, four limitations:(1) it applies only to cause of removal on the ground of physical unfitness, (2) the consideration of suitability for an alternate employment is left to the management, (3) the existence of alternative post, and (4) the question as to what reasonable emoluments should be is left to the management. The fourth modification is in Standing Order 11 (vii) (c) which, in its unamended form, was as follows: "Every person against whom departmental enquiry is being made shall be supplied with a copy of the findings in connection with his dismissal and removal from service. The workman shall also be supplied with a copy of the proceedings of the enquiry committee as soon as possible after the conclusion of the enquiry proceedings in his case and be allowed to defend his case through union's representative." The modification allowed was as follows: "In case the management propose to remove the workman from service they shall serve on the workman separate show cause notice to that effect."
(3.) Counsel for the company challenged the impugned order in its two facets:the scope of the power of modification under Section 10 (2), and on merits on the ground that the modifications did not stand the test of reasonableness and fairness. On the first question his contention was that the jurisdiction an powers of the authorities under the Act to certify modifications of the existing Standing Orders are limited to cases where a change of circumstances is established. In the course of his argument, counsel, however, qualified the contention by conceding that if at the time of the last certification certain circumstances were, for one reason or the other, omitted from consideration they would constitute a valid reason for modification and the modification would be granted even though in such a case a change of cirumstances has not occurred. He next contended that in any case though Section 11 of the Code of Civil Procedure did not apply, principles analogous to res judicata would apply to an application for modification unless such application is occasioned by new circumstances having arisen or is based on new facts. Briefly, the argument was that the object of the Act is to have conditions of service of workmen in an establishment defined with precision, and therefore, to have standing orders dealing with such conditions certified. For industrial harmony and peace it is necessary, that those conditions are stable and do not remain undefined or fluctuating. In pursuance of this object the Act confers finality to such certified standing orders or modifications thereof under S. 6. The contention was that if modifications were allowed without any restraint, there would be multiple applications specially as individual workmen have been given the right to apply for modifications. Therefore, the word 'final' in Section 6, it was argued, must be so read as to mean that an application for modification under section 10 (2) can only be maintainable if it is justified on the ground of a change of circumstances having occurred after the last certification, which of course, according to the concession made by counsel, also would include cases where certain circumstances were not taken into account at the time of the last certification.;