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M/S. HINDUSTAN LEVER LTD. versus PRESIDING OFFICER AND OTHERS

High Court of Judicature at Allahabad

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M/S. Hindustan Lever Ltd. v. Presiding Officer And Others - WRIT - C No. 13031 of 2004 [2005] RD-AH 250 (25 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.  

This writ petition has been directed against the award dated 13.3.2003 passed by the Presiding Officer, Industrial Tribunal, Kanpur, U.P. in Industrial Dispute No. 188 of 2000.

The facts of the case in a short compass are that the petitioner is manufacturer of non-soapy detergent bars in its factory at Orai.  The terms and conditions of the employees of the factory are governed by the certified Government Orders. The relevant extract of Clause 28 of the certified Standing Orders providing for payment of subsistence allowance in controversy in this case, is as under: -

"28 SUBSISTENCE ALLOWANCE

1. A workman who is placed under suspension shall during the period of such suspension be paid a subsistence allowance at the following rates:

a).......

b).......

The payment of subsistence allowance under this standing order shall be subject to the workman concerned not taking up any employment during the period of suspension."

The Model Standing Orders framed under the Industrial Employment Standing Orders Act, 1946 were subsequently amended in 1992. The Standing Order No. 24 of the U.P. Model Standing Orders in 1992 was added in sub-clause (4) as under: -

"No attendance of the suspended employee shall be required to be recorded during suspension period. But the suspended employee will indicate the place of domicile during suspension, which shall not be altered without previous permission of the employer."

The respondent-workmen, namely, Shri Awadh Narain Dwivedi, Shri Shiv Kumar Mishra and Shri Ravindra Pathak working in the petitioner-Company were suspended on 5.12.1998 under Clause 26 (15) of the certified Standing Orders for committing acts of misconducts subversive of discipline said to have been committed by them in the premises of the Company. They were directed to mark their attendance at the main gate of the factory at 11 A.M. on all working days in the register kept there for the purpose as a measure to ascertain that they are not taking employment elsewhere during the period of suspension. The concerned workmen were issued separate charge-sheets dated 11.12.1998 which have been appended collectively as Annexure P-2 to the writ petition.

The workmen did not mark their attendance as directed by the employers in the order of suspension.

The Conciliation Officer, Jhansi Region, Jhansi called the parties for conciliation. During the conciliation proceedings held on 8.10.1999 the Conciliation Officer examined the certified Standing Orders and after hearing the parties directed the workmen to mark their attendance on all the working days in the register kept in the factory security office at the main gate of the factory. The workmen thereafter marked their attendance irregularly.

It is averred in the writ petition that despite repeated advice from the management as well as from the Conciliation Officer the respondent-workmen continued to willfully and deliberately defy the lawful orders and did not mark their attendance on the working days as directed in their suspension letters dated 5.12.1998. They were therefore paid subsistence allowance only for the days on which they marked attendance in the register kept at the factory gate for this purpose during the period of their suspension and not for the days they remained absent.

The State Government thereafter referred the following matter of dispute suo-moto for adjudication by the Industrial Tribunal: -  

^^D;k lsok;kstdksa }kjk vius fuyfEcr deZpkjh loZ Jh vo/k ukjk;.k f}osnh] f'ko dqekj feJk o johUnz dqekj ikBd dks fnukad 6-12-98 ¼ gkftjh dh frfFk;ksa dks NksM+dj ½ ls fuyEcu HkRrk @ thou fuokZg HkRrk u fn;k tkuk vuqfpr rFkk voS/kkfud gS\ ;fn gka] rks lacaf/kr Jfed D;k fgrykHk @ {kfriwfrZ ikus ds vf/kdkjh gSa] rFkk vU; fdl fooj.k lfgr\**

;g lanHkZ 'kklu us Lor% fd;k gS vksj dkj[kkuk izcU/kd eS0 fgUnqLrku yhoj fy0 dks ,di{k vksj vo/k ukjk;.k f}osnh] f'ko dqekj feJk o johUnz dqekj ikBd izHkkfor Jfed vksj fgUnqLrku yhoj deZpkjh ;wfu;u dks nwljk i{k cuk;k gSA"

The petitioner as well as the respondents filed their written statements and rejoinder written statements before the Industrial Tribunal, but none of the parties led oral evidence.

The Industrial Tribunal by the impugned award held that the direction to the suspended employees to mark their attendance at the factory gate during the period of suspension was unjustified and illegal. It further directed the management to pay subsistence allowance to the workmen concerned for the whole of the period of their suspension including the days attendance was not marked by them.  

The counsel for the petitioner has firstly urged that the alleged dispute relating to payment of subsistence allowance is not an industrial dispute as it has not been espoused either by the Union or by a substantial number of workmen. It is also urged that the matter in dispute is also not covered by Section 2-A of the U.P. Industrial Disputes Act, 1947. He has referred to the averments made in paragraph 4 of the written-statement of the petitioner filed before the Labour Court wherein an objection has been taken to the effect that an individual dispute can be deemed to be an industrial dispute only if it pertains to the discharge, dismissal, retrenchment or termination of the services of an employee under Section 2-A of the U.P. Industrial Disputes Act, 1947 and submits that a dispute regarding payment of subsistence allowance is not covered by Section 2-A of the U.P. Industrial Disputes Act, 1947, but is an individual dispute, hence it could not have been raised without being espoused by the Union or a substantial number of workmen.

The counsel for the respondents has also drawn the attention of the Court to the order reference, which has been quoted in the judgment and submits that the workmen had not raised the industrial dispute but it has been suo moto referred by the State Government and hence there was no question of espousal of the dispute by any union or substantial number of workmen. He submits that since it was a suo moto reference there was no necessity of its espousal by the Union or substantial number of workmen under Section 4-K of the U.P. Industrial Disputes Act as the State Government has full authority to refer any industrial dispute which in its opinion is apprehended or exists.  

The array of the parties in the reference order shows the Factory Manager, M/s Hindustan Lever Ltd. on the one side and Awadh Narain Dwivedi, Shiv Kumar Misra and Ravindra Kumar Pathak as the affected workers residents of House No. 71, Sushil Nagar, Jalaun Road, Near Chungi Orai, District Jalaun and the Karmchari Union of M/s Hindustan Lever Ltd. as the other side, that is to say that the dispute referred was in the opinion of the State a dispute existed or apprehended between the Management and the workers through their Union.  Item 2 of the First Schedule provides that the Labour Court shall have jurisdiction in respect of "the application and interpretation of Standing Orders", hence the matter or subsistence allowance under the Standing Orders is a matter of Industrial Dispute and can be referred by the State Government in exercise of its powers under Section 4-K of the U.P. Industrial Disputes Act, 1947. Since the State Government had referred the matter in dispute suo moto in exercise of powers under the Act and as such no question of espousal of dispute by the workmen arises and the question whether it was espoused or not is irrelevant and suo moto reference is good.

The next contention of the counsel for the petitioner is that the provision for payment of subsistence allowance was already made in Clause 28 of the certified Standing Orders, but, until and unless the amended clause in the Model Standing Orders was adopted or incorporated in the certified Standing Orders, the amended provisions of Model Standing Orders would not apply automatically. It is submitted by the counsel for the petitioner that from a perusal of Section 12-A of the Industrial Employment (Standing Orders) Act, 1946 the intention of the legislature is clear that the Model Standing Orders are applicable or deemed to be adopted in an industrial establishment only until the date when the certified standing orders come into operation in that industrial establishment. He further submits that the Tribunal failed to consider that Section 10 (1) of the Industrial Establishment (Standing Orders) Act, 1946, places a specific bar upon the modification of the certified Standing Orders until the expiry of six months except on agreement between the employer and the workmen. Taking support from Section 10 (1) aforesaid he contends that there cannot be any deemed inclusion in the certified Standing Orders of any subsequent amendments in the Model Standing Orders. It is urged that if there is any subsequent amendment(s) it has to be specifically incorporated in the certified Standing Orders already applicable to the workmen of the Establishment under the provisions of the Industrial Employment (Standing Orders) Act, 1946. He further submits that until and unless such amendment is incorporated in the Certified Standing Order the said amendments in the Model Standing Orders have no application to the industrial establishment. The counsel for the petitioner has drawn support in this regard from a Division Bench decision of Karnataka High Court rendered in M.C.Raju Vs Executive Director, 1985 (1) L.L.J. 210 : -

"In M.C.Raju Vs Executive Director, Karnataka Vidyuth Karkhane Ltd., the standing orders of "KAVIKA' had been certified and they were in force at the relevant point of time. There was no provision relating to the age of retirement in the certified standing orders. The age of superannuation was not mentioned in the Schedule also and there was no rule incorporated in the model standing orders prescribing an age of superannuation prior to 11.3.1982. However, on 11.3.1982, an amendment was made to the Rules framed under the Act providing for retirement at the age of 58 years. The petitioner workman contended that Rule 15-A introduced into the Rules framed under the Standing Orders Act automatically became the statutory condition of his service by the force of the provisions of Sections 3, 4 and 12-A of the Act and, therefore, his retirement before the age of 58 years was illegal."

It was observed by His Lordship Hon'ble Mr. Justice Rama Jois of the Karnataka High Court that:-  

"Sections 3 and 4 of the Act inter alia require-

(i) an employer should submit draft standing orders meant to be certified under the Act within six months from the date of commencement of applicability of the Act to his establishment;

(ii) such standing orders should provide for every such matter set out in the Schedule; and

(iii) the provisions so incorporated must insofar as practicable, be in conformity with the model standing orders framed by the Government under the Act.

Section 12-A provides that from the date on which the Act becomes applicable to an industrial establishment, till the date on which the standing orders as finally certified come into operation, the prescribed model standing orders shall be deemed to have been adopted in that establishment......The first limb of the contention is that Rule 15-A incorporated into the schedule on 11.3.1982 must be regarded as having become part of the  certified standing orders of KAVIKA as Sections 3 and 4 require that draft standing orders submitted for certification must conform to the Schedule and the model rules. I find no merit in the contention. Admittedly draft standing orders prepared by KAVIKA in conformity with the provisions of the Act, have been certified and they are in force and that there is no provision in it relating to the age of retirement. There is nothing in the provisions of Sections 3 and 4 to indicate that if any new item of conditions of service is added to the Schedule to the Act and a model rule on that item is incorporated in the model standing orders by any amendment made to the Schedule to the Act and the model standing orders respectively, the certified standing orders of an establishment automatically stand modified or amended so as to bring it in conformity with such modification or amendment. All that can be said is that on such amendment, by the force of Sections 3 and 4, it becomes obligatory for the employer, to include a provisions, on such new item of conditions of service in the certified standing orders. Further the provisions so included must be, so far as is practicable in conformity with such new rule added to the model standing orders. The second limb of the contention urged by the learned counsel was based on Section 12-A of the Act. Learned counsel strenuously contended that the effect of Section 12-A was that the Rule 15-A incorporated into the model standing orders on 11.3.1982 must be deemed to have become part of the certified standing orders."

His Lordship rejected the said contention observing:

"The wording of Section 12-A of the Act is clear and unambiguous. The effect of the provision is-

(i) the model standing orders framed under the Act automatically become applicable to an industrial establishment from the date when the Act becomes applicable to that industrial establishment; and

(ii) the model standing orders which had so become applicable to an industrial establishment cease to be applicable from the date on which the standing orders prepared by the management of that  establishment as finally certified comes into operation.

Thus Section 12-A is not at all applicable to an industrial establishment on and from the date on which certified standing orders come into force. As admittedly certified standing orders are in force in respect of KAVIKA, Section 12-A is not at all attracted."

Reading Section 10 of the Act, His Lordship observed:

"While sub-section (1) does not permit a modification of a standing order except by agreement within six months after it comes into force, thereafter sub-section (2) enables both the employer and employees to apply before the certifying authority for modification. Further sub-section (3) provides that the provisions preceding Section 10 as they apply to the certification of the first standing orders apply to the application made under Section 10(2)....Therefore immediately after Rule 15-A was added to the model standing orders on 11.3.1982, while undoubtedly the employers governed by it came under an obligation to get their certified standing orders amended so as to conform to Sections 3 and 4 of the Act, by making an appropriate application under Section 10(2) of the Act, the workmen could also make an application before the certifying officer, under that provision seeking an amendment of the   certified standing orders on those lines, who is under a duty to pass orders on that application in accordance with law. Thus, it may be seen that the Act itself provides a procedure for bringing into effect, any amendment made to the schedule to the Act or the model standing orders....The combined effect of Sections 7 and 10 (3) therefore is, that the amendment would come into force only after the application filed by the workmen is allowed by the certifying officer and, if any appeal is presented by the employer against that order, it would come into force only after the application filed by the workmen is allowed by the certifying officer and, if any appeal is presented by the employer against that order, it would come into force if and when it is confirmed by an appellate order made and communicated and after the expiry of the period, thereafter, as specified in Section 7. The resultant position is that a rule similar to Rule 15-A has not yet become the part of the standing orders of the KAVIKA and, therefore, the petitioner has not acquired any legal right to continue in service till 58 years."

The workman filed an appeal against the above decision but the same was dismissed by a division bench of that High Court. V.S.Malimath,  C.J. speaking for the bench, observed:

"What is expressly provided in Section 12-A of the Act is that the prescribed model standing orders shall be deemed to be adopted by the establishment commencing from the date on which the Act becomes applicable to the Industrial Establishment and ending with the date on which the standing orders as finally certified under the Act come into operation under Section 7. The transitory period during which the model standing orders shall be deemed to be applicable to the establishment has been provided with precision. That period is the one between the date on which the Act becomes applicable to the establishment and the date on which the standing orders as finally certified under the Act come into operation under Section 7. The expression ''commencing from the date on which the Act becomes applicable' is significant. It does not speak of the date on which any amendment to the Act or Rules comes into force. If the contention of Sri Krishnaiah is accepted Section 12-A will get attracted on every occasion when the Act is amended. But what is provided by Section 12-A is a fixed date for commencement of the transitory period during which the model standing orders shall be deemed to be applicable, which is the date on which the principal Act came into force. The other termini of the transitory period is the date on which the standing orders as finally certified under the Act come into operation under Section 7. Here again, the reference is to the final standing orders and not to the amendment to the standing orders already in operation in the establishment. The contention urged by Sri Krishnaiah, in our opinion, leads to absurd results if the model standing orders become applicable with effect from the date of commencement of the Act as it would be giving retrospective effect to the amended model standing orders when the amendment to the Act itself making provision in that behalf did not provide for giving any retrospective operation. The language of Section 12-A makes it clear that the model standing orders shall be deemed to be applicable until the standing orders are made as contemplated by the Act. The reference to the standing orders, as finally certified under the Act in Section 12-A, is obviously to the first standing orders made for the establishment after the Act came into force. It therefore follows that if the model standing orders are amended subsequent to the coming into operation of the first standing orders in respect of the particular establishment, the same do not automatically become applicable to the establishment concerned. Steps have to be taken to amend the existing standing orders to bring them in conformity with the amended model standing orders, the amended model standing orders will not be applicable to the establishment....it was not the intention of the legislature that the model standing orders should become effective and come into operation immediately as and when they are amended. If the intention of the legislature was that they should be deemed to come into operation, as soon as the amendment came into operation, there would not have been a bar as contemplated in sub-section (1) of Section 10. This is an additional reason which suggests that the legislature did not contemplate that the amendment to the model standing orders should become operative as soon as the amendment comes into operation. We have, therefore, no hesitation in taking the view that as and when the model standing orders are amended, the only way to give effect to the amendment is by resorting to the procedure of amendment contemplated by Section 10 of the Act and that until the existing certified standing orders are suitably amended, the amended model standing orders cannot be deemed to be applicable to the concerned establishment."

He has also relied upon the decision rendered in the Management of Ideal Java (India) Pvt. Ltd. & Others Vs T. Ramu & Others, 1979 L.I.C. (NOC) 32, wherein it is held that an amendment in the Model Standing Orders cannot be enforced without the amendment in certified Standing Orders of an establishment. In Ideal Jawa (India) (P) Ltd. Vs. T. Ramu, M. Rama Joiis, J. of the Karnataka High Court had to consider this question with regard to the jurisdiction of a labour court in dealing with an application under Section 33-C (2) of the Industrial Disputes Act, 1947. In the said case, the certified standing orders of the company entitled the workman to full wages and all privileges for the period of suspension pending enquiry in case management decided as a result of enquiry held or explanation tendered not to take any action against him. There was no provision for payment of part or full wages at all in the event of management deciding to take action against him. Even though the workmen concerned in that case had been dismissed from service pursuant to an enquiry, the labour court on an application under Section 33-C (2) of the Industrial Disputes Act directed payment of half wages as subsistence allowance on the basis of model standing orders. The management filed writ petition challenging the said order. His Lordship observed that from the wordings of Section 12-A, it was clear that the model standing orders cease to operate with effect from the date on which the standing orders as finally certified under the provisions of the Standing Orders Act come into operation under Section 7. Noting that the certified standing orders of the Company had come into force and there was no provision therein entitling the workman to get half the wages as subsistence allowance, nor was there any provision in the standing orders on the basis of which it could be held that any amendment made to the model standing orders could be enforced straightaway, His Lordship held that until a provision for payment of half the wages as subsistence allowance was incorporated in the standing orders of the company, the labour court could not grant the relief on the basis of an amendment made to the model standing orders by the State Government.

A Division Bench of Bombay High Court in 1991 Lab IC 2066, May & Baker Ltd. Vs Shri Kishore Jaikishandas Icchaporia, after noticing the scheme of the Act considered the question of applicability of amendments made in the Model Standing Orders and its applicability to the Certified Standing Orders of the Company, certified under the Industrial Employment (Standing Orders) Act, 1946. In the case of May & Baker ((supra)) the question was whether the payment made to the workmen by the employer with regard to subsistence allowance was in accordance with the provisions of the Certified Standing Orders or not. The contention on behalf of the workman was that he was entitled to subsistence allowance as provided by the Model Standing Orders by reason of Section 10-A (3) because the Model Standing Orders were according to him other laws within the meaning of sub-section (3). In May & Baker Ltd. Vs. Shri Kishore Jaikishandas Icchaporia (1991 Lab IC 2066) after noticing the relevant provisions, the Court in paragraphs 6 and 7 held as under:-

"6. The scheme of the Act, therefore, is that by reason of sub-section (1) of Section 2-A, the Model Standing Orders apply to every industrial establishment to which the Act is made applicable. The proviso to sub-section (1) is on the statute book only to protect industrial establishments whose Standing Orders have been certified and have come into operation before the coming into force of the State's amending Act (Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957). To those industrial establishments the Model Standing Orders do not become applicable. The provisions of sub-section (2) of Section 2-A apply only in relation to such Standing Orders as have been provided for in the proviso and, by reason of sub-section (2), Model Standing Orders made in respect of additional matters included in the Schedule after the coming into force of the aforesaid amendment Act are applicable to the workmen of industrial establishments to which the proviso applies unless the Model Standing Orders are, in the opinion of the Certified Officer, less advantageous to the workmen than the Certified Standing Orders applicable to them. We are not concerned here, admittedly, with industrial establishments that fall under the proviso. For our purpose only sub-section (1) of Section 2-A is relevant. Under Section 3 amendments to the Model Standing Orders have to be proposed for adoption and, after following the procedures for certification and appeal under Sections 5 and 6 come into operation under Section 7. These Certified Standing Orders are what are registered under Section 8 and posted at a prominent place in the industrial establishment under Section 9.

"7. It is, in our view clear from the proviso of the Act as aforementioned that the Model Standing Orders are applicable only until such time as amendments thereto have been proposed and certified. Once the amendments have been certified, the Certified Standing Orders operate. An amendment to the Model Standing Orders cannot, therefore, have effect until and unless modification of the Certified Standing Orders to bring them into line with the amended Model Standing Orders is proposed and certified."

It was further held by the Division Bench that the Model Standing Orders, as also Certified Standing Orders, are laws no doubt, but they are laws made under the provisions of the Act. They are not provisions "under any other law". Therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders. The decision rendered in the case of May & Baker was also followed in Voltas Ltd. Vs VKD Kochargaonkar, 1996 L.I.C. 226 Bom., which is also to the same effect as law laid down in M.C.Raju (Supra) and Management of Ideal Java (supra).  

The counsel for the respondents does not dispute the fact that the workmen had not marked their attendance as directed by the Conciliation Officer and the employer.  He, however, submits that under the amended Model Standing Orders subsequently framed by the Central Government the workmen were not required to mark their attendance during the period of suspension. He further submits that there are no provisions in the Standing Orders for marking attendance by the suspended employees, hence direction issued by the employer in this regard is without authority of law and could not have been enforced. He has also drawn the attention of the Court to paragraph 8 of the rejoinder statement filed by the petitioner as well as para 9 of the rejoinder filed by the workmen before the Tribunal and submits that the averments made in the written statement were clearly denied with regard to marking of attendance. Relying upon Anwarun Nisha Khatoon Vs State of Bihar and others, 2002 (95) F.L.R. 1, he submits that the employers at the most could have asked for a certificate that the employee concerned was not engaged in any other employment. He states that no such certificate was ever asked for by the employers at any stage and as such the aforesaid decision in Anwarun Nisha Khatoon applies with full force to the instant case and subsistence allowance in these circumstances could not be denied to the workmen.  

The counsel for the petitioner referred to a Division Bench decision of this Court rendered in Artificial Limbs Manufacturers Corporation of India, Kanpur Vs Som Pal Singh and Others, 1994 (69) F.L.R. 109 in which a Division Bench of this Court has taking recourse to legislative intent has held thus:-

"The view expressed by the learned Single Judge as also in M.C.Raju's case (supra) cannot, with respect, be accepted as being in consonance with the clear legislative intent, as it emerges from a plain reading of the provisions of the Act. The manifest legislative objective that stands out, being that all industrial establishments must have applicable to them, one or the other standing orders i.e. either the model standing orders or the certified standing orders. As pointed out earlier that there is the specific and mandatory requirement, as laid down in sub-section 2 of Section 3, that provision must be made in the draft standing orders for every matter set out in the schedule and Section 4 fortifies this, by saying that the standing orders shall be certifiable only if provision is made therein for all matters set out in the schedule to the Act. This mandate can obviously be complied with only if the matters newly added to the schedule, too are applicable to industrial establishments, irrespective of the industrial establishment concerned having or not having certified standing orders."

The question of applicability of Section 12-A came up for consideration before a Division Bench of this Court in the case of Shitla Prasad Vs State of U.P., 1986 L.I.C. 2025 = 1986 (52) F.L.R. 579. The petitioner in that case was an employee of the U.P. State Road Transport Corporation which was a statutory body. The employer contended that the petitioner's employment was governed by the rules and regulations framed by it under Section 45(2)(c) of the Road Transport Corporation Act, 1950 and that the model standing orders are not applicable to its employees. The Division Bench of this Court took note of the provision contained in Section 12-A, and, relying upon the decision of the Supreme Court in U.P.S.E.B.Vs Hari Shankar Jain, 1978 (37) F.L.R. 280 observed that if the regulations framed by the Corporation had been notified under Section 13-B of said Act, the standing orders would not apply to it. Since the regulations had not been notified in that case under Section 13-B, the model standing orders would be deemed to be adopted by the Corporation till its own standing orders are finally certified under the Act.

In Karnataka Agro Industries Corpn. Employees Assn. Vs State of Karnataka, 1987 (2) LLJ 62 it has been held in para 8 that "Model Standing Orders shall be deemed to be adopted by industrial establishment till it has framed standing orders and are finally certified under the Act." Thus, the case of Shitla Prasad (supra) excludes application of model standing orders after the standing orders are once finally certified under the Act. When applicability of standing orders is limited to a specific period any amendment made in the Model Standing Orders after fixed date does not, per se, become applicable to an industrial establishment, which has its Certified Standing Orders.

                                                                                                 

The Bombay High Court further held that the "word ''also' has been used in sub-section (2) of Sec. 2-A only for the purpose of indicating that in the case of some industrial establishments, in addition to the Certified Standing Orders, the amended Model Standing Orders on special subject like probationers, badlis etc. would also apply to the workmen of such establishments. It is not possible to accept the contention that by implication, all Model Standing Orders made in respect of additional matters included in the Schedule of the Act after the coming into force of the 1957 amending Act would automatically apply to the workmen of all industrial establishments, even if their Standing Orders had been certified after the coming into force of the 1957 amending Act." (Voltas Ltd. Vs V.K.D. Kochargaonkar (Supra)

The State of U.P. also framed Model Standing Orders but no such provision has been made therein. There is no provision in the Act that Model Standing Orders of the State would be superseded by Model Standing Orders of Central Government or which set of Model Standing Orders would apply in U.P. if there is conflict between them.

The legal question involved in this case is as to whether Clause 28 of the Certified Standing Orders framed according to the U.P. Model Standing Orders would apply or the subsequently amended Model Standing Orders framed by the Central Government would apply automatically even though amendment have not been incorporated in the Certified Standing Orders of the establishment or in Model Standing Orders framed by the U.P. or Model Standing Orders of U.P. stand superseded?

Statement of law propounded by Karnataka High Court in 1985 (1) LLJ 210 is in conformity with law laid down by our court in the case of Shitla Prasad (supra) that the workmen of an establishment would continue to be governed by their Certified Standing Orders till amendment is incorporated in Certified Standing Orders and Model Standing Orders have no application after the Standing Orders are certified. On the other hand Artificial Limbs Manufacturers' case rules that Model Standing Orders automatically apply even after the Standing Orders have been certified.                        

                                                                                               

There appears to be thus direct conflict between the case of Artificial Limbs Manufacturers Corporation of India, Kanpur and Shitla Prasad's case (supra) which are both Division Bench decisions of this Court. Looking to judicial preponderation and in view of this and other High Courts, it would be expedient to refer the following question to a larger bench for authoritative decision: -

"1.Whether amendments made in Model Standing Orders become automatically applicable to Certified Standing Orders without any amendment to the Standing Orders of the establishment finally certified under Section 10 of the Industrial Employment (Standing Orders) Act, 1946?

2. Whether model orders framed by Central Government and amendments therein supersede the Model Standing Orders framed by State of U.P."

Let the file/papers be placed before the Hon'ble the Chief Justice for referring the matter to a larger bench or for passing appropriate orders.  

Dated: 25.1.2005

Rpk/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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