- Bookmark
- Share
- CaseIQ
Jiwan Mal & Co. v. Secretary, Kanpur Lo...
Factual and Procedural Background
This petition under Article 226 of the Constitution was filed by a petitioner-company seeking a writ of certiorari to quash an order of the State Industrial Tribunal (U.P., Allahabad) that upheld modifications made by the Certifying Officer to certain draft standing orders submitted by the petitioner for certification under the Industrial Employment (Standing Orders) Act, 1946. The petitioner had submitted draft standing orders in accordance with Section 3 of the Act. The Certifying Officer, acting under Section 5(2), modified two draft standing orders (Draft Nos. 15(a) and 16(a)). The petitioner appealed to the appellate authority (the State Industrial Tribunal), which rejected the appeal in respect of those modifications. The petitioner then sought the intervention of this Court to quash the Tribunal's order so far as it effected the modification and to direct the Tribunal to declare that the draft standing orders were certifiable under Section 4 of the Act.
Legal Issues Presented
- What is the scope of the Certifying Officer's power when dealing with draft standing orders submitted under the Industrial Employment (Standing Orders) Act — specifically, whether the Certifying Officer's role is limited merely to checking that the drafts provide for matters set out in the Schedule and generally conform to the Act, or whether the Certifying Officer may require modifications to bring drafts into conformity with prescribed model standing orders (as contemplated by S.3(2) and S.5(2)).
- Whether the Certifying Officer (or the appellate authority) may adjudicate upon the fairness or reasonableness of provisions in draft standing orders, in light of the prohibition in Section 4 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".
Arguments of the Parties
Petitioner's Arguments
- The Certifying Officer's function is confined to verifying that draft standing orders include provisions for every matter set out in the Schedule applicable to the establishment and that the drafts otherwise conform to the Act; the officer cannot examine or modify the fairness or reasonableness of any provision.
- Reliance was placed upon Section 4 of the Act (including its provision barring adjudication of fairness or reasonableness) and on the precedent reported at AIR 1949 All 504 (Electric Workers Union v. The U.P. Electric Supply Co.) to argue that the Certifying Officer could not modify the terms of the draft standing orders.
Opposite Parties' Arguments
- The opposite parties contended that Section 3(2) requires draft standing orders, where model standing orders have been prescribed, to be in conformity with such model "so far as is practicable", and therefore the Certifying Officer may modify drafts to secure conformity with the model standing orders.
- Support for that contention was drawn from Section 5(2), which authorizes the Certifying Officer, after hearing employer and representatives of the workmen, to decide whether any modification or addition is necessary to render the draft certifiable and to make an order accordingly.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Electric Workers Union…Applicant; v. The U.P. Electric Supply Co.…Opposite Party, AIR 1949 All 504 (A) | Supports the proposition that the Certifying Officer is not to adjudicate upon the fairness or reasonableness of the provisions of standing orders (a principle reflected in S.4 of the Act). | The Court accepted that the precedent correctly states the rule that the Certifying Officer may not adjudicate on fairness or reasonableness. The Court clarified, however, that deciding whether draft standing orders conform to prescribed model standing orders does not amount to adjudicating on their fairness or reasonableness, and thus the Certifying Officer's modifications to secure conformity are not an impermissible adjudication of fairness. |
Court's Reasoning and Analysis
The Court began by identifying the statutory framework and the sequence of statutory steps that the Certifying Officer must follow:
- Section 3(2) requires drafts to make provision for every applicable matter set out in the Schedule and, where model standing orders have been prescribed, to be "so far as is practicable, in conformity with such model".
- Section 4 sets out the conditions for certification: (a) provision for matters in the Schedule applicable to the establishment; and (b) that the standing orders are otherwise in conformity with the provisions of the Act. Clause (b) also contains the express statement that it shall not be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of any standing orders.
- Section 5 prescribes the procedure: the Certifying Officer must forward drafts to trade unions or workmen, invite objections, afford a hearing to employer and representatives, and then decide whether modifications or additions are necessary to render the drafts certifiable; the officer then certifies after making any required modifications.
From this statutory scheme the Court concluded that the Certifying Officer's role is not merely a formal check that a draft mentions Schedule items or resembles the model in form. Rather, the officer must ensure that the conditions of S.4 are satisfied before certification, and under S.5 the officer must decide whether modifications are necessary to render the drafts certifiable.
The Court held that where model standing orders exist, the Certifying Officer must consider whether the draft standing orders conform to those model orders "so far as practicable". If a draft departs from the model, the framers must satisfy the Certifying Officer that full conformity was not practicable; otherwise the Certifying Officer may require modification. The Court rejected the petitioner's narrower interpretation that the officer's function is limited to checking form or presence of Schedule matters.
On the concern that modification might amount to adjudication of fairness or reasonableness, the Court distinguished the acts: determining conformity with model standing orders is an assessment of compliance with statutory prescriptions, not an adjudication of fairness or reasonableness. The Court observed that the prohibition in Section 4 bars adjudication of fairness where appropriate but does not prevent the Certifying Officer from ensuring statutory conformity with model orders. The Court also noted that the risk of the Certifying Officer improperly assessing propriety might be greater where no model standing orders exist; even then, the Officer must still ensure Schedule matters are present but is not empowered to adjudicate fairness.
The Court further examined the preamble and heading of the Act. It rejected the petitioner's argument that the Act was limited to promoting precision of expression rather than laying down conditions of employment. The Court reasoned that the preamble's phrase "with sufficient precision" supports precise definition but cannot be read to make precision the sole subject-matter; the Act necessarily operates with reference to conditions of employment. Sub-section 3(2)'s use of "provision" was interpreted to connote substantive terms (conditions of service), not mere form or draft language.
Finally, having interpreted the statutory provisions and the preamble, the Court concluded that model standing orders which lay down conditions of employment are not ultra vires the Government prescribing them, and that the Certifying Officer and the Industrial Tribunal acted within their jurisdiction in modifying draft standing orders in accordance with the model standing orders.
Holding and Implications
HOLDING: The petition is dismissed. The Court held that the Certifying Officer and the Industrial Tribunal did not act beyond their jurisdiction in modifying the petitioner's draft standing orders to secure conformity with prescribed model standing orders. Costs were awarded to the opposite parties in the sum of Rs. 200/-.
Implications:
- Direct effect: The petitioner's challenge to the Tribunal's upholding of the Certifying Officer's modifications was rejected; the Tribunal's order stands and the modifications remain effective. The petitioner must bear the assessed costs.
- Statutory interpretation consequence: The opinion affirms that where model standing orders have been prescribed, the Certifying Officer may require modifications to ensure drafts conform "so far as is practicable" to the model; such an exercise is distinct from an inadmissible adjudication of the fairness or reasonableness of provisions under Section 4.
- The Court expressly found that the model standing orders and the rule-making power exercised by the appropriate Government in prescribing them are within the scope of the Act (not ultra vires), and that requiring conformity to model standing orders is a legitimate exercise of the statutory scheme.
Raghubar Dayal, J.:— This is a petition under Article 226 of the Constitution praying for the issue of a writ of certiorari quashing the order of the State Industrial Tribunal in a certain appeal in so far as it effected a modification or amendment of certain draft standing orders submitted by the petitioner company to the Certifying Officer and for the issue of a direction to the State Industrial Tribunal to declare that the said draft standing orders were certifiable under Section 4 of the Industrial Employment (Standing Orders) Act (Act XX of 1946).
2. The petitioner-company submitted certain draft standing orders to the Certifying Officer for certification in view of Section 3 of the Industrial Employment (Standing Orders) Act, 1946, which provides that within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit tp the Certifying Officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment. The Certifying Officer passed an order under S. 5, Sub-s. (2) of the Act modifying two draft standing orders, namely draft Standing Orders Nos. 15(a) and 16(a). The petitioner went in appeal to the appellate authority which is the industrial court. The appeal with respect to the modifications to these two draft standing orders was rejected by the State Industrial Tribunal, U.P, at Allahabad. It is this order of the Industrial Tribunal which the petitioner desires to be quashed by this Court.
3. The sole point for consideration is with respect to the power of the Certifying Officer in dealing with the draft standing orders submitted to him. It is contended for the petitioner that the Certifying Officer has merely to see whether the draft standing orders contain provision for every matter set out in the Schedule applicable to the industrial establishment and whether the standing orders were otherwise in conformity with the provisions of the Act and that the Certifying Officer could not look into the fairness or reasonableness of the provisions of any standing orders. This contention is based on the provisions of S. 4 of the Act, which is.
“(4) Standing orders shall be certifiable under this Act if.
(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and (b) the standing orders are otherwise in conformity with the provisions of this Act; and 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”.
4. Reliance is also placed on the case reported in — ‘Electric Workers Union…Applicant; v. The U.P Electric Supply Co.…Opposite Party.,’ AIR 1949 All 504 (A). It is argued that the purpose for which this Act was enacted is to define with precision the conditions of employment, that is to say, to provide for an unambiguous expression of the terms and that, therefore, the Certifying Officer could not have modified the terms of the draft standing orders.
5. The contention for the petitioner is met for the opposite parties on the ground that S. 3, sub-s. (2) of the Act provides that draft standing orders should conform, as far as practicable, to the model standing orders whenever model standing orders have been prescribed and that in case the draft standing orders are not in conformity with the model standing orders the Certifying Officer can modify the draft standing orders. Support is sought for this contention in the provisions of S. 5, sub-s. (2) of the Act.
6. Sub-S. (2) of S. 3 of the Act is:
“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”.
7. Section 5 of the Act is:
“5.(1) On receipt of the draft under S. 3, the Certifying Officer shall forward a copy thereof to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed form requiring objection, if any, which the workmen may desire to make to the draft standing orders to be submitted to him within fifteen days from the receipt of the notice.
(2) After giving the employer and the trade union or such other representatives of the workmen as may be prescribed an opportunity of being heard, the Certifying Officer shall 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 this Act, and shall make an order in writing accordingly.
(3) The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications therein which his order under sub-s. (2) may require, and shall within seven days thereafter send copies of the certified standing orders authenticated in the prescribed manner and of his order under sub-s. (2) to the employer and to the trade union or other prescribed representatives of the workmen”.
8. It appears to us that the framers of the draft standing orders should see that they make provision for every matter set out in the Schedule and applicable to that particular industrial establishment and also that such orders be, so far as practicable, in conformity with the model standing orders if prescribed.
9. The conditions for the certification of the I standing orders are laid down in S. 4 of the Act whose clause (b) requires the standing orders not only to be in conformity with the model standing orders, if any, but to be in conformity with the provisions of the Act. The Certifying Officer, therefore, has to see before certifying the draft standing orders that the conditions of S. 4 are satisfied.
10. The procedure which he has to follow before I certifying the draft standing orders is laid down in S. 5, and requires him to forward a copy of the draft standing orders to the trade union of the workmen, or, in the absence of any trade union, to the workmen, who have to submit to him any objection within a certain time and then, after affording an opportunity to the employer and the trade union or the representatives of the workmen for a hearing, to decide whether any modification of or addition to the draft standing orders was necessary or not to render the draft standing orders certifiable under the Act.
11. All this means, therefore, that the Certifying Officer has not merely to see, as contended for the petitioner, that the draft standing orders deal with every matter set out in the Schedule applicable to the industrial establishment and that the draft standing orders resemble in form the model standing orders, if any, but that he has really to consider whether the draft standing orders were in conformity with the model standing orders so far as practicable.
12. It follows that in case there is a departure from the model standing orders, the framers of the draft standing orders have to satisfy the Certifying Officer that it was not practicable to follow the model standing orders in full and that is why the departure has been made. We are not prepared to interpret the provision of S. 3, sub-s. (2) or of S. 4, Cl. (b), to mean that the draft standing orders have to be merely similar in form and not to be the same as the model standing orders in case it was practicable to adopt the model standing orders in their entirety.
13. It is true, as laid down in AIR 1949 All 504 (A), that the Certifying Officer has not to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. This has been laid down in S. 4 of the Act itself. What the Certifying Officer does in deciding whether the draft standing orders are in conformity with the model standing orders does not amount to his adjudicating upon the fairness or reasonableness of the draft standing orders.
14. He simply sees whether the draft standing orders conform to or are in accordance with the model standing orders. No occasion arises for him to decide upon the fairness or reasonableness of the draft standing orders. Such an occasion may have arisen if there were no model standing orders because in that case the Certifying Officer had to certify the draft standing orders and might have been tempted to look into the propriety of those orders.
15. The Act provides that he is not to look into it. It is not his function as to what the standing orders should be in case the appropriate Government had not prescribed the model standing orders. Of course, even in such cases he has to see that the draft standing orders contain provision for every matter set out in the Schedule applicable to the industrial establishment.
16. Lastly, it was urged that the preamble to this Act indicates that the object of the Act was simply to provide for precise expression of the conditions of employment and not to provide for the fixing of conditions of employment and that, therefore, the model standing orders which in a way lay down the conditions of employment are beyond the scope of the Act and consequently the rule-making power of the appropriate Government under S. 15, which empowers it to make rules to-carry out the purposes of the Act. The heading of the Act is
“An Act to require employers in industrial establishments formally to define conditions of employment under them”.
17. The preamble reads:
“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”.
18. It is argued for the petitioner that the purpose of the Act was to provide for the laying down of the conditions of employment with sufficient precision and not to lay down the conditions themselves. We are not prepared to agree with this contention. It was expedient to define the conditions of employment and to make the said conditions known to workmen and that is why this Act was enacted.
19. The expression “with sufficient precision”, between the words “define” and “the conditions” may lead to the supposition that greater emphasis was laid on precision than on the conditions. But precision of expression alone could not have been the subject-matter of an enactment. The enactment must be with reference to the conditions of employment. Of course, it is always desirable that such conditions be formally laid down and expressed with as great precision as possible.
20. It was to emphasise this aspect that this expression “with sufficient precision” was used in the preamble. We find support for such an interpretation of the preamble, even if the preamble was open to more than one interpretation from the language of the heading of the Act which says that this is “an Act to require employers in industrial establishments formally to define conditions of employment under them” and also from the expressions used in sub-s. (2) of S. 3.
21. This sub-section requires that the provision in such draft standing orders shall be, so far as is practicable, in conformity with such model where model standing orders have been prescribed. The word “provision” connotes the details of the standing orders and not merely their form.
22. The terms of the standing orders or the conditions of employment laid down in the draft standing Orders should, therefore, be in conformity with the terms in the model standing orders relating to those matters. This should mean that the model standing orders should provide not only a mere draft language for actual standing orders but should provide for the conditions of service which were to be expressed in that language.
23. The fact that provision has been made in the Act for inviting objections from the trade union or workmen to the draft standing orders and for an appeal against the order of the Certifying Officer indicates that great importance was attached to the work which the Certifying Officer had to do in connection with the certification of the standing orders.
24. Such importance must be on account of the conditions of employment embodied in the standing orders and not on account of the mere language in which the proposed conditions of employment were expressed. A mere correction of the language in order to make it more clear and precise would not have necessitated the inviting of objections from the workmen and an appeal against the order of the Certifying Officer.
25. We are, therefore, of opinion that neither the model standing orders which lay down the conditions of employment are ultra vires of the Government prescribing them npr the Certifying Officer and the Industrial Tribunal, the appellate authority, acted beyond their jurisdiction in modifying the draft standing orders in accordance with the model standing orders. We, therefore, dismiss this petition with costs, which we assess at Rs. 200/-.
K.S.B
26. Petition dismissed.
Alert