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Kishore Jaikishandas Icchaporia v. M.R Bhope (Presiding Officer, Labour Court) And Others
Factual and Procedural Background
This petition under Article 226 of the Constitution challenges an order passed by a Labour Court concerning an application made under Section 13A of the Industrial Employment (Standing Orders) Act, 1946 (the Standing Orders Act). The petitioner was employed by respondent 3 and sought clarification on the basis for payment during a period of suspension. The petitioner claimed entitlement to subsistence allowance as per rule 25(5A) of the Model Standing Orders under the Bombay Industrial Employment (Standing Orders) Rules, 1959 (the Rules). The employer contended that the subsistence allowance payable should be governed by the certified standing orders, specifically Clause 25-5A, and at most by Section 10A(1) of the Standing Orders Act, denying entitlement under the Model Standing Orders. The Labour Court declined jurisdiction to interpret the matter and rejected the petitioner’s application.
Legal Issues Presented
- Whether the petitioner is entitled to subsistence allowance during suspension as per rule 25(5A) of the Model Standing Orders framed under the Bombay Industrial Employment (Standing Orders) Rules, 1959.
- Whether the Labour Court has jurisdiction under Section 13A of the Standing Orders Act to interpret questions arising from certified standing orders, Model Standing Orders, or amendments certified under the Act.
- The applicability and precedence of Model Standing Orders versus certified standing orders and the Standing Orders Act provisions, particularly in light of Sections 2A, 10A, and 12A of the Standing Orders Act.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner asserted entitlement to subsistence allowance as per rule 25(5A) of the Model Standing Orders under the Bombay Rules.
- Reliance was placed on Sub-section (3) of Section 10A of the Standing Orders Act, which contains a non-obstante clause stating that if any other law in force in the State is more beneficial, it shall apply. The petitioner argued that the Model Standing Orders qualify as such "other law."
- The petitioner further contended, based on Section 2A of the Standing Orders Act, that Model Standing Orders apply where they are inconsistent with certified standing orders or provisions of the Act.
Employer’s Arguments
- The employer maintained that the subsistence allowance should be regulated exclusively by the certified standing orders (Clause 25-5A) and at most Section 10A(1) of the Standing Orders Act.
- It was argued that the petitioner could not claim subsistence allowance as prescribed by rule 25(5A) of the Model Standing Orders.
- The employer relied on Sub-section (2) of Section 2A and Section 12A of the Standing Orders Act to assert that the Model Standing Orders apply only temporarily until certified standing orders come into force.
- Reliance was placed on the Karnataka High Court decision in Raju (M.C) v. Karnataka Vidhyuth Karkhane Ltd., which held that amended Model Standing Orders do not automatically apply once certified standing orders are in place unless those certified standing orders are amended accordingly.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raju (M.C) v. Karnataka Vidhyuth Karkhane Ltd., [1985 — I L.L.N 109] | Interpretation of Section 12A of the Standing Orders Act regarding the applicability of Model Standing Orders until certified standing orders are made. | The Court noted the decision but declined to accept its interpretation for the State of Maharashtra, particularly due to the inclusion of Section 2A(1) in the Standing Orders Act by the State Legislature. |
Court's Reasoning and Analysis
The court recognized that Section 13A of the Standing Orders Act explicitly grants jurisdiction to the Labour Court to interpret any question regarding the application or interpretation of certified standing orders, Model Standing Orders, or amendments certified under the Act. Hence, the Labour Court’s refusal to entertain the petition on jurisdictional grounds was erroneous.
The court analyzed the provisions of rule 25(5A) of the Model Standing Orders, which prescribe graduated rates of subsistence allowance during suspension, and contrasted these with Clause 25-5A of the certified standing orders, which allow the suspending authority to fix the rate but not below one-third of basic wages and dearness allowance.
Regarding the petitioner’s reliance on Section 10A(3) of the Standing Orders Act, the court interpreted the phrase “any other law” to include subordinate legislation framed under Section 15 of the Act, such as the Model Standing Orders, and therefore found the petitioner’s argument plausible but not conclusively determinative.
The court addressed the contention based on Section 2A, noting that this section made Model Standing Orders applicable in Maharashtra from 15 January 1959, with a proviso saving only certified standing orders in force before the 1957 Amendment Act. Since the certified standing orders in question were certified in 1976, after the date of applicability of Section 2A, the Model Standing Orders would prevail over inconsistent certified standing orders.
The court further distinguished the Karnataka High Court’s interpretation of Section 12A, holding that it was not binding in Maharashtra, especially given the legislative inclusion of Section 2A(1). The court expressed doubt that certified standing orders could override Model Standing Orders when inconsistent.
Consequently, the court set aside the Labour Court’s order rejecting the application and substituted it with an order entitling the petitioner to subsistence allowance as per rule 25(5A) of the Bombay Industrial Employment (Standing Orders) Rules, 1959.
Holding and Implications
The petition is allowed and the Labour Court’s order rejecting the petitioner’s application is set aside.
The petitioner shall be entitled to payment of subsistence allowance in accordance with rule 25(5A) of the Bombay Industrial Employment (Standing Orders) Rules, 1959.
This decision directly affects the parties by mandating payment of subsistence allowance at the rates prescribed by the Model Standing Orders rather than the certified standing orders or Section 10A(1) of the Standing Orders Act. No broader precedent beyond the parties is explicitly established by this opinion.
This petition under Art. 226 of the Constitution assails an order passed by a Labour Court upon an application made under S. 13A of the Industrial Employment (Standing Orders) Act, 1946, hereinafter referred to as the Standing Orders Act.
2. The petitioner was in the employment of respondent 3. The question that arises in this petition is on what basis he should be paid during the period of suspension. According to the petitioner, he is entitled to subsistence allowance as per rule 25(5A) of Model Standing Orders under the Bombay Industrial Employment (Standing Orders) Rules, 1959 (Rules). The employer on the other hand contends that the subsistence allowance payable to the petitioner would be regulated by the certified standing orders which are at exhibit A in particular Cl. 25-5A, thereof. At the most, it would be S. 10A(1) of the Standing Order Act to which the petitioner could resort. In no case, would the petitioner be entitled to subsistence allowance as prescribed by rule 25(5A) of the rules. The Labour Court which was approached for an interpretation, held that it had no jurisdiction to go into the matter for which reason the petitioner's application was rejected.
3. That the question arising from the application is one which falls within S. 13A of the Standing Orders Act, cannot be disputed. This section permits a Labour Court to interpret any question raised as to the application or interpretation of a standing order, Model Standing Orders or amendment certified under the Standing Orders Act. The right to seek an interpretation having been conferred upon any employer or workman, the Labour Court to which the question is referred, is under an obligation after hearing the parties to decide the question. The decision to be recorded by it, is to be final and binding on the parties. In the face of the language of S. 13A, it is surprising that the Labour Court should have held that it had no jurisdiction. But that apart, and to revert to the subject, let me first set out the relevant clauses or atleast an abstract therefrom. Rule 25(5A) of these rules, lays down thus:
“(i) For the first ninety days of the suspension period subsistence allowances to be paid per month shall be equal to one-half of the basic wages, dearness allowance and other compensatory allowance to which the workman would have been entitled if he were on leave with wages.
(ii) If the enquiry gets prolonged and the workman continues to be under suspension for a period exceeding ninety days, the subsistence allowance to be paid per month for a further period of ninety days shall be equal to three-fourths of such basic wages, dearness allowance and other compensatory allowances.
(iii) If the enquiry is not completed within a period of 180 days the workman shall be paid basic wages, dearness allowance and other compensatory allowance in full as subsistence allowance to be paid per month until such time as the inquiry is finally concluded.”
Section 10A(1) of the Standing Orders Act is in the same terms as Cls. (i) and (ii) as aforementioned. The certified standing order provision, at rule 25(5A), provides that a suspended worker shall be paid subsistence allowance during the period of his suspension at such rate as may be fixed by the suspending authority. The clause however, stipulates that the rate to be fixed by the suspending authority, shall not be less than one-third of the basic wages and dearness allowance drawn by the workman, immediately prior to his suspension.
4. Smt. D'Souza for the petitioner points out to Sub-sec. (3) of S. 10A in support of her contention that the petitioner is entitled to the benefit of the Model Standing Order Rules provision reproduced above. Sub-section upon which reliance is placed, is a non-obstante clause and reads as follows:
“Notwithstanding anything contained in the foregoing provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.”
Learned counsel submits that the Model Standing Order framed vide the rules is “any other law,” that is in force in the State of Maharashtra and, therefore, the same shall prevail as against Sub-sec. (1) of S. 10A. The answer to this is, that the words “any other law,” appearing in Sub-sec. (3) would not cover the Model Standing Orders which are derivations of the Standing Orders Act. Such derivations are the result of the appropriate Government framing rules under S. 15 of the Standing Orders Act. Perhaps, the Model Standing Orders framed under the rules would have been covered by Sub-sec. (3), were the words used “any law” rather than “any other law.” Plausible this argument certainly is, but a close scrutiny of S. 10A(3) would show that the words “any other law” do not exclude subordinate legislation resulting from the exercise of power conferred under S. 15 of the Act. These words would have to be read as, law other than that set out in Sub-sec. (1) of S. 10. Such other law may be found in any law not excluding subordinate legislation flowing from the rule-making power conferred upon the appropriate Government under S. 15.
5. The other contention raised on behalf of the petitioner is that having regard to S. 2A of the Act, the Model Standing Orders would apply wherever these are inconsistent with the certified standing orders or even provisions of Standing Orders Act. This contention is sought to be negatived by placing reliance upon Sub-sec. (2) of S. 2A and S. 12A of the Standing Orders Act. There is no substance in the submission advanced on behalf of the employer. Section 2A in its first part makes clear the applicability of the Model Standing Orders as from such date as the State Government may by notification in official gazette appoint in this behalf. So far as S. 2A is concerned, it became applicable as from 15 January 1959 to the State of Maharshtra. The proviso to Sub-sec. (1) of S. 2A contains a limitation. But the saving is only of standing orders which are finally certified under the Act and have come into operation, before the date to coming into force of the Standing Orders (Bombay Amendment) Act, 1957. (Italics mine). The certified standing orders governing relations between respondent 3 and its employees were certified on the 6th day of December 1976, i.e, much after 15 January 1959, not to speak of the coming into force of the enactment mentioned in the proviso. Sub-section (2) of S. 2A deals with Model Standing Orders in so far they relate to additional matters. In fact this sub-section has no relevance to the question under consideration.
6. I then turn to S. 12A upon which reliance is placed by the employer. It is contended that the temporary application of the Model Standing Orders vide S. 12A is limited to such time as the certified standing orders come into force. To buttress this contention, learned counsel relies upon the Karnataka High Court's decision in Raju (M.C) v. Karnataka Vidhyuth Karkhane, Ltd., [1985 — I L.L.N 109]. The ratio of the decision is thus set out in the headnote at page 110:
“… The language of S. 12A makes it clear that the Model Standing Orders shall be deemed applicable until the standing orders are made, as contemplated under the Act. The reference to standing orders, as finally certified under the act in s. 12a, is obviously to the first standing orders made for the establishment after the Act came into force. It, there fore, 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 in accordance with S. 10 of the Act. Until such steps are 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.”
With great respect to the learned Judges who held as above, that is not an interpretation which can be accepted in the State of Maharashtra and more particularly, because of the inclusion of S. 2A(1) in the Standing Orders Act by the State Legislature. Even otherwise, I doubt, if Model Standing Orders framed by the Government can be held subservient to certified standing orders, when the two are inconsistent. The normal rule should be that a Model Standing Order framed by an appropriate Government shall prevail over the certified standing orders. However, it is not necessary to go into this aspect of the matter. The rejection of the application by the Labour Court will have to be set aside and substituted by an order running thus:
“The petitioner shall be entitled to payment of subsistence allowance as per rule 25(5A) of the Bombay Industrial Employment (Standing Orders) Rules, 1959. Rule in the above terms made absolute with parties being left to bear their own costs throughout.”
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