The Associated Cement Company Ltd. Vs.
Shri P. D. Vyas & Ors  INSC 20 (11 February 1960)
GUPTA, K.C. DAS
CITATION: 1960 AIR 665 1960 SCR (2) 974
CITATOR INFO :
R 1966 SC1471 (17) RF 1979 SC 65 (5)
Industrial Dispute-Standing Orders-Draft
submitted by employer for approval--Modification by Certifying Officer-
Jurisdiction-Industrial Employment (Standing Orders) Act, 1946 (20 of 946) ss-
3, 4, 5, 15(2) (b).
The draft standing orders submitted by the
appellants to the certifying officer for certification under s. 3(1) Of the Industrial
Employment (Standing Orders) Act, 1946, were altered by the latter on the footing
that the modifications were necessary so as to be in conformity with the model
standing orders.- Section 4 Of the Act, before it was amended in 1956, provided
that "it shall not be the function of the certifying officer or the
appellate authority to adjudicate upon the fairness or reasonableness of the
provisions of any standing order," while under S. 3(2) the draft shall be,
as far as is practicable, in conformity with the model standing orders, where
they have been prescribed.
The question was whether the certifying
officer had jurisdiction to make the modifications in the present case.
Held, that there is a distinction between
considerations of fairness or reasonableness and those of practicability, and
that though the certifying officer may not modify the draft on the ground that
its provisions are unfair or unreasonable, he can and must modify it in matters
covered by the model standing 975 orders if he is satisfied that conformity
with such model standing orders is practicable in the circumstances of the
Electric Workers' Union v. The U. P. Electric
A.I.R. 1949 All. 504, disapproved. Jiwan Mal
& Co. v. Secretary, Kanpur Loha Mills Karmachari Union & Ors., A.I.R.
1955 All. 581 and Mysore Kirloskar Employees'
Association v. Industrial Tribunal, Bangalore and Anr  1 L.L.J. 531,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 22 of 1.958.
Appeal from the judgment and order dated
December 2, 1954, of the Bombay High Court in Appeal No. 122 of 1954, arising
out of the Judgment and order dated September 30, 1954, of the said High Court
in Civil Misc. Application No. 267/X of 1954.
R. J. Kolah, S. N. Andley, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for the appellant.
Gopal Singh and R. H. Dhebar for respondent
1960. February, 11. The Judgment of the Court
was delivered by GAJENDRAGADKAR J.--The Associated Cement Companies Ltd.,
Dwarka Cement Works, Dwarka and the Associated Cement Companies Ltd., Sevalia
Cement Works, Sevalia (hereinafter called the appellants) own and manage
several cement works throughout India including inter alia cement manufacturing
factories at Dwarka and Sevalia called the Dwarka Cement Works and the Sevalia
Cement Works respectively. In 1946 the appellants submitted to respondent 2,
the Commissioner of Labour, Bombay, in his capacity as certifying officer,
draft standing orders for certification under s. 3(1) of the Industrial
Employment (Standing Orders) Act, 1946 (20 of 1946) (hereinafter called the
Act). Respondent 2 made several alterations in the draft submitted by the
appellants. The two important alterations which are the subject-matter of the
present appeal were in respect of items Nos. 8 and 16. Under item No. 8 the
draft standing orders had required that notice of fourteen days shall be given
in the event of discontinuance of a shift.
Respondent 2 has modified it by increasing
the period of notice from fourteen days to one month. This modification has 124
976 been made in accordance with the model standing order on this subject.
Similarly, item No. 16(2) in the draft standing orders provided that striking
work either singly or with other workers without giving fourteen days' previous
notice would be treated as misconduct; whereas item No'. 16(3) provided that
inciting while on the premises any worker to strike work shall be treated as
These two provisions in the draft have been
modified by respondent's and the order thus modified provides that striking
work illegally either singly or with other workers or abetting, inciting,
instigating or acting in furtherance of an illegal strike would be treated as
misconduct. This modification also is consistent with the relevant provision in
the model standing order.
Feeling aggrieved by the modifications made
by respondent 2 in the draft submitted by them the appellants preferred an
appeal to the Industrial court (hereinafter called respondent 1). Respondent I
was not impressed by the contentions raised by the appellants with the result
that the modifications made by respondent 2 were confirmed and the appeal was
Thereupon the appellants filed a writ
petition, being Miscellaneous Application No. 267 of 1954, in the Bombay High
Court challenging the validity of the action of respondents 2 and 1. Mr Justice
Coyajee who heard the said application, upheld the contention raised by the
appellants and came to the conclusion that in making the impugned modifications
respondent 2 and respondent I had acted beyond their jurisdiction. The learned
judge, therefore, set aside the modifications made and allowed the appellants'
Against this order respondent 2 preferred an
appeal, being Appeal No. 122 of 1954, before the Court of Appeal in the Bombay
High Court. The appellate court reversed the decision of Coyajee J. and held
that the action of respondents 2 and I in making the modifications in question
was justified by the provisions of the Act. In the result the petition filed by
the appellants was dismissed. It is against this decision that the present
appeal has been preferred by 977 the appellants; and the short question which
it raises for our decision is: whether, under the provisions of the Act, it was
competent to respondents 2 and 1 to make the impugned modifications in the
draft standing orders submitted by the appellants for certification under the
Act ? The Act has been passed because it was thought" 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." Standing Orders are defined by s. 2(g) of the
Act to mean rules relating to matters set out in the Schedule. The Schedule
sets out 11 matters in respect of which standing orders are required to be made
by the employers. Mr. Kolah, for the appellants, contends that the main object
of the Act is to require the employers to provide for conditions of service in
respect of all the matters covered by the Schedule, and, according to him, the
jurisdiction of respondent 2 under the Act as it then stood is confined only to
see that standing orders are made in respect of all the items specified in the
Schedule. In this connection Mr. Kolah has strongly relied on the provision of
s. 4 which then laid down inter alia that "it shall not be the function of
the certifying officer or the appellate authority to adjudicate upon the
fairness or reasonableness of the provisions of any standing order". The
argument is that the Act expressly prohibits respondent 2 or respondent I from enquiring
whether any of the provisions made in the draft standing orders are fair or
reasonable, and it is urged that, in making the modifications in question, in
substance respondent 2 has embarked upon an enquiry about the reasonableness or
fairness of the relevant conditions included in the draft. Thus presented the
argument is no doubt attractive; but there are some other provisions in the Act
which show that the argument based on the said provision of s. 4 cannot
succeed. It is, therefore, necessary to consider the other provisions which are
material. Before we do so, we would like to add that by a subsequent amendment
made in 1956 s. 4 now provides that it shall be 978 the function of the
certifying officer or the appellate authority to adjudicate upon the fairness
or reasonableness of the provisions of any standing orders. In other words,
what was expressly excluded from the jurisdiction of the authorities under the
Act has now been clear made their duty, and so the argument based upon the
provision as it stood in 1946 is, after the amendment of 1956, purely academic.
Section 3 of the Act requires the employer to
submit draft standing orders. Section 3(2) provides that in the draft thus
submitted provision shall be made 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 common ground that model standing orders have
been proscribed in the present case, and so it follows that under s. 3, sub s.
(2) the draft submitted by the appellants had to be in conformity with the
model sanding orders so far as was practicable. In other words, the effect of
s. 3 sub-s. (2) is 'that, unless it is shown that it is impracticable to do so,
the appellants' draft had to conform to the model. This position cannot be
disputed. Then, the -next relevant provision of the Act is contained in s. 4
which provides that 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. The rest of the
provision of s. 4 has already been cited and considered by us. Having thus
provided for the tests which have to be satisfied before a draft submitted by
the employer can be treated as certifiable, s. 5 provides for the procedure of
the proceedings which are taken before the certifying officer.
Section 5 (2) lays down that after notice is
given to the parties concerned 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 the Act, and
shall make an order in writing accordingly. Sub-section (3) of s. 5 then
provides for 979 certifying the draft after making modifications, if any, under
sub-s. (2). There is one more section to which reference may be made. Section
15(2)(b) provides that the rules which the appropriate government may make
under the Act may set out model standing orders for the purposes of this Act.
The cumulative effect of these provisions is that the certifying officer has to
be satisfied that the draft standing orders deal with every matter set out in
the Schedule and are otherwise in conformity with the provisions of the Act.
This latter requirement necessarily imports the consideration in specified in
s. 3, sub-s. (2), that is to may, the draft standing order must be in
conformity with the model standing order which is provided under s. 15(2)(b)
for the purposes of the Act, and, as we have already seen, unless it is shown
that it would be impracticable to do so, the draft standing order must be in
conformity with the model standing order. It is quite true that this
requirement does not mean that the draft standing order must be in identical
words but it does mean that in substance it must conform to the model
prescribed by the appropriate government.
The question which then arises is: was it or
was it not open to respondent 2 to consider whether the draft submitted by the
appellants should not conform to the model standing order in respect of the
topics with which we are concerned in the present appeal? The answer to this
question must obviously be in the affirmative. It was not only open to
respondent 2 to enquire into the matter but it was clearly his duty to do so
before holding that the draft orders were certifiable under s. 4. Now such an
enquiry necessarily involves the consideration of the question as to whether it
would be practicable to insist upon conformity with the model standing order in
regard to the matters in dispute.
If respondent 2 was satisfied that it would
be practicable to insist upon such conformity it would be within his competence
to make the suitable modifications in the draft.
If, on the other hand, he took the view that
it would not be practicable to insist upon such conformity he would, despite
the disparity between the model and the draft, treat the draft as certifiable.
In the present case respondent 2 as well 980 as respondent I have held that it
was practicable to insist upon conformity with the model standing order regard
to the matters in dispute; and so they have made suitable modifications. Having
regard to the relevant provisions which we have just considered, it seems
difficult to accept the plea that in making the modifications in question
respondent 2 and respondent 1 have exceeded their jurisdiction. It is important
to make a distinction between considerations of fairness or reasonableness
which are excluded from the purview of the enquiry before respondent 2 and
respondent I from considerations of practicability which are necessarily imported
in such an enquiry. The line separating the one from the other may be thin but
nevertheless it is a firm and existing line which is statutorily recognised in
the respective provisions o the Act. Respondent 2 may not modify the draft on
the ground that its provisions are unfair or unreasonable but he can and must
modify the draft in matters covered by the model standing order if he is
satisfied that conformity with such model standing order is practicable in the
circumstances of the case. In our opinion, therefore, the High Court was right
in holding that the authorities under the Act had acted within their
jurisdiction in making the impugned modifications. We may mow refer to the
decisions to which our attention was invited by Mr. Kolah. In Guest, Keen
Williams (Private) Ltd v. Sterling (P. J.) & Ors. (1) this Court had
occasion to consider the effect of a part of the provision contained in S. 4 of
the Act as it stood before its amendment in 1956. It is, however clear that in
that case the point raised for our decision now did not fall to be considered.
In Electric Workers' Union v. The U.P.
Electric Supply Co. (2), Mr. Justice Wanchoo,
who was acting as the appellate authority under the Act, appears to have held
that the provision contained in S. 3(2) had nothing to do with the power of the
certifying officer to substitute the model for the draft. According to the
learned judge the said provision was intended merely to help and guide the
employers as to how they should frame their draft standing orders. This
decision apparently supports (1) (1960) 1 S.C.R. 348 (2) A.I.R. 1949 All. 504.
981 the argument that the certifying officer
cannot make any changes in the provisions of the draft where those provisions
are clear on the ground that they are not reasonable and fair and that other
provisions which may have been provided in the model standing orders should be
substituted for them. If, in making these observations, it was intended to
decide that, before certifying the draft standing orders submitted by the
employer, the certifying officer cannot enquire and decide whether it would be
practicable or not to make the provisions in the draft conform to the model
standing orders, with respect, we would hold that the said decision is
inconsistent with the true effect of the relevant provisions of the Act. We may
incidentally add that the observations made by Wanchoo J. in that case have not
been approved by the Allababad High Court in Jiwan Mal & Co. v. Secretary,
Kanpur Loha Mills Karamchari Union & Ors. (1). In Mysore Kirloskar
Employees Association v. Industrial Tribunal, Bangalore & Anr. (2), the
Mysore High Court has considered this question and it appears to have concurred
more with the view expressed by the Bombay High Court which is the
subject-matter of the present appeal than with the observations of Wanchoo J.
There is one more point to which reference
must be made. Mr. Kolah attempted to argue before us that, even if the
authorities under the Act had jurisdiction to deal with the matter and examine
whether or not it was practicable to insist upon conformity with the model
standing orders, the modifications made by them on the merits are
We have not allowed Mr. Kolah to urge this
contention before us because such a plea was not raised by the appellants in
their petition for a writ before the Bombay High Court, and it would not be
open to them to raise it for the first time before us. Besides, in a petition
for a writ of certiorari it would normally not be open to the appellants to
challenge the merits of the findings made by the authorities under the Act.
The result is the appeal fails and is
dismissed with costs.
Appeal dismissed (1) A.I.R. 1955 All. 581.
(2) (1959] 1 L.L. J. 531.