Labour law notes unit 2 PDF

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UNIT 2: STANDING ORDER A. Nature and concept of standing order CONCEPT The absence of standing order in the establishment very often led to friction between the management and the workers. Earlier this was governed according to the terms of employment by contracts either express or implied. These conditions were ambiguous and were not well defined which led to difficulty in settlement of the problems of the worker. The importance of law in precisely defining the conditions of the labour was emphasized during the discussion in the “Tripartite Labour Conferences” which led to the enactment of the Industrial Employment Standing Orders Act, 1946. The objective of the Standing Order Act, 1946 are as follows:1. Regulate the conditions of recruitment 2. Regulate the discharge of the employees 3. Regulate the conditions of disciplinary actions 4. Holidays taken by the employees etc. to be regulated in an Industrial undertaking Standing order provided clarity with respect to the working conditions of employment and conditions of service of the employees. In 1956, the Parliament widened the scope of the power of the certifying officer and appellate body. Syndicate Bank v. General Syndicate Bank Association The bank employee was removed from his position without any reason or inquiry. The bank employee did not work for 582 days from the requisite 652 working days. It was held by the court that the removal of the worker was justified.

NATURE OF STANDING ORDER 1. Certified standing orders have a statutory enforcement. It is a special kind of contract between the employer and the workmen. 2. Standing order implies a contract between the employer and the workmen. Therefore, the employer and the workmen cannot enter into a contract over riding the statutory contract as embodied in the certified standing order 3. Employer cannot seek to modifications so as to have different sets of standing order for different employees. 4. Standing orders duly certified become a part of the statutory terms and governs all the relations between the employer and the employee. Hence, they are binding upon both the employer and the employee 5. In order to claim an exception, it must be shown that the standing order is inconsistent with the operative provision of the Industrial Dispute Act.

I.

Statutory in character

Standing order - S. 2(g) The Rules relating to the matters set out in the schedule of this Act are as follows: a. Classification of the workmen b. Manner of intimating to the workmen periods and hours of work, holidays, pay days etc. c. Shift working d. Attendance and showing up to work late e. Conditions and procedure in applying for leave and holidays

f. Requirement to enter premises via certain gates g. Termination of the employment and notice for the same h. Suspension/dismissal for misconduct i. Means of redressal for workmen against the unfair treatment / wrongful exactions The New Victoria Mills v. Labour Court It was a case of misconduct under item 9 of the schedule. The Court held that the 11 items mentioned under the Schedule of the Act of 1946 are inclusive in nature and are not exhaustive. Item 11 of Act states “any other matter which may be prescribed.” II.

Special kind of contract

MP Vidyut Karamchari v. MP Electricity Board In this case the court held that the special law would prevail over the general law. The court laid down the principle of “generalia special bus non derogant.” It means that special order would prevail over the standing order. Behar Journals v. Ali Hassan The probation period provided under the standing order was for 3 months and the probation period provided under the appointment letter was for 6 months. It was held that the standing order have a statutory enforcement, hence the parties cannot enter into contracts over-riding the statutory contract. Therefore, the probation period cannot be for more than 3 months. III.

Whether standing order is a delegated legislation or not ?

RSRTC v. Deen Dayal Sharma The court in this case held that standing order is not a form of a delegated legislation

B. SCOPE AND COVERAGE OF THE ORDER The scope and the coverage of the Act is discussed in the following sections :S.1: Application of the Act The object of the Act is to make clear the terms and conditions of the employment between the workmen and employer. The Act applies to every industrial establishment situated in India. The Act will be applicable upon the 100 workers or more workmen on any day of the preceding 12 months. However the state laws are different to incorporate the applicability of the Standing Order Act. Some of the states have reduced the number to 50 workers. National Commission on Labour recommended the industrial establishment employing 20 or more workers to be governed through standing orders or regulations. Bal Krishna Pillai v. Anant Engineering Works Pvt Ltd. The court held that ‘nothing was in the provision of the act” which provided for cessation. The act is a beneficial social legislation. The interpretation which promotes the object shall be opted. The act does not apply to:1. The industries to which the provision of Chapter VII of the Bombay Industrial Relation Act are applicable 2. The industry to which the Madhya Pradesh Industrial Standing Order Act are applicable. Section 13-B states that the standing order Act is not applicable to the civil service and defence. Section 14 of the Act provides the power to the government to conditionally or unconditionally exempt certain industries from

the application of the Standing order Act completely or with respect to any or few of the provisions. The government exempted certain industries through its notification dated 31 December 1978:1. Hospitality industry was exempted since they have separate laws to govern themselves. 2. Hotels and restaurants 3. All major ports 4. Govt. of India Press 5. Map Production and printing offices 6. Delhi Road Transportation Authority 7. Industrial Establishment of Zonal Railways Raman Nambisan v. Madras State Electricity Board The court held that the government under section 14 can only exempt a class of industrial establishments and not section of industrial establishments. C. CERTIFICATION PROCESS I.

PROCEDURE FOR CERTIFICATION

Section 3: Submission of draft standing order 1. Within 6 months of the Act, the Act becomes applicable to an industrial establishment, the employer of that establishment shall submit to the certifying officer 5 copies a draft of Standing Order proposed by him for adoption. 2. It must make a provision for all the matters set out in the schedule, in cases where model standing orders are prescribed, it must be in conformity with them as far as practicable

3. It should be accompanied by a statement giving prescribed particulars of the workmen employed and names of the trade union (if any) should also be send 4. A group of employees may send a joint draft of standing orders in similar industrial establishment and provided they fulfil the requirement of the sections. 5. Section 4 lays down the requisite conditions with respect to day to day functioning of the company as specified in the Schedule. Any other matter shall also be specified by the company in the draft standing order. Hindustan Lever v. workmen The standing orders made a provision for the transfer of employees from one department to another of the same establishment at the discretion of the manager provided that the terms of employment aren’t affected. It was challenged that this provision was invalid. The court held that if the order of transfer is prima facie valid, the burden of proving it invalid lies upon the workmen and in the absence of any such finding. It was held valid and the award of directing the reposting of the workmen to the original department was held bad. Rohtak and Hissar Electricity Supply v. U.P No matter can be added which has no nexus with the schedule. It must be in conformity with provisions of the Act of 1946. Section 5: Certification of standing order a. Submission of draft standing order: forward a copy to the trade union, if any, if no trade union is there, then the draft to be send to the workmen along with the notice requiring objections if any, which the workmen may desire to make to the draft of the standing order b. Submission of the objections:

1. The objections have to be submitted within 15 days. The certifying officer shall give the trade union, workmen or their representative an opportunity of being heard. After providing such opportunity, the certifying officer will decide, if any, modifications are required. c. Certification of the draft After conducting the above procedure, the certifying officer will pass an order in writing to certify the draft. Within 7 days of certification, the certified copies have to be send to the workmen, trade union and their representatives. Bharat Starch and Chemicals ltd. v Industrial Tribunal of Punjab The question was raised in this issue whether the standing order was binding upon the workmen employed by the company prior to the standing order into force. The Industrial Tribunal of Punjab held that was it was not applicable. However, the HC of Punjab reversed the order of the tribunal and held it to be applicable upon the workmen. II.

APPEALS AGAINST CERTIFICATION

Under Section 6 of the Act, any employee, workmen, trade union or representative of the workmen if aggrieved by the order of the certifying officer may within 30 days from the date on which the copies are sent, appeal to the appellate authority whose decision is final. The appellate authority shall by order in writing either, confirm the existing standing orders or make such modifications as deemed necessary. The appellate authority shall within the 7 days of his order, send copies of the draft standing order to the certifying officer, employer, workmen, employee, trade union or representative of the workmen. If the standing order has been modified, then modified copy of the standing order to be send.

There is no specific provision in the Act empowering an Appellate Authority to correct its mistakes in standing order certified by him, before the expiry of 6 months from the date of which the standing order /last modification came into existence, except upon an agreement between the employer and the employee. Labour commissioner is the certifying officer. Section 11 provides the power of the civil court to the certifying officer such as attendance of witness, examination of evidence, production of documents etc. section 11(2) provides for the rectification of the clerical mistakes. According to the survey of the Official Statistics (The Indian Labour yearbook of 1979), the appeal is filed before the industrial tribunal/ labour court. The appeal in West Bengal is filed before the High Court and appeal in Tripura and Assam is filed before the secretary of the labour department. BHILAI STEEL PROJECT V. STEEL WORK UNION The certifying officer has the power to repeal and make modifications as per the prevalent conditions of the standing orders. Case: Kerala Agro Machinery Corporation ltd v. Industrial Tribunal and ors. The appellate authority set aside the certified standing order and directed certifying officer to consider the matter afresh was challenged in the writ petition. The Court held that the appellate authority does not have the power to set aside the orders of the certifying officer. III.

CONDITIONS OF CERTIFICATION

1. The certifying officer shall certify the standing orders under the Act of 1946, if the provision is made in the standing order for every matter set out in the schedule

2. Standing orders are otherwise in conformity with the provisions of the Act 3. The certifying officer and appellate authority shall have the power to adjudicate upon the correctness or fairness of the standing order taking into account the social interest. 4. Dual remedy is available by amending section 4 and section 10 – - Raise an industrial dispute - Conferring the right upon the individual workmen to contest the draft standing order Deviation from the Model Standing Order If verbatim of the model standing order has not been followed, if the standing order does not have the force of a statutory rule, then the certifying officer must be given reasons for departure from the model standing orders. Mere similarity is not sufficient. Reasonableness of the Standing Order The standing order must be fair and reasonable. Matters not covered under the Schedule Some provisions may not be covered by the schedule neither by the Model standing order. As it was held by the Supreme Court, the standing order will not be valid for certification. Different set of the standing orders Such a thing was not covered or intended by the legislature, depending on when the workmen employed. Therefore, different employees cannot have different sets of standing orders. IV.

DATE OF OPERATION OF STANDING ORDERS ( S.7)

The standing orders shall unless an appeal is preferred, come into operation on the expiry of 30 days from the date on which the authenticated copies were send. In case of an appeals is preferred, it shall be come into operation on expiry of seven days from date on which the copies of the appellate authority are send. Binding nature of the Standing order: Agra Electricity Supply Co. v. Alladun Once standing order comes into force, it is binding upon the employer, all employees presently employed, all employees employed thereafter. The right of the employees to challenge such orders or claim modifications by raise on industrial dispute cannot be disputed. This section is not subject to any limitation. The standing order after being certified must come into operation in accordance with section 7 of the Act. V.

POSTING OF STANDING ORDERS ( S.9)

The text of the standing order as finally certified shall be prominently posted in English and in the language understood by the majority of the workmen. On a special board near the entrance from which majority of the workmen enter the industrial establishment. The copy of the standing order shall also be distributed and pasted in the departments where the workmen are employed. Non-compliance may prejudicially affect the workmen but such noncompliance must not be wilful or negligent. Mere failure to comply with the provisions of section 9 will not deprive the standing of its binding character.

D. MODIFICATIONS AND TEMPORARY APPILICATION OF THE MODEL STANDING ORDER ( S.10, S.12A ) 1. Modifications of the standing order:Prior to 1956 only employer could apply for modification under the standing order. After 1956, both employer and workmen can apply for the modifications. After 1982, amendment the employer, workmen, trade union and other representatives can apply for the modifications. The standing order finally certified shall not except an agreement between the employer and workmen, trade union or other representative body be liable to modifications until the expiry of 6 months from the date of operation of the standing order. Employer/ workmen may apply to the certifying officer for such modifications along with 5 copies of the proposed modifications. Once the employer and the workmen have agreed to the modifications, copy of such agreement shall also be filed. It shall be certified in the same manner as the initial standing order. The above procedure shall not apply in cases where the appropriate government is the Govt. of Gujarat and Maharashtra. Shahadara Saharanpur Sight Railway Co Ltd. V. S.S Railway Workers Union This case discusses the conditions when the modifications can be made. The application of modification would be made ordinarily when :1. Change of circumstances has occurred 2. Working of last standing order resulted in hardship 3. Some part was lost sight of at certification

4. Applicant feels that the modification will be beneficial It was held in this case that S.10 foes not State that once a standing order is modified and the modification is certified, no further modification is permissible except upon the proof that new circumstances have arisen. Indian express employees union v. Indian express, Madurai There is no time limit for making an application for the modification. The application of modification shall be accompanied by the 5 copies of the proposed modifications. Temporary application of Model Standing Order (S.12 A) Notwithstanding anything contained in S.3 – 12, for the time period between the date of enactment of the Act and the date on which the standing order comes into force the model standing order shall be deemed to be adopted in the establishment. It won’t apply where the appropriate government is the government of Gujarat and Maharashtra. Voltas Ltd. v. K.O Kochargoankar and Anr. Every amendment to the model standing order does not per se becomes applicable to an industrial establishment which has its own certified standing order. Tata Steel Chemicals v. Kailash C Advaryar The decision of the labour court is final and binding upon the parties....