Bombay High Court
Anjani Kumar Co. Ltd. Etc. Etc. vs (Smt.) Manubai Kashinath Etc. Etc. on 13 April, 1989
Equivalent citations: [1989(59)FLR172], (1990)ILLJ316BOM
JUDGMENT
1. As the question of law as to the interpretation of Section 40A of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the Act') is involved in these writ petitions, they are heard together and are being disposed of by this common judgment.
2. The first respondent in Writ Petition No. 2733 of 1982 was in the employment of the petitioner as a Reporter and was working in the Packing Department. She was suspended pending enquiry and was served with the charge-sheet on September 22, 1981. She, therefore, filed Complaint (U.L.P.) No. 648 of 1981 in the Industrial Court at Bombay alleging unfair labour practice covered by item No. 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the MRTU & PULP Act') against the petitioner. Likewise, the first respondent in Writ Petition No. 2734 of 1982 who was also working as a Reporter with the petitioner filed a Complaint (U.L.P.) No. 649 of 1981 against the petitioner for being suspended pending enquiry and charge-sheeted on September 22, 1981 for the same declaration that the petitioner committed unfair labour practice covered by item 9 of Schedule IV of the MRTU & PULP Act. The allegations of both the workmen against the petitioner were that by suspending them, the petitioner violated the terms of service conditions by not paying subsistence allowance and thus by not implementing the standing orders applicable to them, unfair labour practice covered by item 9 of Schedule IV of MRTU & PULP Act was committed by the petitioner. The complaints were finally disposed of by a common judgment by the learned Member of the Industrial Court on October 20, 1982 holding that there was amendment to the Model Standing Order on October 16, 1981 by the Government of Maharashtra which was applicable to the workmen of the petitioner which was not implemented by the petitioner at the time of suspension of the two first respondents in both the petitions and, therefore, the petitioner committed unfair labour practice covered by item 9 of Schedule IV of the MRTU & PULP Act. The petitioner challenged the said order of the Industrial Court in the first two writ petitions.
3. So long as Writ Petition No. 1862 of 1983 is concerned, the complaint of unfair labour practice was filed by the first respondent-union (Maharashtra General Kamgar Union), being Complaint (U.L.P.) No. 504 of 1982, on behalf of 14 workmen represented by them who were similarly suspended as was done in the case of the other two workmen in Writ Petition Nos. 2733 of 1982 and 2734 of 1982. The first respondent-union here had in addition to item 9 of Schedule IV of the MRTU & PULP Act also alleged commission of unfair labour practices covered by item 1, 2, 3, 4, 5 and 6 of Schedule II and 1, 5 and 10 of Schedule IV of the MRTU & PULP Act. In the said complaint an application for interim relief was made and the learned Member of the Industrial Court by his order dated July 26, 1983 granted the said interim relief calling upon the petitioner to pay wages/subsistence allowance to the 14 employees suspended pending enquiries with effect from May 26, 1982 almost on the same analogy as was done by the Industrial Court in Writ Petition Nos. 2733 of 1982 and 2734 of 1982. Feeling aggrieved by the said order of the Industrial Court, the petitioner filed this particular writ petition.
4. In support of all the three petitions, Mrs. Doshi, learned Advocate appearing on behalf of the petitioner, urged that the Industrial Court in all the three matters committed grave legal error in coming to the conclusion that the provisions of Section 40A of the Act would automatically apply to the workmen concerned in all the three writ petitions merely because the 1981 amended Model Standing Order was more advantageous to the employees of the petitioner. Controverting her argument, Mr. Ganguli, learned Advocate appearing on behalf of the Union and the workmen represented by them as also the individual workmen in Writ Petition Nos. 2733 and 2734 of 1982, submitted that it is no doubt true that the wording of Section 40A of the Act are such that the said provisions of law would not automatically apply to the employees of the petitioner but something that is not written in this particular provision of law will have to be read by this Court so as to do justice to the poor workmen and more especially when this Court is exercising its writ jurisdiction.
5. I am afraid, I am not able to persuade myself to agree with the submissions of Mr. Ganguli for more than one reasons. It is an admitted fact that on December 27, 1963 the Standing Orders governing the employer-employee relationship in the company of the petitioner were settled and certified under Section 35 of the Act by the Commissioner of Labour. The relationship of the employer-employees here, therefore, was governed in these cases by the settled and certified standing orders. It is also an admitted fact that there was provision in these certified standing orders as per clause 24, sub-clause (5), for suspension of the workmen pending enquiry and that there was no provision therein for subsistence allowance during suspension period. It is further an admitted fact that by a Notification No. GIR-1477/2397 (III) Lab 9, L dated October 16, 1981, the Labour Department of the Government of Maharashtra amended and notified Model Standing Orders under sub-section (5) of Section 35 of the Act introducing therein Clause 24, sub-clause 5A, whereby provision was made for paying subsistence allowance to a suspended workman pending enquiry. The vehement argument of Mr. Ganguli is that the petitioner committed unfair labour practice covered by item 9 of Schedule IV of the MRTU & PULP Act is not paying the subsistence allowance to all the workmen concerned here under the provisions of the amended Model Standing Order No. 24-5A and thereby not implementing the said Model Standing Order. His further argument is that it is no doubt true that the relationship of the employer and employees here was governed by the settled and certified standing orders which could be altered only under the provisions of Section 38(2) of the Act which was not done in this case but notwithstanding that Section 40A of the Act would automatically apply as the amended Model Standing Order is more advantageous than the corresponding model standing order applicable earlier and in any case the Labour Commissioner had not held that the same would be less advantageous to the concerned employees. I find no substance in these arguments of Mr. Ganguli because the provisions of Section 40A of the Act would not automatically apply to the workmen of the petitioner and if the employees and/or the Union representing them desired that the amended Model Standing Order No. 24-5A should be applicable to the employees of the petitioner they should have resorted to the provisions of Section 38(2) of the Act which they had not done.
6. It would be advantageous to analyse here the scheme of Chapter VII of the Act which deals with Standing Orders. Section 35 provides for settlement of Standing Orders by the Commissioner of Labour and further provides that until standing orders in respect of an undertaking come into operation, model standing orders, if any notified in the Official Gazette by the State Government in respect of the Industry shall apply to such undertaking. Section 36 provides that any person who feels aggrieved by the decision of the Labour Commissioner in this respect may appeal to the Industrial Court who may confirm, modify, add to or rescind any of such standing orders. Section 37 envisages review by the Industrial Court of its decision in the regard. Section 38 speaks in terms of no alteration to be made in the standing orders which are settled under sub-section (2) of Section 35 which had not been appealed against for a period of one year. Thereafter Section 39 provides about the alteration of standing orders on receipt of an application under sub-section (2) of Section 38 by the Commissioner of Labour and procedure to be followed by him. Section 40 provides for determinative value of the standing orders. And then comes the crucial Section 40A of the Act which reads as under :
"40A. Notwithstanding anything contained in the foregoing provisions of this Chapter, any model standing orders made and notified in the Official Gazette by the State Government from time to time, in respect of any additional matters included in the Schedule I, or any alteration made in that Schedule, on or after the date of commencement of the Bombay Industrial Relations (Amendment) Act, 1977, shall unless such model standing orders are held by the Commissioner of Labour to be less advantageous to the employees than the corresponding standings orders applicable to them, also apply in relation to such employees in the undertakings in respect of which standing orders have already been settled under Section 35."
7. A careful analysis of Section 40A makes it clear that notwithstanding what is provided in Sections 35 to 40 of the Act if any model standing order is made and notified in the Official Gazette by the State Government after the amended Act No. XLVII of 1977 by which this particular Section was introduced, the same shall be applicable to the employees if such model standing order is not held by the Labour Commissioner to be less advantageous to them (employees) than the corresponding standing order, provided that by making such a model standing order an additional matter was introduced in Schedule I or alteration was made therein. In substance, therefore, unless the relevant model standing order No. 24-5A was in reality in respect of an additional item or alteration in the existing item of Schedule I of the Act, the same would not automatically apply to the employees of the petitioner. This is more clear from item No. 14 added to Schedule I of the Act by Maharashtra Act No. 47 of 1977 which came into force on 12th December, 1988 which speaks in terms of employment or re-employment of probationers or badlies or temporary or casual workmen and their conditions of service. So far as the instant three writ petitions are concerned, the appropriate item of Schedule-I is No. 11 which provides for punishment including warning, censure, fine, suspension or dismissal for misconduct, suspension pending enquiry into alleged misconduct and the acts or omissions which constitute misconduct. Therefore, the amended Model Standing Order No. 24-5A was not regarding any additional or alternative item made in Schedule-I of the Act and that being so regardless of the fact that the amended Model Standing Order No. 24-5A is more advantageous to the employees of the petitioner the same would not automatically apply to govern the relationship between the petitioner and their employees.
8. In this view of the matter, the Industrial Court was not correct in coming to be conclusion that the petitioner here had committed unfair labour practice covered by item 9 of Schedule IV of the MRTU & PULP Act in not paying the subsistence allowance to the suspended 16 workmen as per the provisions of the amended Model Standing Order No. 24-5A. The Industrial Court, therefore, committed grave error of law. Mr. Kochar who acted amicus curiae very ably assisted this Court in the matter of true interpretation of Section 40-A of the Act and he, dispute his strong views in favour of the labour, submitted that he was unable to canvass in support of the impugned orders passed by the Industrial Court.
9. The writ petitions, therefore, succeed and the same are allowed. Rule in each of the writ petition is made absolute accordingly. But in the circumstances of the case there will be no order as to cost.
10. In Writ Petition No. 1862 of 1983, the petitioner was directed to deposit the subsistence allowance in this Court. The petitioner is at liberty to withdraw the said amount. Prothonotary and Senior Master to act on minutes in this respect.
11. Before parting with the judgment I record my gratitude to Mr. Kochar.