# BAJAJ AUTO LTD v. BHOJANE GOPINATH D. AND ORS

- **Citation:** [2003] Supp. 6 S.C.R. 958
- **Court:** Supreme Court of India
- **Decided:** 2003-12-17
- **Case number:** Civil Appeal No. 5003 of 2002
- **Bench:** Y.K. Sabharwal, B.N. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bajaj-auto-ltd-v-bhojane-gopinath-d-and-ors-19630
- **Pages:** 28

## Headnote

Labour Laws :
Maharashtra Recognition of Trade Unions and Prevention of Unfair
C · Labuor Practices Act, 1971-Sections 28, 30 and 3(18), Schedule IV item
Nos. 6 and 9-fndustrial Employment (Standing Orders) Act, 1946Sections 3, JO and 13(1)-lndustrial Employment (Standing Orders)
Central Rules, 1946-Industrial Employment (Standing Orders) Act, 1946
as amended by State Legislature-Sections 2A(J), 3 and 13(1}-Bombay
D Industrial Employment (Standing Orders) Rules, 1959-Rule 4C-Industrial establishment within the State of Maharashtra-Complaint alleging
that Company appointing workmen for less than 240 days and thereafter
replacing them by different set of workers to deprive them benefit of
permanency on completion of 240 days uninterrupted service in a year as
E envisaged under Rule 4C-Cmnpany contending that in the Certified
Standing Order there is no provision akin to Rule 4C-Industrial Court
held unfair labour practice under item Nos. 6 and 9 and directed company
to absorb all complainants and make them permanent-Writ applicationsInterim order by High Court directing Company to continue services of
workrnen, though liberty granted to terminate their services after observing
F legal requirements-Termination of services of all workmen-High Court
upheld finding of Industrial Court regarding unfair labour practice but set
aside the direction and also held that termination of services of workmen
was in violation of interim order and directed that such workmen should
be ;·einstated with 50% back wages-On appeal held : Model Standing
G Orders are ipso facto applicable to establishment within State of
Maharashtra as notified by State Government-Though it is optional for
workmen to submit draft to Certifying Officer for amendment but no
amendment which has the ejfeCt of deleting or omitting any of the rule in
the Model Standing Orders can be sought-Also Rule 4C has been
H fncorporated relating to matter set out in 10-C of Schedule, deletion of the
958
BAJAJ AUTO LTD. v. B.G.D.
959
same would be without jurisdiction, null and void-Further, finding of A
Industrial Court regarding unfair trade pactice under item 6 recorded on
sufficient evidence-High Court justified in not inte1fering with it-Interim
order passed by High Court not an award-Hence no unfair labour
practice under item 9-0n facts and circumstances not a fit case for
reinstatement of workmen, with payment of 50% back wages-However, B
workmen entitled to reasonable amount of compensation in terms of
Section 30(1)(b) of the Act.
Respondent-workmen were in employed in the appellant-Company within the State of Maharashtra. They filed complaints alleging C
unfair labour practices. It was alleged that the appellant appointed
temporary workers for period less than 240 days and thereafter
replaced them by different set of workmen to deprive them the benefit
of permanency on completion of 240 days uninterrupted service in the
aggregate in any establishment during a period of preceding twelve
calendar months as envisaged under Rule 4C of the Model Standing D
Orders. Appellant-Company took the stand that there was no provision
akin to Rule 4C in the Certified Standing Orders. Industrial Court held
that there was no unfair labour practice as enumerated in Item Nos.
5 and 10 but under Item Nos. 6 and 9 of Schedule IV appended to the
Maharashtra Recognition of Trade Unions and Prevention of Unfair E
Labour Practices Act, 1971 and directed the appellant-Company to
absorb all the temporary employee-complainants in employment as
per seniority, make them permanent and still if there is neecl then
engage temporary worker:.. Parties filed writ applications. During the
pendency of the applications, High Court directed the appellant- F
. Company to continue services of the workmen, granting liberty to
terminate services of any of the workmen after observing legal
requirements. However the services of all the respondent-workmen
were terminated. High Court upheld the finding of unfair labour
practic

## Text

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A.
BAJAJ AUTO LTD.
v.
BHOJANE GOPINATH D. AND ORS.
DECEMBER 17, 2003
B
[Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]
Labour Laws :
Maharashtra Recognition of Trade Unions and Prevention of Unfair
C · Labuor Practices Act, 1971-Sections 28, 30 and 3(18), Schedule IV item
Nos. 6 and 9-fndustrial Employment (Standing Orders) Act, 1946Sections 3, JO and 13(1)-lndustrial Employment (Standing Orders)
Central Rules, 1946-Industrial Employment (Standing Orders) Act, 1946
as amended by State Legislature-Sections 2A(J), 3 and 13(1}-Bombay
D Industrial Employment (Standing Orders) Rules, 1959-Rule 4C-Industrial establishment within the State of Maharashtra-Complaint alleging
that Company appointing workmen for less than 240 days and thereafter
replacing them by different set of workers to deprive them benefit of
permanency on completion of 240 days uninterrupted service in a year as
E envisaged under Rule 4C-Cmnpany contending that in the Certified
Standing Order there is no provision akin to Rule 4C-Industrial Court
held unfair labour practice under item Nos. 6 and 9 and directed company
to absorb all complainants and make them permanent-Writ applicationsInterim order by High Court directing Company to continue services of
workrnen, though liberty granted to terminate their services after observing
F legal requirements-Termination of services of all workmen-High Court
upheld finding of Industrial Court regarding unfair labour practice but set
aside the direction and also held that termination of services of workmen
was in violation of interim order and directed that such workmen should
be ;·einstated with 50% back wages-On appeal held : Model Standing
G Orders are ipso facto applicable to establishment within State of
Maharashtra as notified by State Government-Though it is optional for
workmen to submit draft to Certifying Officer for amendment but no
amendment which has the ejfeCt of deleting or omitting any of the rule in
the Model Standing Orders can be sought-Also Rule 4C has been
H fncorporated relating to matter set out in 10-C of Schedule, deletion of the
958
BAJAJ AUTO LTD. v. B.G.D.
959
same would be without jurisdiction, null and void-Further, finding of A
Industrial Court regarding unfair trade pactice under item 6 recorded on
sufficient evidence-High Court justified in not inte1fering with it-Interim
order passed by High Court not an award-Hence no unfair labour
practice under item 9-0n facts and circumstances not a fit case for
reinstatement of workmen, with payment of 50% back wages-However, B
workmen entitled to reasonable amount of compensation in terms of
Section 30(1)(b) of the Act.
Respondent-workmen were in employed in the appellant-Company within the State of Maharashtra. They filed complaints alleging C
unfair labour practices. It was alleged that the appellant appointed
temporary workers for period less than 240 days and thereafter
replaced them by different set of workmen to deprive them the benefit
of permanency on completion of 240 days uninterrupted service in the
aggregate in any establishment during a period of preceding twelve
calendar months as envisaged under Rule 4C of the Model Standing D
Orders. Appellant-Company took the stand that there was no provision
akin to Rule 4C in the Certified Standing Orders. Industrial Court held
that there was no unfair labour practice as enumerated in Item Nos.
5 and 10 but under Item Nos. 6 and 9 of Schedule IV appended to the
Maharashtra Recognition of Trade Unions and Prevention of Unfair E
Labour Practices Act, 1971 and directed the appellant-Company to
absorb all the temporary employee-complainants in employment as
per seniority, make them permanent and still if there is neecl then
engage temporary worker:.. Parties filed writ applications. During the
pendency of the applications, High Court directed the appellant- F
. Company to continue services of the workmen, granting liberty to
terminate services of any of the workmen after observing legal
requirements. However the services of all the respondent-workmen
were terminated. High Court upheld the finding of unfair labour
practice recorded by the Industrial Court but set aside the direction
given by the Industrial Court and held that the termination of services G
of the respondent-workmen was in violation of interim order passed
by the High Court and as such the respondents be reinstated in service
with 50% back wages. Hence the present appeals.
Appellant contended that Rule 4C of the Model Standing Orders H
960
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A was not applicable since there was no such Rule in the Certified
Standing Order; and that the High Court was not justified in upholding
the finding of the Industrial Court that the appellant-company had
employed unfair labour practice covered, by Item Nos. 6 and 9 of
Schedule IV of the Act.
B
c
D
Respondent-workmen contended that under law, Rule 4C of the
Model Standing Orders which related to matter set out in Item No. 10C of the Schedule appended to the 1946 Act, as amended by the State
Legislature, could not have been deleted while certifying the amendments in the Model Standing Orders by the competent authority and
the said Order being in violation of the mandatory provisions of law
is ab initio void and is to be ignored, as such Rule 4C would be
applicable to the instant case.
Disposing of the appeals, the Court
HELD : I.I. With regard to State of Mahrashtra drastic amendments have been made by the State Legislature in the Industrial
Employment (Standing Orders) Act, 1946 by virtue of Industrial
Employment (Standing orders) (Bombay Amendment) Act, 1957 and
E Industrial Employment (Standing Orders) (Maharashtra Amendment)
Act, 1974. Under Section 3 of the 1946 Act there is a compulsion upon
the employer to submit draft standing orders for certification failing
which he entails penalty of prosecution under Section 13(1) whereas
under Section 3, as amended by the State Legislature, there is no such
requirement and consequently no penalty is provided under Section
F 13(1). Further under Section 3 as amended, it is optional either on the
employer or the workmen to apply for amendment in the Model
Standing Orders, however, the proviso to Section 3(1) mandates that
no amendment which provides for deletion or omission of any Rule in
the Model Standing Orders relating to any matter set out in the
G .. schedule shall be submitted under this Section. If there is a mandate
upon a party not to apply for such amendment, the Certifying Officer
in the purported exercise of power cannot assume jurisdiction to grant
such an amendment. Further, by Section 4 of the l 946 Act a duty has
been cast upon the Certifying Officer and Appellate Authority to
H adjudicate upon the fairness or reasonableness of the provisions of any
BAJAJ AUTO LTD. v. B.G.D.
961
draft standing orders which have been submitted before the Certifying A.
Officer whereas with regard to State of Maharashtra no such discretion has been given at all either to the Certifying Officer or the
Appellate Authority in view of the fact that Section 4 has been deleted
by State Amendment. This shows that provisions of the 1946 Act as
are applicable to the State of Maharashtra are more stringent, as the B
Model Standing Orders are ipso facto made applicable to industrial
establishments within the State of Maharashtra from the date notified
by the State Government and no such amendment can be made in the
Medel Standing Orders which may have the effect of deleting or
omitting any of the rules therefrom in relation to matters enumerated C
in the Schedule. [977-A-C, G-H; 978-C-E; 979-C-F)
1.2. Rule 4C in ~he Model Standing Orders has been incorporated
relating to the matter set out in Item No. 10-C of· the Schedule
'employment or re-employment of probationers or badlis or temporary or casual workmen, and their conditions of service' as such D
deletion of Rule 4C by the Certifying Officer, being in the teeth of
legislative command incorporated in proviso to Section 3(1), was
wholly without jurisdiction and would make the order of Certifying
Officer to that effect null and void and liable to be disregarded as it
is well settled that if an order is null and void, the same can be E
disregarded in collateral proceeding or otherwise. (979-A-CI
Dhurandhar Prasad Singh v. Jai Prakash University and Ors., JT
(2001) 5 SC 578, referred to.
1.3. It appears from the Award of the Industrial Court in extenso p
that the Court recorded the finding that the appellant-company had
employed unfair labour practice in its establishment in relation to the
matters enumerated in Item No. 6 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of unfair Labour Practices Act, 1971 after threadbare discussion of evidence adduced on
behalf of the parties and there being no infirmity, High Court was G
justified in not interfering with the same, as such it is not possible for
this Court to disturb the same as the said finding is a pure finding of
fact and no interference therewith is called for. (981-B-DJ
1.4. In the instant case, there is neither any averment nor evidence H
962
.SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A to show that there was failure on the part of the employer to implement
any award, settlement or agreement. In the writ petition only point was
raised arising aut of order passed by the Industrial Court in the present
proceeding. An interim order was passed by the High Court permitting
the employer to terminate services of workmen in accordance with the
B procedure prescribed under the law and there was failure on the part
of the employer to carry out the said direction. The interim order
passed by the High Court in the writ application cannot be treated to
be an award, as interim or final determination of any industrial dispute
or any question relating thereto by Labour Court and Tribunals, alone
C would come within the definition of 'award' under section 2(b) of the
Industrial Dispute Act, 1947 which is applicable by virtue of section
3(18) of the 1997 Act. Therefore, appellant-company did not employ
unfair labour practice covered by Item No. 9 of Schedule IV as such
the High Court was not justified in upholding the finding of the
Industrial Court. [981-E-H; 982-A-C)
D
1.5. According to Section 30 of the 1971 Act, ifan In~ustrial Coor~
or Labour Court comes to the co~clusion that t:te employer has employed
or is employing any unfair labour practice, it.may pass a declaratory
I
order to that effect and direct such employer to cease and desist from
E unfair labour .practice. Further, in such an eventuality, such courts
could pass any of the consequential orders enumerated under Sections
30(1)(b) of the 1971 Act, namely, reinstatement of the employees with
or without back wages or the payment of reasonable compensation to
the employees affected by the unfair labour practice. Therefore, in the
facts and circumstances of the instant case, it was not a fit case in which
F High Court should have directed reinstatement of the workmen. It was
also not justified in directing payment of 50% back wages to them as
they were entitled to payment of reasonable amount of compensation in
terms of Section 30(1)(b) of the 1971 Act. (982-D-G]
G
2. In Civil Appeal No. 5003 of2002, out of total 1197 respondents,
matters of 1006 workmen has been settled and entire compensation
amount has been paid to them as paid to other workmen in terms of
the previous order. With regard to the remaining workmen it would
be just and expedient that they are paid a reasonable amount of
H compensation order Section 30 of the 1971 Act. Furthermore, the
BAJAJ AUTO LTD. v. B.G.D. [AGRAWAL, J.]
963
directions given by the Industrial Court as well as the High Court ill' A
operative portion of their orders are set aside. 1983-F; 985-A)
Dunlop India Ltd. v. Their Workmen, 11972) 3 SCC 616; The United
Provinces Electric Supply Co. Ltd. v. TN Chatterjee & Ors., AIR (1972)
SC 1201 and Bharat Petroleum Corporation Ltd. v. Maharas~tra General B
Kamgar Union & Ors., (1999) 1 SCC 626, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5003 of
2002.
From the Judgment and Order dated 8.9.200 I of the Bombay High C
Court in W.P. No. 523 of 2001.
WITH
C.A. Nos. 5005, 5025, 5026, 5027 and 5028 of 2002.
D
J.P. Cama, K.K. Singhvi, Shekhar Naphade; S.K. Dholakia and C.A.
Sundram, Ghuge R.V., D.N. Ray, Arjun Bobde, Mrs. Nandini Gore, Ms.
Pragya Baghel, Ashish Jha, Mrs. Manik Karanjawala, Prabhakar Joshi, R.S.
Hedge, Chandraprakash, A. Nagabhushnam, Devesh P., Mrs. Savithri
Pandey for P.P. Singh, D.M. Nargolkar, Ravindra K. Adsure, R.N. E
Karanjawala, Padmalakshmi Nigam, R.B. Muley, A.B. Dhongde, Avinash
Salve, Savitri Pandey, P.P. Singh, Nitin S. Tambwekar, P.M. Gore,
C. Ravichandran Iyer, BST Sai, Bhomal~ Deshmukh, R.Y. Joshi, Mukesh
K. Giri, G.B. Sathe, Bharat Sangal, Sangeeta Panicker, R.K. Kumar,
Vishwajit Singh, Tripurari Ray, Mrs. Rohini Musa, P. Venugopal,
P.S. Sudheer and K.J. John for the Appearing Parties.
F
The J4dgment of the Court was delivered by
B.N. AGRAWAL, J. : These appeals by special leave have been filed
by appellant-Company against judgment rendered by Aurangabad Bench G
of Bombay High Court in writ applications whereby Award made by
Industrial Court, Aurangabad, in the individual complaints filed by respondents-workmen has been modified.
The short facts are that the respondents-workmen, 1197 in number,
who were in employment of the appellant-Company in its factory at Bajaj H
964
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Nagar, Waluj, within the District of Aurangabad, filed individual complaints before the Industrial Court at Aurangabad, under Section 28 of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 (hereinafter referred to as 'the 1971 Act')
complaining thereunder that unfair labour practices enumerated in Item
B Nos. 5, 6, 9 and 10 of Schedule IV appended to the 1971 Act were
employed by the appellant-Company in the establishment in question.
According to the workmen, they were appointed as welder, fitter, turner,
mechanic, helper, grinder, etc., and were working since the year 1990 and
used to be granted employment in each year for about a period of seven
C months and after expiry of the said term their services used to be
discontinued, which practice went on for a period of seven years till before
filing of the complaints by them in the year I 997. It was stated that a
rotation system was followed by the appellant-Company whereby different
set of workmen came to be appointed by rotation displacing the workmen
appointed earlier which was indicative of the fact that work of pennanent
D nature was available with the appellant-Company, but the rotational system
was introduced by it with a view to deprive the workmen of rights and
privileges of permanent employees so that they may not be entitled to claim
benefit of permanency on completion of 240' days uninterrupted. service
in the aggregate in any e_stablishment during a period of preceding twelve
E calendar months as envisaged under rule 4C of the Model Standing Orders
which was applicable to the establishment in question.
The appellant-Company contested claims of the workmen by stating
that conditions of employment of the workmen were governed by the
Standing Orders, duly ce11ified on I 0th March, I 986 by the Certifying
F Officer under the provisions of the Industrial Employment (Standing
Orders) Act, I 946 (hereinafter referred to as 'the I 946 Act') wherein there
was no provision akin to rule 4C of the Model Standing Orders. According
to the appellant-Company, it had employed 4250 workmen on permanent
basis so as to meet the requirement of normal production. However, due
G to periodical fluctuations of a temporary nature in the quantum of
production at the factory from time to time, dictated by the conditions at
the national and international market, to which the said establishment is
exposed, the work force is increased or decreased. In order to meet the
fluctuations, the appellant-Company was required to employ workmen on
H temporary basis and, so also, as to when production decreased, it was
BAJAJ AUTO LTD. v. B.G.D. [AGRAWAL, J.]
965
required to terminate services of the temporary workmen. Further, as, A
undisputedly, none of the workmen had worked continuously for 240 days,
much less during a period of preceding twelve calendar months, they were
not entitled to claim any benefit on that count.
In support of their respective cases, both the pa11ies led oral and B
documentary evidence and the In_dustrial Court came to the conclusion that
no unfair labour practice, as enumerated in Item Nos. 5 and 10 of Schedule
IV, could be established, but found that the workmen had succeeded in
proving the unfair labour practices enumerated under Item Nos. 6 and 9
of the said Schedule. After recording the aforesaid findings vide Award
dated 9 .11.2000 the Industrial Court directed the appellant-Company "how C
many permanent employees are required as per the production norms be
fixed and after making the employees permanent from these temporary
employees, if there is a need of any temporary workers, they can engage
but after absorbing all these complainants in the employment they can
engage temporary workers, as per seniority". The appellant~Company was D
further directed "to prepare a seniority list of all the temporary workers who
are in employment and who are not in the employment and give them
continuous work and after completion of 240 days of service, make them
permanent in the employment".
Aggrieved by the aforesaid Award, five writ applications were filed
before the High Court on behalf of the workmen challenging the aforesaid
directions of the Industrial Court. The appellant-Company also filed a writ
application challenging the directions regarding permanency and finding
E
of the Industrial Cou11 whereby it had come to the conclusion that the
appellant-Company had employed unfair labour practice in its establish- F
ment in relation to matters enumerated in Item Nos. 6 and 9 of Schedule
IV.
During the pendency of the writ applications, on prayer heing made
on behalf of the workmen, the High Court by its order dated 30th
November, 2000 directed the appellant-Company to continue services of
the workmen, although liberty was granted to it to terminate services of G
any of the workmen after observing legal requirements, but in spite of that
order on 9.1.200 l the services of all the respondents-workmen were
terminated. By the impugned order passed on 8.9.2001, the High Court
dismissed the writ application filed on behalf of the appellant-Company,
but, while upholding the finding of unfair labour practice recorded by the H
966
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A Industrial Court, set aside the ultimate direction given by it and found that
as the termination of services of the respondents-workmen was in violation
of interim order passed by the High Court on 30th November, 2000, they
were entitled to restitution. In effect and substance, it was directed that
the respondents-workmen shall be reinstated in service with 50% back
B wages from 10th January, 2001 till the date of High Court judgment. The
Court further directed that the services of the respondents-workmen shall
be regularised and they be made permanent from the date of filing of the
complaints before the Industrial Court. Challenging the aforesaid judgment,
the present appeals by special leave have been filed by the appellantC Company.
Shri J.P. Cama, learned Senior Counsel, in support of the appeals
submitted that the appellant-Company had not employed any unfair labour
practice enumerated under Item No. 6 of the Schedule inasmuch as rule
4C of the Model Standing Orders, whereby a right of permanency could
D be acquired by a workman upon completion ofuninterrupted service of240
days in the aggregate in an establishment during a period of preceding
twelve calendar months, was not applicable in the present case in view of
the fact that there was no such rule in the Standing Orders duly certified.
On the other hand, Shri K.K. Singhvi, learned Senior Counsel appearing
E on behalf of the respondents-workmen, submitted that under law rule 4C
of the Model Standing Orders which related to matters set out in Item No.
I 0-C of the Schedule appended to the 1946 Act, as amended by the State
Legislature, could not have been deleted while certifying the amendments
in the Model Standing Orders by the competent authority and the said
Order to that effect being in. violation of the mandatory provisions of law
F is ab initio void and has got to be ignored, meaning thereby rule 4C would
be applicable in the case on hand.
Question that falls for our consideration is as to whether rule 4C of
the Model Standing Orders would be applicable to the respondentsG workmen of the appellant-Company. To appreciate the point involved, it
may be useful to refe~ to the relevant provisions of Industrial Employment
(Standing Orders) Act, 1946 enacted by the Parliament, rules framed
thereunder by the Central Government and Model Standing Orders prescribed thereunder vis-a-vis provisions of the said Act applicable to the
H State of Maharashtra after incorporating State amendments in the Act, State
BAJAJ AUTO LTD. v. B.G.D. [AGRAWAL, J.]
967
Rules and Model Standing Orders prescribed thereunder, which run thus:- A
Provisions oflndustrial Employment
(Standing Orders) Act, 1946, Central
Rules and Model Standing Orders
presc"ribed thereunder
TITLE OF Ti-IE ACT
An Act to require employers in
industrial establishments formally to
define conditions of employment
under them
PREAMBLE
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.
. Section 2(1-a): Not incorporated
Section 2(ee): Not incorporated
Provisions of the Industrial
Employment (Standing Orders)
Act, 1946 applicable in the State
of Maharashtra after incorporating
State amendments together with
State Rules and Model Standing
Orders prescribed thereunder
B
TITLE OF THE ACT
C
An Act to provide for Rules
defining with sufficient precision
certain conditions of employment
in industrial establishments in the
State of Bombay.
D
PREAMBLE
Whereas it is expedient to provide
for defining with sufficient
precision certain conditions of
employment
in
industrial
establishments in the State of
Borhbay, and for certain other
matters.
E
F
Section 2( 1-a): "amendments"
means in relation to the model
standing orders, any amendments
proposed to such orders under
Section 3 and includes any
alterations, variations or additions G
proposed thereto.
Section 2(ee): "model standing
orders" means standing orders prescribed under section 15.
H
968
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Section 2A: Not incorporated
Section 2A: Application of model
standing order in every industrial
establishment.-(!) Where this Act
applies to an industrial establishrnent,
the model standing order for every
matter set out in the Schedule
applic~ble to such establishment shall
apply to such establishment from
such date as the State Government
may by notification in the Official
Gazette appoint in this behalf;
B
c
D
E
F
G
H
Provided that nothing in this
section shall be deemed to affect any
Standing Orders which are finally
certified under this Act and have
come into operation under this Act
in respect of any
industrial
establishment before the date of the
coming into force of the Industrial
Employment [Standing Orders
(Bombay Amendment) Act, 1957]
(2) Notwithstanding anything
contained in the proviso to subsection (1) model standing orders
made in respect of additional matters
included in the Schedule after the
coming into force of the Act referred
to in that proviso (being additional
matters relating to probationers or
badlis or temporary or casual
workmen) shall, unless such model
standing orders are in the opinion of
Certifying Officer less advantageous
to them than the corresponding
standing orders applicable to them
under the said proviso, also apply in
relation to such workmen in the
establishments referred to in the said
BAJAJ AUTO LTD. v. B.G.D. [AGRAWAL, J.]
969
Section 3: Submission of draft
standing orders.- (I) Within six
months from the date on which this
Act becomes applicable to an
industrial es tab I ish ment, the
employer shall submit to the
Ce1tifying Officer five copies of
the draft standing orders proposed
by him for adoption in his industrial
establishment.
(2) 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.
(3) The draft standing orders
submitted under this Section shall
be accompanied by a statement
giving prescribed paiticulars of the
workmen employed in the industrial
establishment including the name
of the trade union, if any, to which
they belong.
(4) Subject to such conditions as
may be prescribed, a group of
employers in similar industrial
establishments may submit a joint
draft of standing orders under this
section.
proviso from such date as the State A
Government may, by notification
in the Official Gazette, appoint in
this behalf.
Section 3: Submission of amendments.-(!) Within six months from B
the date on which the model
standing orders apply to any
industrial establishment under
Section 2-A, the employer or any
workman employed therein may C
submit to that Certifying Officer
five copies of the draft amendments
for adoption in such industrial
establishment :
Provided that no amendment which D
provides for the deletion or omission
. of any rule in the model standing
orders relating to any matter set out
in the Schedule shall be submitted
under this Section.
(2) Deleted.
E
(3) The draft amendments submitted
under this section shall be
accompanied by a statement giving
prescribed particulars of the F
workmen employed in the industrial
establishment including the name
of the trade union, if any, to which
they belong.
(4) Subject to such conditions as G
may be -prescribed, a group of
employers in similar industrial
establishments may submit a joint
draft of amendments under this
section.
H
970
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A Section 4: Conditions for certifiSection 4: Deleted.
cation of standing orders.-
Standing orders shall be ce1tifiable
under this Act if -
(a) provision is made therein for
B every matter set out ir. the Schedule
which is applicable to the industrial
establishment; and
(b) the standing orders are
otherwise in conformity with the
C provisions of this Act;
and it shall be the function of the
Certifying Officer or appellate
authority to adjudicate upon the
fairness or reasonableness of the
D provisions of any standing orders.
Section 5: Certification of standing
orders.-(1) On receipt of the draft
under section 3, the Certifying
Officer shall forward a copy thereof
E 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
requmng
F objections, if any, which the
workmen may desire to make to the
draft standing orders to be
· substituted to him within fifteen
days from the receipt· of the notice.
G (2) After giving the employer and
the trade un10n or such other
representatives of the workmen as
may be prescribed an oppo1tunity
of being heard, the Certifying
H Officer sh~JI decide whether or not
Section 5: Certification of amendments.- (I) On receipt of the draft
under Section 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 or the
employer, as the case may be,
together with a notice in the
prescribed
form
requmng
objections, if any, which the
workmen, or empioyer may desire
to make to the draft amendments to
be submitted to him within fifteen
days from the receipt of the notice.
(2) After giving the employer, the
workmen
submitting
the
amendment and the trade union or
such other representatives of the
workmen as may be prescribed an
opportunity of being heard the
BAJAJ AUTO LTD. v. B.G.D. [AGRAWAL, J.]
971
any modification of or addition to
the draft submitted by the employer
is necessary to render the draft
standing orders certifiable under
this Ac.t, 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-section (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 subsection (2) to the employer and to
the trade union or other prescribed
representatives of the workmen.
Section 6: Appeals.-Any employer,
workman, trade union or other
prescribed representatives of the
workman aggrieved by the order of
the Certifying Officer under subsection (2) of section 5 may, within
thirty days from the date on which
copies are sent under sub-section
(3) of that section, appeal to the
appellate authority, and the
appellate authority, whose decision
shall be final, shall by order in
writing confirm the standing orders
either in the form certified by the
Certifying Officer or after amending
the said standing orders by making
such modifications thereof or
additions thereto as it thinks
necessa1y to render the standing
orders certifiable under this Act.
Certifying Officer shall decide A
whether or not any modification of
the draft submitted under subsection (I) of Section 3 is necessary,
and shall make an order in writing
accordingly.
B
(3) The Certifying Officer shall
thereupon
certify
the
draft
amendments after making any
modifications therein which his
order under sub-section (2) may
require, and shall within seven days C
thereafter send copies of the model
standing orders together with copies
of the certified amendments thereof,
authenticated in the prescribed
manner and of his order under subsection (2) to the employer and to D
the trade union or other prescribed
representatives of the workmen.
Section 6: Appeals.-( 1) Any
employer, workman, trade union or
other prescribed representatives of E
the workmen aggrieved by the order
of the Certifying Officer under subsection (2) of Section 5 may, within
thirty days from the date on which
copies are sent under sub-section F
(3) of that section, appeal to the
appellate authority, and the
appellate authority, whose decision,
shall be final, shall by order in
writing confirm the amendments G
either in the fonn certified by the
certifying officer or after further
modifying the same as the appellate
authority thinks necessary.
H
972
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A (2) The appellate authority shall,
(2) The appellate authority shall,
within seven days of its order under
sub-section (1 ), send copies thereof
of the Certifying Officer, to the
employer and to the trade union or
B other prescribed representatives of
the workmen, accompanied, unless
it
has
confirmed
without
amendment the standing orders as
certified by the Certifying Officer,
by copies of the standing orders as
C certified by it and authenticated in
the prescribed manner.
Section 7. Date of operation of
D standing orders.- Standing Orders
shall, unless an appeal is preferred
under section 6, come into
operaticn on the expiry of thirty
days from the date on which
E authenticated copies thereof are sent
under sub-section (3) of section 5,
or where an appeal as aforesaid is
preferred, on the exp!ry of seven
days from the date on which copies
of the order of the appellate
F authority are sent under sub-section
(2) of section 6.
Section
10:
Duration
and
modification of standing orders. -
G (I) Standing orders finally certified
under this Act shall not, except on
agreement between the employer
and the workmen or a trade union
or other representative body of the
workmen be liable to modification
H until the expiry of six months from
within seven days of !ts order under
sub-section (I), send copies thereof
to the Ce11ifying Officer, to the
employer and to the trade union or
other prescribed representatives of
the workmen accompanied unless it
has confirmed without further
· modifications the amendments as
ce11ified by the Certifying Officer
by ccpies of the model standing
orders together with the amendments
as certified by it and authenticated
in the prescribed manner.
Section 7. Date of operation of
standing orders or amendments.-
Standing Order or amendments shall,
unless an appeal is preferred under
Section 6, come into operation on
the expiry of thirty days from the
date on which authenticated copies
thereof are sent under sub-section
(3) of section 5, or where an appeal
as aforesaid is preferred, on the
expiry of seven days from the date
on which copies of the order of the
appellate authority are sent under
sub-section (2) of Section 6.
Section
10:
Duration
and
modification of standing orders.-
(!) Standing Orders
or the
amendments finally certified under
this Act shall not, except on
agreement between the employer and
the workmen or a trade union or
other representative body of the
workmen be liable to modification
,•
BAJAJ AUTO LTD. v. B.G.D. [AGRA WAL, J.]
973
the date on which the standing
until the expiry of six months from A
orders or. the last modifications
the date on which the standing
thereof came into operation.
orders or the amendments or the
last modifications thereof came into
operation and where model standing
orders have not been amended as B
aforesaid, the model Standing
(2) Subject to the provisions of subsection (I), an employer or
workman or a trade union or other
representative body of the workmen
may apply to the Certifying Officer
to have the standing orders modified
and such application shall be
accompanied by five copie.s of the
modifications proposed to be made,
and where such modifications are
proposed to be made by agreement
between the employer and the
workman or a trade union or other
representative body of the workmen
a certified copy of that agreement
shall be filed along with the
application.
(3) The foregoing provisions of this
Act shall apply in respect of an
application under sub-section (2) as
they apply to.the certification of the
first standing orders.
( 4) Nothing contained in sub-section
(2) shall apply to an industrial
establishment in respect of which
the appropriate Government is the
Government of the State of Gujarat
or the Government of the State of
Maharashtra.
Orders shall not be liable to such
modification until the expiry ofone
year from the date on which they
were applied under Section 2-A.
(2) Subject to the provisions of subsection (I), an employer, workman
or a trade union or other
representative body of the workmen
c
or any prescribed representatives of D
workmen desiring to modify the
standing orders or the model
standing orders together with the
amendments, as finally certified
under this Act, or the model standing
orders applied under Section 2-A, E
as the case may be, shall make an
application to the Ce1tifying Officer
in that behalf, and such application
shall be accompanied by five copies
of the standing orders, or the model F
standing orders, together with all
amendments thereto as certified
under this Act or model standing
orders in which shall be indicated
the modifications proposed to be G
made and where such modifications
are proposed to be made by
agreement between the employer
and workmen or a trade union or
other representative body of the H
974
SUPREME COURT REPORTS (2003) SUPP. 6 S.C.R.
A
B
c
Section 13(1): Penalties and
procedure.- (1) An employer who
D fails to submit draft standing orders
as required by section 3, or who
modifies his standing orders
otherwise than in accordance with
section 10, shall be punishable with
E · fine which· may extend to five
thousand rupees, an in the case of
a continuing offence with a further
fine which may extend to two
hundred rupees for every day after
F the first during which the offence
continues.
THE SCHEDULE
Matters to be provided in standing
G orders under this Act.
10-C: Not incorporated
H
workmen a certified copy of the
agreement shall be filed along with
the application.
(3) The foregoing provisions of this
Act shall apply in respect of an
application under sub-section (2) as
they apply to the certification of the
first amendments.
(4) Nothing contained in sub-section
(2) shall apply to an industrial
establishment in respect of which
the appropriate G.overnment is the
Government of the State of Gujarat.
Section 13(1): Penalties and
procedure.- (l) Ari employer who
modifies the standing orders, model
standing orders or amendments,
otherwise than in accordance with
the provisions of this Act shall, on
conviction, be punished with fine
which may extend to five thousand
rupees, an in the case of continuing
bffence with a further fine which
may extend to. two hundred rupees
for every day after the first during
which the offence continues.
THE SCHEDULE
Matters to be provided in Standing
Orders (Model Standing Orders and
Amendments) under this Act.
I 0-C: Employment or re-employment
·for probationers or badlis or
temporary or casual workmen, and
their conditions of service.
BAJAJ AUTO LTD. v. B.G.D. [AGRA WAL, J.]
975
INDUSTRIAL EMPLOYMENT
(ST ANDING ORDERS)
CENTRAL RULES, 1946
SCHBDULE I
Model Standing Orders
Rule 4C: Not incorporated
BOMBA YINDUSTRIAL
A
EMPLOYMENT (ST ANDING
ORDERS) RULES, 1959
SCHEDULE I
Model Standing Orders
B
Rule 4C: A badli or temporary
workman who has put in 190 days'
uninterrupted service
in the
aggregate in any establishment of C
seasonal nature or 240 days
"uninterrupted service" in the
aggregate in any other establishment,
during a period of preceding twelve
calendar months, shall be made D
permanent in that establishment by
order in writing signed by the
Manager, or any person authorised
in that behalf by the Manager,
irrespective of whether or not his E
name is on the muster roll of
the establishment throughout the
period of the said twelve calendar
months.
F
Explanation.- For purposes of this
clause any period of interrupted
service, caused by cessation of work
which is not due to any fault of the
workman concerned, shall not be G
counted
for the purpose of
computing 190 days or 240 days, or,
as the case may be, for making a
badli or temporary workman
permanent.
H
976
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A
From a bare perusal of the relevant provisions of the 1946 Act,
promulgated by the Parliament, it would appear that the very title of the
Act requires the employers in industrial establishments formally to define
conditions of employment under them. Preamble to the Act shows that
it was found expedient to require employers in industrial establishments
B to define with sufficient precision the conditions of employment under
them and to make the said conditions known to the workmen employed
by them. This shows that the conditions of employment of workmen in
an industrial establishment are required to be defined by the employer in
accordance with the procedure prescribed under the 1946 Act and the rules
C framed thereunder. Under Section 3, within a period of six months from
the date on which the Act becomes applicable to an industrial establishment, every employer has no option but to submit to the Certifying Officer
draft standing. orders proposed by him for adoption in his industrial
establishment.