# • Corporation of the City of Nagpur v. Its Employees Subba Rao ]. z960 February, II •

- **Citation:** [1960] 2 S.C.R. 974
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Gajendragadkar, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/corporation-of-the-city-of-nagpur-v-its-employees-subba-rao-z960-february-ii-1812
- **Pages:** 8

## Headnote

Ind,,strial Disp,,te-Standing
Orders-Draft su.bmitted by
employer for
approval-Modification
by
Certifyitig OjficerJ"risdiction-Ind"strial Employment (Standing Orders) Act, I946
(20 of I946) SS. J, 4, 5, I5(2) (b). 1
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 \Vith 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
(
-
-
..

•
•••
976
SUPREME COURT REPORTS [1960(2)]
,960
been made in accordance with the model standing
order on this subject. Similarly, item No. 16(2) in the
Associated
C•ment Co. Ltd. draft standing orders provided that striking work
v.
either singly or with other workers without giving
P. D. Vyas
fourteen days' previous notice would be treatPd as
-
misconduct; whereas item No. 16(3) provided that
Gajendragadka. J. inciting while on the premises a,ny worker to strike
work shall be treated as misconduct.
These two
provisions in the draft have been modified by respondent 2 and the order thus modified provides that
striking work illegally either siggly 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 l was
not impressed by the contentions raised by the appel,
!ants with the result that the modifications made by
respondent 2 were confirmed and the appeal was
dismissed.
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 Coyajce,
who heard the said application, upheld the contention
raised by the appellants and came to the concluEion
that in making the impugned modifications respondent 2 and respondent 1 had acted beyond their
jurisdiction. The learned judge, therefore, set aside
the modifications made and allowed the appellants'
petition.
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 1 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
-
-
l
/ -
S.C.R. ·
SUPREME COURT REPORTS
9'77
the appellants; and the short question which it raises
z960
for our decision is: whether, under the provisions of
Associated
the Act, it was eompetent to respondents 2 and 1 to Cement co. Ltd.
make the impugned modifications in the draft standing
v.
orders submitted by the appellants for certification
P.D. Vyas
under the Act?
The Act has been passed because it was though

## Text

•
Corporation of the
City of Nagpur
v.
Its Employees
Subba Rao ].
z960
February, II
•
974
SUPREME COURT REPORTS [1960 (2)]
with industrial departments, is also an industry.
Hence the employees of this department are also
entitled to the benefits of this Act.
The State Industrial Court held that five of the
departments of the Corporation did not fall within
the terms of the definition of" industry " in the Act.
The employees of these departments did not file any
appeal against the finding of the State Industrial
Court and we do not propose to express our final
opinion on the correctness of the decision of the
Industrial Court in regard to these activities.
In the result the appeals fail and are dismissed
with costs.
Appeal dismissed.
THE ASSOCIATED CEMENT COMPANY LTD.
v.
SHRI P. D. VY AS AND OTHERS.
(B. P. GAJENDRAGADKAR AND K. c. DAS GUPTA, JJ.)
Ind,,strial Disp,,te-Standing
Orders-Draft su.bmitted by
employer for
approval-Modification
by
Certifyitig OjficerJ"risdiction-Ind"strial Employment (Standing Orders) Act, I946
(20 of I946) SS. J, 4, 5, I5(2) (b). 1
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 \Vith 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
(
-
-
..

•
•••
976
SUPREME COURT REPORTS [1960(2)]
,960
been made in accordance with the model standing
order on this subject. Similarly, item No. 16(2) in the
Associated
C•ment Co. Ltd. draft standing orders provided that striking work
v.
either singly or with other workers without giving
P. D. Vyas
fourteen days' previous notice would be treatPd as
-
misconduct; whereas item No. 16(3) provided that
Gajendragadka. J. inciting while on the premises a,ny worker to strike
work shall be treated as misconduct.
These two
provisions in the draft have been modified by respondent 2 and the order thus modified provides that
striking work illegally either siggly 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 l was
not impressed by the contentions raised by the appel,
!ants with the result that the modifications made by
respondent 2 were confirmed and the appeal was
dismissed.
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 Coyajce,
who heard the said application, upheld the contention
raised by the appellants and came to the concluEion
that in making the impugned modifications respondent 2 and respondent 1 had acted beyond their
jurisdiction. The learned judge, therefore, set aside
the modifications made and allowed the appellants'
petition.
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 1 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
-
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l
/ -
S.C.R. ·
SUPREME COURT REPORTS
9'77
the appellants; and the short question which it raises
z960
for our decision is: whether, under the provisions of
Associated
the Act, it was eompetent to respondents 2 and 1 to Cement co. Ltd.
make the impugned modifications in the draft standing
v.
orders submitted by the appellants for certification
P.D. Vyas
under the Act?
The Act has been passed because it was thought Gajendragadkar l•
"expedient to require employers in industrial establish;
men ts 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 th.e
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
itf respondent 2 or respondent 1 from enquiring whether
any of the provisions made in the draft standing
orders are fair or reasona;ble, 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
SUPREME COURT R,EPORTS [1960(2)]
z96o
the function of the certifying officer or the appellate
authority to adJ'udicate upon the fairness or reasonAssociated
Cement ca. Ltd. ableness of the provisions of any standing orders.
v..
In other words, what was expressly excluded from
P. D. Vyas
the jurisdiction of the authorities under the Act has
. - ,-
now been clearly made their duty,_ and so the arguGa1endragadkar· f. ment 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 sha,Jl 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 prescribed 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 morlel 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 appelfants' 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 est:>blishment, 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.
tlection 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 tho draft standing orders certifiable
under the Act, and shall. make an order in writing
accordingly. Sub-section (3) of s. 5 then provides for
<
I-
<
t.
t·
-~
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r i
S.O.R.
SUPREME OO:URT REPORTS
979
certifying the draft after making modifications, if any,
z96o
under sub-s. (2). ·There is one more section to which
Associated
reference may be made. ·Section 15(2)(b) provides Cement Co. Ltd.
that the rules which the appropriate government may
v.
make under the Act may set out model standing orders
P. D. Vyas
for the purposes of this Act. The cumulative effect of
. -
these provisions is that the certifying officer has to be Ga;endragadkar J.
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 specified in s. 3, sub-s. (2), that is to say, 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 th~ Aot, 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 resp-ondent 2 to consider whether the draft
submitted by the appellants should not conform to
the model standing order in respect of fihe 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 t~e present case respondent 2 a~ well
•
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980
SUPREME COURT REPORTS. [1960 (2)]
I96o
as respondent 1 have held that it was practicable to
insist upon conformity with the model standing order
Assoc-lated
Cement Co. Ltd. in regard to the matters in dispute; and so they have
v.
made suitable modifications. Having regard to the
P. D. Vyas
relevant provisions which we have just considered, it
.
-
seems difficult to accept the plea that in making the
Ga1endragadkar f. 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 1 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 of
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 aow refer to the decisions to which our
attention was invited by Mr. Kolah. In Guest, Kten, ·
Williams (Private) Ltd v. Sterling (P. J.) & Ors. ('},
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 W orlcers'
Union v. The U.P. Electric Supply Go.('}, 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 appa.rently supports
(1) (1960) I S.C.R. 348
(2) A.I.R. 1949 All. 504.
f
• AA
t ,_
S.C.R.
SUPREME COURT REPORTS
981
the argument that the certifying officer cannot make
r960
any changes in the pro.visions of the draft where those
Associated
provisions are clear on the ground that they are not cement co. Ltd.
reasonable and fair and that other provisions which
v.
may have been provided in the model standing orders
P.D. Vyas
should be substituted for them. If, in making these
. -
observations, it was intended to decide that, before Ga_,endraga./kar J.
certifying the draft standing orders submitted by the
employer, the certifying officer cannot enquire and
decide whether it would be practicable or not to ma.ke
the provisions in the draft conform to the model
standing orderi;;, with respect, we would hold that th~
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 Allahabad ~
High Court in Jiwan Mal & Co. v. Secretqry, Kanpur
Loha Mills Karamchari Union & Ors. (1).
In Mysore
K irloskar Employees' Association v. Industrial Tribunal,
Bangalore & Anr. (2), the Mysore High Court bas
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 impracticable. We have not
allowed Mr. Kolah to urge t,his 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 app~al fails and is dismissed with
costs.
(1) A.I.R. 1955 All. 581.
Appeal dismissed
(2) [1959] I L.L. J. 53r.
•
•