# Oo. Lid v. Bhola Nath Rn_1· - **Citation:** [1962] Supp. 2 S.C.R. 697 - **Court:** Supreme Court of India - **Decided:** 1959-10-15 - **Case number:** Civil Appeal No. 5i7 of 1960 - **Bench:** P. B. Gajendragadkar, A. IC SARKAl{, K. N. Wanchoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oo-lid-v-bhola-nath-rn-1-2337 - **Pages:** 15 ## Headnote Standing Orders-Certification of draft aubrnitted by emp· loyer-Power of Certifying Officer an_d Appell,ate A_uthority-lf can fix quantum OJ !er of days. On appeal the Appellate Authority in substance !'gree with the additions made by the Certifying Officer. The question raised in the appeal was whether the Certifying Officer or the Appellate. Authority had the jurisdiction under the Act to make the additions in the draft Standing Orders. Section 4 of the Act provides, inter alia, that the draft standing orders could be certified if they provided for every matter mentioned in the Schedule to the Act and cl. 5 of the Schedule provided as follows : ''conditions of, procedure in applying for, and the authority which may grant, leave and holidays." Held, that the Certifying Officer and the Appellate Authority had the jurisdiction in making the addition that they did. The word "conditions" in cl. 5 should be construed not in a narrow way . but in a broad and liberal sense consistently with the object of the Act and, so construed, there could be no doubt that cl. 5 was not merely procedural but covered the substantive provision for fixing the quantun1 of Hl62 Tlie Lod11a Colliery Oo. Lid. v. Bhola Nath Rn_1·. Roghubar Da;•al J. 1962 J9Gt 1 A1 Botalkol Calillfl c •. tul. .. R. K. Potll.n 698 SOPRIDIB COURT REPORTS (lll62] SUl'P. holidays and leave so that the conditions of emplo}ment might be made prrcise and definite and prescribed in the form of Standing Orders having statuto1 y efTccu. lleld, further, that the Certifying Officer as well a• the Appellate Authority were in substance industrial authority, and having regard to the power given to them under the Schedule there could be no inc·.nsistency in holding that they had also the power of fixing the quantum of holidays and leave as well. Anv hardship that might be cau•cd by their orders could be rectified under s. I 0 of the Act. C1nL APPELLATE Juruso1CTION : Civil Appeal No. 5i7 of 1960. Appeal by special leave from the judgment and order dated October 15, 1959, of the Appellate Authority (Chief Labour Commissioner, Central, New Delhi), in Appeal under e. 6 of the Industrial Employment (Standing Orders) Act, 1946. B. Narayanasuamy, 8. N. Andley and RamA?shu:ar Nath, for the appellant. Jf. K. Ra11wmurthi, for the respondent. 1962. January 2!:..-The Judgment of the Court was delivered by Oojmd,..1ad draft Standing Orders on the 3rcl March, 1!)58, to the Certifying (Jfficer and the Ht·gional Labour Commissioner (C0ntmll, :\hi!· a'. in order that they sbC>u Id be e"rtifi«d. Tlw C. rt ify ing Offic:cr cunsid«rrd 2 S.C.R. SUPREME C0Ult1' REl'OltTS 6\19 the draft submitted by the appellant, heard the appellant and its employees, the respondents and passed an order of eertilication on the 16th June, l 959. While considering the draft for the purpose of certificatiou, the Certifying Officer, howe ## Text 2 s.c.R. SUPREME COURT REPORTS li97 the minerals under the land in suit and that tho decree in· their favour is correct. We therefore dismiss the appeal with costs. Appeal dismissed. THE BAGALKOT CEMENT CO. LTD. "· R. K. PATHAN & ORS. (P. B. GAJENDRAGADKAR, A. IC SARKAl{ and K. N. WANCHOO, JJ.) Standing Orders-Certification of draft aubrnitted by emp· loyer-Power of Certifying Officer an_d Appell,ate A_uthority-lf can fix quantum OJ !er of days. On appeal the Appellate Authority in substance !'gree with the additions made by the Certifying Officer. The question raised in the appeal was whether the Certifying Officer or the Appellate. Authority had the jurisdiction under the Act to make the additions in the draft Standing Orders. Section 4 of the Act provides, inter alia, that the draft standing orders could be certified if they provided for every matter mentioned in the Schedule to the Act and cl. 5 of the Schedule provided as follows : ''conditions of, procedure in applying for, and the authority which may grant, leave and holidays." Held, that the Certifying Officer and the Appellate Authority had the jurisdiction in making the addition that they did. The word "conditions" in cl. 5 should be construed not in a narrow way . but in a broad and liberal sense consistently with the object of the Act and, so construed, there could be no doubt that cl. 5 was not merely procedural but covered the substantive provision for fixing the quantun1 of Hl62 Tlie Lod11a Colliery Oo. Lid. v. Bhola Nath Rn_1·. Roghubar Da;•al J. 1962 J9Gt 1 A1 Botalkol Calillfl c •. tul. .. R. K. Potll.n 698 SOPRIDIB COURT REPORTS (lll62] SUl'P. holidays and leave so that the conditions of emplo}ment might be made prrcise and definite and prescribed in the form of Standing Orders having statuto1 y efTccu. lleld, further, that the Certifying Officer as well a• the Appellate Authority were in substance industrial authority, and having regard to the power given to them under the Schedule there could be no inc·.nsistency in holding that they had also the power of fixing the quantum of holidays and leave as well. Anv hardship that might be cau•cd by their orders could be rectified under s. I 0 of the Act. C1nL APPELLATE Juruso1CTION : Civil Appeal No. 5i7 of 1960. Appeal by special leave from the judgment and order dated October 15, 1959, of the Appellate Authority (Chief Labour Commissioner, Central, New Delhi), in Appeal under e. 6 of the Industrial Employment (Standing Orders) Act, 1946. B. Narayanasuamy, 8. N. Andley and RamA?shu:ar Nath, for the appellant. Jf. K. Ra11wmurthi, for the respondent. 1962. January 2!:..-The Judgment of the Court was delivered by Oojmd,..1ad draft Standing Orders on the 3rcl March, 1!)58, to the Certifying (Jfficer and the Ht·gional Labour Commissioner (C0ntmll, :\hi!· a'. in order that they sbC>u Id be e"rtifi«d. Tlw C. rt ify ing Offic:cr cunsid«rrd 2 S.C.R. SUPREME C0Ult1' REl'OltTS 6\19 the draft submitted by the appellant, heard the appellant and its employees, the respondents and passed an order of eertilication on the 16th June, l 959. While considering the draft for the purpose of certificatiou, the Certifying Officer, however, made certain amendments in, and additions to, the said draft. Amongst the additions made, clause (7) in paragraph 11 was one and it is with this addition made by the Certifying Officer that we are concerned in the presem appeal. Paragraph 11 of the draft Standing Orders submitted by the appellant dealt with the question ofleave. Paragraph 11 (1) of the draft provided that holidays with pay will be allowed as provided for in the l!'actories Act, 1948, and other holidays in accordance with law and contract. Clauses (2) to (6) dealt with allied matters. In the Standing Orders as they were finally certified, clause ( J ) of paragraph 11 was slightly changed and it provided that holidays with pay will be allowed as provided for in the Mines Act. No grievance is made of this alteration. Clause (7) has been added to paragraph 11. It reads thus: · "7. The workmen shPll be allowed during the course of a year :- (a) Ten festival holidays with pay for the celebration of important festivals (which will be fixed before the commencement of every cala.ndar year in consultation with the workmen) including the Republic Day (26th January) and the Independence Day (15th August) and/or any other paid holidays as may be declared and notified by the Government from time to time. Those workmen that are required to work on festivals and National Holidays shall be given an equal number of compensatory holidays on day convenient to the company, and 1962 Thi·Bagalkot Ctm111t Oo. Ltd. v. R. K. Pathan 196• TM Bagolkot C:..u•I Co. Ud, v. R. K. Patha• fJoj1ndrog.di:ar J. 700 SUl'REMB UOlTk1' REPORTS [1962] SUFP. (b) Fifteen days' casual leave with wages. This will include all kinds of leave due to sickness or any other cause. (c) Casual leave "Ifill not be allowlld for morl,'l -than 3 days at a time except in the case of sickness and emergencies at the discretion of the company. (d) ·Wages shall be allowed for thaoe days remaining un-a.va.iled by th: workers at the end of the year. (o) Fourtet-n days annual leave to all classes of workers who have put in 265 attendances in a year as de1ined in the Mines Act. This includes statutory leave. AU leave &hould be applied for only in the preacribed form. The workmen after filling the particula.i:s of the leave required by them aha.II hand over the ea.me to the head of the section in which they a.re working." The appellant apparently oontended before the Certifying Officer that it was outside his jurisdi<>- tion t-0 deal with the topics oovered by clause (7) which he wanted to add but its objection was over ruled. Against the order pa~sed by the Certifying Officer certifying the Standi'.Jg Orders with the Midi· tione and amendments made by him, the a.ppcl· Ian t preferred an appeal under section 6 of the Act to the appellate authority, viz., the Chief Labour Commissioner (Central), New Delhi, on the 5th July 1959. The appellate authority, in substance, agreed with the view taken by tho certifying Officer and retained the addition made by him by the insertion of clause (7) to paragraph 11. He, however, made slight modification• by directing that in clause (a) there will bo Reven festival holirlayR inRtt>ad of ten festiv1Ll holidays am! in danw (b) there will ho ten days' casua.l lea.ve instead of fifteen days. Clauso .. 2 S.C.R. SUPREME COURT REPORTS 701 (d) was amended by the appellate authority by substituting a' new claus~ in its place. The substituted clause reads thus: "Casual leave will not be allowed to be accumulated. Unavailed casual leave shall lapse at the close of the calendar year." Then in regard to cl. ( e), the appellafo authoritv held that the said clause amounted to a repetition of statutor.v provision. Therefore, the said clause was amended to read thus : "Annual leave with wages will be allowed as per provisions of the ilfines Act." The appellate authority made certain other ·amendments in the Standing Orders as they were certified by the Certifying Officer and ultimatdv, the StanJing Orders were certified with the modifications and alterations suggested by the order of the appellate authority. The order of the appellate authority was passed on October 15, 1959. Against this order, the appellant applied for special leave to this Court and special leave was granted to it on the lst February, 1!!60. It is with the special leave thus granted that the appelhnt has come to this Court and on its behalf Mr. Narayanaswami has urged that the addition made by cl. (7.) in paragraph 11 of the Standing Orders is outside the jurisdiction of the certifying authority. He contends that the jurisdiction conferred on the certifying authority by clause 5 in the Schedule does not empownif'nt to consider broadly the scheme of the Act. 'l'he Act was passed in 1946 because tho Legislature thougbt that it was "expedient to require employer~ in indiddunl f'Stablishments to definf' with sufficient precision the conditions of employmPnt under thf'm and to make the said con: ditions known to workmen employed by them." Prior to the passing of the Act, conditions of employmPnt obtaining in Sf'veral industrial eetabli~hmcnts werf' governPd Ly contracts between the employer and tbl'ir employees. Sometimes the said oonditions were reduced to writinl! and in many cues they were not reduced to writing but were p:overnents. Inevitably, in many cases, the conditirns nf ~crvice were not well-defined and thero was ambiguity or doubt in regard to their nature and soope. That is why the Lep:iehture took the view that in regard to indu~trial e~tablish m<'ntJ! to which the Act applied, the conditions of employment subjert to whirh indu~trial labour was employes to every industrial establishment wh<'rcin r>ne hundred 01 more workmen are employed nr were cmploytd on any Jay of the preceding twdvr months. It can be 1:xtended e,·en to estabJiRhments whose complement of labour is less thun 2 S.C.R. SUPREME OOURT REPORTS 703 one hundred and it does not appl.Y to any industry to which Chapter VII of the Bombay Industrial Relations Act, I 940, applies or to any industrial establishment to which the provisions of the Madhya Pradesh Industrial Workmen (Standing Orders) Act, 1959, apply. In other wordP, normally, Standing Orders have to be drafted by the employer and their certification obtained under the Act wherever the employer employs more than one hundred indus· trial workmen: R. 113). The certifying authority under the Act means a Labour Commissioner or a Regional Lahour Commissioner and includes any officer appointed . by the appropriate Government by notification in the Official Gazette to perform all or any of the functions of a Certifying Officer under the Act: s. 2(c\. The Act provides for an appeal Rgainst the order passed by the Certifying Officer and the "appellate authority" means an Industrial Court, wherevn it exists or in i1 s absence an authority appointed by the appropriate Government uy notification in the Official Gazette to exercise in such arm as may be specified in the notification tht1 functions of an appellate authority under the Act : sec. 2( a). "Standing Orders" are defined to mean rules relating to matters set out in the Schedule : s. 2(gl. Thus, the matters which have to be coven·d by the Standing Orders an provides for the proeeduro which has to be followed by the Ce1tifying Officer befo:e certifying the Standing Orders. The procedure is intended to give an oppor· tunity to both thP, parties tn be heard before the final order is passeJ. ~eetion 6 provides for an appeal and s. i lays down that the Standing Orders shall come into operation on the expiry of 30 days from the da~~ on which authenticated copies thereof :ue sent a~ rpquirPd by s. 5. sub-s. (3), or where a.n appeal i> pre fern d, on the expiry of seven days frt•m the date on whicb the copies of the applla.te order are sent under s. 6 (2). Section 8 requires the Certifying Officer to keep a register of standing c rdcre and under s. 9, the ea.id Standing Orders have to be prominently posted by the employer in Enizlish and in the language understood by the majority of the workmen on special boards. Section 10 cleals wiih the duration and modification of of standinf.( orders. It provides that except by agreem1·nt, the sta11ding orders, after they are certified, shall not be liable to modification until the expiry of six months from the date on which they came into operation. Section 10 (2) empowers both the omplJycr or.the workman to ap(Jly for a modification in tho said standing orders. It would thus be clear that after they are certified, tht> standing orders h;>ve t-0 remain in force for six months un!Pss, of cour~P, they are modified in the meanwhile by, consent. After six months a.re over, an application 2 S.C.R: t:lUPREME COURT REPOR1S 705 for modification in the standing orders can be made either by t.he employer or the emplo• yees and the problem would be considered after following the procedure prescribed by the Act for certifying the original standing orders. Section 11 confers the necessary powers of a Civil Court on the Certifying Officer and the appellate authority and s. 12 prohibits the admission of oral evidence which has the effect of adding or otherwise varying or contradicting standing orders as finally certified under the Act, in any Court. Section 13 provides for penalties and the procedure to enforce them. Section 13A deals with the problem of interpretation of the standing orders and s. 13B provides for exemption of industrial establishments therein specified. Section 14 confers on the appropriate Government power to exempt, conditionally or unconditionally, any industrial establishment, and s. 15 confers on the appropriate Government the power to make rules to carry out the purposes of the Act, and, in particular, to provide for the matters covered by cls.(a) to (e) of sub-cl. (2). Section 15(3) contains the salutary provision that every rule made by the Central Government under s.15 has to be placed before the House in the manner prescribed by it. The Schedule t.o the Act contains 11 clauses, clauses l to 10 deal with the several topics in res11ect of which ntanding orders have to make a provision and cl. 11 refers to any other matter which may be prescribed. This last clause shows that an addition may be mii,de by the appropriate Government if it is thought necessary to do so. That, in brief, is the scheme of the Act. Mr. Narayanaswami contends that having regard the nature and scope of the several clauses Ill the Schedule, it would be appropriate to construe cl.5 as not including a provision for the quantum and extent of leave and holidays. His argument is \hat cl, 5 is really intended to provide merely for IHI The ll11allwt c.,,,.uJ c •. Lttl. "· R. K. P11rit'6n IHI 1"'- B.,.U.. CC., LU. •• 11. K.I'.- 706 SUPREME OOURT REPORTS (1962] SUPP. the oonditions and the procedure to be adopted in applying for leave and holidays, Clause 5 reads thus: "Conditions of, procedure in applying for, and the authority whloh may grant, leave and holidays." How many holidays the employee will have and how much leave, either caaual or on medical grounds, he would be entitled to get, are matters outside the scope of the Schedule ; they would be governedby the relevant provisiolll! of any other law or by contract between the parties; they cannot be the sub ject-matter of standing orders. The standing orders wonld provide for the conditions subject to whioh leave and holidays can be applied for, for the procedure in applying for the same and for the authority which may grant the same. That being so, the Certi· fying Offioer and the appellate authority exceeded their jurisdiction in making substantive provisions in that behalf by paragraph11(7). That is the C8.8e for the appellant aa presented by Mr. Narayanaawami. In support of this contention, relian0t1 has been pl&ced on cl.3 in the Schedule which refers to shift working. It is urged that since the clause refers to shift working, the ~u betantive provision in reepeot of shift working as well as the oondi· tiona subject to which it should be allowed wonld legitimately fa.II within its purview. If the Legislature had intended that the eubeta.ntive provision as to leave and holidays should be the .11ubject-matter of standing orders, it may well have referred to leave and holidays only in cl. 5 without :.ny further addition. The additional words introduced in cl. 5 are words of limitation and they show that ~e su~tantive pro:vision IUI to leave and holidays 18 out.111de the purview of that olauae. It may be conceded that there is some loroe in this contention. 2 S.C.R. SUPREME COURT REPORTS 701 There are, however, other considerations which have to be borne in mind in construing cl. 5. The l'xt of holidays may mean conditions as to holidays with pay, or without pay or with half pay B!ld that iB what is contemplated by the first clause in relation to holidayH. Theoretically, it may be conceivable that the word "conditions" may have that meaning in respect of holidays; but it seems to us that it would serve no useful purpose merely to provide lor such conditions and to prescribe the procedure to be adopted in applying for leave and holidays unless the quantum of leave and the quantum of holidays are also intended to be pree· cribed by the standing orders. Ou the broad construction of cl. 5, it becomes a eelf·suffici· ent and reasonable provision. The sta.nrling orderB will provide for the leave to which the employeea are entitled and will prescribe the number of holi· day8 which thtly will be ablo to enjoy. Having provided for the quantum of leave and holidays, the standing orders will also provide for the condi· tions in respeot of them, for the prooodure in appl· ying for them and for the authority which may grant them. It is true that it is not easy to under· stand why an application has to be made for holidays, but it may be that if there are sectional holi· days, employees belonging to a particular section entitled to them may have to apply for them. Therefore, in our opinion, it cannot he said that the authorities \x>low have adopted an unreasonable construction of cl. 5 in the Soht>dule when they held that they wt>ro entitled to make the additional provisions in respect of leave and holidays whioh they have purported to make by adding cl. 7 in paragraph 11 of the standing orders. In this oonnection reference, may be made to the Model Standing Orders framed by the Central Government in 1946. Clause 9 of tho Model Orders provides that holidays with pay will be allowed as . . 2 S.C.R. SUPREME COURT REPORTS 709 provided for in Chapter VI of the Factories Act, 1948, and other holidays in acaorda.noe with law contract, custom and usage. In fact, it is ·significant that paragraph 11 (l) of the draft-submitted by the appellant has also provided that holidays with pay will be allowed as provided for in the Faatories Act and other holidays in accordance with law and con, tract. If this provision is legitimately included in the Standing Orders and that too under clause 5 of the Schedule, it is difficult to understand why a more specific provision cannot be made under the said c1ausc by clearly stating the number of holidays to which the employees would be entitled and that is preci8ely what paragraph ll (7) purports to do. Then cl. 10 of the Model Standini:; Orders provides for casual leave. It lays down that a workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calend:u year. 'fhen it lays down further conditions in respect of the grant of the said casual leave. lt would be noticed that the quantum of casual leave to which the employee is entitled is thus specifically provided by. cl. 10 of the Model Standing Orders. It is perfectly true that if clause Ii of the Schedule is read in tho narrow sense for which Mr. Narayanaswamy contends, cl. 10 of the Model Standing Orders would be invalid and from that point of view the existence of clause 10 in the Model Standing Orders cannot be of any assistance in interpreting cl. 5 of the Schedule. But if clause 5 is construed in the broad sense for which Mr. Ramamurtbi contends, it would follow that clause 10 of the Model Standing Orders is consistent with the aim and object of the Scht>dule and that, incidentally, may support the agreement for the broad construction. That is about all. In regard to the argument based on the scope of the 10 clauses in the Schedule, it is certainly 1g62 Th1~c.n.in Cd.UL v. R.ll'. , ... Gl1}1714r•ga41'of J. tHJ - - ~"· .. ,. 710 SUPREME OOUHT REPORTS [1962) SUPP. not correct to say that the scope of the Schedule is intended to be verv narrow. Take for instance, clause 8 which deafa with the termination of employment or clause 9 which deals with the suspension or dismissal for misconduct, and acts or omissions which constitute misconduct. TheAe are mattem of general importance and it is conceded that all relevant and material provisions in respect of these matters have to be included in the Stand· ing Orders. Therefore, it would not he inconsis· tant with the scheme of the Schedule if we were to hold that the subst'lntive provisions for the grant· ing of leave and holidays along with the conditions in respect of them have to be made by the Standing Orders under cl. 5 of the schrdule. It would be recalled that s. I 0 of the Act provides for the duration of the standing orders and if any l!tanding orders are found by experi· ence to be unrnasonable or inconvenient either by the employer, or the employees, 'l.n application can be mado for the modification of the said standing orders after tho «>xpiration of six months from the tlate on which they came into operation. Therefor!'. there would lw no hardship in requiring the stand· ing orders to inclucli> a provi~ion as to leave and holidays. The provisions made in that behalf can bA modified after followinp; the procedure pres· cribed by R. IO It is not disputed that the claim for lea.ve and holidays can become the subject· matter of an industrial dispute and if such a dispute is referred for adjudic11.tion to an Industri.'.l Tribunal, the Tribunal can fix the qu&n· tum of holidays and leave. What the Tribunal can do on such reference is now intended to be achieved by the Standing Orders themselves in r<'B· pect of Industrial establishments to which the. Act appli~. We have noticed th:i.t·the Certifying Offioor as woll as tho appellate authority are, in subs· tance, industrial authorities and if they arc given power to make provision for leave and holidays 1'11 2 S.O.R. SUPREME COURT REPORTS 711 they undoubtedly are given power to provide for termination of employment and suspension or dis· missal for misconduct, there is nothing inconsistent with the spirit of the Schedule or with the object of the Act. Therefore, we are not satisfied that the authorities below were in error in holding that it was competent to them to make the additional provision in the Standing Orders as prescribed by paragraph 11 (7). In the result, the appenl fails and is dismissed. No order as to costs. Appeal dismisseJl. STATE OF BOMBAY v. UMARSAHEB BURANSAHEB INAMDA (S. K. DAS, K. SUBBA RAo and RAGHUBAR DAYAL, JJ.) Criminal Procedure Code-Offences commitl.ed in purBttance of Criminal conspiracy-One trial, if ptrmislible-Defecl in framing the charge, if curable-Code ~f Criminal Prowlurt 1898 (Act V of 1898), ss.222 (2), 235, 537, The respondents were charged and tried at the same trial with the offences of Criminal conspiracy and breach of trust committed in pursuance thereof during a period of more than one year. The question arising for decision was whether, in the framing of the charge, contravention or the provisions of sub-s.(2) of s.222 which allowed a combined charge with respect to the amount embezzled within a period of one year, vitiated the triaJ. Held, that the defect in the charge did not lead to any prrjudice t> the accused and therefore did not vitiate the trial in view of the ·provisions of s. 537 of the Code of Criminal Procedure. When ail the offences committed in pursuance of a conspiracy are committed in course of the same transaction this can be tried together at one trial in view of s. 235(1) of 1he Code of CrimiI1al Procedure which provides 1h11t if hi one tHI - f'lw B_.,,C_t c. .. 1,1'. v. B. K. P"""' G 4i""'°"""4r J.