MD YASIN Vs. PRESIDING OFFICER INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THIS is an application under Articles 226 and 227 of the Constitution praying for the issue of a writ of certiorari quashing the order Annexure 1 dismissing the petitioner, an employee of the Hindustan Steel Limited, Rourkela from service and Annexure 2, the order passed by the presiding officer of the Industrial' Tribunal under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (Act XIV of 1947) hereinafter referred to as the I. D. Act) approving such dismissal. The petitioner was a charge-man grade I under the Hindustan Steel. Limited, Rourkela and was workingin the Pipe Plant. On 19-11-1968, the order Annexure 1 was passed by the General Manager. Annexure 1 so far as material is quoted below. Hindustan Steel Limited, Rourkela, (Orissa) * * * dismissal Order * * * Whereas the General Manager is personally satisfied that the continuance in employment of Mohammad Yasin, token No. 1007 charge-man, Pipe Plant is not expedient as it is against the interest of security for the Rourkela Steel Plant and has recorded in writing that for these reasons, Mohammed Yasin be dismissed from service under powers vested in him by order 31 of the Standing Orders, you, Mohammad Yasin, are accordingly, here by dismissed from service with immediate effect. As you happen to be a concerned workman in Industrial Disputes Case No. I. D. 48 of 1967, one month's wages in accordance with Section 33 (2) (b) of the Industrial Disputes Act is being paid to you along with this order. * * * Sub-Assistant General Supdt. (Mills ). As by the time this order of dismissal was passed, there was pending before the Industrial Tribunal for adjudication a dispute where the petitioner was a party, opposite party No. 2 made an application before the Tribunal for approving the order of dismissal passed against the petitioner. This was registered as Industrial Ditputes Case No. 131 of 1968. After notice to the petitioner and hearing the parties, the Tribunal passed on 19-6-70 the order Annexure 2 approving the order of dismissal. Immediately after the order of dismissal was passed and during the pendency of the I. D. Case No. 131 of 1963 before the Tribunal, the petitioner came up to this Court with a writ application (O. J. C. 1606 of 1968- disposed of on 27-7-71) challenging the order of dismissal. A Bench of this Court dismissed it on the ground that no writ is maintainable against a non-statutory company incorporated under the Indian Companies Act. Some time after the order Annexure 2 was passed, the present application was filed for quashing Annexure 2 on the ground mentioned below,

(2.) A counter-affidavit on behalf of opposite party No. 2 Hindustan Steel Limited was filed by its Administrative Officer wherein it is stated inter alia that the Pipe Plant Unit where the petitioner was working is a very vital and important unit from the point of security. On a verification of the character and antecedents of the petitioner, the Additional District Magistrate of Sundergarh on the basis of a report from the District Magistrate, Howrah and the Deputy Inspector General, I. B. (West Bengal) reported that it is inexpedient and against the interest of the security of the Rourkela Steel Plant to continue the petitioner under employment. Hence by virtue of powers under Clause 31 of the Certified Standing Orders of the Rourkela Steel Plant, the General Manager recorded the reasons and passed the order of dismissal Annexure 1. In regard to the averments made in the petition that before the Industrial Tribunal, the petitioner prayed for summoning two witnesses on his behalf and that the prayer was not granted, it is stated in the counter-affidavit that this allegation is not true and that no such prayer was ever made by the petitioner. " It is further stated that the standing orders were duly certified by the certifying authority under the Act (Act 20 of 1946) and the petitioner being a party to the said proceeding, he cannot now allege that the order in I. D. Case No. 131 of 1968 is unreasonable or is violative of the provisions of the Constitution or of the Industrial Disputes Act.

(3.) THE Industrial Employment (Standing Orders) Act, 1946 (Act No. 20 of 1946) (hereinafter referred to as the Act) applies to every industrial establishment wherein 100 or more workmen are employed or were employed on any day of the preceding twelve months. The "certifying officer" under the Act means a Labour Commissioner or a Regional Labour Commissioner, and includes any other 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. Section 2 (c ). The Act provides for appeal against the order passed by the certifying officer and the "appellants authority'' means an Industrial Court, wherever it exists, or in its absence, an authority appointed by the appropriate Government by notification in the Official Gazette to exercise in such area as may be specified in the notification the functions of an appellants authority under the Act, Section 2 (a ). Section 2 (g) defines "standing orders" to mean rules relating to matters set out in the Schedule. Thus the matters which have to be covered by the standing orders and in respect of which the employer has to make a draft for submission to the certifying officer are matters specific in the Schedule. Section 3 requires the submission of the draft standing orders within six months from the day on which the Act is applicable to an industrial establishment. Under Section 4, the standing orders become certifiable if provisions are made therein for every matter set out in the Schedule, and they are found to be otherwise in conformity with the provisions of the Act. By an amendment by Act 36 of 1956, the Legislature has imposed on the certifying officer and the appellate authority the duty to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. This power was not available prior to the amendment and it was not open to the State authorities to examine the fairness of the standing order submitted by the employer. The result of Section 4, as it now stands, is that standing orders have to provide for all the topics specified in the Schedule and they have to be in conformity with the Act. Their reasonableness can be examined by the appropriate authorities and suitable modifications can be made by them in accordance with their decision. Section 5 provides for the procedure which has to be followed by the certifying officer before certifying such standing orders. The procedure is intended to give opportunity to the employees to be heard before the final order is passed. Section 6 provides for an appeal and Section 7 lays down that the standing orders shall come into operation on the expiry of 20 days from the date on which authenticated copies thereof are sent as required by Section 5 (3), or where an appeal is preferred on the expiry of seven days from the date on which the copies of the appellate order are sent under Section 6 (2 ). Section 8 requires the certifying officer to keep a register of standing orders and under Section 9, the said Standing Orders are to be permanently posted by the employer in English and in the language understood by the majority of the workmen on special boards. Section 10 deals with the duration and modification of standing orders. It provides that except by agreement, the standing 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 employer or the workman to apply for modification in the said standing orders. It would thus be clear that after they are certified, the standing orders have to remain in force for six months unless, of course, they are modified in the meanwhile by consent. After six month are over, an application for modification in the standing orders can be made either by the employer or the employees 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 Section 12 prohibits the admission of oral evidence which has the effect of adding to 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 Section 13b provides that the Act would not apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, the Civil Services (Classification, Control and Appeal) Rules, Revised Leave Rules, Civil Services Regulations, etc. , Indian Railway Establishment Code or any other Rules or Regulations that would be notified in this behalf by the appropriate Government, apply. Section 14 confers on the appropriate Government the power to exempt, any industrial establishment from all or any of the provisions of the Act. Section 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 Clauses (a) to (e) of Sub-clause (2 ). By Sub-section (2) the appropriate Government inter alia has the rower to prescribe additional matters to be included in the Schedule and to set out model standing orders for the purposes of this Act. Section 15 (3) contains a provision that every rule made by the Central Government under Section 15 has to be placed before the House is the manner prescribed by it. The Schedule to the Act contains 11 clauses. Clauses 1 to JO deal with the several topics in respect of which standing orders have to make a provision and Clause 11 refers to any other matter which may be prescribed. This, in brief, is the scheme of the Act.