AKHIL RANJAN DAS GUPTA Vs. MANAGEMENT ASSAM TRIBUNE

JUDGEMENT

(1.) THIS is a petition by Akhil Ranjan Dasgupta, one of the employees of the Management of the Assam Tribune, Gauhati, for a writ of mandamus directing the Labour Commissioner not to give effect to the standing orders which have been certified by the Certifying Officer and to modify them. A writ of certiorari has also been prayed for quashing the order passed by the Labour Commissioner and the Presiding Officer of the Labour Court, Gauhati.

(2.) THE admitted facts are that 'certain standing orders were framed by the management. They were sent to the Certifying Officer, who has been impleaded as Opposite Party No. 2 to this petition, 'for certification under Section 4 of the Industrial Employment Standing Orders Act, 1946. Notices were issued. Objections were filed by the workman that certain provisions of the draft standing orders are not in conformity; with: the provisions of the model standing orders and thus under Section 4 the Certifying Officer had no jurisdiction to certify them under Section 6 of the Industrial Employment (Standing Orders) Act, 1946, hereinafter called 'the Act', an appeal is provided against the order of the Certifying Officer to the Labour Court. The Certifying Officer rejected the objections filed by the workman and certified the draft standing orders. An appeal was filed before the Labour Court. The Labour Court affirmed the order of the Certifying Officer. It is against this order of the Labour Court that the present petition has -been filed by one of the employees.

(3.) ON the merits of the case, the contention of the Petitioner is that as the model standing orders have provided for the maximum period of suspension to be four days, the Certifying Officer or the Labour Court cannot under Section 4 of the Act modify them and cannot give a draft which is not in conformity with the provisions of the model standing orders, particularly the provisions of the draft standing orders which deal with suspension pending enquiry and the right of the employee to get one -third of his pay by way of subsistence allowance during the pendency of the enquiry has been challenged. It is not necessary for us to deal with the cases which were decided by the Supreme Court or other High Courts prior to the amendment of Section 4 of the Act. Prior to the amendment the Certifying Officer was not competent to adjudicate about the fairness or otherwise of the draft standing orders. After the amendment such a power has been conferred both on the Certifying Officer as well as on the Labour Court when sitting in appeal. The cases prior to amendment have laid down that although Section 4 debars the Certifying Officer to adjudicate upon the fairness 'or otherwise of the draft standing orders, there is no bar to the Certifying Officer to examine the question as to whether it will be practicable to adopt the model standing orders or to modify them according to circumstances of the case. Reading Section 3(2), Section 4 and Section 15 of the Act together, it is clear that even before the amendment the Certifying Officer had power to modify the model standing orders if he found that it was not practicable to adopt wholly the model standing orders having regard to the circumstances of the concern. We are, however, in the present case not concerned with that, question. At this stage reference had been made to the case of Jiwan Mal and Co. v. Secretary, Kanpur loha Mills Karamchari Union, : AIR 1955 All 581; Commissioner of Labour v. Associated Cement Companies Ltd., : AIR 1955 Bom 363; and the Associated Cement Co. Ltd. v. P.D. Vyas, : A.I.R. 1960 SC 665.