ORDER
1. The question that has arisen in this proceeding is as to whether the Standing Orders could provide for a matter not listed in the Schedule to the Industrial Employment (Standing Orders) Act, 1946 (‘Act’ for short). This question has arisen in the following circumstances. Petitioner, the Geep Industrial Syndicate Limited, has its registered office at Allahabad and its manufacturing units at Metagahally, Mysore and also at Allahabad. On 28-6-1983, the Standing Orders applicable to the petitioner were certified by the Certifying Officer. Clause 16 of the Standing Orders so certified in the year 1983 reads thus:
“16. Transfer/change of place of work.–
(a) A workman may be transferred from one Department or Section to another Department or Section or from one machine or work place to another, or from one job to another similar job within the Industrial Establishment.
(b) Whenever there is insufficient work in one or more than one Section/Department or for any other valid reasons, the workman shall be required to work in jobs other than their own. He shall not refuse to do so as long as the job is of similar nature. Workman refusing such transfer order shall be liable for disciplinary action under these Standing Orders.
(c) A workman may be transferred to any other establishment of the Company or any associate Company anywhere in India, provided the transfer is on similar type of job and the emoluments of the workman so transferred are not reduced.
(d) If the location of the Industrial Establishment or any part of it is changed at any time, the place of work of the workman concerned shall stand changed accordingly”.
2. At the time they were so certified, there was no Union of workmen of the petitioner-establishment. Subsequently, in the year 1988, the Employees’ Union was formed, that is now arrayed as the first respondent. In the year 1988 as at Annexure-C, first respondent Employees’ Union sought modification of the above said Standing Order under Section 10 of the Act, the nature of modification sought being that the entire Clause 16 including sub-clauses (a) to (d) shall be deleted. By his order dated 29-5-1992 at Annexure-E, the second respondent Deputy Labour Commissioner and the Certifying Officer under the Act rejected the said request of the first respondent. They preferred an appeal before the third respondent Appellate Authority. The said authority, by its order dated 23-12-1995 at Annexure-A, allowed the appeal, set aside the order of the Certifying Officer dated 29-5-1992 and ordered Clause 16 of the Standing Orders to be deleted. In this writ petition under Articles 226 and 227 of the Constitution, petitioner seeks quashing of the said order of the Appellate Authority at Annexure-A.
3. Learned Counsel for the petitioner Sri K. Lakshminarayana Rao and the learned Counsel for the first respondent Sri M,C. Narasimhan have urged several contentions touching upon the question involved herein, and particularly on the question as to whether the Standing Orders can relate to a matter not included in the Schedule to the Act, because it was on that ground that the Appellate Authority in the impugned order based its conclusion. Before referring to the contentions of the parties, I may refer to the relevant provisions of the Act as also the rules framed under Section 15 of the Act.
4. Section 2(b) of the Act defines ‘Appropriate Government’ as meaning in respect of industrial establishments under the control of the Central Government or a Railway administration or in a major port, mine or oilfield, the Central Government, and in all other cases, the State Government. The proviso to the said clause (b) of Section 2 is not relevant for the present purpose. Section 2(g) of the Act defines ‘Standing Orders’ as meaning rules relating to matters set out in the Schedule. Section 3(2) of the Act provides that a provision shall be made in the draft of the Standing Orders to be submitted under sub-section (1) of Section 3 of the Act for every matter set out in the Schedule which may be applicable to the industrial establishment. It further provides that where model Standing Orders have been prescribed, the draft Standing Orders so submitted shall be, so far as is practicable, in conformity with such model. Section 4 of the Act provides at the outset with regard to certification of Standing Orders that are certifiable under the Act and such certifiable Standing Orders, as provided further in clauses (a) and (b), would indicate that in respect of every matter set out in the Schedule which is applicable to the industrial establishment, a provision should have been made in the said Standing Orders, and further that the said Standing Orders should be otherwise in conformity with the provisions of this Act. Even then, as Section 4 further provided, it would still be a function of the Certifying Officer or the Appellate Authority to adjudicate upon fairness or reasonableness of the provisions of the Standing Orders. Section 10(1) of the Act, inter alia, provides that the Standing Orders certified under the Act shall not be liable to modification until expiry of six months from the date on which Standing Orders or the last modifications thereof came into operation. Subject to the provisions of the said sub-section (1), sub-section (2) of Section 10 enables seeking modification of the Standing Orders. Sub-section (3) of Section 10 provides that the provisions of the Act that are applicable to certification of the first Standing Orders would apply to the process of modification under Section 10 also. Section 15 deals with the power to make rules. Sub-section (1) of Section 15 provides that the appropriate Government may, after previous publication, by notification in the Official Gazette, make rules to carry out the purposes of this Act. Section 15(2)(a) inter alia provides that such rules may prescribe additional matters to be included in the Schedule. Section 15(3) inter alia provides that every rule made by the Central Government under the said Section 15 shall be laid before each House of Parliament. Schedule to the Act refers to its origin to Section 2(g) and Section 3(2) of the Act, and its heading reads
that it relates to matters to be provided in Standing Orders under this Act. There were then 10 items specified therein. The 11th entry reads thus: “Any other matter which may be prescribed”.
5. By its Notification No. LR 11(37), dated 18-12-1946, the Central Government, as the said notification itself would show, in exercise of the powers conferred on it by Section 15 read with Section 2(b) of the Act, made the rules called “The Industrial Employment (Standing Orders) Central Rules, 1946” (‘Central Rules’ for short). Sub-rule (2) of Rule 1 of the said Central Rules provided that the said Central Rules would extend to all Union Territories and shall also apply in any State (other than a Union Territory) to industrial establishments under the control of the Central Government or a railway administration or in a major port, mine or oilfield. Rule 2-A of the said Central Rules provides that in the Schedule to the Act, after Item 10, the additional matters as specified therein shall be inserted. It was made into two groups. Additional matters inserted by way of Entry No. 10-A were in relation to all industrial establishments in coal mines. The items inserted at Entry No. 10-B i.e., the second group, related to all industrial establishments. In both these groups, at Serial No. 4, the matter of transfer is listed.
6. So far as the factual position is concerned, the petitioner-industrial establishment is not under the control of the Central Government, nor is it a railway administration, a major port, mine or oilfield, and, therefore the appropriate Government within the meaning of Section 2(b) of the Act in relation to the petitioner-establishment is the State Government. Petitioner-establishment is not situated in a Union Territory. It is situated in a State, but it is not an industrial establishment under the control of the Central Government or a railway administration or a major port or mine or an oilfield as specified in sub-rule (2) of Rule 1 of the Central Rules.
The Government of Karnataka, by its Notification No. LLH 336 LBW 57, dated 21-10-1961, as also in exercise of the very power conferred by Section 15 of the Act, has made the rules called “the Karnataka Industrial Employment (Standing Orders) Rules, 1961” which are provided by Rule 1 of the said rules to extend to whole of the State of Karnataka. There is no provision therein relating to transfer.
7. At the outset, learned Counsel for the petitioner Sri K. Lakshminarayana Rao submitted that the modification of the Standing Orders certified in the year 1983 could not have been sought for in the year 1988 unless there was change in the circumstances or unless the working of the Standing Orders as certified had demonstrated any hardship or impracticability. It would be difficult to agree with the said submission because, all that sub-section (1) of Section 10 of the Act provides for is that no modification shall be sought for in the first six months. Right to seek modification under Section 10 after the expiry of six months is not qualified by any such criteria as urged by Sri Lakshminarayana Rao. Having said so, it may be mentioned that at the time such Standing Orders were certified in the year 1983, there was no Union of the workmen of petitioner-establishment. The fact that the modification was
sought by the Union in the year 1988 would indicate that, the Union, being in a better position to understand the implications of several clauses of the Standing Order already certified, was in a better position as compared to that of the unorganised workmen, to seek modification.
8. Sri Lakshminarayana Rao, learned Counsel for the petitioner, next urged that Section 10 of the Act speaks of modification whereas in the present case, what was sought for by the first respondent Union and acceded to by the third respondent Appellate Authority was complete deletion of the entire Clause 16. Here also, it would be difficult to accept that modification means only amendment of something that is already there. Modification contemplated under Section 10 of the Act could certainly be taken as not only merely modifying any of the existing clauses in the Standing Orders, but also by way of addition to or deletion of a particular clause in the Standing Orders already certified.
9. Sri Lakshminarayana Rao, learned Counsel for the petitioner, referred to the Central Rules and submitted that the very basis of the position of the Appellate Authority as to the aspect of transfer in the Schedule to the Act is on an erroneous understanding that the Schedule to the Act does not list the matter of transfer, whereas the Central Rules specifically included the item of transfer as earlier seen. Sri M.C. Narasimhan, learned Counsel for the first respondent-Union however pointed out that the Central Rules would not be applicable to the petitioner-establishment and as such, any inclusion of the matter of transfer in the Schedule to the Act by virtue of Rule 2-A of the Central Rules is of no consequence so far as the petitioner-establishment is concerned.
The submission of Sri Lakshminarayana Rao, learned Counsel for the petitioner, in this regard is this: Section 15 of the Act no doubt enables both the Central Government and the State Government to make rules, and so far as the inclusion of any item in the Schedule is concerned, Section 15(2)(a) enables both the said Governments to include an item in the Schedule by making rules in that regard. Where the Central Government includes a matter in the Schedule to the Act by prescribing it under Section 15 of the Act as an additional matter to be included in the Schedule to the Act, then, the additional matter so included becomes a part of the Schedule to the Act, and, as such, becomes applicable to all the industrial establishments in the entire country, without any reference to the aspect of appropriate Government under Section 2(b) of the Act and without any reference to different industrial establishments listed in the said Section 2(b) of the Act. Thus, though both the Central and State Governments are empowered to include any additional matter to the Act by making rules under Section 15 of the Act, whereas the matter included by the rules made by any State Government would not be applicable to an establishment outside the State, the position is not so when the Central Government itself makes such an addition to the Schedule, and that in that event, the added part as being a part of the Schedule to the Central Act, would be applicable to all establishments all over the country. This position is further evident from the fact that Section 15(3) of the Act specifically provides for laying
every rule made by the Central Government under Section 15 before each House of Parliament with necessary consequences as specified therein to follow. It is therefore that the matter relating to transfer, as added to the Schedule to the Act, by Rule 2-A of the Central Rules, needs to be taken as a matter added to the Schedule to the Central Act applicable to all industrial establishments all over the country without reference either to the classification of the industrial establishments or to the distinction between the Central and State Governments as contemplated under Section 2(b) of the Act. Viewed thus, the Appellate Authority, in concluding that Clause 16 of the Standing Orders of the petitioner-establishment relates to the aspect of transfer which is not a matter listed in the Schedule to the Act, and therefore, was not legally sustainable, was in error.
It would be difficult to agree with the above submission of the learned Counsel for the petitioner. It is one thing for the Parliament to amend the Central Act – The Industrial Employment (Standing Orders) Act, 1946, and by such amendment, to add a particular item in the Schedule to the Act which is a part of the Act. If that were to be done, then it would be an amendment to the Central Act itself, and as such, applicable to all the industrial establishments all over the country without reference to the classification of the industrial establishments or without reference to the Central or State Government as dealt with in Section 2(b) of the Act. In other words, any such amendment to the said Central Act, 1946 including the Schedule to the Act effected by way of an amendment carried out by a piece of amending legislation by the Parliament, would have the above said effect. It would not however be so when a particular item is added to the Schedule to the Act by the Central Government in exercise of its power under Section 15 of the Act. It is to be remembered that the power to add any item to the Schedule by making rules in that regard is given not only to the Central Government but also to the State Government. Here again, the power given to the Central Government and the State Governments is with reference to their status as ‘appropriate Governments’ in relation to particular classes of industrial establishments. In fact, the very Section 15 refers to rule making power of the appropriate Government. It does not specifically say either the Central Government or the State Government. It is true that sub-section (3) of Section 15 provides for every rule made by the Central Government under Section 15 of the Act being required to be laid before each House of Parliament. The legislature in its wisdom has provided for such procedure in respect of rules made by the Central Government, while it is not so in respect of the rules made by the State Government. That, however, does not take away the character of the Government that is making the rules, that character being the character of the appropriate Government. Thus, even the Central Government, when it is particularly making the rules under Section 15(2)(a) of the Act, is making the said rules as appropriate Government. The appropriate Government as referred to under Section 15 of the Act therefore can be nothing else than the appropriate Government referred to under Section 2(b) of the Act. When we go to Section 2(b) of the Act, Central
Government can be appropriate Government only in respect of certain classes of industrial establishments. Petitioner-establishment is not one such. Therefore, the Central Government is not the appropriate Government in relation to the petitioner-establishment, and the Central Rules are not rules framed by the appropriate Government so far as the petitioner-establishment is concerned. The fact that Rule 2-A of the Central Rules, therefore, includes the aspect of transfer as one of the matters in the Schedule to the Act, is of no consequence to the petitioner-establishment.
10. The mere fact that by Rule 2-A of the Central Rules introduced in the year 1983, the aspect of transfer was included in the Schedule to the Act does not make it a part of the Act and the Schedule to the Act, so as to make it applicable to all the industrial establishments in the whole of the country. As said earlier, such result would have been achieved only by the Parliament amending the Central Act including the Schedule, and by such amendment, adding the aspect of transfer as one of the additional items in the Schedule to the Act. Any such addition made by the Central Government in 1983 by adding Rule 2-A to the Central Rules, will not achieve that result, and its only effect will be an addition made by the appropriate Government for certain classes of industrial establishments concerned with such appropriate Government, namely those specified in Section 2(b) of the Act. That the Central Government is also conscious of this fact is apparent from the fact that even when it added the aspect of ‘transfer’ by introducing Rule 2-A in the Central Rules in the year 1983, it did not choose to delete sub-rule (2) of Rule 1 of the Central Rules which limited the application of the Central Rules only to certain classes of establishments.
11. Assuming for a moment that the Central Rules do have the effect of including the item of transfer as one of the matters in the Schedule to the Act, such inclusion as earlier seen is made only by Rule 2-A of the Central Rules. The said Rule 2-A cannot be read in isolation. It is a part of the Central Rules. The very opening Rule, namely Rule 1(2) of the Central Rules, provides that the said Central Rules extend to all the Union Territories and also to industrial establishments under the control of the Central Government or railway administration or a major port, mine or oilfield in any State other than the Union Territory. The petitioner-establishment, though in a State, is, however, not an industrial establishment under the control of the Central Government or railway administration or any major port or mine or oilfield. Therefore, even on the assumption made as above, the said rules are expressly made inapplicable to an establishment like the petitioner-establishment. If the rules themselves are thus not applicable to the petitioner-establishment, only one particular rule out of 8 rules that the said Central Rules contain, cannot be taken out in isolation and be said that it applies to the petitioner-establishment.
12. Looked at from any angle, therefore, the Central Rules do not apply to the petitioner-establishment. As such, the inclusion of item of transfer by Rule 2-A of the Central Rules in the Schedule to the Act,
cannot be taken as an item included in the Schedule to the Act affecting the petitioner-establishment also. Such inclusion would enure to the benefit of establishments in the Union Territories and to the industrial establishments under the control of the Central Government or the railway administration or any major port, or mine or oilfield. We have to, therefore, proceed on the footing that in the Schedule to the Act as applicable to the petitioner-establishment in this State of Karnataka, there is no matter relating to transfer.
13. Now to the question as to whether the Standing Orders can provide for a matter that is not one of the matters listed in the Schedule to the Act. This is in the background of the fact that out of four sub-clauses, viz., sub-clauses (a) to (d) of Clause 16 of the Standing Orders of the petitioner-establishment concerned herein, sub-clauses (c) and (d) relate to ‘transfer’, whereas ‘transfer’ is not among the items included in the Schedule to the Act insofar as petitioner-establishment, situated in the State of Karnataka, in respect of which Karnataka State Government is the appropriate Government, is concerned. Section 2(g) of the Act defines ‘Standing Orders’ as Rules relating to matters set out in the Schedule. Sub-section (1) of Section 3 of the Act provides for the employer submitting draft Standing Orders to the Certifying Officer. Subsection (2) of Section 3 provides that a 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. Section 4 then deals with the conditions for certification of Standing Orders. At the very outset, the said section provides that the Standing Orders shall be certifiable under the Act if the conditions further specified therein are satisfied. One is, as per clause (a), a provision should be made in the said Standing Orders for every matter set out in the Schedule that is applicable to the industrial establishment. The second condition is that the said Standing Orders are otherwise in conformity with the provisions of the Act. Even after the employer submits draft Standing Orders with regard to fulfilling these two conditions, the third condition is that, it shall be the function of the Certifying Officer or the Appellate Authority to adjudicate upon the fairness or reasonableness of the provisions of the said Standing Orders. It is only then that, if the Standing Orders provide for every matter set out in the Schedule, if the Standing Orders are otherwise in conformity with the provisions of the Act and if the Certifying Officer adjudicates upon the fairness and reasonableness of the provisions of the said Standing Orders and find them fair and reasonable, that the said Standing Orders become certifiable under the Act as per Section 4 of the Act. It is the Standing Orders that are so found certifiable under the Act as per Section 4 that are called Standing Orders within the meaning of Section 2(g) of the Act, and to be so called, as the definition itself would show, they must relate to matters set out in the Schedule. It is thus apparent on careful reading of these relevant provisions that, apart from the Standing Orders being required to be in conformity with the provisions of the Act and further being found to be fair and reasonable, they must, in order to be fit to be
certifiable under the Act, also relate to matters set out in the Schedule to the Act and every matter set out in the Schedule to the Act. If the Standing Orders relate to something that is not provided for in the Schedule, they are not the Standing Orders within the meaning of Section 2(g) of the Act. Jn that event, either Section 3(2) or Section 4 of the Act cannot be said to relate to such Standing Orders, and certification of such Standing Orders cannot be called certification of Standing Orders certifiable under the Act, because what is certifiable under the Act is the Standing Orders as defined under Section 2(g) of the Act. Standing Orders not relating to matters set out in the Schedule do not fall within the definition of Standing Orders under Section 2(g).
14. Learned Counsel for the petitioner Sri K. Lakshminarayana Rao urges that any such interpretation would present innumerable difficulties in ever expanding industrial activity in the country, more so, when not only that the activities of the existing industries have been expanding enormously, but also when several multinational companies are gaining foothold in the country. Sri K. Lakshminarayana Rao pointed out that the Schedule is consisting of just 10 entries and they are too inadequate to meet such growing demands of the industrial sector. It is therefore that any such interpretation would not be in furtherance of the purpose for which the Act is placed on the statute book, namely the purpose of specifying the conditions of employment of the workmen. Sri Lakshminarayana Rao also points out that by inserting Rule 2-A in the Central Rules in the year 1983, as it stands now, many more items were provided to be included in the Schedule like medical aid in case of accidents, railway travel facilities, issuing service certificates, etc. all of which were quite beneficial to the employees, and all of which will be lost to the employees if such a narrower interpretation is placed, and that merely because one condition, namely ‘transfer’ has the effect of affecting the interests of the workmen, should not lead to interpretation that would deny several other benefits such as those mentioned above to the workmen.
It is true, as submitted by the learned Counsel for the petitioner, the activities in the industrial field have been expanding by leaps and bounds. It is also true that Rule 2-A of the Central Rules, as it stands now, substituted in the year 1983, took care of those benefits that are to be made available to the workmen. In my opinion, that it is no answer to the apprehension expressed by Sri K. Lakshminarayana Rao, learned Counsel for the petitioner. Schedule to the Act no doubt refers to 10 matters, in respect of which, there ought to be a provision in the Standing Orders. Any such apprehension, namely that the interpretation now placed would deny the benefits to the workmen if the employer intends to provide in the Standing Orders for something more than what is specified in the said Items 1 to 10 to the Schedule to the Act, overlooks one other crucial item, namely Item 11. The said Item 11 provides that ‘any other matter which may be prescribed’ may also be included in the Schedule. Thus, at the time this piece of legislation was enacted, while the legislature thought it fit to include the matters specified in Items 1 to 10 in the Schedule as the matters in respect of which there ought to
be Standing Orders, legislature also contemplated a situation in the future that lay ahead, wherein perhaps one or more items may have to be added and may continue to be added from time to time depending upon the exigencies of the situation and the demands of the industrial field at the relevant time. It is taking due note of such demands that may arise in future that the legislature provided for in the said Item 11, leaving it to the discretion of the appropriate Government to include any other item in the Schedule to the Act. Such discretion is rightly given to the appropriate Government because the appropriate Government for one class of industrial establishments is not the same as the appropriate Government for another class of industrial establishments. For one class of industrial establishments, the Central Government is the appropriate Government and for the other class of industrial establishments, it is the State Government that is the appropriate Government. In this vast country, even in respect of a class of industrial establishments that are left within the realm of the State Government as the appropriate Government, the conditions may not be the same from one State to another in respect of a particular class of industrial establishments. It is therefore that the provision is made for each State Government as appropriate Government to include any item that particular Government considers it as necessary to be included in the Schedule to the Act. That power is thus given to the Central Government as also to every State Government under Section 15 of the Act. That is how in the Central Rules, Rule 2-A is inserted which has the effect of adding those items specified in the said Rule 2-A as additional matters in the Schedule to the Act so far as the industrial establishments in respect of which the Central Government is the appropriate Government and so far as the industrial establishments to which the Central Rules are made applicable by virtue of sub-rule (2) of Rule 1 of the Central Rules. Even several States have exercised that power under Section 15 of the Act and have taken care of situations that have arisen and that are peculiar to that particular State. Thus, even for the State of Karnataka, it is an admitted position that the age of superannuation which had not been there earlier as a matter included in the Schedule to the Act has since been included as an additional matter in the Schedule to the Act by exercising that relevant power under Section 15 of the Act. Therefore, the fact that as the piece of legislation stood originally enacted, the Schedule to the Act contained only 10 items and therefore any such interpretation that is now placed will allow the said Schedule to remain restricted to only those 10 entries, has no substance.
It is the availability of the power to include any additional matter in the Schedule to the Act that must further strengthen the interpretation that is placed on the Standing Orders under Section 2(g) of Act, namely that Standing Orders within the meaning of Section 2(g) of the Act and found certifiable under Section 4 of the Act, the said set of rules must relate to matters set out in the Schedule. If the said set of rules relate to matters that are not set out in the Schedule to the Act, in my opinion, the said set of rules cannot be called Standing Orders within the meaning of Section 2(g) of the Act and certifiable under Section 4 of the Act.
The result is that, if a particular clause in the Standing Orders relates to a matter that is not included in the Schedule to the Act, then, that would not be a certifiable clause in the Standing Orders. The said clause therefore needs to be ignored. What has happened in the present case is that the Standing Orders having been certified earlier, its modification was sought and the Appellate Authority has found that Clause 16 related to a matter, namely ‘transfer’, that is not included in the Schedule to the Act. That is how the modification by way of deletion of Clause 16 is ordered. If the said Clause 16 relates to transfer, then obviously in the view that I have taken, the finding of the Appellate Authority does not call for interference. As will be presently seen, it is only sub-clauses (c) and (d) of Clause 16 that relate to matters not included in the Schedule to the Act. Sub-clause (a) of Clause 16 of the Standing Orders very much relates to a matter included in the Schedule to the Act. Therefore, the finding of the Appellate Authority insofar as it pertains to sub-clause (a) of Rule 16 needs to be interfered with. Sub-clause (b), though does not relate to transfer, virtually aims to achieve the very object that is sought to be achieved by sub-clause (a), and is, therefore, totally superfluous. The said sub-clause (b) speaks of workman being required to work in a job other than his own, subject to the said other job being of similar nature. Sub-clause (a) at the end provides exactly for this when it states that a workman may be shifted from one job to another similar job. Such shifting from one job to another similar job provided for both in sub-clauses (a) and (b), even as the said sub-clauses now stand, shall have to be taken as within the industrial establishment concerned. In that event, when sub-clause (a) already deals with shifting of a workman from one job to another similar job, there is no point in having another sub-clause, namely sub-clause (b) relating to the very aspect that is requiring the workman from doing another job of similar nature. The said sub-clause (b) therefore needs to be deleted as superfluous.
15. In the view that I have taken, namely that the Standing Orders cannot provide for a matter such as ‘transfer’ in the present case, that is not included in the Schedule to the Act insofar as the said Schedule applies to the State of Karnataka in respect of a class of industrial establishments to which the appropriate Government is the State Government, I find support from two decisions of the Supreme Court. One is in Rohtak and Hissar Districts Electric Supply Company Limited v State of Uttar Pradesh and Others (‘Rohtak case’, for short) and the other one in Workmen of Lakheri Cement Works Limited v Associated Cement Companies Limited (‘Lakheri case’, for short). It is to be remembered that when the decision in Rohtak’s case, supra, was rendered on 3-12-1965 by the Five-Judge Bench of the Supreme Court, as also when the two learned Judges of the Supreme Court rendered decision in Lakheri’s case, supra, on 18-7-1969, it was the compulsory function of the Certifying Officer or the Appellate Authority to adjudicate upon fairness or reasonableness of the provisions of the Standing Order by virtue of
Section 4 of the Act that had already been amended way back in the year 1956. The Standing Orders concerned in Rohtak’s case supra, had been examined by the Certifying Officer from the point of view of fairness and reasonableness also. After referring at the end of paragraph 9 of the judgment that when certification proceedings are held before the certifying authorities, reasonableness or fairness of the provisions contained in the draft Standing Orders falls to be examined, the Supreme Court, in the next paragraph, namely paragraph 10, proceeded to deal with the next aspect of the matter that is relevant for our present purpose, namely whether the Standing Orders have to cover the matters specified in the Schedule to the Act. The Supreme Court then referred to Item 11 of the Schedule to the Act permitting other matters to be prescribed, and further referred to Section 15 of the Act which conferred power on the appropriate Government to prescribe rules to add additional matters to the Schedule. The Supreme Court then said that the Act contemplates that the Standing Orders must cover matters initially included in the Schedule as well as matters which may be added to the Schedule by the appropriate Government in exercise of the authority conferred on it by Section 15 of the Act. In fact, the Supreme Court noticed that by virtue of the said power under Section 15 of the Act, the U.P. Government had added several items to the list contained in the Schedule like issue of service certificates censure and warning notice, issue of wage slips, introduction of welfare schemes such as provident fund, gratuity, etc., age of superannuation or retirement, rate of pension or any other facility which the employers may like to extend or may be agreed upon between the parties. It is then that the Supreme Court states in paragraph 15 of the judgment thus:
“15. Then in regard to the matters which may be covered by the Standing Orders, it is not possible to accept the argument that the draft Standing Orders can relate to matters outside the Schedule. Take, for instance, the case of some of the draft Standing Orders which the appellant wanted to introduce; these had reference to the liability of the employees for transfer from one branch to another and from one job to another at the discretion of the management. These two Standing Orders were included in the draft of the appellant as Nos. 10 and 11. These two provisions do not appear to fall under any of the items in the Schedule and so, the certifying authorities were quite justified in not including them in the certified Standing Orders”.
16. Subsequently, in the year 1969, once again the very question, namely whether the Standing Orders can provide for a matter not covered in the Schedule to the Act, arose for consideration before the Supreme Court in the case of Lakheri, supra. The Supreme Court, while referring to Standing Orders relating to two topics, one being right of transfer and another being providing of quarters, categorically stated that the extension of the Standing Orders to the two topics was entirely without jurisdiction and the Standing Orders could not therefore be framed. While doing so, the Supreme Court in Lakheri’s case, supra, also took note of Item No. 11 in the Schedule to the Act which speaks of any
other matter that may be prescribed, and further took note of the fact that the Rajasthan State Government had prescribed the rules adding certain further matters to the Schedule to the Act, none of which related to two topics concerned therein – right of transfer and quarters, and it was then that the Supreme Court observed that it was manifest that the said enlargement to the Schedule as made by the Rajasthan State Government did not take in its fold any of the said two topics relating to right of transfer and quarters. The Supreme Court then categorically states that it therefore follows that there is no authority to extend the Standing Orders to the topics not mentioned in the Schedule to the Act as amplified by the rules framed by the Rajasthan State Government. Having said so, the Supreme Court then referred to the earlier decision of the Supreme Court in Rohtak’s case, supra, and then proceeded to hold that the extension of Standing Orders to the said two topics referred to above was entirely without jurisdiction.
17. It was thus that the Supreme Court in the two cases in which the question concerned herein in this writ petition had directly arisen, took a definite view and said that unless a particular matter is covered by the Schedule to the Act or by the amplified Schedule under Section 15 of the Act, there would be no question of any Standing Orders providing for such an item, Sub-clauses (c) and (d) of Clause 16 of the Standing Orders of the petitioner-establishment concerned herein relate to transfer, and the matter relating to transfer is not included among the matters in the Schedule to the Act as amplified by the Karnataka State Government under Section 15 of the Act. The Appellate Authority, therefore, insofar as sub-clauses (c) and (d) of Clause 16 of the Standing Orders are concerned, has rightly found that the said two sub-clauses relate to matters not included in the Schedule to the Act, and, as such, not certifiable under Section 4 of the Act.
18. I may now refer to certain decisions that Sri K. Lakshminarayana Rao, learned Counsel for the petitioner has relied upon. Before referring to the decisions of the Supreme Court that Sri K. Lakshminarayana Rao has relied upon, I may first refer to certain decisions of the High Courts including the one by a Division Bench of this Court rendered way back in the year 1958 in Mysore Kirloskar Employees’ Association v Industrial Tribunal, Bangalore and Another (Mysore Kirloskar case, for short) in which the Division Bench of this Court considered two questions. One was with regard to conformity of the draft Standing Orders to the model Standing Orders. On this aspect, the Division Bench said that when Section 3(2) of the Act states that the draft Standing Orders shall be so far as is practicable in conformity with the model Standing Orders, it simply means that the model Standing Orders furnished the pattern which draft should try to resemble or imitate, and that it cannot mean that the draft should copy the model verbatim. The Division Bench said that absolute identity being ruled out by the very use of the words found in the section, it is impossible to accept the construction that the draft should copy the model and should not depart from its wordings. Use of
words “so far as is practicable”, the Division Bench pointed out, also point to the same result, The Division Bench then dealt with the submission of the learned Counsel for the employer to the effect that the draft should be identical with the model unless the employer can show that it would not be practicable to copy it. The Division Bench said that that was a reading too much into the statute and that the mandate of the statute was not that the model shall invariably be copied, but that the draft shall conform to the model as far as practicable. The Division Bench pointed out that the model Standing Orders are no more than the model and they do not have force of the statutory rule.
The question with regard to the Standing Orders being required to conform to the model Standing Orders is not the question involved in the present writ petition. It is in respect of the other question that had arisen before the Division Bench that we are concerned with, because that was the very question that has arisen in the present writ petition also, namely whether the Standing Orders can provide for matters not included in the Schedule to the Act. In this regard, the Division Bench posed the question thus: “Is an employer confined to the matters set out in the Schedule alone, including, of course, additional matters prescribed by the Government”? This question was answered by the Division Bench in the negative. While coming to this conclusion, the Division Bench observed that the Act is not intended to cover or provide for all the contingencies, and all matters which may be applicable to each and every industrial establishment in the country, that certain important matters which are more or less of general in application to all the industries are set out in the Schedule, that the appropriate Government is also given the discretion having regard to the special conditions of the industries within its jurisdiction to add further matters to the list contained in the Schedule, and that all such matters may be shortly described as compulsory matters, and that a direction or mandate to do certain things cannot be read as a direction or mandate not to do any other thing.
Left to itself, this decision of the Division Bench of this Court would have put the matter at rest so far as the question that has arisen in the present writ petition is concerned, and in view of the said binding decision, nothing more was needed to be said in the present writ petition except to follow the said decision. It is however not so. I have referred to earlier the two decisions of the Supreme Court – one in Rohtak and another one in Lakheri. In both the said decisions, this very question that the Division Bench of this Court answered in the negative, had arisen for consideration and had been answered by the Supreme Court in the affirmative. This decision of the Division Bench in the Mysore Kirloskar Employees’ Association’s case, supra, therefore must be taken as having been impliedly over ruled by the Supreme Court, insofar as the said question, namely making provision in the Standing Orders in respect of a matter not covered in the Schedule to the Act, is concerned.
19. In Mohammed Yasin v Presiding Officer, Industrial Tribunal, Orissa and Another, a Division Bench of the Orissa High Court has virtually said everything that the Division Bench of this Court had said in the above said Mysore Kirloskar’s case, supra, almost verbatim, and has concluded that it is permissible to provide in the Standing Orders for a matter not covered in the Schedule also. While reaching that conclusion at the outset in the paragraph 7 of the judgment, the Orissa High Court pointed out that no decision of the Supreme Court had been cited before it which had specifically laid down that after the amendment of Section 4 of the Act in 1956, it was not open to a Certifying Officer, even if he had held as fair and reasonable, to certify a Standing Order, if it related to a subject not covered by any of the items in the Schedule. Finding a particular clause in the Standing Orders as fair and reasonable is one thing. As Section 4 of the Act itself specified at the outset, the Standing Orders should be certifiable for which three conditions had to be fulfilled as already referred to. The aspect of fairness and reasonableness was the third one and even if the first two conditions were to be fulfilled, the Certifying Officer could still decline to certify if he finds it not fair and reasonable. The amendment made to Section 4 in the year 1956 therefore did not have any bearing on the question as to whether the matter not provided for in the Schedule to the Act can be made the subject-matter of any Standing Orders. It would therefore be difficult to agree with this decision of the Orissa High Court. That apart, the very Rohtak case decided by the Supreme Court having been referred to in the earlier paragraph, namely paragraph 6 of the judgment of the Orissa High Court, it is all the more difficult to agree with the ultimate conclusion of the Orissa High Court when it observed in the beginning of paragraph 7 that no decision of the Supreme Court had been cited before it on the question involved. As earlier seen, the Supreme Court made it absolutely clear in Rohtak case that there can he no Standing Order in relation to a matter that is not included in the Schedule.
20. In fact, Sri M.C. Narasimhan, learned Counsel for the first respondent Employees’ Union, points out that another Division Bench of the Orissa High Court had already decided contrary to what the above said Division Bench in Mohammed Yasin’s case, supra had done. But still the Division Bench in the said subsequent case in Mohammed Yasin, supra, had not noticed it, or perhaps the said earlier decision had not been brought to the notice of the Division Bench. The decision that Sri M.C. Narasimhan referred to is in Workmen of Orissa State Transport Corporation Limited v Orissa State Road Transport Corporation Limited, The Division Bench, in this case of Orissa State Transport Corporation, noticed its earlier decision in Saroj Kumar Ghosh v Chairman, Orissa State Electricity Board, wherein it had been held that unless a matter was covered by the Schedule, a provision in respect
thereof cannot be provided for in the Standing Order. In fact, in paragraph 4 of its judgment, the Division Bench further said that the view taken in the said Saroj Kumar’s case, supra, had been specifically approved in United Provinces Electric Supply Company Limited v T.N. Chatterjee and Others, to be presently referred to. It was on that footing that the two Standing Orders that the Division Bench was dealing with were held to be beyond the scope of the statute. In these circumstances, not only that for the reasons already stated it would be difficult to agree with view that the Division Bench of Orissa High Court expressed in the latter decision Mohammed Yasin’s case, supra, but also that the said view is directly opposed to the view taken by the Supreme Court in Rohtak and Lakheri’s case, supra.
21. One other decision of the High Court relied upon by the learned Counsel for the petitioner is of the Delhi High Court in Indian Oil Corporation Limited v Joint Chief Labour Commissioner and Appellate Authority and Others. The decision of the Supreme Court in Rohtak’s, case, supra was brought to the notice of the Delhi High Court and at the end of paragraph 22 of the above said judgment, insofar as the matter is relevant for the present purpose, the Delhi High Court observed thus:
“….. A further, contention was raised that the draft Standing Orders framed by the employer may include matters which may not be strictly covered by the items in the Schedule, particularly when the workmen have given their consent to the same. The Supreme Court noticed that when the draft Standing Orders were prepared and consent of three representatives of the workmen was obtained, the workmen had not as yet been organised into any Union and were not strong enough to put their point of view vigorously, so it was held that the appropriate authority was not precluded from discharging its obligation by considering the fairness or reasonableness of the draft. The contention was negatived that the draft Standing Order can relate to matters outside the Schedule. It was held that the two Standing Orders included in the draft of the management did not fall under any of the items in the Schedule, so the Certifying Officers were quite justified in not including them in the certified Standing Orders”.
(emphasis supplied)
22. The Delhi High Court then proceeded to deal with the aspect as to it being open to the authorities adjudicating upon the fairness and reasonableness of any Standing Orders, the words ‘Standing Orders’ being inclusive of ‘Model Standing Orders’, ‘Proposed Standing Orders’ and ‘proposed modification to the already certified Standing Orders’.
23. The question as to whether the Standing Orders can provide for a matter not enumerated in the Schedule to the Act had never arisen before the Delhi Court because the Delhi High Court was dealing with the age of retirement that had been specifically added as a matter by
Central Government making the rules in that regard in exercise of the power under Section 15 of the Act by notification dated 17-1-1983. One of the matters added to the Schedule to the Act by the said substituted Rule 2-A of the Central Rules on 17-1-1983 was the age of retirement as Item 10-B(3) of the Schedule to the Act. The Standing Orders that the Delhi High Court was examining therefore, insofar as they related to the age of retirement, very much related to a matter included in the Schedule to the Act as Item 10-B(3) of the Schedule to the Act, that had been added by way of an additional matter by Rule 2-A of the Central Rules under Section 15 of the Act. The decision of the Delhi High Court, therefore, has no bearing on the question involved in the present petition. By the very Rule 2-A of the Central Rules introduced on 17-1-1983, even the matter relating to transfer, as has arisen in the present writ petition, had come to be included. But whatever additional matters that are included by the said Rule 2-A of the Central Rules on 17-1-1983, are of no consequence to the present writ petition for the simple reason that such an inclusion is made by the Central Government only in exercise of its power under Section 15 of the Act, a power given to the appropriate Government, and that when the Central Government was making the Central Rules including the newly substituted Rule 2-A on 17-1-1983, it was doing so as an appropriate Government within the meaning of Section 2(b) of the Act, the extent of the authority of the Central Government, as such appropriate Government, to so add the additional matter to the Schedule to the Act, being confined to industrial establishments under the control of the Central Government or the railway administration or any major port, mine or oilfield and no other industrial establishments. As also noticed earlier, sub-rule (2) of Rule 1 of the Central Rules also made it clear that the said Central Rules in which Rule 2-A was inserted in the year 1983 as an integral part, extended only to Union territories and further provided to be applicable in any State other than the Union territory to those industrial establishments under the control of the Central Government or railway administration or major port or mine or oilfield. Petitioner in this writ petition is not such an industrial establishment. Therefore, either Rule 2-A of the Central Rules as inserted on 17-3-1983, or the decision of the Delhi High Court, could be of no avail to the petitioner.
24. We then come to the two other decisions of the Supreme Court that Sri Lakshminarayana Rao, learned Counsel for the petitioner relied upon. As we have seen earlier, the decision of the Supreme Court in Rohtak’s was rendered by five-Judge bench. According to Sri K. Lakshminarayana Rao, learned Counsel for the petitioner, the subsequent decision of the Supreme Court in United Provinces Electric Supply Company Limited’s case, supra, also a decision of five-judge Bench, specifically raised the question as to whether the Standing Orders can provide for a matter not enumerated in the Schedule to the Act but left the said question undecided. Sri Lakshminarayana Rao, therefore, was making an attempt to urge that since this question is left undecided by the Supreme Court, the decision of Division Bench of this Court in Mysore Kirloskar referred to earlier should have a binding effect and
that the said decision in the Mysore Kirloskar cannot be taken as having been impliedly overruled by the Supreme Court. It would be difficult to agree with this submission not only in the light of what the Supreme Court categorically said in Rohtak and Lakheri, supra, contrary to what this Court had said in Mysore Kirloskar, but also because of the fact that the decision of the Supreme Court in United Provinces Electric Supply Company’s case, supra, just now referred to above cannot be understood in the manner in which Sri Lakshminarayana Rao is canvassing. Clause 32 of the Standing Orders that the Supreme Court was considering in the said case related to the matter of retirement. On 14-7-1951, when the concerned Standing Orders were certified by the Certifying Officer including the said Clause 32 relating to retirement, the Schedule to the Act, had not provided for a matter relating to retirement. The State of Uttar Pradesh in exercise of its rule making power under Section 15 of the Act, had introduced Item 11-C as an additional matter in the Schedule to the Act, relating to the age of retirement on superannuation, in November 1959. In this context, the Supreme Court noticed in Paragraph 12 of its judgement thus:
“. . . . till Item 11-C was added in the Schedule so far as the State of Uttar Pradesh was concerned in November, 1959 no Standing Orders could be legally or validly framed and certified providing for age of retirement and superannuation”.
25. The Supreme Court, in its decision referred to the decision of the Orissa High Court in Saroj Kumar Ghosh’s case, supra, already referred to above, wherein the Orissa High Court had held that the Standing Orders cannot be provided for a matter not enumerated in the Schedule to the Act. The Supreme Court then proceeded to observe in Paragraph 13 of the judgment thus:
“It would follow that unless an employer can include a clause relating to the age of retirement and superannuation and the Certifying Officer can certify it even though no such item appears in the Schedule to the Act, Clause 32 as certified in 1951 in the present case, could not be regarded to be valid. The Madras High Court in the case of Management of ‘The Hindu’, Madras, , made some observations to the effect that there was no bar to the Standing Orders making a provision for matters other than those specifically mentioned in the Schedule so long as Certifying Officer certifies them on the ground that they are fair and reasonable. The Orissa High Court, however, in Saroj Kumar Ghosh’s case, supra, did not subscribe to this view. Learned Counsel for the appellant, apart from relying on the Madras decision, has not addressed any arguments on the larger and wider question as to whether even in the absence of any item in the Schedule, Standing Order can be framed on certain matters which may be regarded as fair and reasonable and which may be so certified by the Certifying Officer. It is, however, unnecessary to decide this point in the present case, because, Clause 32 of the Standing Orders on which the appellant has relied was certified in July
1951 when according to the express language of Section 4 of the Act, the Certifying Officer or the Appellate Authority was debarred from adjudicating upon the fairness or reasonableness of the provisions of any Standing Orders. It is difficult to understand how the Certifying Officer at that point of time and before the amendment of Section 4 in 1956 could have possibly certified any Standing Order which did not relate to any item in the Schedule on the ground that it was fair or reasonable. Indeed, the function of the Certifying Officer, before the amendment of 1956, was very limited as is clear from Section 3(2) of the Act which says:
“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”.
We must, therefore, hold that Clause 32 of the Standing Orders as certified in July 1951 was not valid and cannot be binding on the respondents. However, after Item 11-C was introduced in the Schedule so far as State of Uttar Pradesh was concerned, an item was added providing for the age of retirement and superannuation. The Certifying Officer, when he modified Clause 32 and fixed the retiring age at 58 on April 22, 1961 could have validly certified such clause as modified by him”.
Thus, far from leaving the question undecided, the above said observation gave enough indication of the fact that the Supreme Court proceeded to dispose of the matter before it on the short question that, at the time the Certifying Officer certified Clause 32 in July 1951, even the scope to go into reasonableness and fairness was not available to the Certifying Officer because that scope was provided only by the amendment to Section 4 in the year 1956, and, as such, it was unnecessary to go into the larger question as to whether Standing Order can provide for a matter not enumerated in the Schedule to the Act. Even then, there was sufficient indication in the above said observation as to the way being cleared for certifying even the said Clause 32 after the introduction of the matter relating to retirement as Item 11-C in the Schedule to the Act in the year 1959 in exercise of the power under Section 15 of the Act. It therefore cannot be taken that in the said United Provinces Electric Supply Company’s case, supra, the Supreme Court left this question undecided. It also needs to be noticed that the said decision of the Supreme Court in the United Provinces Electric Supply Company’s case, supra, was rendered by a five-Judge Bench and the earlier case of the Supreme Court in Rohtak’s case, supra, wherein a question that has arisen in the present writ petition had directly arisen was answered in a very clear cut manner. There was no question of the five-Judge Bench in the United Provinces Electric Supply Company’s case, supra, overruling the earlier five-Judge Bench decision in Rohtak’s case supra, nor was the latter Bench in the United Provinces Electric Supply Company’s case, supra, ever contemplated to do so. The factual position, therefore, is not the one as being canvassed by Sri K. Lakshminarayana Rao, learned
Counsel for the petitioner. It may be useful to refer in this context as to how the Division Bench of the Orissa High Court in Workmen of Orissa State Road Transport Corporation Limited’s case, referred to earlier, understood this decision of the Supreme Court in the United Provinces Electric Supply Company’s case. This is what the Orissa High Court said in Paragraph 4:
“This Court in Saroj Kumar Ghosh v Chairman, Orissa State Electricity Board, , held that unless a matter is covered by the Schedule, a provision in respect thereof cannot be provided. The view indicated by this Court has been specifically approved in United Provinces Electric Supply Company’s case, supra,”.
26. Sri K. Lakshminarayana Rao, learned Counsel for the petitioner then refers to another decision of the Supreme Court in Management, Shahdara (Delhi) Saharanpur Light Railway Company Limited v S.S. Railway Workers’ Union . The submission of Sri K. Lakshminaryaana Rao in this regard is that the question involved in the present writ petition, namely whether the Standing Orders can provide for a matter not covered by the Schedule to the Act, had not directly arisen in Rohtak’s case, supra, that though it had directly arisen in the United Provinces Electric Supply Company’s case, supra, it was left undecided, that the only time it had directly arisen before the Supreme Court was in the Lakheri’s case, supra, where two-Judge Bench held that no such Standing Orders can provide for a matter not covered by the Schedule to the Act, and that therefore, in that context, the present decision of the Supreme Court in S.S. Railway’s case, supra, being a decision of 3-Judge Bench should prevail over 2- Judge Bench decision in the Lakheri’s case, supra. With reference to this submission of the learned Counsel for the petitioner, it needs to be stated that it is not correct to state that the question relating to Standing Orders providing for a matter not covered in the Schedule to the Act had not directly arisen in Rohtak’s case, supra. As we have seen earlier, and, I am of the clear opinion, that that question did arise directly in Rohtak’s case, supra, and did come to be pronounced upon by the Supreme Court. That alone is sufficient to negative the contention of the learned Counsel for the petitioner Sri K. Lakshminarayana Rao vis-a-vis the 3- Judge Bench Decision of the Supreme Court in S.S. Railway’s case, supra. That apart, though the Supreme Court exhaustively referred to all the provisions of the Act in this case of S.S. Railway’s, supra, it was never in the context of the Standing Order being certifiable under Section 4 of the Act, even if it provides for a matter not enumerated in the Schedule to the Act. When the Supreme Court, in the course of the judgment, in paragraph 9, said as follows, it was certainly not dealing with the aspect of Standing Orders being required to be related to a matter specifically covered by the Schedule to the Act.
“9. In 1956, Parliament effected radical changes in the Act widening its scope and altering its very complexion. Section 4, as amended by Act 36 of 1956, entrusted the authorities under the Act with the duty to adjudicate upon fairness and reasonableness of the Standing Orders. The enquiry when such Standing Orders are submitted for certification is now two-fold: (1) whether the Standing Orders are in consonance with the model Standing Orders, and (2) whether they are fair and reasonable”.
The aspect of Standing Orders being one covering the matter not provided for in the Schedule to the Act was not being dealt with by the Supreme Court in the said decision, nor did the Supreme Court lay down that the said question did not arise for consideration by the Certifying Authority before it found the concerned Standing Orders certifiable. It cannot, therefore, be taken that by this decision, the Supreme Court said that except the above two questions, namely whether the Standing Orders are in consonance with the model Standing Orders and whether they are fair and reasonable, no other question would arise before the Certifying Officer including the one relating to certifiable nature of the proposed Standing Order or modification. As noticed earlier, the Standing Orders submitted for certification must be certifiable under the Act. Section 2(g) defines the Standing Orders as set of rules relating to matters covered by the Schedule to the Act. The larger Bench of the Supreme Court in Rohtak’s case, supra, had already said that the said set of rules cannot relate to a matter that is not covered by the Schedule to the Act. This decision of the Supreme Court in S.S. Railway’s case, supra, therefore, cannot be understood in the manner as urged by the learned Counsel for the petitioner. In fact, the very Rohtak’s case, supra, was referred to in this judgment more than once but on different aspects.
27. To conclude, the position as settled by the Supreme Court in Rohtak’s case, supra, and Lakheri’s case, supra, is that the Standing Orders cannot provide for a matter not listed in the Schedule to the Act. Sub-clause’s (c) and (d) of Clause 16 of the Standing Orders of the petitioner-establishment relate to transfer as also part of the heading of the said Clause 16. Sub-clause (b) relates to the very matter covered by sub-clause (a), and is, therefore, superfluous. Therefore, sub-clauses (b), (c) and (d) of Clause 16 of the Standing Orders are not the Standing Orders certifiable under Section 4. In fact, in the light of what the Supreme Court said in Lakheri’s case, supra, the very certification particularly of sub-clauses (c) and (d) of Clause 16 way back in the year 1983, was entirely without jurisdiction, and, such action on the part of the Certifying Officer in certifying the said sub-clauses in the year 1983 was a complete nullity. Therefore, the impugned order insofar as it relates to the said sub-clauses cannot be found fault with. The Appellate Authority however was totally in error in construing sub-clause (a) of Clause 16 also in the same way as he did in respect of sub-clauses (b), (c) and (d). Clause (a) though uses the word ‘transfer’, it is only from one department or section to another department or section or from one machine or workplace to another, or from one job to another similar job
within the industrial establishment. It is not a transfer but shifting of a workman from one section to another or from one machine to another, the workman being required to do a job not different from the one he was earlier doing. Certainly such shifting cannot alter the conditions of service of the workman to his disadvantage. So understood, clause (a) can hardly be found fault with. The impugned order of the Appellate Authority therefore need to be interfered with insofar as this sub-clause (a) is concerned. Since only one sub-clause is left, instead of reading the clause concerned as Clause 16(a), it could as well be read merely as Clause 16 by removing the word ‘transfer’ from the heading of the Clause 16 and also by substituting the word ‘changed’ in place of the word ‘transfer’ in the said sub-clause (a). Thus read, the said clause reads thus:
“16. Change of place of work.–A workman may be changed from one department or section to another department or section or from one machine or work place to another, or from one job to another similar job within the industrial establishment”.
28. Petition is partly allowed. Impugned order of the Appellate Authority is quashed insofar as it relates to sub-clause (a) of Clause 16 of the Standing Orders. The said sub-clause (a) of Clause 16 shall be reread and shall stand certified in the manner as set out in the above paragraph.