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C.N. Bhaskaran Vs. S.A. Patil, Presiding Officer Labour Court, Bombay and Another - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 659 of 1980
Judge
Reported in(1984)86BOMLR204; [1985(51)FLR530]; (1984)ILLJ436Bom
ActsIndustrial Disputes Act, 1947 - Sections 33C(2)
AppellantC.N. Bhaskaran
RespondentS.A. Patil, Presiding Officer Labour Court, Bombay and Another
Excerpt:
.....satisfy conditions imposed by section 1(3) of act xx of 1946.;by reason of section 38b of the bombay shops and establishment act, 1948 the provisions of industrial employment (standing orders) act shall apply to all establishments to which the bombay shops and establishments act applies as if they were industrial establishments within the meaning of the industrial employment (standing orders) act. the section makes no provision for the number of employees that the industrial . establishment should employ or for the satisfaction of the condition imposed by section 1(3) of the industrial employment act. by section 38b in effect, the provisions of the industrial employment (standing orders) act are engrafted into the bombay shops and establishments act, with only the necessary..........of the second respondent before the labour court that by virtue of the inclusion of s. 38b in the bombay shops and establishments act 1948, the model standing orders under the industrial employment (standing orders) act, 1946 had become applicable to the second respondent and the petitioner could not claim full suspension wages at least for the first six months of his suspension. on behalf of the petitioner it was contended that in spite of the amendment to the bombay shops and establishment act the second respondent could not rely upon the provisions of the maharashtra standing orders unless it employed a hundred or more employees. upon a construction of s. 38b of the bombay shops and establishments act, the first respondent held that the model standing orders were made applicable to.....
Judgment:

1. The interpretation of S. 38B of the Bombay Shops and Establishments Act. 1948, falls for consideration in this petition.

2. The petitioner was employed as a stenographer by the second respondent. On 20th March, 1978 he was placed under suspension and chargesheet was served upon him on 22nd May, 1978. In respect of suspension for the period between 20th March, 1978 and 30th April, 1978 the petitioner filed an application before the Labour Court under S. 33C(2) of the Industrial Disputes Act on 22nd November, 1979. These was granted to him. On 13th June, 1978 he filed a second application for suspension wages between 1st and 31st May, 1978 and, during its pendency, he filed a third application for suspension wages between 1st June, 1978 and 31st October, 1979. These were disposed of by a common order on 18th March, 1980 by the first respondent.

3. It was contended on behalf of the second respondent before the Labour Court that by virtue of the inclusion of S. 38B in the Bombay Shops and Establishments Act 1948, the Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946 had become applicable to the second respondent and the petitioner could not claim full suspension wages at least for the first six months of his suspension. On behalf of the petitioner it was contended that in spite of the amendment to the Bombay Shops and Establishment Act the second respondent could not rely upon the provisions of the Maharashtra Standing Orders unless it employed a hundred or more employees. Upon a construction of S. 38B of the Bombay Shops and Establishments Act, the first respondent held that the Model Standing Orders were made applicable to all establishments registered under the Bombay Shops and Establishments Act. Accordingly, he held that the petitioner could not claim full wages from the date of his suspension. He would get suspension wages at the rate of 50% during the first three months, 75% for the next three months and full suspension wages thereafter. He passed an order accordingly.

4. This petition impugns the construction placed upon S. 38B of the Bombay Shops and Establishments Act by the first respondent.

5. Section 38B of the Bombay Shops and Establishments Act reads thus :

'Application of Industrial Employment (Standing Orders) Act, to Establishments : Provisions of the Industrial Employment (Standing Orders) Act 1946, in its application to the State of Maharashtra (hereinafter in this section referred to as the 'Said Act'), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to all establishments to which this Act applies as if they were industrial establishments within the meaning of the said Act.'

6. Section 1(3) of the Industrial Employment (Standing Orders) Act, 1946, reads thus :

'It (this act) applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months :

Provided that the appropriate Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less than one hundred as may be specified in the notification.'

7. It was contended by Mr. Puri that by reason of S. 38B the provisions of the Industrial Employment (Standing Orders) Act 1946 applied to all establishments to which the Bombay Shops and Establishments Act, 1948 applied provided they satisfied the requirements of S. 1(3) of the Industrial Employment (Standing Orders) Act, i.e., they employed a hundred or more employees.

8. It is difficult to read the clear provisions of S. 38B in that manner. By reason of S. 38B the provisions of Industrial Employment (Standing Orders) Act shall apply to all establishments as if they were industrial establishments within the meaning of the Industrial Employment (Standing Orders) Act. The section makes no provisions for the number of employees that the industrial establishment should employ or for satisfaction of the condition imposed by S. 1(3) of the Industrial Employment Act.

By S. 38B, in effect, the provisions of the Industrial Employment (Standing Orders) Act are engrafted into the Bombay Shops and Establishments Act, with only the necessary consequential changes in points of detail.

9. In the result, the interpretation placed by the first respondent upon S. 38B must be upheld and the petition is dismissed, but with no order as to costs.


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