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Amco Ltd. Vs. Registrar of Associations for Mysore, New Public Offices, Bangalore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 8 of 1950-51
Judge
Reported inAIR1954Kant141; AIR1954Mys141
ActsConstitution of India - Article 226; Mysore Labour Act, 1942 - Sections 9, 10(1), 22 and 28
AppellantAmco Ltd.
RespondentRegistrar of Associations for Mysore, New Public Offices, Bangalore and anr.
Appellant AdvocateH.S. Rajaiengar, Adv.
Respondent AdvocateAdv. General, ;V.L. Narasimhamurthy and ;Ratna Bai Chittur, Advs.
Excerpt:
..... held, merely because authorities have passed an appointment order to a lower post, it will not take away the right of petitioner to claim the higher post. rule 6(4) is not attracted. - 16 provides for temporary closure of the work in certain contingencies and since the standing orders including this have been registered, it is not open to the employees to complain against suspension of work or to the registrar to question the legality of it; as the notice issued by petitioner is capable of being considered as relating to matters provided for in schedule ii, the requirements of section 22 are not satisfied and even otherwise the conditions necessary for action under standing order no. the question whether it is so or not need not be decided since the petition has to fail on the..........provisions of the act supports this. perhaps because of this consideration, the provision for the registrar's declaration is not found in the act of the indian parliament. the declaration has therefore but a recommendatory or moral force and does not by itself create a, liability or impose any penalty. the declaration is discretionary and when no conditions are prescribed for its exercise and the party against whom it is exercised is allowed to challenge it, how the petitioner can seek a writ -- if he deems it necessary at all -- alleging the declaration to be a judicial or quasi-judicial act cannot be easily understood.7. it seems to me that this is not a case for issue of a writ of certiorari. the petition is, therefore, dismissed and the ad interim order vacated.8. petition dismissed.
Judgment:
ORDER

1. This is a petition filed under Article 226 of the Constitution of India for issue of a writ of certiorari to call for the records and quash the declaration made by the Registrar under Section 28 of the Mysore Labour Act. The declaration was to the effect that the announcement by the petitioner to close for a certain date some departments of work carried on in the Amco Factory and dispense with the services of the employees in those branches was a lock-out which for want of notice as required by Section 10(1) of the Act was illegal.

2. The main contention urged on behalf of the petitioner is that the Standing Order No. 16 provides for temporary closure of the work in certain contingencies and since the Standing Orders including this have been registered, it is not open to the employees to complain against suspension of work or to the Registrar to question the legality of it; the Registrar having found that the notice issued by the petitioner is on conformity with the standing Order, should have declared it to be in order.

3. To support the claim for a writ the petitioner has to show that the declaration constitutes a judicial or quasi-judicial act and not a ministerial one and further that it is made without or in excess of jurisdiction. The existence and extent of jurisdiction for the Registrar to make the declaration have to be ascertained from the provisions of the Labour Act. Section 9 of the Act provides for Standing Orders being framed by the employer and for the employees filing objections, if any, to these within 15 days thereafter, for an examination of the same by the Commissioner and after his approval, for registration by the Registrar. On this being done, it is stated that the Standing Orders are to be determinative of the relations between the employer & the employee but these should relate only to the matters specified in Schedule I of the Act. For a change with respect to matters covered Schedule II, notice is made obligatory & a change without such notice is made illegal by 22 of the Act.

Admittedly no notice was given by the petitioner of the proposed closure and so the retrenchment of the staff would be illegal if it is a matter which comes under Schedule II as expressed by the Registrar. The earlier statement in the declaration that the closure is in conformity with the Standing Order cannot lake away the effect of this as I think what is meant to be conveyed is, the closure no doubt is warranted by Standing Order but the Standing Order itself is ultra vires. The question therefore is whether Standing Order No. 16 relates to item 7 hi Schedule I as argued for the petitioner or pertains to item 1 of Schedule II. Schedule I (1) refers to temporary stoppages of work and rights and liability of employers and employees arising therefrom. Schedule II (1) refers to reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed not due to force majeure.

Standing Order No. 16 is as follows:

'The Company may at any time or times, in the event oi shortage of orders, shortage of back materials, or due to process congestion or for any other trade reason or any cause beyond the control of the Company, stop any machine or machines, department or departments, fully or partially, without notice and without compensation in lieu of notice.'

Mere cessation of work for a time without affecting the number or remuneration of the employees does not present any difficulty out, this cannot be expected in a business concern carried on on economic considerations; when in this case the stoppage cf work is accompanied with the cessation of employment of persons, a doubt arises as to its being beyond the pale of Schedule II. The period of time implied by the word 'Temporary'' and 'semi-temporary' is left uncertain. It is possible that suspension of work and reduction of employees though styled temporary may virtually amount to both being permanent if it be prolonged and indefinite. The notice declared illegal states;

'That there is a shortage of orders coupled with shortage of back material and process congestion compelling the stoppage .....indefinitely.'

There is no means of knowing as to how long the cessation will continue and whether it will come to an end at all. If persons are deprived of employment without reference to the period during which they have been working and without indicating the period of unemployment, it is difficult to hold that clause (1) of Schedule II does not apply. The Standing Order cannot therefore be availed of to avoid the requirements of Section 22 of the Act.

5. The Registrar has further stated that with the materials the petitioner has, the work can be carried on. Prom this it may be inferred that there is no force majeure required in No. 1 of Schedule II and the circumstances necessary for resorting to Standing Order No. 16 do not exist. As the notice issued by petitioner is capable of being considered as relating to matters provided for in Schedule II, the requirements of Section 22 are not satisfied and even otherwise the conditions necessary for action under Standing Order No. 16 are not shown to exist, the declaration made by the Registrar cannot be said to be without or in excess of jurisdiction.

6. Sri Raja lyengar, learned Counsel for petitioner cited -- 'Digambar Ramchandra v. Khandesh Spinning & Weaving Mills. Co. Ltd', : AIR1950Bom174 (A) to show that the standing orders once registered are binding on the parties and must prevail over other considerations. That was a case in which rights of parties had to be determined in arbitration proceedings and not one for a writ. It is not therefore of help in this case. The discussion so far has proceeded on the assumption that the declaration is not a ministerial act. The question whether it is so or not need not be decided since the petition has to fail on the ground that the declaration is not shown to have been made without or in excess of jurisdiction. It may however be mentioned that the argument of the learned Advocate General in regard to the declaration not being a judicial or quasi-judicial act has much force. The formalities associated with a judicial or quasi-Judicial proceeding such as notice to parties concerned, opportunity for representation, reasons for the declaration, are not required to be observed. The Registrar is enjoined to make the declaration within three days after an application is filed by the employer or employee irrespective of the difficulty felt in any case to form ah opinion in such a short time & the facts necessary for it being available and either party furnishing these. The only consequence following the declaration is that the party contravening it is made liable for prosecution but the Act does not render the declaration conclusive but expressly provides for its being impeached by the accused as illegal. In effect therefore it is nothing more than a 'brutum fulmen'. The acquittal of the petitioner in a case filed by the respondent for alleged contravention of the provisions of the Act supports this. Perhaps because of this consideration, the provision for the Registrar's declaration is not found in the Act of the Indian Parliament. The declaration has therefore but a recommendatory or moral force and does not by itself create a, liability or impose any penalty. The declaration is discretionary and when no conditions are prescribed for its exercise and the party against whom it is exercised is allowed to challenge it, how the petitioner can seek a writ -- if he deems it necessary at all -- alleging the declaration to be a judicial or quasi-judicial act cannot be easily understood.

7. It seems to me that this is not a case for issue of a writ of certiorari. The petition is, therefore, dismissed and the ad interim order vacated.

8. Petition dismissed.


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