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N.G.E.F. Ltd., Byappanahalli Vs. Industrial Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2990 of 1967
Judge
Reported inAIR1970Kant149; AIR1970Mys149
ActsIndustrial Employment (Standing Orders) Act, 1946 - Sections 6, 6(2), 5(1), 5(2), 5(3) and 11 (2); Constitution of India - Articles 226 and 227
AppellantN.G.E.F. Ltd., Byappanahalli
Respondentindustrial Tribunal and anr.
Advocates:P.P. Bopanna and ;C.M. Monnappa, Advs.
Excerpt:
.....and much credibility cannot be given to the same. delay not condoned. - 2) and certified the standing orders on february 23, 1966. against the certification, the petitioner as well as respondent no. 6. we have therefore to see whether the application filed by the petitioner before the first respondent on february 21, 1987, was one under section 11(2) of the act, and whether the first respondent had failed to exercise the jurisdiction vested in it by law. --in the absence of any specific and definite proposals in regard to rules and the kind of leave facilities and the number of days of various kinds of leave which the certifying officer has failed to lay down, it would be very necessary to define the various kinds of leave facilities which the workmen are entitled to in this..........the application made to the tribunal was under section 11(2) of the act, that the two standing orders certified by the first respondent suffered from accidental slip in one case and accidental omission in the other, and that the first respondent should have corrected the standing orders as approved by it. there is no appearance for the second respondent. 6. we have therefore to see whether the application filed by the petitioner before the first respondent on february 21, 1987, was one under section 11(2) of the act, and whether the first respondent had failed to exercise the jurisdiction vested in it by law. 7. in considering this question we do not think that it is necessary to refer to the order passed by the first respondent because instead of considering whether the petition.....
Judgment:

Tukol, J.

1. This is a petition under Arts. 226 and 227 of the Constitution of India for the issue of a writ of certiorari quashing the order passed by the Industrial Tribunal in Mysore, Bangalore (Res. No. 1) on November 20, 1967, and for a writ of mandamus or other appropriate direction to the first respondent to issue modified Standing Orders in conformity with the order passed by that authority in appeal No. 3 of 1966.

2. The petitioner company is an industrial establishment with more than 100 workmen as its employees coming within the purview of the Industrial Employment (Standing Orders) Act 1946 (hereinafter referred to as the Act). The petitioner submitted its draft Standing Orders to the Certifying Officer on December 16, 1964, for certification as required by Section 3 of the Act. The Certifying Officer heard the petitioner and the workmen (respondent No. 2) and certified the Standing Orders on February 23, 1966. Against the certification, the petitioner as well as respondent No. 2 preferred two separate appeals to respondent No. 1. We are not concerned in this case with the appeal filed by respondent No. 2.

In appeal No. 3 of 1966 filed by the petitioner, it challenged the correctness of Standing Orders Nos. 12.2 and 13 as certified by the Certifying Officer. The first respondent, who heard the appeal, passed an order (Exhibit A-3) on January 19, 1967, holding that Standing Order No. 12.2 was required to be modified as pleaded for by the petitioner, and in regard to Standing Order No, 13 which pertains to leave rules, be stated that the leave rulesof the Hindustan Aeronautics, Bangalore Division. Bangalore, should be adopted,

3. After the disposal of this appeal, respondent No. 1 sent copies of the Standing Orders to the petitioner as approved by him under the appellate order as pec Annexure A-3.

4. Thereafter, the petitioner filed an application (Exhibit A-4) on February 21, 1967, under Section 11(2) of the Act praying that Standing Orders Nos. 12.2 and 13 as certified by the first respondent on February 9, 1967, be amended as shown in the annexure to the affidavit accompanying the petition. It was contended that the Standing Orders as certified by the first respondent suffered from accidental mistakes and omissions and that they were required to be corrected. The first respondent rejected this application on November 20, 1967 stating that there were no accidental slips or clerical errors and that the proper course for the petitioner was to apply for modification of those Standing orders to the Certifying Officer after the expiry of six months from the date on which the Standing Orders were certified by that authority.

5. Mr. Bopanna, appearing for the petitioner, submitted that the application made to the Tribunal was under Section 11(2) of the Act, that the two Standing Orders certified by the first respondent suffered from accidental slip in one case and accidental omission in the other, and that the first respondent should have corrected the Standing Orders as approved by it. There is no appearance for the second respondent.

6. We have therefore to see whether the application filed by the petitioner before the first respondent on February 21, 1987, was one under Section 11(2) of the Act, and whether the first respondent had failed to exercise the jurisdiction vested in it by law.

7. In considering this question we do not think that it is necessary to refer to the order passed by the first respondent because instead of considering whether the petition fell under Section 11(2) of the Act, the first respondent has proceeded to consider it on the basis that the application was one for modification of the standing orders which had been already certified according to law. The Presiding Officer has overlooked the scope of the petition and has rejected it on grounds which did not legitimately fall to be considered in an application which was expressly stated to have been made under Section 11(2) of the ActSection 11(2) of the Act reads: 'Clerical or arithmetical mistakes in any order passed by a Certifying Officer or appellate authority, or errors arising therein from any accidental slip or omission may, at any time, be corrected bythat Officer or authority or the successor in office of such officer or authority, as the case may be.'

This sub-section therefore, provides for two clauses of rectification: (1) it provides for rectification or correction of clerical or arithmetical mistakes in the order passed by a Certifying Officer or the appellate authority. (2) It also provides for correction of errors arising in such order from any accidental slip or omission. Such correction may be made not only by that officer or authority, but it may be made by the successor in office of such officer or authority, as the case may be.

8. In order to ascertain whether the application made by the Petitioner before the first respondent was an application under the aforesaid provision, we have to refer to Section 6 of the Act and to the contents of the order passed in the appeal by the first respondent. Section 6 of the Act provides for appeals and for issuing of modified standing orders if required by the orders passed in appeal. That section provides:

'Appeals'

(1) Any person aggrieved by the order of the Certifying Officer under Sub-section (2) of Section 5 may, within thirty days from the date on which copies are sent under Sub-section (3) of that section, appeal to the appellate authority, and the appellate authority whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act.

(2) The appellate authority shall, with-in seven days of its order under Sub-section (1) send copies thereof to the certifying officer to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the Certifying Officer by copies of the standing orders as certified by it and authenticated in the prescribed manner.'

In the appeal preferred under Sub-section (1), the appellate authority can either confirm the standing orders, in respect of which the appeal is filed in the form in which that has been certified by the Certifying Officer or direct such amendments as it thinks fit to be made therein. Sub-section (2) is akin to a provision requiring the drawing up of a decree in pursuance of the order passed by a Civil Court. What it requires the appellate authority is to send copies to the authorities mentioned therein after effecting amendments or modifications in terms of its order within seven days from the date of the order. Inother words, the obligation to draw up the standing orders in conformity with the orders passed in appeal is placed before the appellate authority and that obligation has to be discharged within the period of seven days from the date of the order passed under Sub-section (1).

9. The petitioner has filed a copy of the order passed by the appellate authority (first respondent) on January 19, 1961, The first point for decision as stated in the order was as regards liberty to the workmen to come late. The appellate authority recorded its conclusion as follows on that point: 'I would, therefore, accept the draft proposed and made by the management and set aside the order passed by the Certifying Officer in this connection. Similar is the situation in Hindustan Machine Tools Ltd., Bangalore where late attendance in a week for ten minutes is excused and is treated as a grace. I, therefore, accept the draft standing order proposed by the management in regard to late coming in toto.'

It appears from the material placed before us that the first respondent concluded that ten minutes should be considered as the total period for coming late during the entire week. While the workmen required that has to be raised to thirty minutes, the first respondent came to the conclusion that ten minutes a week was reasonable and it therefore, accepted the draft standing orders proposed by the management 'in toto'.

10. Having come to this conclusion, the appellate authority sent the following standing order as modified by it. 'Employee will be allowed ten minutes grace time for every working day subject to a maximum of 30 minutes grace time per week. If an employee is habitually late, he will be treated habitual late comer and will be dealt with as per S. O. No. 21.'

It would be evident from the records of the appellate authority that while certifying the standing order as modified by it, the appellate authority certified that very standing order which it had rejected. We have no doubt that such certification by the appellate authority was an accidental slip inasmuch as we have to presume that what is certified is consistent with the order recorded by that authority in appeal.

11. As regards Standing Order No. 13 which related to leave of all matters connected thereto, the appellate authority came to the conclusion that the leave rules of the Hindustan Aeronautics Ltd., Bangalore Division, Bangalore, should be adopted and that there would be four categories of leave. It would be found from paragraph 9 of the order that there was dispute as regards the contents ofthe standing order relating to leave rules. The leave rules of the Kirloskar Electric Company, and of the Hindustan Aeronautics Ltd., Bangalore seem to have been produced before the appellate authority.

During the course of the order the Pre-siding Officer stated:--

'In the absence of any specific and definite proposals in regard to rules and the kind of leave facilities and the number of days of various kinds of leave which the Certifying Officer has failed to lay down, it would be very necessary to define the various kinds of leave facilities which the workmen are entitled to in this behalf. I set aside the order of the Certifying Officer which is very vague and besides indefinite in the matter of leave provisions.'

Thereafter the Presiding Officer proceeded to consider the question of long leave as adumbrated by parties before it. That plea was rejected with the observation:

'It is needless to say that by resorting to this kind of long leave, the workmen can successively paralyse the industry and also the production which would certainly be not in the national interest.' Then there is a discussion of the proposals made by the parties as regards leave and the first respondent came to the conclusion that the provisions made by the petitioner, were:

'A little conservative when compared to neighbouring industries.'

Then follows the conclusion to this effect:

'I, therefore, propose to adopt the leave rules, of Hindustan Aeronautics Ltd., Bangalore Division, Bangalore according to which, there will be four categories of leave.'

While certifying, the Presiding Officer mentioned only the four categories of leave, viz. casual leave, sick leave, earned leave and maternity leave without specifying the procedure the workmen should follow in applying for leave and specifying the authority who should grant the same.

It would be evident from item No. 5 in the First Schedule in the Act which mentions the matters to be provided in the standing orders certified under the Act and that such standing orders should contain details regarding 'conditions of, procedure in applying for, and the authority which may grant leave and holidays.' While certifying under Sub-section (2) of Section 6, the Presiding Officer seems to have overlooked the fact that it had proposed that the petitioner should 'adopt the leave rules of the Hindustan Aeronautics Ltd., Bangalore Division, Bangalore', He should have therefore, acted In conformity with the decision taken by him and the order recorded by him, that is, he should have certified the leave rules of theHindustan Aeronautics Ltd., Bangalore Division, Bangalore. The order Buffers from material omissions in the matter asalready stated.

12. The aforesaid discussion will make it clear that in complying with the requirements of Sub-section (2) of Section 6 which casts an obligation on the Presiding Officer (the first respondent), the latter overlooked the contents of its own order and committed errors which are attributable either to accidental slip or omission. In that view the petition filed by the present petitioner before the Presiding Officer under Section 11 (2) of the Act was wholly competent and the Presiding Officer would have been perfectly within the scope of his powers under that sub-section if he had granted the petitioner. As already observed, he has misconceived the scope of the petition filed before him by the present petitioner and has rejected it on grounds which are not germane to Section 11 (2) of the Act.

13. In the result, we allow this writ petition, quash the order of dismissal passed by the first respondent on November 20, 1967 and direct the first respondent to consider the petition filed by the present petitioner under Section 11 (2) of the Act and dispose of the same in accordance with law and in the light of what has been stated above. No costs.

14. Petition allowed.


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