R.N. Misra, J.
1. The Orissa State Commercial Transport Corporation Employees' Union has asked for a writ of certiorari/mandamus to quash the appellate orders under the Industrial Employment (Standing Orders) Act, 1946 (hereafter referred to as the 'Act' in regard to the certification of the standing orders.
2. The Orissa State Commercial Transport Corporation Limited is a Government of Orissa Undertaking. The workmen employed under the Corporation have formed themselves into a recognized union. The draft standing orders were submitted to the Certifying Officer by the Corporation as required under Section 3 of the Act and the union submitted its objections. After hearing both parties the Certifying Officer made certain modifications in the draft standing orders and forwarded the same to the parties after authentication. The union preferred an appeal under Section 6 of the Act before the Labour Court, Orissa, challenging certain provisions. A copy of the memorandum of appeal has been furnished as Annexure-5 to this writ application. After certain alterations the appellate authority finalized the standing orders. Sanding Orders 7, 14, 18, 19 some Clauses of 20 and 23(1)(g) are assailed before us. The management has appeared and filed its counter-affidavit.
3. We shall now examine the petitioner's contention with reference to each of the impugned standing orders. Standing Orders 7 and 14 deal with recruitment and employment and transfer of employees respectively. The petitioner contends that the topics covered by these two standing orders are foreign to the Act. The Schedule to the statute provides the matters in respect whereof standing orders can be made under the Act.
4. This Court in Saroj Kumar v. Chairman, Orissa State Electricity Board : AIR1970Ori126 , 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 U. P. Electricity Supply Co. v. T.N. Chatterjee : (1972)IILLJ9SC . On that footing these two standing orders must be held to be beyond the scope of the statute. It is true that objection as against these two standing orders had not been raised earlier. But as it now turns out to be a matter relating to jurisdiction, we overrule the objection of the opposite party No. 1 and direct that Standing Orders 7 and 14 shall stand deleted from the Certified Standing Orders.
5. Standing Order No. 18 relates to leave. 'Leave' has been classified as casual leave, with wages and maternity leave. Objection has been raised to Clauses (b) and (d) of 'leave with wages' provided under Standing Order 18(ii). Clause (b) is as follows:
without prejudice to such holidays as may be admissible, every workman who has worked for a period of 240 days or more, during a calendar year, shall be allowed during the subsequent calendar year leave with wages for a number of days calculated at the rate of one day for every 20 days of work performed by him during the previous calendar year.
According to the petitioner, the workmen in the establishment were enjoying leave on the basis of one day for every eleven days of work. Clause (d) of this standing order provides:
If a workman does not in any one calendar year take the whole of the leave allowed to him in the succeeding calendar year provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed 120 days in the case of an adult.
The petitioner also contends that in the case of Government employees, accumulation is allowed upto 180 days.
6. The entire basis of the challenge is on the ground that better conditions were prevalent before the standing orders were in force. Obviously the undertaking being a Government one, in the absence of standing orders the same terms as were applicable to Government servant had been applied. The Corporation has been formed only a few years before and in the absence of specific standing orders, the same practice as is obtaining in Government offices was being followed. The fact that the workmen were enjoying certain advantages cannot create any right. Admittedly the employer is an industry and cannot be treated at par with Government. There is no justification in the petitioners' claim as it is not supported by conditions of service obtainable in similar undertakings. Leave is not a matter of right. But law is fairly settled that it must be commensurate with the nature of work and must be congenial for creating suitable atmosphere for employment, Judged from such standards, we do not find the provision to be at all open to attack. The contention of the petitioner in regard to this standing order fails.
7. Absence of provision for 'sick leave' was also raised as a ground. Provision for such leave under the Orissa Shops and Commercial Establishments Act has been relied upon to support the claim. The petitioner has contended that its members are divided into three groups (i) the workers in the office who are governed by the Shops and Commercial Establishments Act; (ii) the workers employed in the factory and governed under the Factories Act; and (iii) the operational staff governed by the Motor Transport Workers Act. The application of the Orissa Shops and Commercial Establishments Act to the office staff is disputed. We see no justification in the contention of the petitioner that the standing order is defective on account of non-provision of sick leave. The appellate authority has indicated that comparable concerns have no provision for sick leave. While the finding is challenged as erroneous, no material is claimed to have been placed on the record to support the contention. We are not prepared to take a different view.
8. Standing Order No. 19 deals with holidays. The petitioners' contention is that a larger number of holidays were being enjoyed by the employees before the standing orders came into existence. That fact is not disputed. But it is contended on behalf of the Employer that such holidays have been prescribed as are applicable to industrial undertakings. The laws applicable to industrial employment have been kept in view and provision has been made. Recently we had occasion to examine the Rules framed under Article 309 of the Constitution in respect of the State Transport Employees and similar provisions were upheld. We accordingly see no force in the contention of the petitioner.
9. In regard to Standing Order No. 20, Clauses 51, 64, 65, 66, 67, 68, 69 and 70 have been challenged. This standing order deals with discipline. Clause 51 provides that Gherao, Dhama, protestfast, refusal to work overtime except on grounds of ill health alone or in combination with others amount to indiscipline. It is contended that these are approved practices for trade unions and cannot be objected to. Gherao has been found to be an illegal act;. A Full Bench of the Calcutta High Court in a recent case has taken that view. In fact, it is proposed now to introduce it as an aggravated feature for the offence of wrongful confinement. We, therefore, see no justification in the challenge of the petitioner against gherao. The other aspects provided in Clause 51 are also in our opinion not open to challenge.
10. The Trade Union Act permits participation in politics. While communal movements as contemplated in Clause 64 may be restricted, we see no justification in banning workmen from participating in politics particularly when the Trade Union Act itself virtually authorizes the same. Accordingly in Clause 64, the ban upon association with or being a member of my political party or organization or subscribing in aid of or assisting in any manner any political movement or activity cannot amount to indiscipline. It would be contrary to the provisions of the Trade Act itself. Accordingly this as also the ban against canvassing or participating in any election to Parliament, Legislature or Local Authority as provided in Clause 65 have to be deleted.
11. Similarly objection cannot be taken to participation in editing or managing any newspaper, periodical or publication, radio broadcasts, or contributing any article or writing any letter to any newspaper or periodical even if the same has political tinge, association or effect. Clause 66 has, therefore, to be suitably amended.
12. We find no objection in the provisions of Clauses 67, 68, 69 and 70 as these appear to be connected with efficient service and are regulating measures not contrary to any law.
13. The last attack is against Standing Order No. 23(1)(g). It bans lightening strike or acting in furtherance of such a strike. Recently in our decision in O. J. C. No. 886 of 1971 and 94 of 1972 (I. The All Orissa Transport Employees Union, Sambalpur and others; 2. The State Transport Employees' Union, Koraput Zone and Anr. v. State of Orissa and Anr.), disposed of on 5th February, 1974, we have taken the view that such a provision is not appropriate and unduly fetters the bargaining power of the trade union. We would accordingly direct deletion of this provision also.
14. The writ application accordingly succeeds in part to the extent indicated above. The Certifying Officer is directed to make necessary corrections in the certified standing orders and authenticate the same. No costs.
B.K. Ray, J.
15. I agree.