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Judgment
R. K. Mahajan, J.—The matter was listed before this Court for vacating the stay order on 22111997 by virtue of which the award of the Labour Court has been stayed. I have heard the writ petition on merits also with the consent of the parties.
This writ petition involves interesting question whether the management can reduce leave to regular new comers w.e.f. 2231974 to the following stage:
Earned Leave ... 20 days.
Sick leave�10 days
Casual Level�7 days.
As per Standing Order 8J of B.H.E.L., Hardwar which entitles them 30 days Earned Leave, 20 days Sick Leave, Festival Holidays 8 days and Casual Leave
12 days without legal formalities in amending Standing Orders in accordance with law.
It appears that an application was filed by one Shri H.S. Jauhari before the Labour Court, Meerut under Section 11C of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) for interpretation of the Standing Order as office bearer of the Trade Union. After hearing the parties the Labour Court vide its order dated 29111983 was of the view that there cannot be discrimination with respect to the employees who entered in the service on or before 2231974 and they are entitled to leave as per the Standing Order.
The order dated 29111983 has been challenged in the present writ petition and order was stayed on 2031984. Learned Counsel for the petitioner Shri Tarun Agarwal has made the following submissions which are culled out from the averments in petition and grounds. He firstly submits that the application under Section 11 of the Act of 1947 is not maintainable as it cannot enforce right or obligation. He further submits that rights and liabilities can be adjudicated under Section 10 of the Industrial Disputes Act or Section 4 of the Act of 1947 or Section 33C of the Industrial Disputes Act. He further submits that unless there is a reference regarding change of condition of service as a result of curtailment of holidays the workers cannot get by filing a simple application for enforcement of law. He further submits that there was a settlement arrived outside the Court which is Annexure No. 1 to the writ petition which relates to minutes of the 22nd meeting of the Joint Committee for B.H.E.L. held in New Delhi. The representatives of the Trade Union and management signed the same and number of holidays are mentioned w.e.f. 1111977. The chart of holidays is given below:
No. of years of service No. of days per annum
1to 5 22
6 to 10 24
11to 15 26
16 to 20 28
Above 20 30
He further submitted that there was no need for registration of the agreement. Another submission which has been raised that the workers have been given holidays according to Indian Factory Act, 1948 and settlement arrived at in 1977 and the respondent No. 2 is not aggrieved party as he was appointed in the year 1964 and his leave is not affected by the amendment of Standing Order 8J.
Shri Tarun Agarwala again submitted that in case this matter is decided under Section 11C of the Act of 1947 there is likelihood of disturbance of industrial peace in 9,000 workers at Hardwar and 17,000 workers in different units all over the country.
Learned Counsel for the respondent Shri Tejpal has submitted that the Standing Order could not be changed without following the procedure under Industrial Employment (Standing Orders) Act, 1946. In other words the rights affecting holidays could be changed by a procedure mentioned in the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the Act of 1946) and proper certification. It is also pleaded in the counteraffidavit that petition is maintainable by the respondent who is a workman and also is a member of one of the Union,
In nut shell the plea of the respondent is that there cannot be discrimination between the workers who have joined earlier and who have joined later on except following the proper procedure in the Act of 1946. It. is alleged that settlement has not been registered with the prescribed authority and it has no legal force.
I would like to quote Section 11C of the U.P. Industrial Disputes Act, 1947 with an advantage:
"11C. Interpretation, etc. of standing orders.If any question arises as to the application or interpretation of a standing order certified under the Industrial Employment (Standing Order) Act, 1946, any employer or workman may refer the question to any one of the Labour Courts specified for the disposal of such proceeding by the State Government by notification in the official Gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.�
The word employer and workman has been defined in the Act. The intention of the legislature is that any employer or workman can go to the Labour Court for interpretation of conditions governing his service certified under the Act of 1946. Admittedly, "leave" are conditions of service and leave/holidays were not certified in accordance with the procedure.
After reading of the prayer clause of the application which was submitted before the Labour Court I am of the view that the Labour Court has committed an error while interpreting Section 8(j) of the Standing Orders byway of giving finding as is given in regular reference in Act of 1947. The prayer was that the order dated 2231974 may be declared inoperative and in fructuous viz. Labour Court declared so. The objects of the Act of 1946 is to have uniform Standing Orders providing for the matters enumerated in the Schedule to the Act, that it was not intended that there should be different conditions of service for those who are employed before and those employed after the Standing Orders came into force and finally, once the Standing Orders come into the force, they bind all those presently in the employment of the concerned establishment as well as those who are appointed thereafter. Agra Electric Supply Company Limited v. Alladdin, (1969) 2 SCC 598; U.P. Electric Supply Company Limited v. Their Workmen, (1972) 2 SCC 54.
The object of the Act is to require the employer to make the conditions of employment precise and definite. The Act further intends to prescribe these conditions in the form of standing orders : Bagalkot Cement Company v. R.K. Pathan, AIR 1963 SC 439.
There is procedure for amendment of Standing Orders. Section 3 of the Act of 1946 deals with submission of draft standing orders. Section 4 deals with conditions for certification of standing orders. The emphasis is that fairness or reasonableness of orders have to be kept in view. After taking into consideration the view points of employers and Trade Unions or other such representatives the orders have to be certified under Section 5 of the Act of 1946. The right of Appeal has been given under Section 6 of the Act of 1946. Section 7 of the Act deals with date of operation of standing orders. Section 10 of the Act of 1946 deals with duration and modification of standing orders. Till the standing orders are framed by the organisation there is provision of model standing orders under Section 12A of the Act of 1946. If there is an infringement Section 13 deals with the penalty and procedure. Section 13A of the Act of 1946 deals with interpretation of Standing Order itself.
The Schedule to the Act of 1946 mentions the matters to be provided in Standing Orders under this Act. Item No. 2 relates to manner of intimating to workmen periods and hours of work, holidays, paydays and wage rates.
Section 9 of Industrial Employment (Standing Orders) Central Rules, 1946 relates to holidays with pay will be allowed as provided for in Chapter VIII of the Factories Act, 1948 and other holidays in accordance with law, contract, custom and usage.
After hearing the parties I am of the view that the word ''Interpretation'' according to the Oxford Dictionary meansact of interpreting; the sense given by an interpreter. If rights have been curtailed by new settlement regarding holidays it would amount not interpretation but variation of service conditions as laid down in Standing Orders and they cannot be varied unless procedure prescribed under the Act of 1946 is followed. It is matter of evidence to be laid before the Conciliation Officer as well as before the Industrial Labour Court whether the matter is raised as industrial dispute by way of reference, whether condition could be varied and whether there was proper settlement on behalf of Union and representative as alleged and referred.
learned Counsel for the petitioner submitted that new settlement need not be registered with a competent authority and it can be arrived at out side the Court. But this matter has to be done by the competent authority. Section 6B of U.P. Industrial Disputes Act, 1947 relates to settlement outside conciliation proceedings. Section 6B is quoted with an advantage:
"6B. Settlement outside conciliation proceedings.(1) A settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall except as provided in subsection (4), be binding on the parties to the agreement:
Provided that if the period for which a settlement shall remain in force has not been laid down in such settlement itself, it shall remain in force for one year from the date of its registration.
(2) As soon as settlement referred to in subsection (1) has been arrived at, the parties to the settlement or any one of them may apply to the Conciliation Officer of the area concerned in the prescribed manner for registration of the settlement.
(3) On receipt of application for registration under subsection (2) the Conciliation Officer or an authority notified by the State Government in this behalf, either :(i) register the settlement in the prescribed manner, or (ii) refuse registration if it considers it to be inexpedient to do so on public grounds affecting social justice, or if the settlement has been brought about as a result of collusion, fraud or misrepresentation.
(4) Where a settlement under subsection (1) has been refused registration, it shall not be binding under this Act."
The emphasis has been laid down that in order to avoid the complication of unfair settlement or to resile from the authenticity of the agreement, it has to be registered before the conciliation officer or any competent officer. This question has to be gone in reference and cannot be subjectmatter of interpretation under Section 11C of U.P. Industrial Disputes Act, 1947.
Learned Counsel for the petitioner has cited AIR 1964 Guj 265, Tata Chemicals Limited and others v. Kailash C. Adhvaryu, regarding the scope of Industrial Employment (Standing Orders) Act, 1946 under Section 13A regarding the submission that enforcement of rights or obligation can be only answered in a regular reference made under Section 4K of the U.P. Industrial Disputes Act/Section 10 of the Act of 1947. Other authorities which he has quoted is AIR 1969 Bom 214, Shipping and Painting Employers'' Association Private Limited, Bombay v. A. T. Zambre and another; 1993 (66) FLR 706, Amini Jonh v. Barofarn Chemicals Limned and AIR 1975 SC 2238, on the point that only in such situation the reference is the best course and not seeking interpretation under Section 11C of U.P. Industrial Disputes Act, 1947.
Another ruling which has been quoted is 1974 (29) FLR 228, M/s. Newspapers Ltd. v. State of U.P and others, on the point that nonregistration of agreement under Section 6B does not vitiate Tribunal''s award. This ratio would only be considered at the time of reference regarding the probative value of the settlement and not at this stage.
Shri Tejpal, learned Counsel for the respondent has submitted that the language of Section 11C of U.P. Industrial Disputes Act is such that matter can be answered while interpreting the Standing Orders ignoring the change in Standing Orders. I am not in agreement with him in view of the declaration sought by the petitioner. He has relied upon the authority 1962. LLJ 678, Lord Krishna Sugar Mills Limited v. Labour Court, Meerut and others. He has laid emphasis that Section 11C of U.P. Industrial Disputes Act, 1947 does not require a reference by State Government. This was concluded out of the context as in this case the High Court took a view that Labour Court on application by the concerned workman of the U.P. Industrial Disputes Act would not have jurisdiction to decide that the order of dismissal made against the applicant workman was bad and unjustified and to declare that the applicant is also entitled to his wages from the date of his dismissal onwards. This ruling is not favourable to the respondent. Shri Tejpal has also relied upon (1984) 1 SCC 1, M/s. Glaxo Laboratories (I) Limited v. Presiding Officer, Labour Court, Meerut and others and AIR 1969 Bom 274, Chipping and Painting Employers'' Association Private Limited v. A. T. Zambre and another. They are not relevant for the controversy at all.
Learned Counsel for the petitioner further has made a submission that it is a big industrial unit and such matter should be decided by reference otherwise there is likelihood of dispute between the management and thousands of workers in different units under central management in different parts of the country. If individual worker is allowed to raise such a plea it may not be advisable as collective decision is essential for the harmony of industrial peace. In the facts and circumstances of the present case it cannot be disputed that worker can seek opinion under Section 11C of U.P. Industrial Disputes Act, 1947 but taking into account the circumstances of the case and issue raised in the pleading I am of the view that Labour Court award suffers from illegality and there is error apparent on the face of the record.
I set aside the impugned award. I am also of the considered view that since it is an industrial dispute and it may take long and protracted hearing before the Conciliation Officer, I, therefore, direct the Central Government, under Section 10 of the Industrial Disputes Act, 1947, who is the appropriate authority, as the unit is owned by it, to refer the matter within three months from the date of receipt of a copy of this judgment to the Industrial Tribunal for deciding the matter and after reference the Industrial Tribunal is to decide the same within a period of six months after hearing the parties. This direction of reference is being given so that peace may prevail in the industry and the workers may get justice after adjudication. The writ petition is allowed with the aforesaid direction.
A copy of this order be sent to the Secretary, Department of Labour, Union of India, New Delhi for compliance at the earliest.