Sundaram Industries Limited vs Secretary, Madurai Motor Labour Union and Others

S. Padmanabhan, J.—This writ petition involves the interpretation of S. 10(2) of the Industrial Employment (Standing Orders) Act, 1946

(hereinafter referred to as the Act). The petitioner-company Sundaram Industries Limited is engaged in the manufacture and sale of rubber

components for motor vehicles. The company employs about 2,000 workers in the headquarters and the branches situated at difference places.

The second respondent, the T.V.S. Workers Union Madurai is the recognised union so far as the petitioner-company is concerned. As a result of

negotiations between the second respondent and the company standing orders were finalised and certified under the Act. No appeals were

preferred under S. 6 of the Act, and consequently the standing orders became final as a result of certification. Long after the certification of the

standing orders, the Secretary, Madurai Motor Labourers Union, Madurai, the first respondent, filed an application before the third respondent,

for modification of the certified standing orders under S. 10(2) of the Act. By the said application the first respondent sought to introduce drastic

changes in the certified standing orders. Before the third respondent the petitioner raised the preliminary objection that the first respondent had no

locus standi to prefer an application under S. 10(2) of the Act. The third respondent dealt with the preliminary objection as a preliminary issue and

passed the order dated 17-6-1977 overruling the preliminary objection and held that the application filed by the first respondent was maintainable.

The petitioner has consequently filed this writ petition for the issue of a writ of certiorari to quash the said order passed by the third respondent.

The submission of Mr. Govind Swaminathan, the learned counsel for the petitioner and Mr. P. Chidambaram, the learned counsel for the

second respondent may be briefly summarised as follows :- Section 10(2) of the Act gave right to an employer or a workman to apply to the

certifying officer to have the standing orders modified. This is a right conferred on the workman or the employer personally. This right cannot be

exercised by the workman through another. Rule 6(A)(2) of the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947 (Hereinafter

called the Rules) which enables a representative of a workman to have the standing orders modified by making an application to the certifying

officer it ultra vires the Act as no rule can be made contrary to the powers conferred under the provisions of the Act. In this connection, Mr. P.

Chidambaram drew my attention to Form ""AAA"" prescribed under Rule 6 (A)(2) of the Rules and contends that the forms prescribed show that

the workman has been personally authorised to make an application under Rule 6 (A)(2) of the rules and not a representative of the workman.

Therefore, both Mr. Govind Swaminathan and Mr. Chidambaram argued that the workmen were not entitled to file an application for the

modification of the certified standing orders through the first respondent.

On the other hand, Mr. Krishnan, the learned Government Pleader and Mr. Paul Pandian, the learned counsel for the first respondent argued

that Rule 6 (A)(2) of the Rules would enable a workman either himself or through his representative to file an application for modification of the

certified standing orders as provided for under S. 10(2) of the Act. The learned counsel submitted that S. 15(2)(a) of the Act empowered the

Government to make rules prescribing the procedure to be followed in modifying the standing orders certified under the Act. Therefore, Rule 6 (A)

(2) of the Rules only prescribed the procedure to be followed in modifying the standing orders certified under the Act. The rule cannot in any way

be said to be inconsistent with the Act.

The question for consideration is which of the contentions advanced by the learned counsel shall prevail. The Act applied to every industrial

establishment wherein one hundred or more workmen are employed, or were employed on any date of the preceding twelve months. The

appropriate Government has power after giving not less than two months notice of its intention so to do, by notification in the official gazette apply

the provisions of the Act to any industrial establishment employing such number of persons less than one hundred as may be specified in the

notification. The object of the Act is to have uniform standing orders providing for the matters enumerated in the schedule to the Act. Section 3 of

the Act provides that within six months from the date on which the Act becomes applicable to an industrial establishment, the employer shall submit

to the certifying officer five copies of the draft standing orders proposed by him for adoption to his industrial establishment. The draft standing

orders so submitted shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment

including the name of the trade union, if any, to which they belong. Under S. 5 of the Act on receipt of the draft standing order, the certifying officer

shall forward a copy thereof to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as

may be prescribed, together with a notice in the prescribed form requiring objections, if any, which the workmen may desire to make to the draft

standing orders to be submitted to him within fifteen days from the receipt of the notice. Section 5(2) of the Act enjoins the certifying officer to give

an opportunity of being heard to the employer and the trade union or such other representative of the workmen. Thereafter, the certifying officer

shall decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders

certifiable under the Act and shall make an order in writing. After certifying the draft standing orders, the certifying officer shall within seven days

send copies of the certified standing orders authenticated in the prescribed manner and a copy of his order to the employer or to the trade union or

other prescribed representative of the workmen. A right of appeal is given under S. 6 of the Act to any person aggrieved by the order of the

certifying officer. The appellate authority may either confirm the standing order in the form certified by the certifying officer or amend the same by

making such modifications thereof or additions thereto as it thinks necessary. The appellate authority shall send copies of his order to the certifying

officer, to the employer and to the trade union or other prescribed representatives of the workmen along with the copies of the amended standing

orders. The standing orders shall come into operation on the expiry of thirty days from the date on which the authenticated copies thereof are sent

by the certifying officer and in cases where appeals are filed they shall come into operation on the expiry of seven days from the date on which

copies of the order of the appellate authority are sent. Section 10(1) provides that standing orders finally certified under the Act shall not, except

on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the standing

orders or the last modifications thereof came into operation. Section 10(2) provides that subject to the provisions of sub-s. (1) an employer or

workman may apply to the certifying officer to have the standing orders modified, and such application shall be accompanied by five copies of the

modifications proposed to be made, and where such modifications proposed to be made by agreement between the employer and the workmen, a

certified copy of that agreement shall be filed along with the application. A perusal of S. 10(1) and (2) of the Act shows that the following

conditions have to be fulfilled for an application being made for the modification of the standing orders : (1) The application for modification of the

certified standing orders shall be made only after the expiry of a period of six months from the date on which the standing orders or the last

modifications thereof came into force, unless both the employer and the workmen agree it to be otherwise. (2) The right to apply for modification is

conferred on an employer or a workman. (3) Applications have to be accompanied by five copies of the proposes modification. (4) If the

application is made by agreement between the employer and the workmen a certified copy of that agreement shall be filed along with the

application. It is, therefore, clear from the section that the right to apply for modification of the certified standing order is given personally to an

employer or a workman. The section does not authorise the representative of an employer or a workman to make an application for modification

of the certified standing orders. However, reliance was placed heavily on Rule 6 (A)(2) of the Rules. It reads thus : ""On receipt of the draft

modification to the certified standing orders from a workman or from his representative for certification under S. 10(2) the certifying officer shall

forward a copy thereof together with a notice in form ""AAA"" to the employer as well as to the trade union, if any, of the workmen requiring them

to submit their objections, if any, to the certification of the modifications within fifteen days from the date of receipt of the notice. Where there is no

trade union, the certifying officer shall require the employer to publish a copy of the draft modification to the standing orders and a notice in form

AAA"" on the notice board of the establishment."" On the basis of Rule 6 (A)(2) it is submitted by Mr. Paul Pandian that it will be open to the first

respondent which is admittedly a general trade union to file an application for modification of the certified standing orders. Mr. Paul Pandian would

lay emphasis on the fact that the first respondent is not seeking to get the certified standing orders modified in its individual capacity but only as the

authorised representative of the workmen which is sanctioned by Rule 6 (A)(2) of the Rules. I am not persuaded to agree with the submission of

Mr. Paul Pandian S. 10(2) of the Act clearly confers a right to file an application on an employer or a workman. It does not empower the

workman to act through a representative. It is one of the settled principles of statutory construction that when a statute confers power to perform

an act in a particular manner, it shall be performed in the manner provided for in the statute. That the Legislature deliberately limited the right to

apply for modification of the certified standing orders to an employer or a workman will be made clear by a reference to some of the other

provisions of the Act. Section 5(2) of the Act states that before deciding whether or not any modification or addition to a draft modification

submitted by an employer is necessary to render the draft standing orders certifiable under the Act, the certifying officer shall give to the employer

and the trade union or Such other representatives of the workmen as may be prescribed an opportunity of being heard. Therefore, while the

Legislature has been careful to include the representatives of a workman as one of the persons who should be heard by the certifying officer before

certifying the standing orders, the Legislature has consciously omitted in S. 10(2) of the Act, the representatives of the workmen, from among

those who are said to be entitled to file an application for modification of the standing orders. A perusal of form ""AAA"" prescribed under Rule 6

(A)(2) of the Rules will show that only a workman is entitled to file an application. Viewed in this light, I am inclined to agree with the contentions

of Mr. Govind Swaminathan and Mr. Chidambaram that Rules 6 (A)(2) of the Rules goes beyond the provisions of S. 10(2) of the Act is as much

as it enables the representative of a workman to file an application for modification of the certified standing orders.

Reliance has been placed by Mr. Paul Pandian on S. 15 of the Act to contend that the appropriate Government has been authorised to make

rules laying down the procedure for modification of the certified standing orders. Accordingly, Rule 6 (A)(2) of the Rules provides for such an

application being filed by a workman or his representative. Consequently, it cannot be said that Rule 6 (A)(2) is in conflict with the provisions of

the Act. This contention, in my opinion, is unsustainable. Section 15 of the Act so far as is relevant for our present purpose may be set out as

follows :

15 (1) The appropriate Government may, after previous publication, by notification in the official Gazette, make rules to carry out the purposes of

this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may -

(a) prescribe additional matter to be included in the schedule, and the procedure to be followed in modifying standing orders certified under this

Act in accordance with any such addition.

I am clearly of the opinion that S. 15(2)(a) of the Act has nothing to do with the modification of the certified standing orders. According to this

section the rules made by the appropriate Government may prescribe additional matters to be included in the schedule and the procedure

necessary for the consequent modification of the standing orders. On an anxious consideration of the arguments advanced before me, the relevant

provisions of the Act and the relevant section and the Rules, I hold that under S. 10(2) of the Act it is only an employer or a workman who will

have the right to apply to the certifying officer for the modification of the certified standing orders and it is not open either to the employer or the

workman to authorise a representative to act on their behalf. In the circumstances, the order passed by the third respondent dated 17-6-1977

upholding the preliminary objection is liable to be quashed on the ground that the workmen are not competent to authorise the first respondent to

make an application for modification of the certified standing orders. The writ petition is, therefore, allowed and the impugned order is accordingly

quashed. There will be no order as to costs.