TMI Blog1968 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... Labour Commissioner has done is to permit the modification because he considered it reasonable and fair, even though, on the same material, his predecessor had disallowed this very modification on the basis that, in his opinion, the original. draft Standing Order was fair and reasonable. On the principle enunciated above, it is clear that the order of the Chief Labour Commissioner, allowing all these four modifications, which is not based on any fresh facts, material or circumstances, is liable to be set aside. As a result, I would partly allow the appeal and set aside the order of the Chief Labour Commissioner (Central), permitting modifications mentioned by him in his Order at item Nos. 1, 3, 5 and 6 relating to Standing Orders 9(a), 12(A) and Il(vii) - Civil Appeal No. 27 of 1968 - - - Dated:- 18-9-1968 - SHELAT, J.M., BHARGAVA, VISHISHTHA AND VAIDYIALINGAM, C.A., JJ. H.R. Gokhale, B. Parthasarathy: O.C. Mathut, J.B. Dadachanji and Ravinder Narain, for the appellant R.K. Garg, S.C. Agarwala and Anil Kumar Gupta, for the respondent JUDGMENT Shelat, J. This appeal, by special leave, is by the employer and raises the question as to the scope of sec. 10(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posal of the appeals as the managing agents who are the appellate authority against the orders of the General Manager took months to dispose of such appeals thereby delaying the workman from raising an industrial dispute in time and seek timely relief. The modification allowed was that every such appeal shall be disposed, of by the appellate authority within 60 days from the date of its receipt. The third modification is in Standing Order 11 ('vii) which read as follows: Removal from service: A workman shall be liable to be removed from service in the following circumstances: (a) Inefficiency. The modification allowed was as follows: In case of inefficiency due to physical unfitness the workman whom the management considers suitable for some alternative employment shall be offered the same on reasonable emoluments having regard to his former emoluments. The modification contains, it will be noticed, four limitations: (1 ) it applies only to cases of removal on the ground of physical unfitness, (2) the consideration of suitability for an alternate employment is left to the management, (3 ) the existence of alternative post, and (4) the question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was that if modifications were allowed without any restraint, there would be multiple applications specially as individual workman have been given the right to apply for modifications. Therefore, the word 'final' in s. 6, it' was argued, must be so read as to mean that an application for modification under s, 10(2) can only be maintainable if it is justified on the ground of a change of circumstances having occurred after the fast certification, which of course, according to the concession made by counsel, also would include cases where certain circumstances were not taken into account at the time of the last certification. The relevant provisions of the Act requiring consideration in this appeal are ss. 4, 6, 10, 11 and 12. Section 4 provides that standing orders shall be certified under the Act if (a) a provision is made therein for every matter set out in the Schedule, and (b) they are otherwise in conformity with the provisions of the Act. The section further provides that it shall be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness 'of the' provisions of the standing orders. Section 6 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended by necessary implication that the bar of finality can only be removed if new circumstances arise which necessitate or justify modification. But the intention of the legislature, as observed by Lord Watson in Salomon v.A. Salomon Co. Ltd.( [1897] A.C. 22, 38) is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact . It is well settled that the meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation and the primary duty of a court is to find the natural meaning of the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. In R.v. Wimbledon Justices ([1953] 1 Q.B. 380) Lord Goddard said: Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, and to give opportunity to the employer and the workmen of being heard and then to decide whether or not any modification of or addition to the draft standing orders was necessary to render them certifiable under the Act. Section 6 provided for an appeal by any person aggrieved by the order passed under s. 5. The appellate authority, whose decision was made final, had the power to confirm or amend or add to the standing orders passed by the certifying officer to render them certifiable under the Act. Though the order passed by the appellate authority was made final under s. 6, sec. 10 provided for modification. Sub-s. 1 of s. 10 provided that standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until expiry of six months from the date on which they or the last modification thereof came into operation. Sub-s. 2 read as follows: An employer desiring to modify his standing orders shall apply to the Certifying Officer in that behalf Sub-s. 3 provided that the foregoing provisions of the Act shall apply in respect of an application under sub-sec. 2 as they apply to the certification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess or fairness of the draft standing orders submitted for certification. By amending s. 10(2) both .the workmen and the employer are given the right to apply for modification and by reason of the change made in s. 4 a modification has also now to be tested by the yardstick of fairness and reasonableness. The Act provides a speedy and cheap remedy available to the individual workman to have his conditions of service determined and also for their modifications. By amending ss. 4 and 1 O, Parliament not only broadened the. scope of the Act but also. gave a clear expression to the change in its legislative policy. Parliament knew that the workmen, even as the unamended Act stood, had the right to raise an industrial dispute, yet, not satisfied with such a remedy, it conferred by amending ss. 4 and 10 the right to individual workmen to contest the draft standing orders submitted by the employer for certification on the ground that they are either not fair or reasonable, and more important still, the right to apply for their modification despite the finality of the order of the appellate authority under s. 6. Parliament thus deliberately gave a dual remedy to the workmen both under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is nothing in the Industrial Disputes Act restricting the right to raise such a dispute only when a new set of circumstances has arisen. If that right is unrestricted, can it be possible that the very_ legislature which passed both the Acts could have, while conferring the right on the workmen individually, restricted that right as suggested by counsel ? To illustrate, a new industrial establishment is set up and workmen are engaged therein. Either there is no union or if there is one it is not yet properly organised. The standing orders of the establishment are certified under the Act. At the time of certification, the union or the workmen's representatives had raised either no objections or only certain objections. If subsequently the workmen feel that further objections could have been raised and if so raised the authority under the Act would have taken them into consideration, does it mean that because new circumstances have since then not arisen, the workmen would be barred from applying for modification ? Let us take another illustration. Where, after the standing orders or their modifications are certified, it strikes a workman after they have been in operation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders at the time of first certification on the ground that the Standing Orders were not fair and reasonable and, even subsequently, to apply for modification of the certified Standing Orders after expiry of the period of six months prescribed under s. 10( 1 ) of the Act. These rights granted to the workmen and the powers conferred on the Certifying Officer and the Appellate Authority, however, ,still had to be exercised for the purpose of giving effect to the object of the Act as it continued to remain in the preamble, which was not altered. Before the amendment of the Act, if the workmen had any grievance on the ground of unfairness or unreasonableness of the Standing Orders proposed by the employer, their only remedy lay under the Industrial Disputes Act. By amendment in 1956, a limited remedy was provided for them in the Act itself by conferring on the Certifying Officer the function of judging the reasonableness and fairness of the proposed Standing Orders. These amendments cannot, however, affect the alternative remedy which the workmen had of seeking redress under the Industrial Disputes Act if they had grievance against any of the Standing Orders certified by the Certifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no justification for any such apprehension. for. unless there in a justification for modification the authorities under the Act would reject them on the ground that they are frivolous and therefore neither fair nor reasonable. Lastly as to such an application being a review of the last certifying order an application under s. 10 is not a review. An application for review would be made in the proceedings in 'which the' judgment or order sought to be reviewed is passed That would not be s0 in the case of an application under s. '10(2); Such an application is independent of the proceedings in which the' last.certifying order was passed and. is made in 'the exercise of an independent right conferred upon the applicant by s. ]0(2). In an application for modification, the issue before the authority would be not as to the reasonableness or fairness of the standing orders or their last modification, but whether the modification now applied for is fair and reasonable. Therefore, the contention that a change of circumstances is a condition precedent to the maintainability of an application under s. 10(2) or that an application for modification without proof of such a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits, Mr. Gokhale argued that the four modifications to which he objected were neither fair nor reasonable and that therefore we should set them aside, The ,question is, whether in an appeal under Art. 136 we would be justified in interfering with conclusions as to reasonableness and fairness by authorities empowered by the Act to arrive at such conclusions. In Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh Ors. this Court prevented counsel for the employer from canvassing such a question on the Found that the matter of fairness and reasonableness was left by the legislature to the authorities constituted under the Act. In Hindustan Antibiotics Ltd. v. The Workmen Ors.(2) this Court repeated what it had earlier stated in Bengal Chemical Pharmaceutical Workers v. Their Workmen ([1967] 1 S.C.R. 652) that though Art., 136 is couched in widest terms, it is necessary to, exercise discretionary jurisdiction of this Court only in cases where awards are made in violation of the principles of natural justice or axe made in a manner causing grave injustice to parties or raise an important principle of industrial law requiring elucidation by this Court or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice. During the last decade or so statutes have been passed such as the Bihar Shops and Establishments Act, 1953 which require a reasonable cause for dispensing with the services of an employee by an order of discharge simpliciter. If reasons for discharging an employee are furnished to the employee concerned, he not only has the satisfaction of knowing why his services are dispensed with- but it becomes easy for him in appropriate cases to challenge the order on. the ground that it is either not legal or proper which in the absence of knowledge of those reasons it may be difficult, if not impossible for him to do. In these circumstances, if the authorities under the Act have come to the conclusion that such a modification is fair and reasonable we would hardly be justified in interfering with such a decision. As regards the modification requiting a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by courts or the tribunals such a second show cause notice m case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, by his order dated 27th October, 1967, allowed modifications in a number of Standing Orders. The present appeal is directed against this order and challenges the modifications granted in Standing Orders Nos. 9(a), 12(A), 11(ix), 11(vii) and 13. The main ground urged by the Company before this Court in support of this appeal was that the Chief Labour Commissioner was not justified in directing modifications in the Standing Orders, already certified, in the absence of fresh material or fresh facts on the basis of which alone he was entitled to grant modifications under s. 10 of the Act. Learned counsel appearing on behalf of the Company in the alternative, also put forward the plea that on principles analogous to the rule of res judicata it should be held that the Chief Labour Commissioner had no jurisdiction to grant these modifications under s. 10 in view of the previous decisions given when the Standing Orders were originally certified and modified for the first time. So far as the argument of learned counsel based on the applicability of principles analogous to the rule of res judicata is concerned, learned counsel conceded that there is no direct ruling of any Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that is what the learned Attorney- General contends. But we propose to consider the question on the footing that there is nothing in the statute to indicate the grounds on which an award could be reopened. What then is the position ? Are we to hold that an award given on 'a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under section 19(6), and that the Tribunal has no option. when the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, land come to a fresh decision. That would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in section 11 of the Civil Procedure Code is based. That section is, no doubt, in terms inapplicable to the present matter, but the principle underlying it, expressed in the maxim 'interest rei publica ut sit finis litium', is rounded on sound public policy and is of universal application. ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial characteristics of industrial adjudication, the said technical considerations would be in admissible. As the Labour Appellate Tribunal itself has observed, the principle of gradual advance towards the living wage which industrial adjudication can never ignore, itself constitutes such a special feature of industrial adjudication that it renders the application of the technical rule of res judicata singularly inappropriate. If the paying capacity of the employer increases or the cost of living shows an upward trend, or there are other anomalies, mistakes or errors in the award fixing wage structure, Or there has. been a rise in the wage structure in comparable industries in the region, industrial employees would be justified in making a claim for the re-examination of the wage structure and if such a claim is referred for industrial adjudication, the Adjudicator would not normally be justified in rejecting it solely on the ground that enough time has not passed after the making of the award, or that material change in relevant circumstances had not been proved. It is, of course, not possible to lay down any hard and fast rule in the matter. The question as to revision must be exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Industrial Disputes Act. In the circumstances, I have felt some hesitation in applying this principle in the present case as urged on behalf of the Company consider that, in the present case, it would be much more appropriate to examine the scheme of the Act itself to find out the intention of the legislature and to arrive at a decision on thin basis on the question whether a modification on an application under s. 10 of the Act should only be allowed on the basis of facts or circumstances appearing subsequent to the previous certification of the Standing Orders, or whether, in dealing with the application for modification, the Certifying Officer and the Appel late Authority can re-examine the entire position even as it existed at the time of the previous orders and arrive at a differed decision. The scheme of the Act was examined by this Court in Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh and Others ([1966] 2 S.C.R. 863), where this, Court held: . The Act was passed on the 23rd April, 1946, and the Standing Orders framed by the U.P. Government under section 15 of the Act were published on the 14th May, 1947. The Central Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Authority the duty to adjudicate upon the fairness or the reasonableness of the provisions of any Standing Orders. In other words, after the amendment was made in 1956, the jurisdiction of the certifying authorities has become very much wider and the scope of the enquiry also has become correspondingly wider. When draft Standing Orders are submitted for certification, the enquiry now has to be two-fold; are the said Standing Orders in conformity with Model Standing Orders; and are they reasonable or fair ? In dealing with this latter question, the Certifying Officer and the Appellate Authority have been given powers of a Civil Court by s. 11 (1 ). The decision of the Certifying Officer is made appealable to the Appellate Authority under s. 6 at the instance of either party. Similatly, by an amendment made in 1956 in s. 10(2), both the employer and the workmen are permitted to apply for the modification of the said Standing Orders after the expiration of 6 months from the date of their coming into operation. It will thus be seen that when certification proceedings are held before the certifying authorities, the reasonableness or the fairness of the provisions contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. It is, however, to be noticed that the preamble of the Act was not altered, so that the purpose of the Act remained as before. While the Act was in its unamended form, if the workmen had a grievance, they could not apply for modification of certified Standing Orders and, even at the time of initial certification, they could only object to a Standing Order on the ground that it was not in conformity with the provisions of the Act or Model Standing Orders. After amendment, the workmen were given the right to object to the draft Standing Orders at the time of first certification on the ground that the Standing Orders were not fair and reasonable and, even subsequently, to apply for modification of the certified Standing Orders after expiry of the period of six months prescribed under s. 10(1) of the Act. These rights granted to the workmen and the powers conferred on the Certifying Officer and the Appellate Authority, however, still had to be exercised for the, purpose of giving effect to the object of the Act as it continued to remain in the preamble, which was not altered. Before the amendment of the Act, if the workmen had any grievance on the ground of unfairness or unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Standing Orders after the expiry of six months from the date of certification. It appears to me that, on the language of s. 6, it must be held that this request for modification under s. 10(2) can only be made on the basis of fresh facts or fresh circumstances arising subsequent to the passing of the order by the Appellate Authority under s. 6 confirming the Standing Orders for the first time. If, on receiving an application for modification under s. 10(2) the Certifying Officer is held to be authorised to reconsider the reasonableness or fairness of a Standing Order already certified and confirmed under section 6 the finality envisaged under that section in respect of the decision of the Appellate Authority will be nullified. Cases may arise where, on first application for certification of the Standing Orders, an objection may be raised by the workmen and a modification sought on the ground that the proposed Standing Order is not fair or reasonable. Such an objection may be dismissed both by the Certifying Officer and the Appellate Authority. Six months after the certification, a workman may apply for the same modification of the same Standing Order without any fresh facts or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his original draft in the hope that the successor Appellate Authority would hold the opinion that the original draft Standing Order proposed by the employer was fair and reasonable and that the modification made by his predecessor under s. 6 was not justified. Considering these circumstances, I am of the view that, when an application under s. 10(2) of the Act is made, the Certifying Officer can modify Standing Orders already certified, only if the request is not made on the basis of the same material which existed at the earlier stage when the Standing Orders were certified. I am unable to accept an interpretation which will completely do away with the finality of orders made under s. 6 of the Act by an Appellate Authority. This interpretation, of course, does not affect the right of the workmen to seek an amendment of the Standing Orders, even if certified as reasonable and fair by the Appellate Authority under s. 6 by appropriate proceedings .under the Industrial Disputes Act. In fact, it appears to me that the power of a Tribunal dealing with an industrial dispute under that Act relating to a Standing Order will, of course, be wide enough to permit the Tribunal to direct al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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