The Bagalkot Cement Co. Ltd. v. R. K. Pathan & Ors

Oojmd,..1a<ik"'J. GAJENDRAGADKAII, J.-This a.pp· al h,v special

kave raises a short qneation about the srope and effect of cl3.•1se 5 in the 8c~he<lule to the Industrial Employment (Standing Orders) Act, 1946 (20 of I !l46) (hereinafter caIIPd the Act ). 'J bat question arisrs in this w.1y. The appellant Bagalkot Cement. <'o. Lt<l. is a Limited Company rcgiRtcrecl under the fnclian Companie.a Act, 1930; it carrie8 on the business of manufacturing rcmnnt and for that pur-pose, it owrrn a factory a8 wdl M a limestone Qua-rry at 13a~alkot in the Sta.to of Mysore. As requir-ed bys. :~ uf the Act, the appellant suLmitti>d draft Standing Orders on the 3rcl March, 1!)58, to the Certifying (Jfficer and the Ht·gional Labour Com-missioner (C0ntmll, :\hi!· a'. in order that they sbC>u Id be e"rtifi«d. Tlw C. rt ify ing Offic:cr cunsid«rrd the draft submitted by the appellant, heard the 1962 appellant and its employees, the respondents and Thi·Bagalkot Ctm111t passed an order of eertilication on the 16th June, Oo. Ltd. l 959. While considering the draft for the purpose v. R. K. Pathan of certificatiou, the Certifying Officer, however, made certain amendments in, and additions to, the said draft. Amongst the additions made, clause (7) in paragraph 11 was one and it is with this addi-tion made by the Certifying Officer that we are concerned in the presem appeal.

Paragraph 11 of the draft Standing Orders submitted by the appellant dealt with the question ofleave. Paragraph 11 (1) of the draft provided that holidays with pay will be allowed as provided for in the l!'actories Act, 1948, and other holidays in accordance with law and contract. Clauses (2) to (6) dealt with allied matters. In the Standing Orders as they were finally certified, clause ( J ) of paragraph 11 was slightly changed and it provided that holidays with pay will be allowed as provided for in the Mines Act. No grievance is made of this alteration. Clause (7) has been added to para-graph 11. It reads thus: ·

"7. The workmen shPll be allowed during the course of a year :-

(a) Ten festival holidays with pay for the celebration of important festivals (which will be fixed before the commencement of every cala.ndar year in consultation with the workmen) including the Republic Day (26th January) and the Independence Day (15th August) and/or any other paid holidays as may be declared and notified by the Govern-ment from time to time. Those workmen that are required to work on festivals and National Holidays shall be given an equal number of compensatory holidays on day convenient to the company, and

700 SUl'REMB UOlTk1' REPORTS [1962] SUFP. 196• (b) Fifteen days' casual leave with TM Bagolkot C:..u•I wages. This will include all kinds of leave

Co. Ud, due to sickness or any other cause.

v.

R. K. Patha• (c) Casual leave "Ifill not be allowlld for fJoj1ndrog.di:ar J. morl,'l -than 3 days at a time except in the case of sickness and emergencies at the discretion of the company.

(d) ·Wages shall be allowed for thaoe days remaining un-a.va.iled by th: workers at the end of the year.

(o) Fourtet-n days annual leave to all classes of workers who have put in 265 atten-dances in a year as de1ined in the Mines Act. This includes statutory leave.

AU leave &hould be applied for only in the preacribed form. The workmen after filling the particula.i:s of the leave required by them aha.II hand over the ea.me to the head of the section in which they a.re working."

The appellant apparently oontended before the Certifying Officer that it was outside his jurisdi<>- tion t-0 deal with the topics oovered by clause (7) which he wanted to add but its objection was over ruled.

Against the order pa~sed by the Certifying Officer certifying the Standi'.Jg Orders with the Midi· tione and amendments made by him, the a.ppcl· Ian t preferred an appeal under section 6 of the Act to the appellate authority, viz., the Chief Labour Commissioner (Central), New Delhi, on the 5th July 1959. The appellate authority, in substance, agreed with the view taken by tho certifying Officer and retained the addition made by him by the insertion of clause (7) to paragraph 11. He, however, made slight modification• by directing that in clause (a) there will bo Reven festival holirlayR inRtt>ad of ten festiv1Ll holidays am! in danw (b) there will ho ten days' casua.l lea.ve instead of fifteen days. Clauso (d) was amended by the appellate authority by sub-19 2 stituting a' new claus~ in its place. The substituted Tht Bdgalkot Cement clause reads thus: Co. Ltd. v. "Casual leave will not be allowed to be accu-R. K. Pathan mulated. Unavailed casual leave shall lapse at G.'ljendraga1kar J. the close of the calendar year."

Then in regard to cl. ( e), the appellafo authoritv held that the said clause amounted to a repetition of statutor.v provision. Therefore, the said clause was amended to read thus :

"Annual leave with wages will be allowed as per provisions of the ilfines Act."

The appellate authority made certain other ·amendments in the Standing Orders as they were certified by the Certifying Officer and ultimatdv, the StanJing Orders were certified with the modi-fications and alterations suggested by the order of the appellate authority. The order of the appell-ate authority was passed on October 15, 1959.

Against this order, the appellant applied for spe-cial leave to this Court and special leave was granted to it on the lst February, 1!!60. It is with the spe-cial leave thus granted that the appelhnt has come to this Court and on its behalf Mr. Narayanaswami has urged that the addition made by cl. (7.) in para-graph 11 of the Standing Orders is outside the juris-diction of the certifying authority. He contends that the jurisdiction conferred on the certifying authority by clause 5 in the Schedule does not em-pow<Jr the certifying authority to deal with the sub-stantive question of the extent and quantum of leave and holidays. It only requires the Stand· ing Orders to provide for conditions subject to whi0h leave and holidays can be granted and the procedure in respect thereof and the autho.ity which may grant such leave and holidaya. The quantum of leave and holidays which should be granted to the workmen is outside the purview of the Schedule 19l2 and as such, cannot be included in the Standing T~ Bogaikol Ctm~nt Orders. That is how the narrow question which

Co. Ltd. arises for our decisit'n in the present appeal is to

'· det('rmine the scope and effect of cl. 5 in the R. K. l'otf.an

Schedule.

B~fore draling with this question, it would be conv<>nif'nt to consider broadly the scheme of the Act. 'l'he Act was passed in 1946 because tho Legislature thougbt that it was "expedient to require employer~ in indiddunl f'Stablishments to definf' with sufficient precision the conditions of employmPnt under thf'm and to make the said con: ditions known to workmen employed by them." Prior to the passing of the Act, conditions of employmPnt obtaining in Sf'veral industrial eetab-li~hmcnts werf' governPd Ly contracts between the employer and tbl'ir employees. Sometimes the said oonditions were reduced to writinl! and in many cues they were not reduced to writing but were p:overne<l by oral ap:ri•f'm<>nts. Inevitably, in many cases, the conditirns nf ~crvice were not well-defined and thero was ambiguity or doubt in regard to their nature and soope. That is why the Lep:iehture took the view that in regard to indu~trial e~tablish­ m<'ntJ! to which the Act applied, the conditions of employment subjert to whirh indu~trial labour was employe<l, ~hould bP well-defined and should be preoisdy known to both the parties. With that object, the Act has mado relc,·ant provisions for making Standing Orders whirh, after they are certi-fied, com.tituto the statutory terms of employment between the industrial establi~hments in question and their ernploye•·s. 'That is the principal object of the .\ct..

The Art applit>s to every industrial establishment wh<'rcin r>ne hundred 01 more workmen are employed nr were cmploytd on any Jay of the preceding twdvr months. It can be 1:xtended e,·en to estab-JiRhments whose complement of labour is less thun one hundred and it does not appl.Y to any industry 1962 to which Chapter VII of the Bombay Industrial The Bagalko• 01mtnl Relations Act, I 940, applies or to any industrial Co. Ltd. establishment to which the provisions of the Madhya v. i R. K. Pathan Pradesh Industrial Workmen (Standing Orders) Act, 1959, apply. In other wordP, normally, Standing a ajendra :adkar J. Orders have to be drafted by the employer and their certification obtained under the Act wherever the employer employs more than one hundred indus· trial workmen: R. 113). The certifying authority under the Act means a Labour Commissioner or a Regional Lahour Commissioner and includes any officer appointed . by the appropriate Government by notification in the Official Gazette to perform all or any of the functions of a Certifying Officer under the Act: s. 2(c\. The Act provides for an appeal Rgainst the order passed by the Certifying Officer and the "appellate authority" means an Industrial Court, wherevn it exists or in i1 s absence an authority appointed by the appropriate Govern-ment uy notification in the Official Gazette to exercise in such arm as may be specified in the notification tht1 functions of an appellate authority under the Act : sec. 2( a). "Standing Orders" are defined to mean rules relating to matters set out in the Schedule : s. 2(gl. Thus, the matters which have to be coven·d by the Standing Orders an<l in reHpect of which the employer has to make a draft for submission to the Certifying Officer are matters specified in the Schedule. Section 3 requires the submission of the draft of Standing Orders within six months from the date on which the Act becomes applicable to an industrial· establishment. Under s. 4, the Standing OrdMs become certifiable if pro-visions are made therein for every matter ~et out in the Schedule ar.d they are found to be otherwise in confirmity with the provisions of the Act. After the amendment of this section made in 1956, the Legislature has imposed upon the Certifying Officer and the appellate authority the duty to adjudicate

70! ~ePRE~lE OOURT REPORTS (1962) SUPP.

1962 uprm the fairness or reasonableness of the provisions T~ Ba,(<dkot Cemml of any standing orders. Prior to the amendment, it

Co. l.;d. was not open to the said authorities to examine the

v.

R. K. Pathtm fairness of the Standing Orders submitted by the Gafendrogadka, .J. employer. The result of e. 4, therefore, is th!l.t the

Standing Orders have to provide for a.II the topics specified in the Schedule and they have to be in cr,nformity with the Act. Their reasonableness can be examined by the appropriate authorities and suitable modifications can be mado by them in accordance with their decision. Section ;> provides for the proeeduro which has to be followed by the Ce1tifying Officer befo:e certifying the Standing Orders. The procedure is intended to give an oppor· tunity to both thP, parties tn be heard before the final order is passeJ. ~eetion 6 provides for an appeal and s. i lays down that the Standing Orders shall come into operation on the expiry of 30 days from the da~~ on which authenticated copies thereof :ue sent a~ rpquirPd by s. 5. sub-s. (3), or where a.n appeal i> pre fern d, on the expiry of seven days frt•m the date on whicb the copies of the applla.te order are sent under s. 6 (2). Section 8 requires the Certifying Officer to keep a register of standing c rdcre and under s. 9, the ea.id Standing Orders have to be prominently posted by the employer in Enizlish and in the language understood by the majority of the workmen on special boards. Sec-tion 10 cleals wiih the duration and modification of of standinf.( orders. It provides that except by agreem1·nt, the sta11ding orders, after they are cer-tified, shall not be liable to modification until the expiry of six months from the date on which they came into operation. Section 10 (2) empowers both the omplJycr or.the workman to ap(Jly for a modi-fication in tho said standing orders. It would thus be clear that after they are certified, tht> standing orders h;>ve t-0 remain in force for six months un!Pss, of cour~P, they are modified in the meanwhile by, consent. After six months a.re over, an application for modification in the standing orders can IHI be made either by t.he employer or the emplo• c.,,,.uJ The ll11allwt c •. yees and the problem would be considered Lttl. after following the procedure prescribed by "· the Act for certifying the original standing R. K. P11rit'6n orders. Section 11 confers the necessary powers of a Civil Court on the Certifying Officer and the appellate authority and s. 12 prohibits the admiss-ion of oral evidence which has the effect of adding or otherwise varying or contradicting standing orders as finally certified under the Act, in any Court. Section 13 provides for penalties and the procedure to enforce them. Section 13A deals with the problem of interpretation of the standing orders and s. 13B provides for exemption of indus-trial establishments therein specified. Section 14 confers on the appropriate Government power to exempt, conditionally or unconditionally, any in-dustrial establishment, and s. 15 confers on the appropriate Government the power to make rules to carry out the purposes of the Act, and, in parti-cular, to provide for the matters covered by cls.(a) to (e) of sub-cl. (2). Section 15(3) contains the salutary provision that every rule made by the Central Government under s.15 has to be placed be-fore the House in the manner prescribed by it. The Schedule t.o the Act contains 11 clauses, clauses l to 10 deal with the several topics in res11ect of which ntanding orders have to make a provision and cl. 11 refers to any other matter which may be prescribed.

This last clause shows that an addition may be mii,de by the appropriate Government if it is thought necessary to do so. That, in brief, is the scheme of the Act.

Mr. Narayanaswami contends that having regard the nature and scope of the several clauses Ill the Schedule, it would be appropriate to construe cl.5 as not including a provision for the quantum and extent of leave and holidays. His argument is \hat cl, 5 is really intended to provide merely for

706 SUPREME OOURT REPORTS (1962] SUPP.

IHI the oonditions and the procedure to be adopted in 1"'- B.,.U.. C-applying for leave and holidays, Clause 5 reads

C., LU. thus:

¶11K.I'.- "Conditions of, procedure in applying for,

and the authority whloh may grant, leave and holidays."

How many holidays the employee will have and how much leave, either caaual or on medical grounds, he would be entitled to get, are matters outside the scope of the Schedule ; they would be governed-by the relevant provisiolll! of any other law or by contract between the parties; they cannot be the sub ject-matter of standing orders. The standing orders wonld provide for the conditions subject to whioh leave and holidays can be applied for, for the proce-dure in applying for the same and for the authority which may grant the same. That being so, the Certi· fying Offioer and the appellate authority exceeded their jurisdiction in making substantive provisions in that behalf by paragraph11(7). That is the C8.8e for the appellant aa presented by Mr. Narayanaawami.

In support of this contention, relian0t1 has been pl&ced on cl.3 in the Schedule which refers to shift working. It is urged that since the clause refers to shift working, the ~u betantive provision in reepeot of shift working as well as the oondi· tiona subject to which it should be allowed wonld legitimately fa.II within its purview. If the Legislature had intended that the eubeta.ntive provision as to leave and holidays should be the .11ubject-matter of standing orders, it may well have referred to leave and holidays only in cl. 5 without :.ny further addition. The additional words introduced in cl. 5 are words of limitation and they show that ~e su~tantive pro:vision IUI to leave and holidays 18 out.111de the purview of that olauae. It may be conceded that there is some loroe in this contention.

There are, however, other considerations which 1'11 have to be borne in mind in construing cl. 5. The n, ,.,_.., Collllllfl <Jbject of the Act, as we have already seen, c •. lill. was to require the employers to make the :v. conditions of employment prPcise and definite and R. K. l'cih•• the act ultimately intended to prescribe these con-ditions in the from of standing orders so that what used to be governed by a contract hereto-before would now be governed' by the statutory standing orders and it wou Id not be reasonable to hold that conditions of employment to which the preamble of the Act specifically refors would not include a provision for the quantum of leave and the quantum of holidays to which the employee would be entitled. Therefore, the word "conditions"

in cl. 5. of the Schedule has to be reasonably con-strued in a broad and liberal sense. The dictionary meaning of the word "condition" is a provision or a stipulation. Now a provision or a stipulation as to leave and holidays would necessarily include a provision for the quantum of holidays and leave and this construction would be consistent with the meaning of the word "condition" as employed lu the preamble to the Act. ~fr. Ramamurthi who appeared amicus curiae for the respondents at our request contended that to adopt the narrow cQIJs-truction of the word "conditions" in cl. 5 would defeat the very purpose of cl. 5. He argued that merely providing for the procedure of application and for the authority who would grant leave and holidays without stipulating as to the quantum of leave and holidays would be almost meaningless.

In our opinion, there is force in this contention and so, we are inclined to adopt the broad and liberal construction of the word "condition" in cl. 5.

Besides, the first three clauses dealing with the conditions, the procedure and the authority would apply both to leave and holidays and it is not easy to appreciate what conditions could be

708 SUPREME CXIURT REPORTS (1962] SUPP.

JH2 prescribed. by the standing orders for the purpose f'/w B.,a/al C'"""' of holido.ys. No doubt Mr. Na.raysnaswami suggested

c..w. that the conditions in the cont>l'xt of holidays may

v. mean conditions as to holidays with pay, or without R.X. Po11-

pay or with half pay B!ld that iB what is flo;.,.i<o,.tJJ. ... I, contemplated by the first clause in relation to

holidayH. Theoretically, it may be conceivable that the word "conditions" may have that meaning in respect of holidays; but it seems to us that it would serve no useful purpose merely to provide lor such conditions and to prescribe the procedure to be adopted in applying for leave and holidays unless the quantum of leave and the quantum of holidays are also intended to be pree· cribed by the standing orders. Ou the broad construction of cl. 5, it becomes a eelf·suffici· ent and reasonable provision. The sta.nrling orderB will provide for the leave to which the employeea are entitled and will prescribe the number of holi· day8 which thtly will be ablo to enjoy. Having provided for the quantum of leave and holidays, the standing orders will also provide for the condi· tions in respeot of them, for the prooodure in appl· ying for them and for the authority which may grant them. It is true that it is not easy to under· stand why an application has to be made for holi-days, but it may be that if there are sectional holi· days, employees belonging to a particular section entitled to them may have to apply for them. There-fore, in our opinion, it cannot he said that the authorities \x>low have adopted an unreasonable construction of cl. 5 in the Soht>dule when they held that they wt>ro entitled to make the additional provisions in respect of leave and holidays whioh they have purported to make by adding cl. 7 in paragraph 11 of the standing orders.

In this oonnection reference, may be made to the Model Standing Orders framed by the Central Government in 1946. Clause 9 of tho Model Orders provides that holidays with pay will be allowed as provided for in Chapter VI of the Factories Act, 1g62 1948, and other holidays in acaorda.noe with law Th1~c.n.in contract, custom and usage. In fact, it is ·significant Cd.UL that paragraph 11 (l) of the draft-submitted by the v. R.ll'. , ... appellant has also provided that holidays with pay will be allowed as provided for in the Faatories Act Gl1}1714r•ga41'of J. and other holidays in accordance with law and con, tract. If this provision is legitimately included in the Standing Orders and that too under clause 5 of the Schedule, it is difficult to understand why a more specific provision cannot be made under the said c1ausc by clearly stating the number of holi-days to which the employees would be entitled and that is preci8ely what paragraph ll (7) purports to do.

Then cl. 10 of the Model Standini:; Orders provides for casual leave. It lays down that a workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calend:u year. 'fhen it lays down further conditions in respect of the grant of the said casual leave. lt would be noticed that the quan-tum of casual leave to which the employee is enti-tled is thus specifically provided by. cl. 10 of the Model Standing Orders. It is perfectly true that if clause Ii of the Schedule is read in tho narrow sense for which Mr. Narayanaswamy contends, cl.

10 of the Model Standing Orders would be invalid and from that point of view the existence of clause 10 in the Model Standing Orders cannot be of any assistance in interpreting cl. 5 of the Schedule.

But if clause 5 is construed in the broad sense for which Mr. Ramamurtbi contends, it would follow that clause 10 of the Model Standing Orders is consis-tent with the aim and object of the Scht>dule and that, incidentally, may support the agreement for the broad construction. That is about all.

In regard to the argument based on the scope of the 10 clauses in the Schedule, it is certainly

710 SUPREME OOUHT REPORTS [1962) SUPP.

tHJ not correct to say that the scope of the Schedule

is intended to be verv narrow. Take for instance, clause 8 which deafa with the termination of employment or clause 9 which deals with the sus-pension or dismissal for misconduct, and acts or omissions which constitute misconduct. TheAe are mattem of general importance and it is conceded that all relevant and material provisions in respect of these matters have to be included in the Stand· ing Orders. Therefore, it would not he inconsis· tant with the scheme of the Schedule if we were to hold that the subst'lntive provisions for the grant· ing of leave and holidays along with the condi-tions in respect of them have to be made by the Standing Orders under cl. 5 of the schrdule.

It would be recalled that s. I 0 of the Act provides for the duration of the standing orders and if any l!tanding orders are found by experi· ence to be unrnasonable or inconvenient either by the employer, or the employees, 'l.n application can be mado for the modification of the said standing orders after tho «>xpiration of six months from the tlate on which they came into operation. Therefor!'. there would lw no hardship in requiring the stand· ing orders to inclucli> a provi~ion as to leave and holidays. The provisions made in that behalf can bA modified after followinp; the procedure pres· cribed by R. IO It is not disputed that the claim for lea.ve and holidays can become the subject· matter of an industrial dispute and if such a dispute is referred for adjudic11.tion to an Industri.'.l Tribunal, the Tribunal can fix the qu&n· tum of holidays and leave. What the Tribunal can do on such reference is now intended to be achieved by the Standing Orders themselves in r<'B· pect of Industrial establishments to which the. Act appli~. We have noticed th:i.t·the Certifying Offioor as woll as tho appellate authority are, in subs· tance, industrial authorities and if they arc given power to make provision for leave and holidays 1'11 they undoubtedly are given power to provide for - tHI termination of employment and suspension or dis· f'lw B_.,,C_t missal for misconduct, there is nothing inconsistent c. .. 1,1'. with the spirit of the Schedule or with the object of v. B. K. P"""' the Act. Therefore, we are not satisfied that the authorities below were in error in holding that it G 4i""'°"""4r J. was competent to them to make the additional provision in the Standing Orders as prescribed by paragraph 11 (7).

In the result, the appenl fails and is dismissed.

No order as to costs.

Appeal dismisseJl.

STATE OF BOMBAY

v.

UMARSAHEB BURANSAHEB INAMDA

(S. K. DAS, K. SUBBA RAo and RAGHUBAR

DAYAL, JJ.)

Criminal Procedure Code-Offences commitl.ed in purBttance of Criminal conspiracy-One trial, if ptrmislible-Defecl in framing the charge, if curable-Code ~f Criminal Prowlurt 1898 (Act V of 1898), ss.222 (2), 235, 537,

The respondents were charged and tried at the same trial with the offences of Criminal conspiracy and breach of trust committed in pursuance thereof during a period of more than one year. The question arising for decision was whether, in the framing of the charge, contravention or the provisions of sub-s.(2) of s.222 which allowed a combined charge with respect to the amount embezzled within a period of one year, vitiated the triaJ.

Held, that the defect in the charge did not lead to any prrjudice t> the accused and therefore did not vitiate the trial in view of the ·provisions of s. 537 of the Code of Criminal Procedure.

When ail the offences committed in pursuance of a conspiracy are committed in course of the same transaction this can be tried together at one trial in view of s. 235(1) of 1he Code of CrimiI1al Procedure which provides 1h11t if hi one