1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.372 OF 1997 Pune Municipal Transport ..Petitioner. Vs. The General Secretary, P. M. T. Karmachari Sanghatana and others ..Respondents. .... Mr. R.G. Ketkar for the Petitioner. Mr. Girish B. Badiger for Respondent No.1. Mr. Nitin Kulkarni for Respondent No.3. ... CORAM: DR. D.Y. CHANDRACHUD, J. 1st April, 2008. ORAL JUDGMENT : 1. The Petition under articles 226 and 227 of the Constitution seeks to impugn the legality and validity of an order dated 28th January, 1991 passed by the Deputy Commissioner of Labour and Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946 and an order passed in appeal on 13th December, 1996 by the Member of the Industrial Court, at Pune. The First Respondent which is a trade union made an application on 20th July, 1989 proposing certain modifications to the Standing 2 Orders certified under the Industrial Employment (Standing Orders) Act, 1946. The Certifying Officer insofar as is material to the scope of the challenge in the present proceedings allowed certain modifications to certified Standing Orders 3 and 26. The scope of the modifications may briefly be enumerated as follows : (i) Certified Standing Order 3(3) – Uninterrupted service (ii) Certified Standing Order 3(4) – Maintenance of Register for badlis / hangami employees, shift-wise (iii) Certified Standing Order 3(5) – Filling up of permanent and temporary vacancies by appointing badlis/ hangami employees whose names are mentioned in the Register maintained under Clause 4 on the basis of seniority; (iv) Certified Standing Order 3(6) – Granting the status of permanency to badli / temporary employees after putting in 240 days continuous service for a period of 12 months; (v) Certified Standing Order 26(5A) – Payment of subsistence allowance to workmen placed under suspension and (vi) Certified Standing Order 26(5B) – Conducting an enquiry of a suspended employee during office hours and also allowing 3 witnesses to attend the enquiry on duty. 2. The Petitioner had submitted a reply dated 19th August, 1989. The Certifying Officer made certain modifications by an order dated 21st January, 1990. On 14th June, 1990 the appeal preferred by the Petitioner before the Industrial Court was allowed and the proceedings were remitted to the Certifying Officer for disposal on remand. Upon remand the Certifying Officer allowed certain amendments. The appeal was dismissed by the Industrial Court on 13th December, 1996. 3. Counsel appearing for the Petitioner stated that by a G.R. dated 19th April, 2007 Pune Municipal Transport Undertaking has been merged together with the Pimpri Chinchwad Municipal Transport Undertaking and a limited company has been formed. The learned counsel has placed on the record a copy of a resolution dated 15th October, 2007 passed by the Board of Directors and stated that the process of certification of the Standing 4 Orders for the new entity will be carried out in accordance with law after considering all the objections and suggestions that may be received. 4. The scope of the challenge in these proceedings has been restricted to the modifications which have been made in Certified Standing Orders 3(3), 3(4), 3(5) and 3(6) and in Clauses (5A) and (5B) of Standing Order 26. 5. Now in order to appreciate the scope of the challenge in the present case, it would be necessary to note that in the State of Maharashtra the provisions of the Industrial Employment (Standing Orders) Act, 1946 came to be substantially amended by and as a result of Bombay Act 21 of 1958. Section 2(A) of the Act as amended provides as follows : “2A. Application of model standing orders to every industrial establishment – (1) Where this Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishments from such date as the State Government may by notification in the official Gazette appoint in this behalf; 5 Provided that nothing in this section shall be deemed to affect any Standing Orders which are finally certified under this Act and have come into operation under this Act in respect of any industrial establishment before the date of the coming into force of the Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957. (2) Notwithstanding anything contained in the proviso to sub-section (1) model standing orders made in respect of additional matters included in the Schedule after the coming into force of the Act referred to in that proviso (being additional matters relating to probationers or badlis or temporary or casual workmen) shall unless such model standing orders are in the opinion of Certifying Officer less advantageous to them than to corresponding standing orders applicable to them under the said proviso also apply in relation to such workmen in the establishments referred to in the said proviso from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf.” 6. Section 3(1) provides that within six months from the date on which the Model Standing Orders apply to any industrial establishment under Section 2-A, the employer or any workman employed therein may submit to the Certifying Officer draft amendments for adoption in such industrial establishments. Section 5 thereupon lays down the procedure for certification and Section 6 provides for the remedy of an appeal. The impact of the 6 amendments made by the State legislature to the Industrial Employment (Standing Orders) Act, 1946 was considered in the judgment of the Supreme Court in Bajaj Auto Limited v. Bhojane Gopinath D.1 For the purposes of the present case it wold be appropriate to extract in their entirety the observations of the Supreme Court in paragraph 9 of the judgment which reads as follows : “So far as the State of Maharashtra is concerned, drastic amendments in the 1946 Act have been made by the State Legislature by virtue of Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957 and Industrial Employment (Standing Orders) (Maharashtra Amendment) Act, 1974. The State Legislature amended the title of the 1946 Act to provide rules defining with sufficient precision certain conditions of employment in industrial establishments in the State of Maharashtra. It also amended Preamble of the 1946 Act as it was found expedient to provide for defining with sufficient precision certain conditions of employment in industrial establishments in the State of Maharashtra and certain other matters. By Section 2(1-a) the expression 'amendment' has been defined in relation to model standing orders to mean any amendments proposed to such orders under Section 3 and includes any alterations, variations or additions proposed thereto. Under Section 2(ee), as inserted by State amendment, the expression 'model standing orders' was defined to mean standing orders prescribed by Rules framed under Section 15. Section 2-A(1) lays down that where the Act applies to an industrial establishment, the model 1 2004 I CLR 502. 7 standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf and the State Government has appointed 15-1- 1959 to be the date for the purposes of the said sub- section. This shows that model standing orders, prescribed by Bombay Industrial Employment (Standing Orders) Rules, 1959, framed under Section 15 by the Government of Maharashtra, ipso facto would be applicable with effect from 15-1-1959. In Section 3 of the 1946 Act, as amended by the State Legislature, a complete departure has been made vis-a-vis Section 3 of the 1946 Act. Under the 1946 Act, as stated above, there is a compulsion upon the employer to submit draft standing orders for certification failing which he entails penalty of prosecution under Section 13(1) whereas under Section 3, as amended by the State Legislature, there is no such requirement and consequently no penalty provided under Section 13(1) in view of the fact that by virtue of Sub-section (1) of Section 2-A the model standing order ipso facto apply to the industrial establishment from the date enumerated in the notification issued by the State Government. However, under Section 3, if the employer or any workman employed in an establishment intends any amendment in the model standing orders, in that eventuality alone any of them may submit to the Certifying Officer such draft amendments for adoption in such industrial establishment within six months from the date on which the model standing orders applied to the industrial establishment under Sub – section (1) of Section 2-A. This shows that it is not imperative either on the employer or the workmen to apply for amendments in the model standing orders, but it is optional. However, even this step on their part is controlled by the proviso to Section 3(1) which lays down that no amendment which provides for deletion or omission of any rule in the model 8 standing orders relating to any matter set out in the Schedule shall be submitted under this section. Proviso mandates the employer as well as the workmen not to seek any amendment which has the effect of deleting or omitting any rule in the model standing orders relating to any matter set out in the Schedule. If there is a mandate upon a party not to apply for such amendment, the certifying officer in the purported exercise of power under Section 5 cannot assume jurisdiction to grant such an amendment as the same will be in flagrant violation of legislative mandate which is in the form of a negative command.” 7. The effect of Section 2-A came up recently for consideration before a Full Bench of this Court in Gangadhar Balgopal Nair v. Voltas Limited2. The question which was formulated for the decision of the Full Bench was as follows : “Whether Model Standing Order 4-C as contained in the Schedule 1 to the Bombay Industrial Employment (Standing Order) Rules, 1959 ipso facto applies to a temporary workman in an Industrial Establishment without its incorporation into a pre-existing certified Standing Order.” 8. This question was answered in the affirmative. The Full Bench noted that the effect of Section 2-A was that the Model Standing Orders apply to an industrial establishment when made. Where there are finally certified Standing Orders before the coming 2 2007(1) Bom. C.R. 1. 9 into force of the Industrial Employment (Standing Orders) Bombay Amendment Act 1957, such certified Standing Orders were saved. However, if Model Standing Orders are made after the coming into force of the Amendment Act of 1957 relating to probationers, badlis, temporary or casual workers, they would also apply unless they are found by the Certifying Officer to be less advantageous than the certified Standing Orders which have been certified before the Amendment Act of 1957. Item 10-C was introduced into the Schedule to the Act by the Amending Act. Item 10-C deals with the employment or reemployment of probationers, badlis or temporary and casual workmen and their conditions of service. 9. For the purposes of the present proceedings a chart has been submitted on the record of the proceedings for the purposes of comparing each one of the Standing Orders as certified (and which forms the subject matter of the challenge here) with the Model Standing Orders framed under the Bombay Industrial Employment (Standing Orders) Rules 1959. The amendments which have been certified by the Certifying Officer and confirmed in 10 appeal are as follows : “After Clause 2 of Standing Order No.3, the following shall be added :- (3) 'Uninterrupted service' includes services interrupted on account of any of the following reasons viz. (i) Sickness, as certified by a doctor of Employees' State Insurance Scheme (ii) Accident (iii) Authorised leave (iv) Lay off as defined in the Industrial Disputes Act 1947 (XIV of 1947) (v) Strike which is not illegal (vi) Lock outstanding (vii) Cessation of work which is not due to anything default of the workman concerned (viii) Involuntary unemployment 4) The Manager shall maintain a Register of Badli/ hungami employees shift wise containing the following particulars namely :- i) their names and addresses ii) the nature of work or occupation in which they were employed iii) the shifts in which they were working 11 while in employment iv) the wages paid to them during employment v) the dates of termination of their service 5) The permanent vacancies and the temporary vacancies of permanent workmen shall be filled in by appointing the badli/Hangami employees whose names are entered in the register maintain under Clause (4) on the basis of seniority, with due regard to the service record. 6. A badli/ hangami employee who has put in 240 days' 'uninterrupted service' in aggregate during a period of preceding twelve calendar months shall be made permanent by order in writing signed by the Manager or any person authorised in that behalf by the Manager irrespective of whether or not his name is on the muster roll or the establishment throughout the period of the said twelve calendar months. The following shall be added after Clause (5) of Certified Standing Order No.26 :- (5A) Subject to the provisions of the payment of Wages Act 1936, a workman who is placed under suspension under sub-clause (5) shall during the period of such suspension be paid a subsistence allowance at the following rates namely : (i) For the first ninety days of the suspension period subsistence allowance to be paid for month shall be equal to one half of basic wages, dearness allowance and other compensatory allowance to which the workman would have been entitled if he were on leave with wages. 12 (ii) If the enquiry prolonged and the workman continues to be under suspension for a period exceeding ninety days, the subsistence allowance to be paid per month for a further period of ninety days shall be equal to three fourths of such basic wages, dearness allowances and other compensatory allowances. (iii) If the enquiry is not completed within a period of 180 days, the workman shall be paid basic wages, dearness allowance and other compensatory allowance in full as subsistence allowance to be paid per month until such time as the inquiry is finally concluded : Provided that, where the findings of the enquiry officer show that such inquiry is prolonged beyond a period of 90 days or as the case may be 180 days, for reasons directly attributable to the workman, subsistence allowance to be paid per month shall for the period exceeding 90 days, or as the case may be 180 days, shall be reduced to one half of such basic wages, dearness allowance and other compensatory allowance. (5-B) In case of the employees charge sheeted but not suspended, the enquiry shall be conducted during the working hours of the concerned employee and the witness called by him shall be allowed to attend the enquiry on duty.” 10. Before the Court it is an undisputed position that the definition of the expression 'uninterrupted service' in Standing Order No.3(3) as certified corresponds to the definition of the same 13 expression in Standing Order 2(g) of the Model Standing Orders framed under the Bombay Industrial Employment (Standing Orders) Rules,1959. Similarly, the requirement of maintaining a register of badli / hangami employees containing their names and addresses, nature of work, shifts, wages and dates of termination corresponds to Model Standing Order 4-B(1). Model Standing Order 3(5) as certified imposes a requirement that permanent vacancies and temporary vacancies of of permanent workmen shall be filled in by appointing badli / hangami employees whose names are entered in the register maintained under Clause 4 on the basis of seniority. This corresponds to Model Standing Order 4-B(2). 11. The grievance of the Petitioner, however, is that a large number of badli / hangami workers are drivers / conductors and it is necessary and proper that the entire service record of the employee should be considered before permanency in employment is offered. The learned counsel appearing for the unions fairly stated during the course of the proceedings that the unions have 14 no objection whatsoever to the entire service record being considered for determining the fitness of such employees for absorption against permanent vacancies. The modification which is proposed by the Petitioner is fair and proper since it is in the public interest as well as in the interest of the service that employees, including drivers and conductors are offered a position of permanency only subject to their fitness being assessed with reference to the over all service record. In the circumstances, at the end of Standing Order 3(5) as certified the following words shall stand incorporated viz. “having due regard to the fitness of the workman assessed with reference to the service record”. 12. Under Standing Order 3(6) it has been provided that a badli / hangami employee who has put in 240 days uninterrupted service during the preceding period of 12 calender months, shall be made permanent by an order signed by the manager or a person authorized by him irrespective of whether or not his name is on the muster roll of the establishment throughout the period. This provision corresponds to Model Standing Order 4-C and therefore 15 is unexceptionable. However, consistent with the fact that the Petitioner is an undertaking of the State, the requirement of permanency upon the completion of 240 days would have to be subject to the availability of sanctioned posts and must be regulated in accordance with requirements of reservation under Article 16 of the Constitution of India. Consequently at the end of Standing Order 3(6), the following sentence shall be inserted viz. “ This shall be subject to the availability of sanctioned posts and compliance with the requirement of reservation policies”. 13. Certain modifications have been made in Standing Order 26. Clause (5A) deals with the payment of subsistence allowance during the period of suspension. This modification accords with Model Standing Order 25(5A) and therefore is unexceptionable. Clause (5B) of Standing Order 26 provides that when an employee has been charge-sheeted but not suspended, the enquiry shall be conducted during office hours and the witness called by the employee shall be allowed to attend the enquiry on duty. The unions have during the course of submissions before the Court 16 agreed to the deletion of Clause (5B) as certified. In any event, I am of the view that it is not necessary or appropriate to include a provision similar to Clause (5B) of Standing Order 26. The conduct of the disciplinary enquiry has to be fair and proper and the mode in which the enquiry is convened and held must be left to the discretion of the Enquiry Officer. Model Standing Order 26(5B) therefore stands deleted. 14. In Transport Manager v. Vilas Sanu Deokar3 a Learned Single Judge has held that a badli worker does not get work as a matter of right but it is only when the employer finds that work is available due to exigencies or due to temporary absence of a permanent workman that work is provided. Consequently, where an employer does not provide work to a badli workman by issuing a no duty order, it would not amount to a suspension from work. This position is not disputed on the part of the unions. 15. This Petition shall accordingly stand disposed of in terms of the aforesaid modification. In the circumstances of the case, 3 2002 (94) FLR 772. 17 there shall be no order as to costs. *****