1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.8711 OF 2007 Sitaram Tukaram Walunj. ...Petitioner. Vs. Municipal Corporation of Greater Mumbai & Ors. ...Respondents. .... Mr.Prakash Devdas for the Petitioner. Mr. A. Y. Sakhare, Senior Advocate with Mr. A.J. Bhor for the Respondents. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 15, 2008. P.C.: The Petitioner joined the services of the Municipal Corporation in 1979 and in 1988, he was promoted as a clerk. On 4th November 1997, a chargesheet was issued to the Petitioner for an act of misconduct. The Petitioner, it is alleged, was assigned with the work of the Establishment Section and was required to look after the work of departmental enquiries and other statutory duties. It is alleged that while performing his duties, the Petitioner neglected to make an entry in the service record of an employee of the Municipal 2 Corporation - Shri Vartak, who was also working as a clerk in the said Department and was punished in a disciplinary enquiry. The allegation is that as a result of the failure of the Petitioner to make an entry in the service record of Vartak, the latter was promoted. A summary enquiry was held under the Municipal Servants' (Conduct of Service and Discipline) Rules. An order withholding the yearly increment for two years with permanent effect came to be passed. The Petitioner instituted a complaint of unfair labour practices under item 9 of Schedule IV read with Section 28 of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971. The complaint was dismissed by the impugned order dated 8th February 2006. 2. Two submissions have been urged on behalf of the Petitioner in these proceedings: (i) The Petitioner is a clerical workman governed by the provisions of the Industrial Employment (Standing Orders) Act, 1946 and by the Rules framed thereunder. Section 2A of the Act, in relation to the State of Maharashtra provides that the Model Standing Orders shall ipso facto apply to every 3 industrial establishment in respect of the matters contained in the Schedule to the Act. The punishment of withholding or stoppage of increments is not a punishment which is stipulated in the Model Standing Orders and it is open to the Municipal Corporation only to impose a punishment as contemplated by the Act and by the Model Standing Orders; (ii) The Industrial Court has erroneously come to the conclusion that withholding of increments is the same as the imposition of a fine and in concluding that the remedy of the Petitioner would be to seek a reference to adjudication, but not a complaint under the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971; and (iii) In any event, the Municipal Corporation ought to have held a fullfledged disciplinary proceeding and recourse to the procedure of a summary enquiry was not warranted. 3. On the other hand, on behalf of the Municipal Corporation reliance has been placed on the enabling provisions of Section 54(3) and Section 83(3) of the Mumbai Municipal Corporation Act, 1888. It has been urged that Regulation 41(2) as well as Section 83(3) 4 contemplate withholding of increments. It was urged that Municipal Law will prevail over an inconsistent provision contained in the Industrial Employment (Standing Orders) Act, 1946. 4. In considering the rival submissions, reference would have to be made at the outset, to some of the provisions of the Industrial Employment (Standing Orders) Act, 1946. Section 1(3) of the Act provides that the Act shall apply to every industrial establishment wherein fifty or more workmen are employed or were employed on any day of the preceding twelve months. During the course of the hearing, it has not been disputed that in view of the provisions of Section 1(3), the Industrial Employment (Standing Orders) Act, 1946 is applicable, but it has been urged that the provisions of the Municipal Act would prevail. Section 2A of the Act provides that where the 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 establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf. Section 13B provides that the Act shall not 5 apply to certain industrial establishments: “13-B. Act not to apply to certain industrial establishment.- Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules,Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.” In so far as is material to the present dispute, it may be noted that by virtue of Section 13B, the Act shall not apply to an industrial establishment in so far as the workmen employed therein are persons to whom any other rules and regulations as may be notified in this behalf by the appropriate Government in the Official Gazette apply. The Industrial Employment (Standing Orders) Act, 1946 is a special law which is enacted with a view to “provide for defining with sufficient precision certain conditions of employment in the industrial establishments” to which the Act applies. The provisions of Section 2A, which were inserted by Bombay Act 21 of 1958, clearly demonstrate that the intention of the legislature was that the Model Standing Orders for every matter set out in the Schedule to the Act 6 shall apply to an industrial establishment. The Mumbai Municipal Corporation Act, 1888, on the other hand constitutes general legislation in the field of municipal law. The Act as its long title states is an Act to consolidate and amend the law relating to the Municipal government of Brihanmumbai. The Municipal Act is general legislation pertaining to municipal legislation governing the area of Brihan Mumbai. The Industrial Employees' Standing Order Act, 1946 constitutes special legislation for the subject governed by that Act. The only exception that is carved out is by Section 13B of the Act of 1946. However, for Section 13B to apply, the rules or regulations have to be notified by the appropriate Government in the Official Gazette. In the present case, it is not the contention of the Municipal Corporation that the Municipal regulations have been notified by the State Government in the Official Gazette. Section 13B of the Industrial Employment (Standing Orders) Act, 1946 has, therefore, no application. 5. In U.P.S.E. Board vs. Hari Shankar, 1978 Lab.I.C. 1657, the Supreme Court held that the Industrial Employment Standing 7 Orders Act, 1946 is a special law in regard to matters enumerated in the Schedule and that consequently, regulations made by the Electricity Board under the Electricity Supply Act, 1948 with respect to those matters would be of no effect. This would, however, be subject to the exception carved out by Section 13B of the Act of 1946, but before that provision could apply, the rules and regulations would have to be notified in the manner prescribed. In LIC vs. D.J. Bahadur, AIR 1980 SC 281, the Supreme Court held that the Industrial Disputes Act, 1947, is a special statute relating to the investigation and settlement of industrial disputes. Therefore, with reference to industrial disputes between the employer and workmen, it was that Act which was a special statute, as opposed to the LIC Act which related to general aspects of Nationalization and management of Insurance business which will prevail. Consequently, when there was a dispute between the workmen and management, the mechanism under the Industrial Disputes Act, 1947, would have to be resorted to. The judgment of the Supreme Court in U.P. Electricity Board (supra) was followed in a judgment of a Learned Single Judge of this Court in The Municipal Corporation of Greater Bombay vs. Laxman Saidoo 8 Timmanapyati, 1991 I CLR 653. The issue which arose in the case was with regard to the payment of subsistence allowance to the workman after the stipulated period of suspension. The Learned Single Judge, placing reliance on the judgment of the Supreme Court in UP Electricity Board (supra) held that the provisions contained in the Model Standing Orders would apply wholly to workmen of industrial establishments to whom the Act of 1946 applies and would prevail over the Municipal regulations. The same view was reiterated in a judgment of a Learned Single Judge in Prarelal v. The Municipal Council, Ramtek, 1992 I CLR 327. The Learned Single Judge placed reliance on the judgment in Pune Municipal Corporation vs. Keshav Gan;pat Bhise, 1983(2) Bom.CR 715 and the decision of the Full Bench in M.P.S.R.T. vs. Heeralal, 1980 LIC 160. 6. Having regard to the line of precedent on the subject, there is no manner of doubt that as between the Municipal Act and Industrial Employment (Standing Order) Act, 1946, the latter will have to prevail in relation to the conditions of service of those workmen governed by the latter Act. The Model Standing Orders which are 9 applicable to the clerical workmen inter alia provide for the imposition of penalty for misconduct. Model Standing Order 32(1) provides for the following penalties, viz.: (i) a warning or censure; (ii) a fine subject to the provisions of the Payment of Wages Act, 1936; (iii) suspension not exceeding four days; and (iv) dismissal without notice. Similarly, Model Standing Order 24 provides that the workman may be warned, censured or fined for certain specified acts or omissions, amongst them being negligence in the performance of duties or neglect of work. Stoppage of increments is not one of the penalties provided therein. That being the position, there is merit in the submission urged on behalf of the Petitioner that it was not open to the Municipal Corporation to impose a penalty not contemplated by the Model Standing Orders. The Industrial Court has manifestly erred in holding that the penalty of a fine comprehends withholding of increments. Imposition of a fine as penalty is clearly distinct from withholding of an increment and the two cannot be equated. Similarly, there is no warrant for the Industrial Court to hold that a complaint under Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 would not be maintainable. The Model Standing 10 Orders are part of every contract of employment. A breach of the Model Standing Orders will, therefore, amount to a breach of Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. 7. The petition shall accordingly have to be allowed and is allowed. The order passed by the Industrial Court on 8th February 2006 is quashed and set aside. The order of the Municipal Corporation imposing penalty upon the Petitioner on 13th March 1998 shall also stand quashed and set aside. However, while disposing of the petition, it is clarified that it is left open to the Municipal Corporation to take necessary steps in accordance with law, including the Model Standing Orders. No order as to costs. ..... 11