IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.5457 of 2010 & M.P.Nos. 1 and 2 of 2010 Larsen and Toubro Limited Pattali Thozhil Changam Reg.No.1249/RTU /2001 Rep.by its President A.R.Shivakumar Gundupalayam Puducherry .. Petitioner Vs. The Commissioner of Labour-cum Certifying Officer Labour Department Government of Puducherry Puducherry .. Respondent Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records in relating to the standing order No.3 of 2010 passed by the Commissioner of Labour cum certifying Officer for Union Territory of Puducherry respondent herein and quash the same, consequently direct the respondent to invite the petitioner's objection and after giving an opportunity of hearing, pass necessary order under section 5(2) of the Act, for necessary modification and deletion in the Draft Standing order submitted by the Management of Larsen and Toubro Limited, Puducherry so as to render it certifiable. For Petitioner :: Mr.P.R.Thiruneelakandan O R D E R The petitioner is a Trade Union. The petitioner has filed the present Writ Petition to quash the Certified Standing Orders. The Certification was done by the Certifying Officer in the Certification dated 2.2.2010. The Draft Standing Orders were submitted by the management of Larsen and Toubro Limited, ECC Division (Engineering, Construction and Contracts) Transmission Line Tower and Rolling Mill Units in Puducherry. For curious reasons, the petitioner did not make the management as a party even though it is a necessary and https://hcservices.ecourts.gov.in/hcservices/ proper party to the Writ Petition. The Draft Standing Orders submitted by the said management was taken on file as Standing Order No.3 of 2010. Notice was ordered to various Unions representing the workmen of the said management. 2. It is seen from the records that the petitioner Union gave an objection seeking for deletion and addition of certification clause in the Standing Order. It is claimed that the objections were given on 1.2.2010, which are evidenced in the typed set. Notwithstanding the objections raised and also the suggestions made, it is the stand of the union that the certifying authority did not adopt the procedure conforming to Section 5(2) of the Industrial Employment (Standing Orders) Act, 1946. The primary objection of the petitioner union was that the draft Standing Order submitted by the management contained the provisions, which are outside the schedule and the Model Standing Order. Therefore, the Certifying Officer lacks power to certify such Standing Orders. They also submitted that the power under section 5(2) involves not merely calling for amendments or suggestions but an effective opportunity of being heard must be given to the Union and it is virtually the adjudication on the reasonableness of the Standing Orders. Therefore, the Certifying Officer has power not only to see whether the Standing Orders are conformed to the provisions of the Standing Orders Act and the Rules framed thereunder but also go into the question of reasonableness. In the present case, the respondent appeared to have acted like a rubber stamp of the management. Therefore, the order is liable to be set aside. 3. Mr.P.R.Thiruneelakandan, learned counsel for the petitioner, when asked as to why the union did not adopt the course of appeal provided under section 6 of the Standing Orders Act, submitted that only when proper exercise of power by the Certifying Officer was questioned, the appeal will have a meaning. Since the Certifying Officer has committed a fundamental error in not affording opportunity, this Court under Article 226 of the Constitution can deal with the same. 4. In support of his submission, he also produced a judgment of the Allahabad High Court in M/s.Shia Lal Chimman Lal and Co., vs. State of Uttar Pradesh and others reported in 1970 LAB I.C.296. The following passage found in paragraph 5 may be usefully extracted hereunder: "Under Section 6, an appeal lies against the order of the Certifying Officer under section 5 (2) and not against the certified standing order as such. The appeal can be preferred within 30 days from the date on which the copies are sent under section 5(3). Under the Civil Procedure Code, appeal lies against the decree. That is why the decree is treated as the document of paramount importance, https://hcservices.ecourts.gov.in/hcservices/ without it, the appeal is incompetent. Similarly under section 6(1) appeal lies against the order passed under section 5 (2). That order is in the nature of a decree under the Civil Procedure Code. The appellate authority was in error in treating the certified Standing Orders to be the basic document having the importance of a decree under the Civil Procedure Code. The appeal preferred by the petitioner was accompanied by a copy of the order of the Certifying Officer passed under sub-section (2) or Section 5. It could not, therefore be treated as incompetent under section 6(1) of the Act. Therefore, it stated that an appeal will not lie, if an order is not passed under section 5(2) of the Act. 5. In the present case, it is stated that the Standing Orders have been certified. The question of appeal will not arise. The said submission is oblivious of the fact that Section 6 of the Industrial Employment (Standing Orders) Act, 1946 had underwent an amendment by Central Act 18 of 1982 dated 17.5.1982. By the said amendment, if any person, whether he is an employer, workman or trade union or either prescribed representatives of the workmen, is aggrieved by the order of the certified Standing Orders under section 5(2) of the Act, he can file an appeal. In effect, the locus standi of the aggrieved person has been widened by the Central Act 18 of 1982, which has come into force on 17.5.1982. The said amendment was not available before the Allahabad High Court because the said judgment was rendered before that amendment. 6. In any event, in the present case, the Standing Orders were certified only in terms of Section 5(2). Though notice was given to the petitioner union, the grievance seems to be that no opportunity was given to the petitioner union to argue their case before the authority and that their objections do not find a place in the order passed by the authority. Though in the preamble to the order impugned in the Writ Petition, the authority stated that the opportunity was given to the management and the representatives of the workmen and thereupon they decided that certain modifications and additions are required to the draft Standing Orders and passed an order on 27.3.2009 giving proper directions and thereafter he has made the amendment. This Court is at a loss to understand as to why no such appeal cannot be followed under section 6 of the Act. In fact, having recourse to the appeal under section 6 of the Act, it automatically brings an interim stay of the operation of such Standing Order. This position is made clear by virtue of Section 7 of the Act, wherein the date of operation of the Standing Ordered has been granted. In case of an appeal by any aggrieved party, the Standing Order will come into force only on the expiry of 7 days after the appellate authority passes an order under section 6(2) of https://hcservices.ecourts.gov.in/hcservices/ the Act. Whether it is a case of original certification or it is a case of modification, under section 10(2) of the Act, in both cases, an appeal will lie. It is also made clear that even for modification under section 10, the procedure for certification is adopted and as found by section 10(3) of the Act, the same procedure is also available for modification. Therefore, the question of the petitioner claiming that there was no adequate efficacious remedy provided under the Act cannot be countenanced by this Court. In view of the fact that the petitioner has a remedy by way of an appeal before the appellate authority, this Court is not inclined to entertain the Writ Petition. Hence, the Writ Petition stands dismissed. No costs. The connected Miscellaneous Petitions stand closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ajr To The Commissioner of Labour-cum Certifying Officer Labour Department Government of Puducherry Puducherry 1 cc to Mr.P.R.Thiruneelakandan, Advocate, Sr.No.18817 1 cc to Government Pleader, (Pondicherry) Sr.No.18237 W.P.No.5457 of 2010 RSN {CO} TP/5.4.2010. https://hcservices.ecourts.gov.in/hcservices/