Case: Ismail Papamia &amp; Others Vs. Labour Appellate Tribunal of India &amp; Another

this Court where it has been held that a prohibitory order, although brought into force at a particular point of time does not operate against a particular individual or institution unless the individual or institution has notice of that prohibitory order.What this class of cases lays down is that if an act was per se legal and is rendered illegal by an order issued by Government, the person who was under the belief that what he was doing and was continuing to do was a legal act should have notice that it had ceased to be legal before he is prosecuted for the committing of that act. Those decisions stand on an entirely different footing.We are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standing Orders.7. Mr. Sule then points out that if that is the view we take of S. 9 then an employer can with impunity defy the direction given by the Legislature under S. 9 and refuse to post the translation of the Standing Orders on the notice board or negligently delay it as long as possible.We are most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect of non-compliance by the employer of this direction in S. 9 would be.It may well be that non-compliance of the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employers non-compliance may not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should be granted.Again Mr. Vimadalal points out that in this case the draft standing Orders were submitted to the Certifying Officer in 1949, that copies of the draft as required by the Act were sent to the Trade Union, that in the draft these two acts were constituted misconduct, and in fact in this respect the draft was following the Model Standing Orders, and Mr. Vimadalal says that from 1949 to 1953 the Trade Union was closely associated with this draft and throughout that period those two acts remained in the draft as constituting misconduct, and, therefore it is not likely that the employees would not have known that the ultimate Standing Orders which were settled by the Appellate Tribunal did not make these two acts misconduct.Again, in our opinion, that is a circumstance which the Industrial Tribunal will take into consideration in deciding whether the workers had notice of the Standing Orders de hors the provisions of S. 9.But these are all arguments on merits, and we agree with Mr. Sule that the absence of notice is an important circumstance which any Tribunal dealing with the merits of the application made by the employer should take into consideration.But when Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out, non-compliance with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]That argument of justice and convenience cannot be accepted by us because it is in total opposition to the real aim and object of the Legislature in enacting S. 7. Section 7 is clear and precise in its language and it brings the Standing Orders into operation on a particular date, and in this case the date isresult of the Standing Orders coming into operation is that it creates rights and liabilities not only in the employees but also in the employers. By reason of the Standing Orders certain liabilities are imposed upon the employers and certain rights are created in favour of the employees.Itis an entirely untenable proposition in law that if a particular statute or a particular statutory order comes into operation it should have a binding effect only with regard to one party and not with regard to the other.The object of Standing Orders is to regulate the conditions of service between the employer and the employees; and it is in our opinion impossible to contend that the Standing Orders which mutually regulate the conditions of service between the employer and employees at a particular point of time can regulate only the obligations of the employer and not the obligations of the employees.In view of the language used by S. 7, in our opinion, even though in certain cases it may cause inconvenience or even injustice, it is impossible to give any other construction to S. 9 than that its provisions are directory and not mandatory.The position may be looked at from a different point of view. If notice was the all important factor, which according to Mr. Sule, it is then it is rather surprising that under S. 9 a notice would only be given to the employees knowing English and language of the majority.What would happen to a fairly large section of the workers who may neither know English nor the regional language or the language of the majority  Admittedly in this case there are employees who know neither English nor Marathi.There may even be employees who may be illiterate. Therefore it is wrong to suggest that the absence of notice is so important and so significant in the context of this Act that that fact alone brings about a situation whereby the Standing. Orders which have come into operation by reason of S. 7 do not affect or bind the employees who have no notice contemplated by S.are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standingare most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect ofby the employer of this direction in S. 9 would be.It may well be thatof the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employersmay not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should bewhen Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out,with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees.