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

2. The second respondent company applied to the Industrial Tribunal under S. 33, Industrial Disputes Act, for permission, to dismiss 27 of its employees. Its contention was that there was an illegal strike onof the workers of the company, that these 27 employees had participated in the illegal strike and they had also refused to obey lawful orders.It was further the contention of the second respondent company that a proper inquiry as required by the Standing Orders had been held, that the charge of misconduct with regard to these two acts had been established and therefore under the Standing Orders the Company was entitled to inflict the penalty of dismissal upon these 27 workers.The Industrial Court granted permission with regard to 3 out of the 27 employees and refused permission with regard to 24, and the reason that induced the Industrial Tribunal to come to this conclusion was that the respondent company had failed to comply with the provisions of S. 9 of the Act, that no translation in Marathi of the Standing Orders had been posted on special boards and therefore the 27 employees who did not know English had no notice of the Standing Orders.Therefore, the Standing Orders were not binding upon those 24 employees and no proper inquiry could be deemed to have been held as required by the Standing Orders. With regard to the other three employees, as they knew English, and a copy of the standing Orders had been posted on. the notice board, the Tribunal took the view that the Standing Orders were binding upon those 3 employees and gave the necessary permission to the respondent company.It was also urged by the respondent company in the alternative that the dismissal could be justified under the ordinary law of Master and Servant. This contention was also rejected by the Industrial Tribunal. The employer company went in appeal to the Labour Appellate Tribunal.The Labour Appellate Tribunal did not accept the construction put by the Industrial Tribunal upon Ss. 7 and 9 of the Act and remanded the matter to the Industrial Tribunal, and the employees have now come on this petition.

Reasoning:
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.