Judgment Case ID: 842

Judgment:
Civil Appeal No. 22 of 1.958. Appeal from the judgment and order dated December 2	 1954	 of the Bombay High Court in Appeal No. 122 of 1954	 arising out of the Judgment and order dated September 30	 1954	 of the said High Court in Civil Misc. Application No. 267/X of 1954. R. J. Kolah	 section N. Andley	 J. B. Dadachanji	 Rameshwar Nath and P. L. Vohra	 for the appellant. Gopal Singh and R. H. Dhebar for respondent No. 2. 1960. February	 11. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The Associated Cement Companies Ltd.	 Dwarka Cement Works	 Dwarka and the Associated Cement Companies Ltd.	 Sevalia Cement Works	 Sevalia (hereinafter called the appellants) own and manage several cement works throughout India including inter alia cement manufacturing factories at Dwarka and Sevalia called the Dwarka Cement Works and the Sevalia Cement Works respectively. In 1946 the appellants submitted to respondent 2	 the Commissioner of Labour	 Bombay	 in his capacity as certifying officer	 draft standing orders for certification under section 3(1) of the (20 of 1946) (hereinafter called the Act). Respondent 2 made several alterations in the draft submitted by the appellants. The two important alterations which are the subject matter of the present appeal were in respect of items Nos. 8 and 16. Under item No. 8 the draft standing orders had required that notice of fourteen days shall be given in the event of discontinuance of a shift. Respondent 2 has modified it by increasing the period of notice from fourteen days to one month. This modification has 124 976 been made in accordance with the model standing order on this subject. Similarly	 item No. 16(2) in the draft standing orders provided that striking work either singly or with other workers without giving fourteen days ' previous notice would be treated as misconduct; whereas item No '. 16(3) provided that inciting while on the premises any worker to strike work shall be treated as misconduct. These two provisions in the draft have been modified by respondent 's and the order thus modified provides that striking work illegally either singly or with other workers or abetting	 inciting	 instigating or acting in furtherance of an illegal strike would be treated as misconduct. This modification also is consistent with the relevant provision in the model standing order. Feeling aggrieved by the modifications made by respondent 2 in the draft submitted by them the appellants preferred an appeal to the Industrial court (hereinafter called respondent 1). Respondent I was not impressed by the contentions raised by the appellants with the result that the modifications made by respondent 2 were confirmed and the appeal was dismissed. Thereupon the appellants filed a writ petition	 being Miscellaneous Application No. 267 of 1954	 in the Bombay High Court challenging the validity of the action of respondents 2 and 1. Mr Justice Coyajee who heard the said application	 upheld the contention raised by the appellants and came to the conclusion that in making the impugned modifications respondent 2 and respondent I had acted beyond their jurisdiction. The learned judge	 therefore	 set aside the modifications made and allowed the appellants ' petition. Against this order respondent 2 preferred an appeal	 being Appeal No. 122 of 1954	 before the Court of Appeal in the Bombay High Court. The appellate court reversed the decision of Coyajee J. and held that the action of respondents 2 and I in making the modifications in question was justified by the provisions of the Act. In the result the petition filed by the appellants was dismissed. It is against this decision that the present appeal has been preferred by 977 the appellants; and the short question which it raises for our decision is: whether	 under the provisions of the Act	 it was competent to respondents 2 and 1 to make the impugned modifications in the draft standing orders submitted by the appellants for certification under the Act ? The Act has been passed because it was thought" expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. " Standing Orders are defined by section 2(g) of the Act to mean rules relating to matters set out in the Schedule. The Schedule sets out 11 matters in respect of which standing orders are required to be made by the employers. Mr. Kolah	 for the appellants	 contends that the main object of the Act is to require the employers to provide for conditions of service in respect of all the matters covered by the Schedule	 and	 according to him	 the jurisdiction of respondent 2 under the Act as it then stood is confined only to see that standing orders are made in respect of all the items specified in the Schedule. In this connection Mr. Kolah has strongly relied on the provision of section 4 which then laid down inter alia that "it shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order". The argument is that the Act expressly prohibits respondent 2 or respondent I from enquiring whether any of the provisions made in the draft standing orders are fair or reasonable	 and it is urged that	 in making the modifications in question	 in substance respondent 2 has embarked upon an enquiry about the reasonableness or fairness of the relevant conditions included in the draft. Thus presented the argument is no doubt attractive ; but there are some other provisions in the Act which show that the argument based on the said provision of section 4 cannot succeed. It is	 therefore	 necessary to consider the other provisions which are material. Before we do so	 we would like to add that by a subsequent amendment made in 1956 section 4 now provides that it shall be 978 the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. In other words	 what was expressly excluded from the jurisdiction of the authorities under the Act has now been clear made their duty	 and so the argument based upon the provision as it stood in 1946 is	 after the amendment of 1956	 purely academic. Section 3 of the Act requires the employer to submit draft standing orders. Section 3(2) provides that in the draft thus submitted provision shall be made for every matter set out in the Schedule which may be applicable to the industrial establishment	 and where model standing orders have been prescribed	 shall be	 so far as is practicable	 in conformity with such model. It is common ground that model standing orders have been proscribed in the present case	 and so it follows that under section 3	 sub section (2) the draft submitted by the appellants had to be in conformity with the model sanding orders so far as was practicable. In other words	 the effect of section 3 sub section (2) is 'that	 unless it is shown that it is impracticable to do so	 the appellants ' draft had to conform to the model. This position cannot be disputed. Then	 the next relevant provision of the Act is contained in section 4 which provides that standing orders shall be certifiable under this Act if (a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment	 and (b) the standing orders are otherwise in conformity with the provisions of this Act. The rest of the provision of section 4 has already been cited and considered by us. Having thus provided for the tests which have to be satisfied before a draft submitted by the employer can be treated as certifiable	 section 5 provides for the procedure of the proceedings which are taken before the certifying officer. Section 5 (2) lays down that after notice is given to the parties concerned the certifying officer shall decide whether or not any modification of	 or addition to	 the draft submitted by the employer is necessary to render the draft standing orders certifiable under the Act	 and shall make an order in writing accordingly. Sub section (3) of section 5 then provides for 979 certifying the draft after making modifications	 if any	 under sub section There is one more section to which reference may be made. Section 15(2)(b) provides that the rules which the appropriate government may make under the Act may set out model standing orders for the purposes of this Act. The cumulative effect of these provisions is that the certifying officer has to be satisfied that the draft standing orders deal with every matter set out in the Schedule and are otherwise in conformity with the provisions of the Act. This latter requirement necessarily imports the consideration in specified in section 3	 sub section (2)	 that is to may	 the draft standing order must be in conformity with the model standing order which is provided under section 15(2)(b) for the purposes of the Act	 and	 as we have already seen	 unless it is shown that it would be impracticable to do so	 the draft standing order must be in conformity with the model standing order. It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean that in substance it must conform to the model prescribed by the appropriate government. The question which then arises is: was it or was it not open to respondent 2 to consider whether the draft submitted by the appellants should not conform to the model standing order in respect of the topics with which we are concerned in the present appeal? The answer to this question must obviously be in the affirmative. It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under section 4. Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute. If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications in the draft. If	 on the other hand	 he took the view that it would not be practicable to insist upon such conformity he would	 despite the disparity between the model and the draft	 treat the draft as certifiable. In the present case respondent 2 as well 980 as respondent I have held that it was practicable to insist upon conformity with the model standing order regard to the matters in dispute; and so they have made suitable modifications. Having regard to the relevant provisions which we have just considered	 it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction. It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent I from considerations of practicability which are necessarily imported in such an enquiry. The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions o the Act. Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstances of the case. In our opinion	 therefore	 the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modifications. We may mow refer to the decisions to which our attention was invited by Mr. Kolah. In Guest	 Keen Williams (Private) Ltd vs Sterling (P. J.) & Ors. (1) this Court had occasion to consider the effect of a part of the provision contained in section 4 of the Act as it stood before its amendment in 1956. It is	 however clear that in that case the point raised for our decision now did not fall to be considered. In Electric Workers ' Union vs The U.P. Electric Supply Co. (2)	 Mr. Justice Wanchoo	 who was acting as the appellate authority under the Act	 appears to have held that the provision contained in section 3(2) had nothing to do with the power of the certifying officer to substitute the model for the draft. Acoording to the learned judge the said provision was intended merely to help and guide the employers as to how they should frame their draft standing orders. This decision apparently supports (1) ; (2) A.I.R. 1949 All. 981 the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them. If	 in making these observations	 it was intended to decide that	 before certifying the draft standing orders submitted by the employer	 the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders	 with respect	 we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act. We may incidentally add that the observations made by Wanchoo J. in that case have not been approved by the Allababad High Court in Jiwan Mal & Co. vs Secretary	 Kanpur Loha Mills Karamchari Union & Ors. In Mysore Kirloskar Employees Association vs Industrial Tribunal	 Bangalore & Anr. (2)	 the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject matter of the present appeal than with the observations of Wanchoo J. There is one more point to which reference must be made. Mr. Kolah attempted to argue before us that	 even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders	 the modifications made by them on the merits are impracticable. We have not allowed Mr. Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court	 and it would not be open to them to raise it for the first time before us. Besides	 in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act. The result is the appeal fails and is dismissed with costs. Appeal dismissed (1) A.I.R. 1955 All. 581.

Summary:
The draft standing orders submitted by the appellants to the certifying officer for certification under section 3(1) Of the 	 were altered by the latter on the footing that the modifications were necessary so as to be in conformity with the model standing orders. Section 4 Of the Act	 before it was amended in 1956	 provided that "it shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order	 while under section 3(2) the draft shall be, as far as is practicable, in conformity with the model standing orders, where they have been prescribed. The question was whether the certifying officer had jurisdiction to make the modifications in the present case. Held, that there is a distinction between considerations of fairness or reasonableness and those of practicability, and that though the certifying officer may not modify the draft on the ground that its provisions are unfair or unreasonable, he can and must modify it in matters covered by the model standing 975 orders if he is satisfied that conformity with such model standing orders is practicable in the circumstances of the case. Electric Workers ' Union vs The U. P. Electric Supply Co. A.I.R. 1949 All. 504, disapproved. Jiwan Mal & Co. vs Secretary, Kanpur Loha Mills Karmachari Union & Ors., A.I.R. 1955 All. 581 and Mysore Kirloskar Employees ' Association vs Industrial Tribunal, Bangalore and Anr , approved. 
4276	Exercising the power of exemption conferred under rule 8(1) of the Central Excise Rules, 1944, the Central Government by a notification dated January 5, 1957 exempted certain varieties of cotton fabrics from the whole of the excise duty leviable thereon. Item 7 set out one of such varieties as under: Cotton fabrics produced. powerlooms. provided that the number of powerlooms producing cotton fabrics in such factories does not exceed four. " By a notification dated November 26	 1960 a proviso was added to this item stating that "this exemption shall not be applicable to a manufacturer who commences production for the first time on or after the December 1	 1960 by acquiring powerlooms from any other person who is or has been a licensee of a powerloom factory. " From March 1	 1961 item 7 was substituted and from April 1	 1961 a proviso was added to item 7	 the effect of both of which was that while from March 1	 1961 the benefit of exemption from excise duty was available only to those manufacturers who had not more than two powerlooms in their factories	 from and after April 1	 1961 even this limited exemption was withdrawn from manufacturers who commenced production for the first time on or after April 1	 1961 by acquiring powerlooms from any person who was or had been a licensee of powerloom factory. From March 18	 1961 a second proviso to item 7 was added which provides "where a person employs not more than four powerlooms and the said powerlooms are worked in not more than one shift no duty shall be payable in respect thereof". From April 1	 1961 a third proviso was added stating "where a person commences manufacture of the said fabrics for the first time on or after April 1	 1961 by acquiring powerlooms from any other person who is or has been a licensee of powerloom factory the rate per shift per month per powerloom shall be the next higher rate if any". The respondents had acquired powerlooms after April 1	 1961 from persons who were or had been licensees and were manufacturing cotton fabrics on those powerlooms prior to April 1	 1961. They claimed that since each of them had not more than four powerlooms which worked in not more than one shift he was exempt from payment of excise duty by virtue of the second proviso to item 7. The Superintendent of Central Excise on the other hand contended that the third proviso carved out an exception from the second proviso and since 514 each of the respondents commenced manufacture of cotton fabrics for the first time after April 1	 1961 he was not exempt from payment of excise duty but was liable to pay duty at the next higher rate provided in the amended notification of March 18	 1961. Appeals of the respondents having been rejected by the Assistant Collector and the Collector they filed writs in the High Court challenging the levy of excise duty. Their writ petitions were allowed by the High Court. Allowing the appeals ^ HELD:(1) It is a well settled rule of interpretation applicable alike to the rule making authority as to the legislature that where there are two expressions which could have been used to convey a certain intention	 but one of these expressions conveys that intention less clearly than the other	 it is proper to conclude that if the draftsman used that one of the two expressions which would convey the intention less clearly	 he does not intend to convey that intention at all. [523 A] It is clear on a plain grammatical construction of the proviso under Item 7 of the Notification dated 5th January	 1957 that the prescription of the date 1st April	 1961 has reference only to commencement of production of the cotton fabrics and not to the acquisition of the powerlooms. What is required is that the production of cotton fabrics must have been commenced by the manufacturer for the first time on or after 1st April	 1961 and not that the powerlooms also must have been acquired by him on or after that date. [520 C D] 2 (a) Even though each of the respondents owned not more than four powerlooms he would be liable to pay excise duty at the next higher rate under the third proviso to the notification dated March 18	 1961	 if he started manufacture of cotton fabrics on his powerlooms for the first time on or after April 1	 1961	 irrespective whether he acquired the powerlooms from a licensee before or after that date. [522 C D] (b) The exemption under item 7 is not applicable to a manufacturer who has commenced his production of cotton fabrics for the first time on or after April 1	 1961	 by acquiring powerlooms from another person who is or has been a licensee of a powerloom factory. Two conditions which must exist before the mischief of the proviso is attracted are: (1) the manufacturer must have commenced production of cotton fabrics for the first time on or after April 1	 1961 and (2) the powerlooms on which he manufactures cotton fabrics must have been acquired by him from a person who is or has been a licensee of a powerloom factory. The event which attracts the applicability of the proviso is that the manufacturer should have commenced production of cotton fabrics on these powerlooms for the first time on or after April 1	 1961. If this condition is satisfied the proviso comes into play and withdraws the exemption which would otherwise have been available to the manufacturer under item 7. [519H 520B	 E] (3) The language and structure of the third proviso being identical with the language and structure of the proviso under item 7 of the notification dated 5th January	 1957 the same view must govern the interpretation of the third proviso. [521 E] 515 The third proviso on its proper interpretation	 enacts a substantive provision for payment of excise duty at the next higher rate in the cases therein specified and this substantive provision overrides the second proviso which exempts a manufacturer employing not more than four powerlooms and working not more than one shift from payment of excise duty in those cases which do not fall within the third proviso and where a case	 is covered by the third proviso the second proviso would be inapplicable and the manufacturer would be liable to pay excise duty at the next higher rate. [522 A B]