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Petitioner: SHAHDARA (DELHI)-SAHARANPUR LIGHT RAILWAY Co., LTD VS Respondent: S. S. RAILWAY JUDGMENT
Court Name: Supreme Court of India Judge(s): J. M. Shelat, C. A. Vaidialingam, V. Bhargava Title:SHAHDARA (DELHI)-SAHARANPUR LIGHT RAILWAY Co., LTD vs S. S. RAILWAY
JUDGMENT
Reported As: 1970 PLC 538 Result: orders made Judgment JUDGMENTS SHBLAT, J.-This appeal, by special leave, is by the employer and raises the question as to the scope of section 10(2) of the industrial Employment (Standing Orders) Act, XX of 1946, as amended by Act XXXVI of 1956 (referred to hereinafter as the Act). The Standing Orders of the appellant-company were certified on 7th August 1962, by the Regional Labour Commissioner Central under section 4 of the Act. Both the company and they workmen filed appeals against the said order which were disposed of by the appellate authority under section 6. Sometime there--after the respondent-Union applied for certain modifications, some of which were certified by the Regional Labour Commissioner by his order dated 28th December 1963. The appellant company filed an appeal against the said order which was disposed of by the Chief Labour Commissioner in April 1964, On 25th April 1965, the respondent-Union made a further application for modifications. The Regional Labour Commis--sioner by his order dated 2nd September 1965, allowed certain modifications but rejected the rest. The Union thereupon appealed against the said order. After hearing the parties the Chief Labour Commissioner passed his impugned order dated 27th October 1967, ordering certification of certain modifications. Though the appellant-company objected at first to all the modifications, counsel pressed the appeal in. respect of four modifications only. The first modification challenged is in Standing Older 9, clause(a) which, as un amended, read as follows: "The railway under the terms of employment has the right to terminate the services of a permanent workman on giving him one month's notice in writing or one month's pay may be paid in lieu of notice." The Union claimed that the Management should give reasons even when 1a.terminated the
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services of an employee by a discharge simpliciter. The modification allowed directed reasons to be recorded in writing and communicated to the workman if he so desires at the time of discharge but not if the Management considers it inadvisable. The second modification is in Standing Order 12, clause (a), which, in its un amended form,read as follows: When any of the penalties specified in Order 9 is imposed upon a workman an appeal shall lie to the authority next above that imposing the, penalty. An appeal shall lie to the Managing Agents only on original orders passed by the General Manager. ------.. ' The Union's plea was that some time limit was necessary for the disposal of the appeals as the managing agents who are the appellate authority against the orders of the General Manager, took months to dispose of such appeals thereby delaying the workman from raising an industrial dispute in time and seek timely relief. The modification allowed was that every 'such appeal shall be disposed of by the appellate authority within 60 days from the date of its receipt. The third modification is in Standing Order 11 (vii) which read as follows:-- "Removal from service: A workman shall be liable t6 be removed from service in the following circumstances: (a) Inefficiency. The modification allowed was as follows: "In case of inefficiency due to physical unfitness the workman whom the Management considers suitable for some alternative employment shall be offered the same on reasonable emolu--ments having regard to his former emoluments." The modification contains, it will be noticed, four limitations: (1) it applies only to cases of removal on the ground of physical unfitness, (2) the consideration of suitability for an alternate employment is left to the Management, (3) the existence of alternative post, and (4) the question as to what reasonable emoluments should be is left to the Management. The fourth modification is in Standing Order 11 (iii)(c) which, in its unamended form, was as follows "Every person against whom departmental enquiry is being shade shall be supplied with a copy of the findings in connection With his dismissal and removal from service. The workman shall also be supplied with a copy of the proceedings of the enquiry committee as soon as possible after the conclusion of the enquiry proceedings in his case and be allowed to defend his case through Union's Representative." The modification allowed was as follows:-- "In case the Management propose to remove the workman from service they shall serve on the workmen separate show---cause notice to that effect." Counsel for the company challenged the impugned order in its two facts: the scope of the power of modification under sec--tion 10(2), and on merits on the ground that the modifications did not stand the test of reasonableness and fairness. On the first question his contention was that the jurisdiction and powers of the authorities under the Act to certify modifications of the existing standing orders are limited to cases where a change of circumstances is established. In the course of his argument, counsel, however, qualified the contention by conceding that if at the time of the last certification certain circumstances were, for one reason or the other, omitted from consideration they would constitute a valid reason for modification and the modification would be granted even though in such case a change of circumstances has not occurred. He next contended that in any case though section 11 of the Code of Civil Procedure did not apply, principles analogous to resjudicata would apply to an application for modification unless such application is occasioned by new circumstances having arisen or is based on new facts. Briefly, the argument was that the object of the Act is to have conditions of service of workmen in an establishment defined with precision, and, therefore, to having standing orders dealing with such conditions certified. For industrial harmony and peace it is necessary that those conditions are
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stable and do not remain undefined or fluctuating. In pursuance of this object the Act confers finality to such certified standing orders or modifications thereof under section 6. The contention was that if modifications were allowed without any restraint, there would be multiple applications specially as individual workmen have been given the right to apply for modifications. Therefore, the word `final' in section 6, it was argued, must be so read as to mean that an application for modification under section 10(2) can only be maintainable if it is justified on the ground of a change of circumstances having occurred after the last certification, which of course, according to the concession made by counsel, also would include cases where certain circumstances were not taken into account at the time of the last certification. The relevant provisions of the Act requiring consideration in this appeal are sections 4, 6, 10, 11 and 12. Section 4 provides that standing orders shall be certified under the Act if (a) a provision is made therein for every matter set out in the Schedule, and (b) they are otherwise in conformity with the provisions of the Act. The section further provides that it shall be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of the standing orders. Section 6 provides that any person aggrieved by the order of the certifying officer passed under section 5(2) may appeal to the appellate authority and the appellate authority, "whose decision shall be final", shall by an order confirm the standing orders in the form certified under section 5(2) or amend or add thereto to render them certifiable under the Act. Sec- -tion 10, whose interpretation is in question, provides by sub section (1) as follows: "Standing orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of 6 months from the date on which the standing orders or the last modifications thereof came into operation." Subsection (2) runs as follows: "Subject to the provisions of subsection (1), an employer or workman- may apply to the certifying officer to have the standing orders modified . . . . ." Subsection (3) provides that the foregoing provisions of the Act shall apply in respect of an application for modification as they apply to the certification of the first standing orders. Section 11 empowers the certifying officer and the appellate authority to correct clerical or arithmetical mistakes in an order passed by them or errors arising therein from any accidental slip or omission. Lastly, section 12 provides that no oral evidence having the effect of adding to or otherwise varying or contra--dicting standing orders as finally certified under the Act shall be admitted in any Court. Counsel conceded, and did so rightly, that there is no express provision in any one of these sections restricting the right to apply for modification or the power of the authorities to allow modi- -fication only on proof of a change of circumstances. The only limitations to the power are the reasonableness or fairness which of course must be established and the expiry of six months after the date of the standing orders or their last modifications coming into operation. In the absence of any such express restriction we should then ask ourselves whether there is in any of these sections anything which would indicate, such a restriction by necessary implication. In that connection the only word which can point to such a restriction, according to counsel, is the word `final' in section 6, so that the contention reduces itself to this that by making the order of the appellate authority final under section 6, Parliament intended by necessary implication that the bar of finality can only be removed if the circumstances arise which necessitate or justify modification. But the intention of the Legislature, as observed by Lord Watson in Salomon v. A. Salomon & Co. Ltd. (1897 A C 22), "is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact". It is well settled that the meaning which words ought to be under stood to bear is not to be ascertained by any process akin to speculation and the primary duty of a Court is to find the natural meaning of
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the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. In R. v. Wimbledon Justices ((1953) 1 Q B 380), Lord Goddard said: "Although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words t9 a statute or Lead words into it which are not there . . . : ." Similarly, in R. v. Mansel Jones ((1889) 2 Q B D 29),.Lord Coleridge said that it wag the -business of the Courts to see what Parliament had said, instead of reading into an Act, what ought; to have been said. So too, tit Latham v. Lafone ((1857) L R 2 Ex. 115), Martin B., said: "I think the proper rule for construing this statute is to adhere to its words strictly; and it is my strong belief that, by reasoning on long-drawn inferences and remote consequences, the Courts have pronounced many judg--ments affecting debts and actions in a manner that the persons who originated and prepared the -Act never dreamed of". In the light of these principles, we ought, therefore, to give literal meaning to the language used by Parliament unless the language is ambiguous or its literal sense gives rise to an anamoly or results in some thing which would defeat the purpose of the Act. The Act was passed because the Legislature thought that in many industrial establishments the conditions of service were not uniform and sometimes were not even reduced to writing. This led to conflicts resulting in unnecessary industrial disputes. The object of passing the Act was thus is require employers to define with certainty the conditions of service in their establishments and to require them to reduce them to writing and to get them compulsorily certified. The matters in respect of which the conditions of employment had to be certified were specified in the schedule to the Act. As the Act stood prior to its amendment in 1956, section 3 required the employer to submit to the certifying officer draft standing orders proposed by him for adoption in his establishment. Section 4 provided that standing orders shall be certifiable if (a) provision is made therein for every matter set out in the Schedule, and (b) that they were otherwise in conformity with the provisions of the Act. The section, however, expressly provided that a shall not be the function of .the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the standing orders. Under section 5, the certifying officer was required to send a copy of the draft standing orders to the Union, if any, or in its absence to the workmen in the manner prescribed together with a notice calling for objections by them, if any, and to give opportunity to the employer and the workmen of being heard and then to decide whether or not any modification or addition to the draft standing orders was necessary to render them certifiable under the Act, Section 6 provided for an appeal by any person aggrieved by the orders passed under section 5. The appellate authority, whose decision was made final, had the power to confirm or amend of add to the standing orders passed by the certifying officer to render them certifiable under the Act. Though the order passed by the appellate authority was trade final under section 6 section 10 provided for modification. Subsection (1) of section 11 provided that standing orders finally certified under this Ac shall not, except on agreement between the employer and the workmen, be liable, to modification until expiry of six .months from the date on which they or the last modification thereof came into operation. Subsection (2) read as follows: "An employer desiring to modify his standing orders shall v apply to the Certifying Officer in that behalf . . . . ." Subsection (3) provided that the foregoing provisions of the Act -shall apply in respect of an application under subsection (2) as they apply to the certification of the first standing orders. As the Act stood prior to 1956, there was thus a prohibition against the certifying officer going into the question of reason--able ness or fairness of the draft standing orders submitted to him by the employer. His only function was to see that the draft made provisions for all matters contained in the Schedule and that it was otherwise certifiable under the Act. Therefore, though the workmen
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through the Union or otherwise were starved with the copy of the draft and had the right to raise objections, the objections could be of a limited character, namely, that the draft did not provide for all matters in the Schedule or that it was nut otherwise certifiable under the Act. Even in an appeal under s section 6, the only objections they could raise were limited to the two aforesaid questions. The workmen thus could not object that the draft standing orders were not reasonable or fair. Under section 10, the right to apply for modification was con--ferred on the employer alone and in view of subsection (3) the only consideration which the certifying authority could apply to such modification was the one which he could apply under sections 4 and 6. Therefore, no question whether the modification was fair or reasonable could be raised. It is thus clear that the workman had very little say in the matter even if he felt that the standing orders at their modifications were either not reasonable or fair. They could, of course, raise an industrial dispute. But that remedy was hardly satisfactory. Such a dispute had to be first sponsored by a Union or at least a substantial number of work--men; it had next to go through the process of conciliation and lastly the appropriate Government may or may not be prepared to refer such a dispute to industrial adjudication. Even if it did, the entire process was a protracted one. In 1956, Parliament effected radical changes in the Act widening its scope and altering its very complexion. Section 4, as amended by Act XXXVI of 1956, entrusted the authorities under the Act with the duty to adjudicate upon fairness and reasonable--ness of the standing orders. The enquiry when such standing orders are submitted for certification is now two-fold: (1) whether the standing orders are in consonance with the model standing orders, and (2) whether they are fair and reasonable. The workmen, therefore, can raise an objection as to the reasonableness or fairness of the draft standing orders submitted for certification. By amending section 10(2) both the workmen and tile employer are given the right to apply for modification and by reason of 'the change made in section 4 a modification has also now to be tested by the yardstick of fairness and reasonableness. The Act provides a speedy and cheap remedy available to the individual workman to have his conditions of service determined and also for their modifications. By amending sections 4 and 10, Parliament not only broadened the scope of the Act but also gave a clear expression to the change in its legislative policy. Parlia--ment knew that the workmen, even as the un amended Act stood, had the right to raise an industrial dispute, yet, not satisfied with such a remedy, it conferred by amending sections 4 and 10 the right to individual workman to contest the draft standing others submitted by the employer for certification on the ground that they are either not fair or reasonable, and more important still, the right to apply for their modification despite the finality of the order of the appellate authority under section 6. Parliament thus deliberately gave a dual remedy to the workmen both under this Act and under the Industrial Disputes Act. This fact has in recent decisions been recognised by this Court. [Cf. Bangalore Woollen, Cotton 8c Silk Co. Ltd. v: Their Workmen ((1968) 33 F J R 254), Bankingham & Carnatic Co. 1 Ltd. v. Workmen C. A. No. 674 of 1968, decided on 25th July 1968 and Hindustan Brown Boveri Ltd. v. Their Workmen, C. A. No. 1631 of 1966, decided on 31st July 1961]. It will be pertinent, while examining the question whether there is a restriction, as suggested by counsel, to the right to apply for modifications, to bear in mind the change in the legislative policy reflected in the, amendments of sections 4 and 10. It will be noticed that section 10 does not state that once a~ standing order is modified and the modification is certified, no further modification is permissible except upon proof that new circumstances have arisen since the last modification. As a C Matter of fact the Legislature has not incorporated any words in c the subsection restricting the right to apply for modification except of course the time limit of six months in subsection (1).1 Section 6 no doubt lays down that the order of the appellate authority in an appeal against the order of the certifying officer under section 5 is final but that finality is itself subject to the right to apply for modification under section 10(2). Even so, it was urged that the finality of the order under
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section 6 was indicative of a condition precedent to the jurisdiction under section 10(2) to entertain an application for modification on a new set of circumstances having arisen is the meantime. The question is whether such is the position. The finality to the order passed under section 6 really means that there is no further appeal or revision against that order and no more. This view finds support from section 12 which lays down that once the standing orders are finally certified, no oral evidence can be led in any Court which has the effect of adding to or otherwise varying or contradicting such standing orders, Section 6, when read with section 12, indicates that the finality given to the certification by the appellate authority is against a challenge thereof in a civil Court. But the finality given to the appellate authority's order is subject to the modification of those very standing orders certified by him. As already stated, sec--tion 10 itself does not lay down any restriction to the right to apply for modification, Apart from the right to at apply for modification under the Act, the workmen can raise an industrialdispute with regard to the standing orders. There is nothing in the Industrial Disputes Act restricting the right to raise such a dispute only when a new set of circumstances has arisen. If that won right is unrestricted, can it be possible that the very Legislature which passed both the Acts could have, while conferring the righton the workmen individually, restricted that right as suggested by counsel? To illustrate, a new industrial establishment is set up and workmen are engaged therein. Either there is no Union or if there is one it is not yet properly organised. The standing orders of the establishment are certified under the Act. At the time of certification, the Union or the workmen's representatives had raised either no objections or only certain objections. If subse--quently the workmen feel that further objections could have been raised and if so raised the authority under the Act would have taken them into consideration, does it mean that because new circumstances have since then not arisen, the workmen would be barred from applying for modification? Let us take another illustration. Where, after the standing orders, or their modifi-- cations are certified, it strikes a workman after they have been in operation for some time that a further improvement in his conditions of service is - desirable, would he be debarred from applying for a further modification on the ground that no change of circumstances in the meantime has taken place? Where the standing orders provide 10 festival holidays, if counsel were right, the workmen can never apply for an addition in their number as they would be faced with the contention that the festivals existed at the time of the last certification and there was therefore no change of circumstances. The Act is a beneficent piece of legislation and therefore unless compelled by any words in it we would not be justified in importing to section 10 through inference only a restriction to the right conferred by it on account of a supposed danger of multiplicity of applications. The policy of section 10 is clear that a modification should not be allowed within six months from the date when the standing orders or the last modifications thereof came into operation. The object of providing the time limit was that the standing orders or their modifications should be allowed to work for sufficiently long time to see whether they work pro--perly or not. Even that time limit is not rigid because a modification even before six months is permissible if there is an agreement between the parties. The ground for urging that a restriction should be read in section 10 was the apprehension that since workmen individually have the right to apply for modifications there would be multiple applications which an employer would have to face. Secondly, that an application without a change of circumstances would be tantamount to a review by the same authority of his previous order of certification. It was said that if no restriction is read in section 10 it would mean that the same authority, who, on satisfaction of the fairness and reasonableness of a standing order or its last modification had certified it would be called upon to review his previous decision no reasonableness and fairness. Such a review, was argued, is permissible only on well recognised
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grounds, namely, discovery of new and important matter or evidence, a mistake or an error apparent on the face of the record or any other sufficient reason. An application for modification would ordinarily be made where (1) a change of circumstances has occurred, or (2) where experience of the working of the standing orders last certified results in inconvenience, hardship, anomaly etc., or (3); where some fact was lost sight of at the time of certification, or (4) where the applicant feels that a modification will be more beneficial. In category (1) there would be no difficulty as a change of circumstances has taken…
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