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TMI Blog1967 (9) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... 'had not been terminated. it follows that the reference. made by the State Government, dated March 20,1963, in his case, is incompetent, and the Industrial Tribunal has no jurisdiction to adjudicate upon the same, in I.D. No. 8 of 1963. In the result, the order :of the High Court is set aside, and a writ of prohibition, restraining the second respondent, from proceeding with the adjudication, in I.D. No. 8 of 1963, will issue, and the appeal allowed, to that extent. Appeal allowed in part. - Civil Appeal No. 501 of 1966 - - - Dated:- 18-9-1967 - VAIDYIALINGAM, C.A. , HIDAYATULLAH, M. AND BHARGAVA, VISHISHTHA, JJ. H. R. Gokhale, A. N. Sinha and D. N. Gupta, for the appellant B. R. L. Iyengar, Bisliamber Lal and H. K. Puri, for the respondent JUDGMENT Vaidialingam, J. This appeal, by the Management concerned, by special leave is directed against the judgment of the Mysore High Court, dated October 23, 1964, dismissing Writ Petition No. 1985 of 1963, and declining to issue a writ of prohibition,, restraining the, second respondent, the Industrial Tribunal, Bangalore-1 from proceeding with the adjudication, in 1. D. No. 8 of 1963. The short facts, leading up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent appears to have approached the State Government, to refer the dispute, regarding this matter, to the Tribunal, for adjudication-, but, the State Government, by its order, Exhibit M-2, dated October 10, 1962, declined to refer the matter for adjudication. In the said -order, the Government is of the view that, as compared with leave facilities, provided for, in similar major industries, in Bangalore, the leave facilities then granted by the Management to the workmen of the appellant company, cannot be considered to be inadequate, and, therefore, the issue raised, by the workmen, does not merit reference, for adjudication. But, nevertheless, later on, the State Government, referred for adjudication, by its order, dated March 20, 1963, the following matters, to the second respondent: Whether the workmen of Bangalore Woollen, Cotton Silk Mills Co. Ltd., are entitled to the following leave benefits: (a) Privilege leave for one month in a year with pay. (b) Casual leave of 12 days in a year with pay. (c) Sick leave of 30 days in a year with full pay less E.S.I. benefits. If not, to what reliefs they are entitled to This reference, out of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tack, has also agreed with the findings, recorded by the Tribunal.. In considering the first objection, both the Tribunal and the High Court have gone into the question as to whether the notice, contemplated under s. 19(6) of the Act, should be in writing, or, whether it can be ,oral, and have expressed the concurrent view that such notice can be oral also; but the ultimate finding, recorded by the Tribunal, and accepted by the High Court, is that the various correspondence, that passed between the Management and the Union, will clearly show that the Union has terminated the Award. On -.the second objection the Tribunal, whose findings have, again, ,been accepted by the High Court, has held that the scope of the -Standing Orders Act is very limited, and that there is really no conflict, between the Act and the Standing Orders Act. It is the further view of the Tribunal that, in spite of the provisions, contained in the Standing Orders, framed by the company, under the provisions of the Standing Orders Act, it is nevertheless open to a Tribunal, to adjudicate upon those matters, when the question is referred to it, as an industrial dispute, under the Act. In this appeal, on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of such clear intimation. It is also necessary to state that, in this case, the High Court and the Tribunal, have proceeded on the basis that the decision of this Court, in The Workmen of Western India Match Co. Ltd. v. The Western India Match Co. Ltd.( [1963] 2 S.C.R. 27), supports the proposition that an inference of an intention to terminate an award or a settlement, can be gathered from the various correspondence that passed, between the Management and the Union. That decision, in our opinion, does not lend any support to such a view. From the facts of that case, it is seen that there was a settlement, between the parties, on April 29, 1955, and there was a Charter of Demand, given by the workmen, on January 25, 1957. On January 14, 1953, the Government of West Bengal referred, to the Industrial Tribunal concerned, for adjudication the demands made by the workmen. Earlier to that date, on March 29, 1957, the management had sent a reply to the Union that the Charter of Demands, of January 25, 1957, could not be considered, inasmuch as the settlement of April 29, 1955, had not been validly terminated, under the Act. In answer to that communication, the Union wrote, on April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding privilege leave and casual leave. On September 19, 1958, there was a settlement, arrived at, between the parties, under Exhibit M-3. It is only necessary to note clause 5 of this agreement, whereby the Staff Association withdrew the demands, in respect of the various claims, made on October 28, 1957, including the claim made, for privilege leave and casual leave. The Staff Association also agreed that, for a period of three years, commencing from January 1, 1958, they would not raise any dispute regarding- any of the subjects covered by Annexure A to their original demands, which included also the claim for privilege leave and casual leave. No doubt there is a reservation, regarding gratuity,. with which we are not now concerned. Therefore, it will be noted that though a claim was made, in respect of leave, on October 28, 1957, the Union withdrew that claim, under the agreement, M-3, and they also agreed not to make any demands, for three years.This is a settlement, arrived at. by the parties, and this settlement will be binding on them. unless it is terminated. in accordance with s. 19(2) of the Act. On August 1.4, 1961, the Union issued a notice, Exhibit W-3 to the Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, it -will follow that when there is a subsisting award, binding on the parties, the Tribunal will have no jurisdiction to consider -the same points, in this reference. Normally, this conclusion, arrived at, by us, may be enough to dispose of this appeal-, but the second question, relating to the jurisdiction of the Tribunal, functioning under the Act, to adjudicate upon a dispute, which may result in the modification of the Standing Orders. framed by the management. under the Standing Orders Act, has also been adjudicated upon by the Tribunal, and the High Court and the correctness of those findings, have been canvassed. before us. If, later on, there is a proper reference to the Tribunal, the same questions may arise, for consideration; and therefore. we shall proceed to express, our views on that aspect also. The contention of Mr. Gokhale. learned counsel for the appellant, is that the Management, after the coming into force of the Standing Orders Act, had framed standing orders which have been certified, by the Certifying Officer. Those Standing Orders, originally framed, made provision for the grant of privilege leave, sick leave, casual leave and other allied matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Tribunal, constituted under the Act, will have no jurisdiction to entertain -a claim or adjudicate upon the same. When two statutes. as in this case. the Act and the Standing Orders Act, more or less deal with some common matters, the proper and reasonable view to hold will be that the Act can be invoked only in respect of industrial establishments which are not governed by the Standing Orders Act. Mr. Gokhale also pointed out that under such circumstances, the remedy to be adopted is the one, under the Standing, Orders Act; and this is also to be deduced from the views, expressed by this Court. in certain deci- sions, to which he has drawn our attention. Mr. lyengar, learned counsel for the Union, on the other hand, points out that the Act and the Standing Orders Act. have been enacted for different purposes; the scope of an adjudication, under the Standing Orders Act, counsel points out, is only regarding the fairness or reasonableness, of standing orders. The Standing Orders, certified under the Standing Orders Act, are no doubt binding on the parties and, in individual cases, it may be possible for a workman to apply for a modification of a particular Standing, Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the appellant is accepted, it will mean. that in respect of a similar question, covered by the standing orders framed by a company, the Labour Court, which is denied jurisdiction, under the Act, will be competent to adjudicate upon the same. Therefore, counsel points out, that the matters, ,covered by the standing orders, in respect of the various items contained in the Schedule to the Standing Orders Act, can no doubt, be dealt with, in accordance with the provisions contained therein; but a general or a larger controversy regarding those matters, can certainly form the subject of an 'industrial dispute', as that expression is defined in the Act, and, if that is so, the Industrial Tribunal will have jurisdiction to adjudicate upon those matters, when a reference is made, by the State Government. We are in agreement with the contentions of Mr. Iyengar, on this point. The scheme of the Standing Orders Act, has been dealt with, by this Court, in three of its reported decisions: Guest, Keen, Williams, Private Ltd. v. P. .J. Sterling ([1960] 1 S.C.R. 348); The Bagalkot Cement Co. Ltd. v. R. K. Pathan([1962] Supp. 2 S.C.R. 697); and Salem Electricity v. Employees ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer, and the Appellate Authority, to adjudicate upon the reasonableness and fairness of a standing order, and a right had been given to the workman also. to apply for the modification of any standing order. This Court further observed, at p. 358: The standing orders certified under the Act no doubt become part of the terms of employment by operation of s. 7; but if an industrial dispute arises in respect of such orders and it is referred to the tribunal by the appropriate government, the tribunal has jurisdiction to deal with it on the merits. According to Mr. Gokhale, these observations will clearly indicate that the view of this Court is that prior to 1956, the questions regarding standing orders, could form the subject of an industrial adjudication, under the Act, and he wants us to draw the inference that, after 1956, the view of this Court is, that the jurisdiction of the Industrial Tribunal, in such matters, has been taken away. We are not inclined to accept this contention of the learned counsel, for, this Court, in the above decision, had no occasion to consider the provisions of the Standing Orders Act, in relation to the Act. In fact, there is no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders themselves in respect of industrial establishments to which the Act applies. We have noticed that the Certifying Officer as well as the appellate authority are, in substance, industrial authorities and if they are given power to make provision for leave and holidays as they undoubtedly are given power to provide for termination of employment and suspension or dismissal for misconduct, there is nothing inconsistent with the spirit of the Schedule or With the object of the Act. and attempted to persuade us to hold that in respect of all the matters, covered by the standing orders, exclusive jurisdiction is vested only in the authorities, constituted under the Standing Orders Act. Though, prima facie, the above observations may appear to give some support to this contention of Mr. Gokhale, in our opinion, those observations must be limited to the question that this Court was considering, in that case, which. again. was with reference to the powers of the authorities, under the Standing Orders Act, as well as the rights of the parties, with reference to those standing orders. But, at any rate, as we shall presently show, in the later decision, the question of jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h we are deciding is whether under the scheme of the Act, it is permissible to the employer to require the appropriate authorities Under the Act to certify two different sets of Standing Orders in regard to any of the matters covered by the Schedule. None of the above decisions lend support to the contentions :of the learned counsel for the appellant that, after the amendment .effected in 1956, to the Standing Orders Act, the Industrial Tribunal will have no jurisdiction, under the Act, to adjudicate upon any disputes in relation to matters, covered by the Standing Orders, framed under the Standing Orders Act. Further, accepting the contention of the learned counsel for -the appellant, will be to practically wipe out the existence of the Act, so far as industrial establishments, governed by the Standing Orders Act, are concerned. The Legislature, in 1956, amended, .by the same Act viz., Act XXXVI of 1956, both the Act and the 'Standing Orders Act. Schedules were also incorporated in the Act, and. in particular, the same item. which is referred to in s. 13A, of the Standing Orders Act, is again referred to, as item 2. of the Second Schedule to the Act, over which the Labo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or giving a right and remedy, to the workman, under the Standing Orders Act itself, but there is no indication, in the scheme of the Standing, Orders Act, that the jurisdiction of the Industrial Tribunal, to entertain an 'Industrial dispute', bearing upon the standing orders of in industrial establishment, and to adjudicate upon the same, has any manner been abridged, or taken away, by the Standing Orders Act. Therefore, on this aspect, we are in agreement with the conclusions, arrived at, by the Industrial Tribunal, and the High Court. But, in view of our finding on the first point, that the award, Exhibit M-6 'had not been terminated. it follows that the reference. made by the State Government, dated March 20,1963, in his case, is incompetent, and the Industrial Tribunal has no jurisdiction to adjudicate upon the same, in I.D. No. 8 of 1963. In the result, the order :of the High Court is set aside, and a writ of prohibition, restraining the second respondent, from proceeding with the adjudication, in I.D. No. 8 of 1963, will issue, and the appeal allowed, to that extent. Parties will bear their own costs, in this appeal. Appeal allowed in part. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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