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TMI Blog1968 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... award was paid. But the company gave a fresh notices of termination of his services to the appellant on the ground that it had lost confidence in him. The appellant was paid one month's salary in lien of period of notice. The matter was, however, again referred to the labour court which held on 8 October 1959, that the company had wrongfully and unjustifiably terminated the service of S.P. Srivastava inasmuch as the standing order, which provided for an opportunity to be given to the employee to explain his position before terminating his services in such circumstances, had not been complied with. 2. The Company then filed a writ petition against the award given by the labour court on 8 October 1959. It claimed the benefit of the particular agreement between the parties and contended that it prevailed over the standing orders of the company. Oak, J. (as he then was), accepted the company's submissions and quashed the award of the labour court. Following his own previous decision in J.K. Cotton Manufacturers v. J.N. Tewari AIR1959All639 , the learned Judge held that a special contract would prevail over the provisions of the standing orders. S.P. Srivastava, the employee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have to assume that there is a conflict between the terms of the special contract of service between the employee and company and the standing orders of the company, which have been duly adopted and certified in accordance with the procedure laid down in the Industrial Employment (Standing Orders) Act 20 of 1946 (hereinafter referred to as the Act). 5. Both sides have placed some reliance upon the preamble to the Act. Although, a preamble cannot be used to contradict the specific provisions of an Act, yet it can be used as the key to the statute, and affords a clue to the scope of the statute, where the words construed in themselves without the aid of the preamble are capable of more than one meaning. See Powel v. Kempton Park racecourse Co. 1989 A.C. 143. The preamble of the Act before us gives the object of the Act to be- to require employers in industrial establishments to define with sufficient precision the conditions to employment under them and to make the special conditions known to workmen employed by them. It is contended on behalf of the company that the sole object of the Act was to give publicity to the conditions of employment offered but not to exclude contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Act. 8. Section 3 of the Act makes it obligatory upon every employer of an industrial establishment to submit drafts of proposed standing orders "for adoption in his industrial establishment" after due examination by a certifying officer appointed under the Act. Section 4 of the Act lays down the conditions of certification of the standing orders indicating that all matters specified in the schedule must be provided for and that the certifying officer must see that the standing orders conform to the provisions of the Act and adjudication upon "the fairness or reasonableness" of the provisions of the standing orders. Section of the Act provides a quasi-judicial procedure for certification of the standing orders and for their modification. Section 6 of the Act provides for appeals by aggrieved persons against the orders of the certifying officer. The date of the operation of the standing orders is governed by Section of the Act. The registration of the standing orders with a with a certifying officer, who is obliged to furnish a copy of the standing orders to any person applying for the same on payment of the prescribed fee, is contained in Section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment servants, framed by appropriate authorities, which govern relations between the Government and its servants. The object of the standing orders appears to be not only to ensure due publicity of terms and conditions service but also a precise formulation of those terms and condition, after considering that farness and reasonableness which demand some security of service and freedom from arbitrary deprivations of service, so that these conditions are observed of may prevail. 10. The abovementioned summary examination of the provisions of the Act clearly shows us that the standing orders were meant to constitute a set of basic general rules, which could not be ignored or abandoned, departed from, modified, or varied by special agreements with regard to any matter specifically contained in the standing orders. It is true that the standing orders do not prohibit special agreements between employers and employees. Such special agreements may be necessary for providing special terms and amenities to workmen having special value to their employers. But, it appears that the basic and general conditions contained in the standing orders could not be by passed by adopting the device of sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers was not given to the employees prior to the amendment of Section 10(2).... Nevertheless the standing orders when they were certified become operative and bound the employer and all his employer and all his employees.... His lordship also observed at p. 411: The standing orders certified under the Act, no doubt, become part of the terms of employment by operation of Section 7; but if an industrial dispute arises in respect of such orders and if it is referred to the tribunal by the appropriate Government, the tribunal has jurisdiction to deal with it on the merits. 12. The binding character of the standing orders, so far as the employer on one side and his workmen on the other are concerned, was not doubted. It seems to follow from this view that, whatever may be the jurisdiction of the industrial tribunal when a dispute with regard to a standing order arises; the employer and the workmen are bound by their standing orders and could not modify them by adopting the simple device of a special contract. 13. In Bagalket Cement Co. Ltd. v. B.K. Pathan and Ors., Gajendragadkar, J., dealt with the object of the Act at p. 206: …The Act was passed in 1946 because the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In that case, it may be permissible. In that case, it may be permissible to urge that the statutory provision contained in the Act should override the standing order which had been certified before the said statutory provisions were enacted.... In that case, the question under consideration was whether any provisions of the Act could have overridden the provisions of the standing orders. By holding that the standing orders could only be overridden by specific provisions of the Act, which may have been introduced after the standing order in question was certified, the Supreme Court seemed to rule out any method of modifying the obligation imposed by the standing orders falling outside statutory provisions. 17. It is true that, in the cases mentioned above, the Supreme Court pointed out that standing orders could be modified by agreement between the parties in accordance with the provisions of the Act itself. This meant that the manner for the modification of the standing orders by agreement having itself been specified by the Act, no other mode of modification by agreement was permissible. The particular agreements by which standing orders under the Act, Each agreement embodied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the employer and the workman. It could not, therefore, be possible is law for the parties in this case, namely, the petitioner and respondent 2, to enter into a contract overriding the statutory contract as embodied in the certified standing orders and any contract contrary to the above orders must be ignored. In face of the above standing orders, the petitioner could not appoint respondent 2 on conditions of service different from those defined in the standing orders without a modification of the standing orders themselves. 20. Sri Jagdish Swarup appearing on behalf of the respondent-company, submitted that the relationship between an employer and the employees retains its contractual character notwithstanding the certification of standing order under the Act. He compared the position to that which flowed from a consent decree which was an order of the Court superimposed upon an agreement between the parties. The learned Counsel contended that the only purpose of the standing order was to define with precision the conditions of service, which were, nevertheless, governed by contract. According to the learned Counsel the amendment of the Act in 1956 gave the certifying of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative orders which derive their force from executive authority and were either made for the convenience of the administration or for the benefit of individuals. In that case, a "tharav order" (tharav means a resolution) was held to satisfy the definition of the term "law". In Raj Kumar Narsing Pratap Singh Deo v. State of Orissa [1964] 7 SCR 112, Gajendragadkar, C.J., held: Stated broadly, a law generally is a body or rules which have been laid down for determining legal rights and legal obligations which are recognized by Courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant, not so in the case of law. 23. We do not think that the three Supreme Court cases mentioned above, which were cited on behalf of the company, could possibly support the contention that the standing orders certified under the Act are not laws in the sense that they are rules binding upon and determining the legal rights and obligations of these subjected to the standing orders. The processes of lawmaking and the sources of law are diverse as a glance at w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, it may be observed that our Supreme Court, in H.C. Narayanappa v. State of Mysore [1960]3SCR742 characterized a scheme of nationalization of motor transport, under Chap. IVA of the Motor Vehicles Act by a quasi-judicial procedure, as "law." The manner in which a set of rules which bind a group of persons, whether they like it or not, comes into existence does not prevent their recognition by Courts. In the ultimate analysis, it is the fact that Courts enforce those rules against persons subjected to them which gives authoritative recognition to certain rules as laws. The Courts are bound, in our opinion, to give such recognition to rules made under the provisions of a statute and meant by the legislature to be observed. 27. It may be that standing orders made under the Act cannot be called "statutory rules" in the sense in which that them was used in England under the Rules Publication Act, 1893. There, "statutory rules" were "rules, regulations, or bylaws made under Act of Parliament," relating to a Court or made by certain specified authorities. This Act was wholly repealed and replaced by the Statutory Instruments Act, 1946, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this country from the point of view of nomenclature or manner in which the standing orders are made. 30. The standing orders under consideration are perhaps more closely akin in legal character to "bylaws" than to any other typed of "laws." Bylaws, rules, and regulations made "by persons, societies or corporations (whether by the common law or statute) who are conducting commercial or other enterprises whether of a public character or not" are classed under the heading of "subordinate legislation." See Craies on Stature Law, 5th Edn., p. 275. 31. It has been held that bylaws made by local Government authorities are binding upon them. In Yabbicom v. King (1899) 1 Q.B. 444 (a) it was said: The district council could not control the law, and bylaws properly made have the effect of laws; a public body cannot any more than private persons dispense with laws that have to be administered; they have no dispensing power whatever. In William Bean & Sons v. Flaxion Rural Council (1929) 1 K.B. 450 at 467, Sankey, L.J. said that: A local authority has no power to sanction plans in contravention of its own bylaws properly made. Thus, even law-making ..... X X X X Extracts X X X X X X X X Extracts X X X X
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