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CASE NO.: Appeal (civil)  5003 of 2002

PETITIONER: Bajaj Auto Ltd.                                          

RESPONDENT: Bhojane Gopinath D. & Ors.                                             

DATE OF JUDGMENT: 17/12/2003

BENCH: Y.K.SABHARWAL &  B.N.AGRAWAL  

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NOS. 5005, 5025, 5026, 5027 &  5028 OF 2002

B.N. AGRAWAL,J.

       These appeals by special leave have been filed by appellant-Company  against judgment rendered by Aurangabad Bench of  Bombay High Court in writ  applications whereby Award made by Industrial Court, Aurangabad, in the  individual complaints filed by respondents-workmen has been modified.           The short facts are that the respondents-workmen, 1197 in number, who  were in employment of the appellant-Company in its factory at Bajaj Nagar,  Waluj, within the District of Aurangabad, filed individual complaints before the  Industrial Court at Aurangabad, under Section 28 of the Maharashtra Recognition  of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter  referred to as ‘the 1971 Act’) complaining thereunder that unfair labour practices  enumerated in Item Nos. 5,6,9 and 10 of Schedule IV appended to the 1971 Act  were employed by the appellant-Company in the establishment in question.   According to the workmen, they were appointed as welder, fitter, turner,  mechanic, helper, grinder, etc., and were working since the year 1990 and used  to be granted employment in each year for about a period of seven months and  after expiry of the said term their services used to be discontinued, which  practice went on for a period of seven years till before filing of the complaints by  them in the year 1997.  It was stated that a rotation system was followed by the  appellant-Company whereby different set of workmen came to be appointed by  rotation displacing the workmen appointed earlier which was indicative of the fact  that work of permanent nature was available with the appellant-Company, but the  rotational system was introduced by it with a view to deprive the workmen of  rights and privileges of permanent employees so that they may not be entitled to  claim benefit of permanency on completion of 240’ days uninterrupted service in  the aggregate in any establishment during a period of preceding twelve calendar  months as envisaged under rule 4C of the Model Standing Orders which was  applicable to the establishment in question.         The appellant-Company contested claims of the workmen by stating that  conditions of employment of the workmen were governed by the Standing  Orders, duly certified on 10th March, 1986 by the Certifying Officer under the  provisions of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter  referred to as ‘the 1946 Act’) wherein there was no provision akin to rule 4C of  the Model Standing Orders.  According to the appellant-Company, it had  employed 4250 workmen on permanent basis so as to meet the requirement of  normal production.  However, due to periodical fluctuations of a temporary nature  in the quantum of production at the factory from time to time, dictated by the  conditions at the national and international market, to which the said  establishment is exposed, the work force is increased or decreased.  In order to  meet the fluctuations, the appellant-Company was required to employ workmen  on temporary basis and, so also, as to when production decreased, it was

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required to terminate services of the temporary workmen.  Further, as,  undisputedly, none of the workmen had worked continuously for 240 days, much  less during a period of preceding twelve calendar months, they were not entitled  to claim any benefit on that count.           In support of their respective cases, both the parties led oral and  documentary evidence and the Industrial Court came to the conclusion that no  unfair labour practice, as enumerated in Item Nos. 5 and 10 of Schedule IV,  could be established, but found that the workmen had succeeded in proving the  unfair labour practices enumerated under Item Nos. 6 and 9 of the said  Schedule.  After recording the aforesaid findings vide Award dated 9.11.2000 the  Industrial Court directed the appellant-Company "how many permanent  employees are required as per the production norms be fixed and after making  the employees permanent from these temporary employees, if there is a need of  any temporary workers, they can engage but after absorbing all these  complainants in the employment they can engage temporary workers, as per  seniority".   The appellant-Company was further directed "to prepare a seniority  list of all the temporary workers who are in employment and who are not in the  employment and give them continuous work and after completion of 240 days of  service, make them permanent in the employment".         Aggrieved by the aforesaid Award, five writ applications were filed before  the High Court on behalf of the workmen challenging the aforesaid directions of  the Industrial Court.  The appellant-Company also filed a writ application  challenging the directions regarding permanency and finding of the Industrial  Court whereby it had come to the conclusion that the appellant-Company had  employed unfair labour practice in its establishment in relation to matters  enumerated in Item Nos. 6 and 9 of Schedule IV.    During the pendency of the  writ applications, on  prayer being made on behalf of the workmen, the High  Court by its order dated 30th November, 2000 directed the appellant-Company to  continue services of the workmen, although liberty was granted to it to terminate  services of any of the workmen after observing legal requirements, but in spite of  that order on 9.1.2001 the services of all the respondents-workmen were  terminated.  By the impugned order passed on 8.9.2001, the High Court  dismissed the writ application filed on behalf of the appellant-Company, but,  while upholding the finding of unfair labour practice recorded by the Industrial  Court, set aside the ultimate direction given by it and found that as the  termination of services of the respondents-workmen was in violation of interim  order passed by the High Court on 30th November, 2000, they were entitled to  restitution.  In effect and substance, it was directed that the respondents- workmen shall be reinstated in service with 50% back wages from 10th January,  2001 till the date of High Court judgment. The Court further directed that the  services of the respondents-workmen shall be regularised and they be made  permanent from the date of filing of the complaints before the Industrial Court.    Challenging the aforesaid judgment, the present appeals by special leave have  been filed by the appellant-Company.           Shri J.P. Cama, learned Senior Counsel, in support of the appeals  submitted that the appellant-Company had not employed any unfair labour  practice enumerated under Item No. 6 of the Schedule inasmuch as rule 4C of  the Model Standing Orders, whereby a right of permanency could be acquired by  a workman upon completion of uninterrupted service of 240 days in the  aggregate in an establishment during a period of preceding twelve calendar  months, was not applicable in the present case in view of the fact that there was  no such rule in the Standing Orders duly certified.  On the other hand, Shri K.K.  Singhvi, learned Senior Counsel appearing on behalf of the respondents- workmen, submitted that under law rule 4C of the Model Standing Orders which  related to matters set out in Item No. 10-C of the Schedule appended to the 1946  Act, as amended by the State Legislature, could not have been deleted while  certifying the amendments in the Model Standing Orders by the competent  authority and the said Order to that effect being in violation of the mandatory  provisions of law is ab initio void and has got to be ignored, meaning thereby rule  4C would be applicable in the case on hand.           Question that falls for our consideration is as to whether rule 4C of the  Model Standing Orders would be applicable to the respondents-workmen of the  appellant-Company.  To appreciate the point involved, it may be useful to refer to  the relevant provisions of Industrial Employment (Standing Orders) Act, 1946  enacted by the Parliament, rules framed thereunder by the Central Government

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and Model Standing Orders prescribed thereunder vis-‘-vis provisions of the said  Act applicable to the State of Maharashtra after incorporating State amendments  in the Act, State Rules and Model Standing Orders prescribed thereunder, which  run thus:- Provisions of Industrial Employment  (Standing Orders) Act, 1946, Central  Rules and Model Standing Orders  prescribed thereunder Provisions of the Industrial  Employment (Standing Orders) Act,  1946 applicable in the State of  Maharashtra after incorporating State  amendments together with State Rules  and Model Standing Orders prescribed  thereunder TITLE OF THE ACT An Act to require employers in  industrial establishments formally  to define conditions of employment  under them TITLE OF THE ACT An Act to provide for Rules defining  with sufficient precision certain  conditions of employment in  industrial establishments in the  State of Bombay. PREAMBLE Whereas it is 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.  PREAMBLE   Whereas it is expedient to provide for  defining with sufficient precision  certain conditions of employment in  industrial establishments in the State  of Bombay, and for certain other  matters.  Section 2(1-a): Not incorporated Section 2(1-a): "amendments" means  in relation to the model standing  orders, any amendments proposed to  such orders under Section 3 and  includes any alterations, variations or  additions proposed thereto.  

Section 2(ee): Not incorporated  Section 2(ee): "model standing orders"  means standing orders prescribed  under section 15. Section 2A: Not incorporated  Section 2A: Application of model  standing order in every industrial  establishment.-(1) Where this Act  applies to an industrial establishment,  the model standing order for every  matter set out in the Schedule  applicable to such establishment shall  apply to such establishment from such  date as the State Government may by  notification in the Official Gazette  appoint in this behalf;       Provided that nothing in this section

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shall be deemed to affect any Standing  Orders which are finally certified under  this Act and have come into operation  under this Act in respect of any  industrial establishment before the date  of the coming into force of the Industrial  Employment [Standing Orders  (Bombay Amendment) Act, 1957]      (2) Notwithstanding anything  contained in the proviso to sub-section  (1) model standing orders made in  respect of additional matters included  in the Schedule after the coming into  force of the Act referred to in that  proviso (being additional matters  relating to probationers or badlis or  temporary or casual workmen) shall,  unless such model standing orders are  in the opinion of Certifying Officer less  advantageous to them than the  corresponding standing orders  applicable to them under the said  proviso, also apply in relation to such  workmen in the establishments referred  to in the said proviso from such date as  the State Government may, by  notification in the Official Gazette,  appoint in this behalf.  

Section 3: Submission of draft  standing orders.\027(1) Within six  months from the date on which this Act  becomes applicable to an industrial  establishment, the employer shall  submit to the Certifying Officer five  copies of the draft standing orders  proposed by him for adoption in his  industrial establishment.       (2) Provision shall be made in such  draft 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.       (3) The draft standing orders  submitted under this Section shall be  accompanied by a statement giving  prescribed particulars of the workmen  employed in the industrial  establishment including the name of  the trade union, if any, to which they  belong.        (4) Subject to such conditions as  may be prescribed, a group of  employers in similar industrial  establishments may submit a joint  draft of standing orders under this  section.  Section 3: Submission of  amendments.\027(1) Within six months  from the date on which the model

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standing orders apply to any industrial  establishment under Section 2-A, the  employer or any workman employed  therein may submit to that Certifying  Officer five copies of the draft  amendments for adoption in such  industrial establishment :       Provided that no amendment which  provides for the deletion or omission of  any rule in the model standing orders  relating to any matter set out in the  Schedule shall be submitted under this  Section.       (2) Deleted.      (3) The draft amendments  submitted under this section shall be  accompanied by a statement giving  prescribed particulars of the workmen  employed in the industrial  establishment including the name of  the trade union, if any, to which they  belong.      (4) Subject to such conditions as  may be prescribed, a group of  employers in similar industrial  establishments may submit a joint  draft of amendments under this  section.  

Section 4: Conditions for  certification of standing orders.\027 Standing orders shall be certifiable  under this Act if\027      (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;  and it shall be the function of the  Certifying Officer or appellate authority  to adjudicate upon the fairness or  reasonableness of the provisions of  any standing orders.  

Section 4: Deleted.  Section 5: Certification of standing  orders.\027(1) On receipt of the draft  under section 3, the Certifying Officer  shall forward a copy thereof to the  trade union, if any, of the workmen, or  where there is no such trade union, to  the workmen in such manner as may  be prescribed, together with a notice in  the prescribed form requiring  objections, if any, which the workmen  may desire to make to the draft  standing orders to be substituted to  him within fifteen days from the receipt  of the notice.       (2) After giving the employer and  the trade union or such other  representatives of the workmen as  may be prescribed an opportunity of

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being heard, 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 this Act, and  shall make an order in writing  accordingly.       (3) The Certifying Officer shall  thereupon certify the draft standing    orders, after making any modifications  therein which his order under sub- section (2) may require, and shall  within seven days thereafter send  copies of the certified standing orders  authenticated in the prescribed  manner and of his order under sub- section (2) to the employer and to the  trade union or other prescribed  representatives of the workmen.  Section 5: Certification of  amendments.\027 (1) On receipt of the  draft under Section 3, the Certifying  Officer shall forward a copy thereof to  the trade union, if any, of the  workmen, or where there is no such  trade union, to the workmen in such  manner as may be prescribed or the  employer, as the case may be,  together with a notice in the prescribed  form requiring objections, if any, which  the workmen, or employer may desire  to make to the draft amendments to be  submitted to him within fifteen days  from the receipt of the notice.       (2) After giving the employer, the  workmen submitting the amendment  and the trade union or such other  representatives of the workmen as  may be prescribed an opportunity of  being heard the Certifying Officer shall  decide whether or not any modification  of the draft submitted under sub- section (1) of Section 3 is necessary,  and shall make an order in writing  accordingly.       (3) The Certifying Officer shall  thereupon certify the draft  amendments after making any  modifications therein which his order  under sub-section (2) may require, and  shall within seven days thereafter send  copies of the model standing orders  together with copies of the certified  amendments thereof, authenticated in  the prescribed manner and of his order  under sub-section (2) to the employer  and to the trade union or other  prescribed representatives of the  workmen.  Section 6: Appeals.\027 Any employer,  workman, trade union or other  prescribed representatives of the  workman aggrieved by the order of the  Certifying Officer under sub-section (2)

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of section 5 may, within thirty days  from the date on which copies are sent  under sub-section (3) of that section,  appeal to the appellate authority, and  the appellate authority, whose decision  shall be final, shall by order in writing  confirm the standing orders either in  the form certified by the Certifying  Officer or after amending the said  standing orders by making such  modifications thereof or additions  thereto as it thinks necessary to render  the standing orders certifiable under  this Act.       (2) The appellate authority shall,  within seven days of its order under  sub-section (1), send copies thereof of  the Certifying Officer, to the employer  and to the trade union or other  prescribed representatives of the  workmen, accompanied, unless it has  confirmed without amendment the  standing orders as certified by the  Certifying Officer, by copies of the  standing orders as certified by it and  authenticated in the prescribed  manner.  Section 6: Appeals.\027(1) Any  employer, workman, trade union or  other prescribed representatives of the  workmen aggrieved by the order of the  Certifying Officer under sub-section (2)  of Section 5 may, within thirty days  from the date on which copies are sent  under sub-section (3) of that section,  appeal to the appellate authority, and  the appellate authority, whose  decision, shall be final, shall by order  in writing confirm the amendments  either in the form certified by the  certifying officer or after further  modifying the same as the appellate  authority thinks necessary.       (2) The appellate authority shall,  within seven days of its order under  sub-section (1), send copies thereof to  the Certifying Officer, to the employer  and to the trade union or other  prescribed representatives of the  workmen accompanied unless it has  confirmed without further modifications  the amendments as certified by the  Certifying Officer by copies of the  model standing orders together with  the amendments as certified by it and  authenticated in the prescribed  manner.  Section 7. Date of operation of  standing orders.- Standing Orders   shall, unless an appeal is preferred  under section 6, come into operation  on the expiry of thirty days from the  date on which authenticated copies  thereof are sent under sub-section (3)  of section 5, or where an appeal as

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aforesaid is preferred, on the expiry of  seven days from the date on which  copies of the order of the appellate  authority are sent under sub-section  (2) of section 6.  Section 7. Date of operation of  standing orders or amendments.   Standing Order or amendments shall,  unless an appeal is preferred under  Section 6, come into operation on the  expiry of thirty days from the date on  which authenticated copies thereof are  sent under sub-section (3) of section  5, or where an appeal as aforesaid is  preferred, on the expiry of seven days  from the date on which copies of the  order of the appellate authority are  sent under sub-section (2) of Section  6. Section 10: Duration and  modification of standing orders.\027 (1) Standing orders finally certified  under this Act shall not, except on  agreement between the employer and  the workmen or a trade union or other  representative body of the workmen  be liable to modification until the expiry  of six months from the date on which  the standing orders or the last  modifications thereof came into  operation.       (2) Subject to the provisions of sub- section (1), an employer or workman  or a trade union or other  representative body of the workmen  may apply to the Certifying Officer to  have the standing orders modified and  such application shall be accompanied  by five copies of the modifications  proposed to be made, and where such  modifications are proposed to be  made by agreement between the  employer and the workman or a trade  union or other representative body of  the workmen a certified copy of that  agreement shall be filed along with the  application.       (3) The foregoing provisions of this  Act shall apply in respect of an  application under sub-section (2) as  they apply to the certification of the  first standing orders.       (4) Nothing contained in sub- section (2) shall apply to an industrial  establishment in respect of which the  appropriate Government is the  Government of the State of Gujarat or  the Government of the State of  Maharashtra. Section 10: Duration and  modification of standing orders.\027 (1) Standing Orders or the  amendments finally certified under this  Act shall not, except on agreement  between the employer and the

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workmen or a trade union or other  representative body of the workmen  be liable to modification until the expiry  of six months from the date on which  the standing orders or the  amendments or the last modifications  thereof came into operation and where  model standing orders have not been  amended as aforesaid, the model  Standing Orders shall not be liable to  such modification until the expiry of  one year from the date on which they  were applied under Section 2-A.       (2) Subject to the provisions of sub- section (1), an employer, workman or  a trade union or other representative  body of the workmen or any  prescribed representatives of workmen  desiring to modify the standing orders  or the model standing orders together  with the amendments, as finally  certified under this Act, or the model  standing orders applied under Section  2-A, as the case may be, shall make  an application to the Certifying Officer  in that behalf, and such application  shall be accompanied by five copies of  the standing orders, or the model  standing orders, together with all  amendments thereto as certified under  this Act or model standing orders in  which shall be indicated the  modifications proposed to be made  and where such modifications are  proposed to be made by agreement  between the employer and workmen  or a trade union or other  representative body of the workmen a  certified copy of the agreement shall  be filed along with the application.       (3) The foregoing provisions of this  Act shall apply in respect of an  application under sub-section (2) as  they apply to the certification of the  first amendments.       (4) Nothing contained in sub- section (2) shall apply to an industrial  establishment in respect of which the  appropriate Government is the  Government of the State of Gujarat.  Section 13(1): Penalties and  procedure.\027(1) An employer who  fails to submit draft standing orders as  required by section 3, or who modifies  his standing orders otherwise than in  accordance with section 10, shall be  punishable with fine which may extend  to five thousand rupees, an in the case  of a continuing offence with a further  fine which may extend to two hundred  rupees for every day after the first  during which the offence continues.  Section 13(1): Penalties and  procedure.\027(1) An employer who  modifies the standing orders, model

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standing orders or amendments,  otherwise than in accordance with the  provisions of this Act shall, on  conviction, be punished with fine which  may extend to five thousand rupees,  an in the case of continuing offence  with a further fine which may extend to  two hundred rupees for every day after  the first during which the offence  continues.  THE SCHEDULE Matters to be provided in standing  orders under this Act.  10-C: Not incorporated  THE SCHEDULE  Matters to be provided in Standing  Orders (Model Standing Orders and  Amendments) under this Act. 10-C: Employment or re-employment  for probationers or badlis or temporary  or casual workmen, and their  conditions of service.  

INDUSTRIAL EMPLOYMENT  (STANDING ORDERS)            CENTRAL RULES, 1946 SCHEDULE I Model Standing Orders  Rule 4C: Not incorporated  

BOMBAYINDUSTRIAL EMPLOYMENT  (STANDING ORDERS) RULES, 1959 SCHEDULE 1 Model Standing Orders Rule 4C: A badli or temporary  workman who has put in 190 days’  uninterrupted service in the aggregate  in any establishment of seasonal  nature or 240 days "uninterrupted  service" in the aggregate in any other  establishment, during a period of  preceding twelve calendar months,  shall be made permanent in that  establishment by order in writing  signed by the Manager, or any person  authorised in that behalf by the  Manager, irrespective of whether or  not his name is on the muster roll of  the establishment throughout the  period of the said twelve calendar  months.       Explanation.- For purposes of this  clause any period of interrupted  service, caused by cessation of work  which is not due to any fault of the  workman concerned, shall not be  counted for the purpose of computing  190 days or 240 days, or, as the case  may be, for making a badli or  temporary workman permanent.  

       From a bare perusal of the relevant provisions of the 1946 Act,

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promulgated by the Parliament, it would appear that the very title of the Act  requires the employers in industrial establishments formally to define conditions  of employment under them.  Preamble to the Act shows that it was found  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 the workmen employed by them.  This shows that the  conditions of employment of workmen in an industrial establishment are required  to be defined by the employer in accordance with the procedure prescribed under  the 1946 Act and the rules framed thereunder.  Under Section 3,  within a period  of six months from the date on which the Act becomes applicable to an industrial  establishment, every employer has no option but to submit to the Certifying  Officer  draft standing orders proposed by him for adoption in his industrial  establishment.  Sub-section (2) of Section 3 lays down that provisions shall be  made in such draft 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, as far as is practicable, in conformity  with model  standing orders.  Under Section 4 draft standing orders shall be certifiable if  provision is made therein for every matter set out in the Schedule which is  applicable to the industrial establishment and the same are otherwise in  conformity with the provisions of the Act inasmuch a duty has been cast upon the  certifying officer or the appellate authority to adjudicate upon the fairness or  reasonableness of the provisions of any draft standing orders.  Under Section 5  the certifying officer is required to  give notice to the parties concerned inviting  their objections.  Upon receipt of the objection, if any, the certifying officer is  required to pass an order certifying the draft standing orders as it is or with any  modification or addition.  Section 6 provides for an appeal against the order of  certifying officer.  Section 7 lays down that the standing orders so certified shall  become operative on the expiry of 30 days from the date on which authenticated  copies of the certified standing orders are sent to the employer and to the trade  union or other prescribed representatives of the workmen and in case an appeal  is preferred, within 7 days from the date on which copies of appellate order are  sent to the aforesaid persons.  According to Section 10, the standing order so  certified shall not be liable to modification unless agreed to by the parties by  making an application to that effect before the certifying officer any time after the  expiry of period of six months from the date the certified standing orders came  into operation, which shows that once standing orders are certified, no  modification whatsoever is permissible unless both the parties consent to the  same.  Under Section 13(1), if an employer fails to submit draft standing orders  for certification, he shall be liable to be prosecuted.          So far as the State of Maharashtra is concerned, drastic amendments in  the 1946 Act have been made by the State Legislature by virtue of Industrial  Employment (Standing Orders) (Bombay Amendment) Act, 1957 and Industrial  Employment (Standing Orders) (Maharashtra Amendment) Act, 1974.  The State  Legislature amended the title of the 1946 Act to provide rules defining with  sufficient precision certain conditions of employment in industrial establishments  in the State of Maharashtra.  It also amended Preamble of the 1946 Act as it was  found expedient to provide for defining with sufficient precision certain conditions  of employment in industrial establishments in the State of Maharashtra and  certain other matters.  By Section 2(1-a) the expression ‘amendments’ has been  defined in relation to model standing orders to mean any amendments proposed  to such orders under Section 3 and includes any alterations, variations or  additions proposed thereto.  Under Section 2(ee), as inserted by State  amendment, the expression ‘model standing orders’ was defined to mean  standing orders prescribed by Rules framed under Section 15.  Section 2A(1)  lays down that where the Act applies to an industrial establishment, the model  standing orders for every matter set out in the Schedule applicable to such  establishment shall apply to such establishment from such date as the State  Government may by notification in the Official Gazette appoint in this behalf and  the State Government has appointed 15th of January, 1959 to be the date for the  purposes of the said sub-section.  This shows that model standing orders,  prescribed by Bombay Industrial Employment (Standing Orders) Rules, 1959  framed under Section 15 by the Government of Maharashtra, ipso facto would be  applicable with effect from 15th January, 1959.  In Section 3 of the 1946 Act, as  amended by the State Legislature,  a complete departure has been made vis-‘- vis Section 3 of the 1946 Act.  Under the 1946 Act, as stated above, there is a

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compulsion upon the employer to submit draft standing orders for certification  failing which he entails penalty of prosecution under Section 13(1) whereas  under Section 3, as amended by the State Legislature, there is no such  requirement  and consequently no penalty provided under Section 13(1) in view  of the fact that by virtue of sub-section (1) of Section 2A the model standing  orders ipso facto apply to the industrial establishment from the date enumerated  in the notification issued by the State Government. However, under Section 3, if  the  employer or any workman employed in an establishment intends any  amendment in the model standing orders, in that eventuality alone any of them  may submit to the Certifying Officer such draft amendments for adoption in such  industrial establishment within six months from the date on which the model  sanding orders applied to the industrial establishment under sub section (1) of  Section 2A.  This shows that it is not imperative either on the employer or the  workmen to apply for amendments in the model standing orders, but it is  optional.  However, even this step on their part is controlled by the proviso to  Section 3(1) which lays down that no amendment which provides for deletion or  omission of any rule in the model standing orders relating to any matter set out in  the Schedule shall be submitted under this Section.  Proviso mandates the  employer as well as the workmen not to seek any  amendment which has the  effect of deleting or omitting any rule in the model standing orders relating to any  matter set out in the Schedule.  If there is a mandate upon a party not to apply for  such amendment, the certifying officer in the purported exercise of power under  Section 5 cannot assume jurisdiction to grant such an amendment as the same  will be in flagrant violation of legislative mandate which is in the form of a  negative command.           It would be relevant to state that Item No. 10-C has been incorporated in  the Schedule of 1946 Act by the State Legislature in the year 1974 with effect  from 2nd October, 1977 which enumerates matters to be provided in the model  standing orders in relation to "employment or re-employment of probationers or  badlis or temporary or casual workmen, and their conditions of service".  By  virtue of Bombay Industrial Employment (Standing Order) (Amendment) Rules,  1977, which were published in the Bombay Gazette  on 28th September, 1977  and came into force with immediate effect, rule 4C was incorporated in the model  standing orders which lays down that a temporary workman, who has put in 240’  days uninterrupted service in the aggregate in any establishment during a  period  of preceding twelve calendar months, shall be made permanent in that  establishment by order in writing signed by the manager or any person  authorised in that behalf by the manager, irrespective of whether or not his name  is on the muster roll of the establishment throughout the period of said twelve  calendar months.  Rule 4C in the model standing orders has been incorporated  relating to the matter set out in Item No. 10-C of the Schedule, as such deletion  of the said rule by the certifying officer, being in the teeth of legislative command  incorporated in proviso to Section 3(1), was wholly without jurisdiction and would  make the order of certifying officer to that effect null and void and liable to be  disregarded as it is well settled that if an order is null and void, the same can be  disregarded in collateral proceeding or otherwise.  Reference in this connection  may be made to decision of this  Court in the case of Dhurandhar Prasad Singh  v. Jai Prakash University and Ors. JT 2001(5) SC 578.         By Section 4 of the 1946 Act, as amended in 1956 by the Parliament,  which is not applicable to the State of Maharashtra, as would appear from the  State amendment,  a duty has been cast upon the certifying officer and  appellate  authority to adjudicate upon the fairness or reasonableness of the provisions of  any draft standing orders which have been submitted before the certifying officer.   Thus the provision in the 1946 Act being much more wider, the question of  fairness or reasonableness of the draft standing orders submitted for certification  is required to be considered by the aforesaid authorities.  So far as the State of  Maharashtra is concerned, no such discretion has been at all given either to the  certifying officer or the appellate authority in view of the fact that Section 4 has  been deleted by State Amendment.   This shows that provisions of the 1946 Act  as are applicable to the State of Maharashtra are more stringent as the model  standing orders are ipso facto made applicable to industrial establishments within  the State of Maharashtra from 15th of January, 1959 as notified by the State  Government and no such amendment can be made in the model standing orders  which may have the effect of deleting or omitting any of the rules therefrom in  relation to matters enumerated in the Schedule.

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       In support of the submission that wherever there are certified standing  orders of an industrial establishment, the rules thereof shall govern  service  conditions of the workmen in that establishment and not the rules in the model  standing orders, learned counsel appearing on behalf of the appellant placed  reliance upon the decision of this Court in the case of Dunlop India Ltd.  v.  Their workmen (1972) 3 SCC 616 wherein it has been laid down  that upon  certification, it is rules in the certified standing orders which shall be binding on  the employer as well as the workmen which would obviously mean that the  workmen will not be bound by rules in the model standing orders.  Reliance has  been also placed upon another decision of this Court in the case of The United  Provinces Electric Supply Co. Ltd. v. T.N.Chatterjee & Ors.  AIR 1972 SC  1201 wherein it has been laid down that the certifying officer and the appellate  authority are duty bound to examine the question of fairness or reasonableness  of the provisions of draft standing orders at the time of considering the same for  its certification.  In our view, ratio decided in none of the two decisions, is  applicable in the present case as the first case related to industrial establishment  which was within the State of West Bengal and the other one Uttar Pradesh  where no drastic amendments were made by the State Legislature as were made  by the State Legislature in  Maharashtra.  Learned counsel next relied upon the  decision of this Court in the case of Bharat Petroleum Corporation Ltd. v.  Maharashtra General Kamgar Union & Ors. (1999) 1 SCC 626 which was a  case brought to this Court from Maharashtra where before this Court on behalf of  the workmen, argument was advanced that in the certified standing orders, no  departure could be made either in principle or policy, from the model standing  orders.  There, according to model standing orders, an employee of the  corporation could be represented in the disciplinary proceeding by an employee  of another establishment with the only restriction that he should be an office  bearer of a trade union but in the certified standing orders, provision was made  that an employee of the corporation could be represented in the disciplinary  proceeding only by another employee of that very corporation.  The prayer for  certification was refused by the Certifying Officer but granted by the appellate  authority.  When the matter was taken to the Bombay High Court in writ, order  passed by the appellate authority was set aside and the order of rejection of  Certifying Officer restored.  Thereafter, on appeal being preferred before this  Court by the management, the order of appellate authority granting certification  was restored holding that such an amendment in the model standing orders was  permissible.  In the said case, what was proposed was variation of the rule in the  model standing orders by suitably amending the same and not the deletion or  omission of  any rule from the model standing orders.  What is barred under  Section 3 of the 1946 Act is deletion or omission of any rule from the model  standing orders relating to any matter set out in the Schedule.  In the case on  hand, the amendment allowed was not for suitably modifying the rules of the  model standing orders but for deleting the same which is  impermissible.  Thus  the ratio, laid down in the case of Bharat Petroleum Corporation Ltd. (supra)  does not run counter to the submission of learned counsel appearing on behalf of  the workmen.          Learned counsel appearing on behalf of the appellant-Company made an  in vain attempt to challenge finding recorded by the Industrial Court to the effect  that the workmen succeeded in proving that the appellant-Company had  employed unfair labour practice in its establishment in relation to the matters  enumerated in item No. 6 of Schedule IV of the 1971 Act.  We have been taken  through the Award of the Industrial Court in extenso from which it appears that  the Court recorded the said finding after threadbare discussion of evidence  adduced on behalf of the parties and there being no infirmity therein, the High  Court was quite justified in not interfering with the same, accordingly, it is not  possible for this Court to disturb the same in view of the fact that the said finding  is a pure finding of fact and no interference therewith is called for.  Learned counsel next submitted that the High Court was not justified in  affirming finding of the industrial court that the appellant-company had employed  unfair labour practice as enumerated in item No. 9 of Schedule IV of the 1971  Act.   From a bare perusal of item No. 9 of the said Schedule, it would appear  that the unfair labour practice on the part of the employer enumerated thereunder  is "failure to implement award, settlement or agreement".  In the present case,  undisputedly, there is neither any averment nor evidence to show that there was  failure on the part of the employer to implement any settlement or agreement.   

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The only point raised was that in the writ application arising out of order passed  by the Industrial Court in the present proceeding , an interim order was passed  by the High Court permitting the employer to terminate services of workmen in  accordance with the procedure prescribed under the law and there was failure on  the part of the employer to carry out the said direction.  Thus, the only question  that arises is as to whether the aforesaid order of High Court in writ application  can be treated to be an award.  The expression "award" has not been defined in  the 1971 Act.  Sub-section (18) of Section 3  lays down that where words and  expressions used in the 1971 Act are not defined therein, the same shall have  the meaning assigned to them by the Central Act which would obviously mean  Industrial Disputes Act, 1947 enacted by the Parliament,  Section 2(b) whereof  defines "award" to "mean an interim or final determination of any industrial  dispute or of any question relating thereto by any Labour Court, Industrial  Tribunal or National Industrial Tribunal and includes an arbitration award made  under Section 10(A)."  The interim order passed by the High Court in the writ  application cannot be treated to be an award, as determination interim or final by  labour court and tribunals, alone would come within the sweep of the said  definition.  Thus, in our view, it cannot be said that the appellant company was in  any manner employing unfair labour practice enumerated under item No. 9 of  Schedule IV,  as such the High Court was not justified in confirming finding of the  Industrial Court on that score.          Learned counsel appearing on behalf of the appellant-Company then  submitted that the High Court was not justified in holding that principle of  restitution would apply as restitution cannot be resorted to if any action has been  taken in violation of interim order passed by a court.  On the other hand, learned  counsel appearing on behalf of the respondent submitted that the said principle  shall have application in the present case.  In our view, in the case on hand, it is  not necessary to go into this question in view of the nature of order which we  propose to pass.  According to Section 30 of the 1971 Act, if an Industrial Court  or Labour Court, as the case may be, comes to the conclusion that the employer  has employed or is employing any unfair labour practice, it may pass a  declaratory order to that effect and direct such employer to cease and desist from  such unfair labour practice.  Apart from that, further, in such an eventuality, such  courts could pass any of the consequential orders enumerated under Sections  30(1)(b) of the 1971 Act, namely, reinstatement of the employees with or without  back wages or the payment of reasonable compensation to the employees  affected by the unfair labour practice.  In the facts and circumstances of the  present case, we are of the view that it was not a fit case in which the High Court  should have directed reinstatement of the workmen.  It was also not justified in  directing payment of 50% back wages to them as, in our view,  they were entitled  to payment of reasonable amount of compensation in terms of Section 30(1)(b)  of the 1971 Act.          At this stage it may be stated that during the course of hearing, learned  counsel appearing on behalf of the parties stated that disputes between the  appellant -Company and 1006 workmen, who are respondent Nos. 4, 5, 7-10, 13- 15, 17, 21-33, 35-36, 38, 40, 42, 44-49, 51-67, 69-74, 76-87, 89-90, 92, 94-106,  108-123, 125-129, 131, 133-135, 137-145, 147-184, 186-187, 190-198, 202-205,  207-208, 210-219, 221-223, 227-228, 230-233, 235, 237-244, 247-250, 252-258,  260-268, 270-276, 278-297, 299-302, 304-308, 310, 312, 315,316, 318-321, 323,  325-345, 347-351, 353-354, 356-359, 361-364, 367-377, 379-380, 382-394, 397- 399, 402-403, 405, 407-424, 426-428, 431, 433, 435, 436-437, 439-441, 443- 458, 460, 463-464, 471-478, 480-481, 483-484, 488, 490, 491-492, 496-502,  504-507, 509-522, 524-527, 529-533, 535-537, 539-540, 542-548, 550, 552,  554-576, 578-622, 624, 626-628, 630-633, 635-641, 645-646, 648-654, 656-657,  659-661, 663-671, 673-674, 676-685, 689-707,  710, 712-715, 717-718, 720,  722-750, 752-753, 755-760, 762-763, 766-768, 770-773, 775, 777, 779-791,  793-794, 796-803, 805-808, 810-813, 815-820, 822, 824-847, 849-850, 852-866,  870-872, 873-882, 884, 886-896, 898-902, 904, 906, 908-909, 911-915, 918,  920-935, 937, 939-942, 945-950, 952-958, 961-965,967-1002, 1004, 1006-1009,  1011-1012, 1014-1035, 1037-1038, 1040-1048, 1050-1051, 1053-1057, 1059- 1063, 1065-1073, 1075-1078, 1080-1081, 1083-1130, 1132-1137, 1139-1142,  1144-1148, 1150-1160, 1163-1165, 1167, 1169-1182, 1184-1192, 1194, 1196  and 1197 in Civil Appeal No. 5003 of 2002, have been settled and entire  compensation amount has been paid to them as was paid to other workmen in  terms of order dated 11th September, 2003 passed in Civil Appeal No. 5002 of

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2002 and a prayer has been made that the appeal in relation thereto may be  disposed of on the terms enumerated in the said order. In our view, prayer is  justified and must be granted.   In Civil Appeal No. 5003 of 2002, the total number of respondents is 1197  out of which 1006 have compromised the matter as stated above.  Now, so far as  the remaining workmen are concerned, we are of the view that it would be just  and expedient that they are paid a reasonable amount of compensation under  Section 30 of the 1971 Act which would be calculated in the manner indicated  hereinafter.  Each of the remaining workmen shall be paid a lump-sum  amount  calculated at 85 days’ salary, inclusive of all allowances, for the number of years  each workman had actually worked irrespective of the days a workman may have  put in in a year.  The calculation would be made on the basis of work during a  calendar year and that the calendar year in which a workman may not have  worked at all would be kept out of consideration while calculating the amount.  In  calculating the salary for each workman, the minimum salary that would be taken  into account would be Rs. 8,000/- per month subject to the condition that if on the  date of termination, the salary of any particular workman was  more, then the  calculation would be made on actual last drawn salary.   The calculation in the  above said manner would be made for the period up to the date of termination in  the year 1997-98.   For the period after termination till date, the basis of  calculation would be lump-sum three years of service on the basis aforesaid,  namely, 85 days for each calendar year i.e. salary for 255 days.           In view of the aforesaid order which we intend to pass, it would be  expedient that the following directions, given by the Industrial Court and the High  Court in the impugned orders should not be allowed to continue. "It is hereby directed to respondent Company to prepare a seniority  list of all the temporary workers who are in employment and who  are not in the employment and give them continuous work and after  completion 240 days of services, make them permanent in the  employment.  How many permanent employees are required as per  the production norms be fixed and after making the employees  permanent from these temporary employees, if there is a need of  any temporary workers, they can engage but after   absorbing all  these complainants in the employment, they can engage temporary  workers, as per seniority. " "The petitioners/complainants shall be regularized in service and be  made permanent as and from the date of filing of the complaints  before the Industrial Court.  The respondent/Company shall pay  fifty percent of the amount of back wages (pay and allowances) to  the petitioners/complainants, for the period commencing from 10th  January, 2001 till today, within a period of one month from today."         For the foregoing reasons, Civil Appeal No. 5003 of 2002 in relation to  1006 respondents enumerated above is disposed of on the terms indicated in  consent order dated 11th September, 2003 passed by this Court in Civil Appeal  No. 5002 of 2002.  The finding of the industrial court as well as the High Court in  relation to unfair labour practice employed, as enumerated in item No. 9 of  Schedule IV of the 1971 Act and the aforesaid directions given by the Industrial  Court as well as the High Court in operative portion of their orders are set aside  and the Management is directed to pay compensation to the remaining workmen  within a period of three months after calculating the same in the aforesaid  manner.  The said appeal is thus disposed of.   In view of the order passed in  Civil Appeal No. 5003 of 2002, no further order need to be passed in other  appeals which are accordingly disposed of.  In the facts and circumstances of the  case, we direct that the parties shall bear their own costs.