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Amity law school, Centre-ii

LABOUR LAW project


On
CONCEP O! "AN#$N% OR#ER"
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OR#ER"* AC, +,-./
"01mitte2 1y3 "01mitte2 to3
"artha4 %a0r 'r5 Amit Raj
A6rawal
"em--, "ec-B Asst5 Pro7essor
Enl5 No5-A++,++++89:. Amity Law "chool,
Centre-$$
Amity Uni;ersity
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INTRODUCTION
To avoid friction amongst the employers and workmen employed in an industry is the principal
aim of Indian Legislation in India. It was considered that the society had a vital interest in the
settlement of terms of employment of Industrial Labor and also settlement of Labour problems.
Therefore, the steps were taken by the Central Government to enact Industrial Employment
!tanding "rders# $ct, %&'( with a view to afford protection to the workmen with regard to
conditions of employment. There was no uniformity in the conditions of service of workers until this
$ct was brought.
The demand for statutory service conditions was first raised by )ombay Cotton Te*tile workers
in %&+,-+.. The )ombay Industrial /isputes $ct of %&0. provided, for the first time, for
statutory standing orders.
The Labour Investigation Committee %&''-'( observed1 2An industrial worker has the right to
know the terms & conditions under which he is expected to follow3.
The Industrial Employment !tanding "rders# )ill, %&'( was passed by the legislature and it
received the assent on +0rd $pril, %&'(.
It came on the statute book as the Industrial Employment !tanding "rders# $ct, %&'( +4 of
%&'(#.
Definition under the Act (Sec.2)
2!tanding "rders3 mean rules relating to matters set out in the !chedule to the $ct
5!ec.+g#6 to be covered and in respect of which the employer has to draft for submission to the
Certifying "fficer, are matters specified in the !chedule.
SCOPE AND APPLICATION
The act E*tends to the whole of India. To every establishment wherein %44 or more workmen are
employed. "n any day preceding twelve months. "nce applicable to the establishment then it
continuous if the no. of workmen employed gets reduced to less than %44. The appropriate Govt.
can e*empt any establishment from any of the provisions of the $ct. It applies to railways,
factories, mines, 7uarries, oil-fields, tramways, motor services, docks, plantations, workshops,
civil construction and maintenance works. The $ct has %8 sections and a schedule. It applies to
all the skilled or unskilled, manual, supervisory, technical, clerical work. The apprentices are also
included. The persons employed mainly in a managerial9administrative9supervisory capacity
drawing wages e*ceeding :s.%(44 are not covered.
MATTERS TO BE CONTAINED IN TE STANDIN! ORDERS
Classification of the workmen 1 temporary, badly, casual, apprentices, skilled etc
;anner of intimating the workmen tperiods and hours of work, holidays, pay days and
wage rates.
!hift working
$ttendance and late coming.
Conditions of procedure in applying for and the authority which may grant leave and
holidays.
:e7uirements to enter premises by certain gates and liability to search.
Closing and reopening of sections of the establishments, temporary stoppages of work
and right and the liabilities of the employer and workmen arising therefore.
!uspension or dismissal for misconduct $cts and omissions which constitute misconduct.
;eans of redressal of workmen against unfair treatment or wrongful e*tractions by
employer or his agents or servants.
Termination of employment and the notice thereof to be given by employer and
workmen.
$ny other matter which may be prescribed.
OTER IMPORTANT DE"INITIONS
A##e$$%te Authorit& means an authority appointed by the appropriate Government by
notification in the official Ga<ette to e*ercise the functions of an appellate authority
under this $ct1
=rovided that in relation to an appeal pending before an Industrial Court or other
authority immediately before the commencement of this $ct, the Court or authority shall
be deemed to be the appellate authority 5!ection + a#6
A##ro#ri%te !o'ern(ent means in respect of industrial establishments under the
control of Central Government or a :ailway $dministration or in a ma>or port, mine or
oilfield, the Central Government, and in all other cases, the !tate Government. !ection
+b##
Certif&in) Officer means a Labour Commissioner or a :egional Labour Commissioner,
and includes any other officer appointed by the appropriate Government, by notification
in the "fficial Ga<ette, to perform all or any of the functions of a Certifying "fficer under
this $ct !ection +c##
E(#$o&er means the owner of an individual establishment to which this act applies and
includes ?
In a factory, any person named as manager of the factory@
In any industrial establishment under the control of any department of any Government in
India, the authority appointed by such Government in this behalf@
In any other industrial establishment, any person responsible to the owner for the
supervision and control of the industrial establishment !ection +d##
Indu*tri%$ E*t%+$i*h(ent means-
$n industrial establishment as defined in !ection +ii# of the =ayment of Aages $ct,
%&0(,
$ factory as defined in section +m# of the Bactories $ct, %&'.,
$ railway as defined in !ection + '# of the Indian :ailways $ct, %.&4,
The establishment of a person who, for the purpose of fulfilling a contract with the owner of
any industrial establishment employs workmen !ection + e##
,or-(%n means any person employed in any industrial establishment to do any
skilled or unskilled
manual, supervisory,
technical or clerical work
for hire or reward,
whether the terms of employment be e*pressed or implied. 5!ec. +i#6
PROCEDURE "OR TE APPRO.AL O" STANDIN! ORDERS
The main provision that deal for the approval of !tanding "rders are1
1. Procedure for the submission of Draft Standing Orders [Section 3]
! Procedure for the "onditions for "ertification of Standing Orders [Section#]
$ Procedure for "ertification of Standing Orders %Procedure for Adoption& [Section ']
3 Appeals [Section (]
PROCEDURE "OR TE SUBMISSION O" DRA"T STANDIN!
ORDERS
1. Every employer covered under the $ct has to prepare !tanding "rders, covering the
matters re7uired in the !tanding "rders. "bligatory on the part of an employer or a group
of employers to furnish of the draft standing orders
2. Aithin ( months from the date on which this $ct becomes applicable to industrial
establishment, the employer shall submit to the Certifying "fficer 8 copies of the draft
standing orders proposed by him. /raft has to enclose the prescribed particulars of the
workmen
3. !ub>ect to such conditions as may be prescribed, a group of employers in similar
industrial establishments may submit a >oin draft or standing orders under this section.
The status and name of the trade
%
unions to be given.
'. =rovision shall have to be made as such every matter set out in the !chedule which may
be applicable to the industrial establishment and were model standing orders have been
prescribed.
It was held in )P State Sugar "orporation & Authorit* +s ,ipin -umar .ishra
$
that there is
no re7uirement under the $ct to frame standing order in respect of transfer, hence the employer
cannot be denied the normal right to transfer an employee from one place to another. The
employer cannot be denied the right to frame rules and regulations relating to transfer of
employees.
In S- Sheshadri +s /A0 and others
3
, the validity of the standing order which made unduly
lending in the company premises a misconduct was challenged a violative of $rt.%' of the
constitution. The said !tanding "rder was held not to be discriminatory. It was futher held that as
long as the !tanding "rders fall within the schedule to the $ct, they would not be invalid or
ultravirus because they contain additional provisions not provided for in the ;odel !tanding
"rders.
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PROCEDURE "OR CERTI"ICATION O" STANDIN! ORDERS
%. If provision is made therein for every matter set out in the schedule which is applicable to
the Industrial Establishment@ and
+. If the standing orders are otherwise in conformity with the provision of this $ct and it
shall be the function of the Certifying "fficer or appellate authority to reasonableness of
the provision of any standing orders.
0. The Certifying officer receipt of the draft !tanding "rders from the employer shall
forward a copy of the draft standing orders to the recogni<ed trade union of the
establishment seeking submission of ob>ection to draft standing orders if any.
'. If no such union e*ists, to three representatives of workmen in the establishment elected
at a meeting called for the purpose.
8. $ notice in the prescribed form will be given inviting ob>ections, if any, to the draft
standing orders within fifteen d%&* of recei#t of the*e order*.
(. $fter giving to the parties an opportunity of being heard, the certifying officer shall
decide whether or not any modification of the draft is necessary, and make an order in
writing accordingly.
,. In doing so, the certifying officer can ad>udicate upon the fairness and reasonableness of
the provisions in the drafts.
.. The certifying officer shall thereupon certify the standing orders with or without
modifications and forward the authenticated copies thereof to the employer and to the
trade union or other prescribed representatives of the workmen within seven days from
the date of his orders.
&. The standing orders came into operation on the e*piry of 04 days from the date on which
the authenticated copies of the standing orders are forwarded to the employer and the
workmen by the certifying officer.
%4. The conditions of employment, which will be binding on the employer and the workmen
from the date when they become operational.
LEADIN! CASES LA,S RE!ARDIN! CERTI"ICATION
O" STANDIN! ORDERS
Eicher !oode%rth Ltd. .*. R / Soni
0
"nce the !tanding "rders are certified, they supersede any term and condition of
employment, contained in the appointment letter. If there is inconsistency between !tanding
"rder and $ppointment LetterE, the provisions of !tanding "rder prevail.
R%1%*th%n SRTC .*. /ri*hn% /%nt
2
!tanding orders are binding on employer and employee. These are statutorily imposed conditions
of service. Fowever, they are not statutory provisions themselves meaning that the !tanding
"rdersE even when approved, do not become lawE in the sense in which :ules and Gotifications
issued under delegated legislation become after they are published as prescribed#
APPEAL
$n aggrieved party may appeal to the appellate authority within thirty days from the date on
which the copies of the standing orders were sent to it by the certifying officer. The order of the
authority shall be final.
!ection (%# empowers the appellate authority to do only two things1
Confirm the standing orders in the form certified by the certifying officer
Confirm the standing orders after amending them by making the necessary modifications or
additions.
The certified standing orders become enforceable on the e*piry of 04 days from the date on
which the authenticated copies of the same are sent to the parties by the certifying officer. If an
4
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appeal has been filed, it shall come into operation on the e*piry of , days from the date on which
copies of the order of the appellate authority are sent to the parties. !ection ,#
RE!ISTER O" STANDIN! ORDERS
$ copy of all standing orders as finally certified under this $ct shall be filed by the
Certifying "fficer in a register in the prescribed form
It shall furnish a copy of it to any person on payment of the prescribed fees. 5!ection .6
POSTIN! O" STANDIN! ORDERS
The te*t of the standing orders finally certified shall be prominently posted by the employer in
English and in language understood by the ma>ority of the workmen on special board to be
maintained for that purpose at or near the entrance through which the ma>ority of workmen enter
the industial establishment !ection &#
DURATION AND MODI"ICATION O" STANDIN! ORDERS3
(SECTION 45)
!tanding orders, finally certified shall not e*cept on agreement between the employer and the
workmen, be liable to modify until the e*piry of ( months from the date on which the standing
orders or last modification thereof came into operation.
$n employer, workmen, trade union or any representative body of workmen may apply to the
certifying officer to have the !tanding "rders modified and such applications shall be
accompanied by 8 copies of the modification proposed to be made and where such modification
are proposed to be made by agreement between employer and the workmen a certified copy of
that agreement shall be filed along with the application.
In Sh%h%dr% S%h%r%n#ur Li)ht R%i$6%& Co. .*. S.S. R%i$6%& ,or-er* Union
7
, the !tanding
"rders relating to the termination of service of a permanent workman was modified re7uiring the
employer to give reasons and communicating the pay in lieu of notice. The modification held to
be fair and reasonable. )ut the modification of the !tanding "rders re7uiring the giving of
second show cause notice at the stage of imposing punishment of removal cannot be considered
as fair and reasonable.
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PA8MENT O" SUBSISTENCE ALLO,ANCE (SECTION 459A)
Ahere the employer suspend the workman pending investigation or in7uiry into
complaint or charges of misconduct against the workman the subsistence allowance
shall be payable1
$t the rate of 84H of the wages which the workman was entitled to immediately
preceding the date of such suspension for the first &4 days of suspension@ and
$t the rate of ,8H of such wages for the remaining period of suspension if the delay
in completion of disciplinary proceedings against such workman is not directly
attributable to the conduct of such workman.
If any dispute arises regarding the subsistence allowance payable to a workman, it
may be referred to the Labour Court constituted under I./. $ct, %&',.
PENALTIES AND PROCEDURE (SECTION 4:)
$n employer who fails to submit draft standing orders as re7uired by section 0 or who
modifies standing orders otherwise than in accordance with !ec.%4,shall be punishable
with fine which may e*tend to 8444 rupees and in case of a continuing offence with a
further fine which may e*tend to +44 rupees for every day after the first, during which
the offence continues.
$n employer, who does any act in contravention of the standing orders finally certified
under this $ct for his industrial establishment shall be punishable with fine which may
e*tend to %44 rupees, in case of continuing offence with a further fine which may e*tend
to +8 rupees for every day after the first, during which the offence continues.
Go prosecution for an offence punishable under this section shall be instituted e*cept
with the previous sanction of the appropriate Government.
Go Court, inferior to that of a =residency ;agistrate or ;agistrate of !econd Class shall,
try any offence under this !ection.
INTERPRETATION O" STANDIN! ORDERS (SECTION 4: A)
If any 7uestion arises as to the interpretation of a !tanding "rder certified under this $ct, any
employer, workman or trade union may refer the 7uestion to any of the Labour Courts
constituted under the Industrial /isputes $ct, %&',, and specified for the disposal of such
proceedings by the $pp. Govt. by notification in the "fficial Ga<ette and the L. Court to which is
referred to, shall after giving the parties an opportunity of being heard, decide the 7uestion and
such decision shall be final and binding on the parties. !ection %0 $#
ACTS O" MISCONDUCT
The following acts or omissions on the part of a workman shall amount to misconduct@
Going on an illegal strike
Ailfully slowing down in performance of work
Theft, fraud or dishonesty in connection with the employerIs business or property or the
theft of property of another workman within the premises of the establishment
Taking or giving bribes
Fabitual absence without leave or absence without leave for more than ten consecutive
days
Collection without the permission of the manager of any money within the premises of
the establishment e*cept as sanctioned by any law for the law for the time being in force
Engaging in trade within the premises of the establishment
/runkenness, riotous, disorderly or indecent behaviour on the premises of the
establishment
Fabitual neglect of work
Fabitual breach of any rules or instructions
Ailful damage to work in process or to any property of the establishment.
Folding meeting inside the premises of the establishment without the previous
permission of the manager or e*cept in accordance with the provisions of any law for the
time being in force.
/isclosing to any unauthorised person any information
!moking and spitting on the premises of the establishment where it is prohibited by the
employer
Jnauthorised possession of any lethal weapon in the establishment

SPECIAL "EATURE O" TE ACT
%. The employer of every industrial establishment to which the $ct applies is re7uired to
frame draft standing orders and to submit them to the certifying officer, who is generally
the Labour Commissioner@
+. The definition of workman under this $ct includes a 2!upervisory Technical =ersonnel3
under certain conditions@
0. The certifying officer is empowered to modify or add the draft standing orders so as to
render them certifiable under the $ct@
'. $ Group of employers of similar industrial establishments may submit >oint standing
order@
8. The Government set out model standing orders, the draft standing order framed by an
employer should as far as practicable be in conformity with the ;odel !tanding "rders.
(. The $ct normally applies to every industrial establishment wherein %44 or more
workmen are employed.
,. The certifying officer and appellate authorities shall have all the powers of a Civil Court
.. The employers can be penalised for faliure to submit draft !tanding "rder for
certification or contravention of any provision of the standing order finally certified.
&. The appropriate Government may by a Ga<ette notification e*empt any establishment or
class of establishment from any of the provisions of the $ct.
%4. The appropriate Government may after previous publication by notification in the
"fficial Ga<ette, make rules to carry out the purpose of the $ct.
BIBLIO!RAP8
/r. !.G ;ishra, Labour and Industrial Law, =g.Go.0+&, 004, 000, 00., 0'+, 0'(.
http199www.indiankanoon.org9doc9%0,(,&'9 visited on %.94&9+4%'.
http199www.manupatra.com visited on %.94&9+4%'.
http199hrylabour.gov.in9docs9labour$ctpdfdocs9IndustrialKEmploymentK$ct.pdf visited on +494&9+4%'.