The Industrial Employment Standing Orders Act, 1946 111t3h

THE INDUSTRIAL EMPLOYMENT STANDING ORDERS ACT, 1946

NIDHI SHUKLA XISS

Importance • No uniform practice governing the conditions of service of workers • No clarity of rights and obligations of the employer • in respect of of employment, friction/dispute between management and worker • Demand for statutory service conditions raised by Bombay Cotton Textile workers in 1927-28 • The Bombay Industrial Disputes Act of 1938 for the first time provided for statutory standing orders. • The Labour Investigation Committee emphasized the workers’ right to know the & conditions of employment

Object of the Act • To require employers to define the conditions of work • To bring about uniformity in and conditions of employment • To minimise industrial conflicts • To foster harmonious relations between employers and employees. • To provide statutory sanctity and importance to standing orders

Scope and Application Section 1

• Extends to the whole of India • To every establishment wherein 100 or more workmen are employed • On any day preceding twelve months • Once applicable to the establishment then it continuous if the no. of workmen employed gets reduced to less than 100 • Provided that the app. Govt may, after giving two month’s notice may apply the provisions of the act to any industrial establishment employing less than 100 persons by notification in the off.gaz

Exemptions • Nothing in this Act shall apply to i) Any industry to which the provisions of chapter VII of the Bombay Industrial Relations Act, 1946 apply ii) Any industrial establishment to which the Madhya Pradesh Industrial employment (standing orders) Act 1961 apply Section 14 : the appropriate Govt. may by not. In the off.gaz exempt , conditionally on unconditionally, any Indust. Est. or class of IA from all or any of the provisions of the Act.

Section 13-B • Act not to apply to certain IEs if to workmen employed therein , the Fundamental and Supplementary Rules, or other Civil Services Rules apply

Important Definitions Section 2 • Appropriate Government: State Government, Central Government. • Certifying Officer: means Labour Commissioner/Regional Labour Commissioner and includes any other officer appointed by the appropriate Government, by notification in the Official Gazette to perform such duties. • Employer: owner of the establishment

Industrial Establishment-2(e) • A factory defined in Section-2 (m) of the Factories Act, 1948 • A railway defined in Railways Act, 1939 • Establishment defined in the Payment of Wages Act, 1936 Standing Orders • The term ‘Standing Orders’ means rules relating to matters set out in the Schedule of the Act.

Submission of Draft Standing Orders Section 3 • Obligatory on the part of an employer or a group of employers to furnish 5 copies of the draft standing orders • Within 6 months of the application of the Act the employer shall submit the draft standing orders • Copies to be given to the certifying officer • Draft has to enclose the prescribed particulars of the workmen • The status and name of the trade unions to be given. • It has to take all matters set out in the Schedule. • Subject to such conditions as may be prescribed, a group of employers in similar IEs may submit a t draft of SOs

Conditions for certification of SO Section 4 Certifiable if:-

a) Provision is made therein for every matter set out in the schedule which is applicable to the IE b) The SO are otherwise in conformity with the provisions of this Act Section 4, as amended by Act 36 of 1956, entrusted the authorities under the Act with the duty to adjudicate upon the fairness and reasonableness of the SO Therefore now, 1) SO should now be in consonance with the model SO , and, 2) They should be fair and reasonable( the workmen, therefore can raise an objection

Schedule

Matters to be contained in the Standing Orders • Classification of the workmen : temporary, casual, apprentices • Manner of intimating to workmen • Shift working • Attendance and late coming • Conditions of, procedure in applying for, and the authority which may grant leave and holidays • Requirements to enter premises by certain gates and liability to search • Closing and reopening of sections of the establishments, temporary stoppages • Suspension or dismissal for misconduct • Acts and omissions which constitute misconduct • Means of redress for workmen against unfair treatment and wrongful exactions • Any other matter specified by the app. govt

Procedure for Certification of Standing Orders Section 5 • Copy of draft standing orders to be sent to trade union/workmen • Opportunity of hearing to trade union/workmen to be provided • Certification • Certified standing orders have the force of law and the violation of any provision shall be taken action • Standing orders to be applicable to all present and future workmen • Standing orders must confirm the model standing order

Section 6- Appeal Appeal •

•

Any employer, workman, trade union aggrieved by the order of the certifying officer as per section 5(2) may, within 30 days from the date on which copies of the certified standing orders sent to them, appeal to the Appellate Authority who makes an order in writing to either confirm or modify and render the SO certifiable The AO within 7 days of its order being made, shall send copies thereof to CO , to the employer and to the TU

Date of Operation of the Act (Section 7)

On the expiry of 30 days of the certification given by certifying officer Or After the expiry of 7 days of the decision given by appellate authority.

Section 8 & 9 • 8:- of SO : a copy of all SO s certified under the Act shall be filed by the CO in a in the prescribed form which shall be furnished on applying therefor, on payment of prescribed fee. • 9: Posting of SO : the text of certified SO shall be prominently posted by the employer in English and in the language understood by the majority of his workmen on special boards maintained foe the purpose, at or near the entrance and in all departments where the workmen are employed.

Section 10- duration and modification

1)SO, finally certified, shall not, except on agreement b/w the employer and the workmen/TU/other representative body of workmen, be liable to modification, until the expiry of six months from the date on which the SO or the last modification thereof came into operation 2) Modifications to be made only on agreement application along with the agreement to be made to the CO 3) Process of modification same as process of certification 4) For IE to which the app. Govts are the govts of Gujarat & Maharastra the provisions of SS(2) shall not apply

Payment of Subsistence allowance Section 10-A

• Payment of subsistence allowance by an employer to a workman who has been suspended by the employer and his investigation is pending • the allowance shall be at the rate of 50% of the wage for the first 90 days of suspension • The allowance shall be 75% of the wage after 90 days if the investigation is delayed due to employer

Section 10-A explanation 1)Payment of SA by employer pending inquirya) 50%(first 90 days) b) 75% for the rest of the period if the delay is not directly attributable to the conduct of such workman 2)Dispute regarding SA can be taken to a Labour Court under ID Act 1947 3) If SA under any other law in any State are more beneficial then such law shall be applicable

Section 11 1)Every CO and appellate authority to have powers of a Civil Court 2)Clerical, arithmetic mistakes or errors made by Off or authority can be corrected by concerned off or auth or by successor

Section 12

No oral evidence having the effect of adding to or otherwise varying or contradicting SO as finally certified under this Act shall be itted in any Court 12-A 1) temporary application of Model Standing Orders 2) Ss 1) not to apply in case of states of Gujarat and Maharastra

Section 13

Penalties & Procedure: 1) An employer who fails to submit draft SO or modifies his SO otherwise than in accordance with section 10 – fine up to 5000/- ; continuing offence, up to 200/for every day 2) Any act in contravention with the SO finally certified, 100/-; continuing offence- 25/- for every day 3) Prosecution foe offence under sec 13 with the previous sanction of the app. Govt. 4) No court inferior to that of a Metropolitan Magistrate to try an offence under this section

Section 13-A • Interpretation of SO Reference of any question arising as to the application or interpretation of the certified SO can be referred to the Lab. Court constituted under ID Act 1947, by the employer, workman or a TU -parties given opportunity to be heard - Question decided by LC - Decision final and binding on the parties - 13-B – non applicability to IEs in which persons employed are governed by Civil Services Rules

Section 14, 14-A

• 14- exemption by the app. Govt of any IE or class of IEs from all or any of provisions of the Act • 14-A – Delegation of powers to any such officer or authority subordinate to the app. Govt (Central or State as the case may be) by the app. Govt. by notification in the off. Gaz. Any power exercisable by it under this Act and Rules made thereunder

Section 15

• Power to make Rules: 1) App govt , after previous publication, by notification in the off. Gaz. 2) Rules about; a) Addl matters to be included in the schedule & procedure to be followed in modifying the SO b) Set out model SO c) Prescribe procedure for appt of CO and appellate auth. d) Prescribe fee charged for issue of copies of SO e) Provide for any other matter Provided that for cl a) representatives of both employers and workmen shall be consulted