Sec. 3 of the IESO Act, 1946 mandates submission of Draft Standing orders within 6 months to the certifying officer from the date of applicability of the Act to a particular industrial establishment. Sec. 13 imposes a penalty over the erred employer who fails to submit the draft standing orders under Sec. 3 of the Act to the certifying officer. Sec. 12A speaks for deemed adoption of Modal standing orders from the date on which this Act becomes applicable and ending with the date on which the SOs finally certified by the Certifying officer by using the words "not withstanding anything contained in Sec. 3 to 12". Is Sec. 12 A not contradictory to Sec. 3? Does Sec. 12 not send wrong signals to industries that there is no necessity to design Standing orders of their own and mere dwelling upon Modal standing orders for decades is enough? In such case is there any possibility to take up prosecution against any of the employer for violating Sec. 3? Pl. discuss..Kesava Panda
From India, Chennai
10From India, Chennai
Sec. 3 Of The IESO Act, 1946 Mandates Submission Of Draft Standing Orders Within 6 Months To The Certifying Officer From The Date Of Applicability Of The Act To A Particular Industrial Establishment. Sec. 13 Imposes A Penalty Over The Erred Employer Who Fails To Submit The Draft Standing Orders Under Sec. 3 Of The Act To The Certifying Officer. Sec. 12A Speaks For Deemed Adoption Of Modal Standing Orders From The Date On Which This Act Becomes Applicable And Ending With The Date On Which The SOs Finally Certified By The Certifying Officer By Using The Words "Not Withstanding Anything Contained In Sec. 3 To 12". Is Sec. 12 A Not Contradictory To Sec. 3? Does Sec. 12 A Not Send Wrong Signals To Industries That There Is No Necessity To Design Standing Orders Of Their Own And Mere Dwelling Upon Modal Standing Orders For Decades Is Enough? In Such Case Is There Any Possibility To Take Up Prosecution Against Any Of The Employer For Violating Sec. 3? Pl. Discuss..Kesava Panda
From India, Chennai
From India, Chennai
Dear friend,
I think that though you've understood the import of the provisions of sec.3 and 12A of the Standing Orders Act,1946, the non obstante clause " not withstanding any thing contained in sce. 3 to 12" finding place in the opening part of sec. 12A(1) still gives raise to the confusion you've narrated. The non obstante clause indicates that sec.12A is an independent section and as such in case of any inconsistencies between the provisions of sec.12A and those of secs.3 to 12, section 12A will prevail over. The reasons are:- (a) Section 3 (1) stipulates the time limit i.e six months withinwhich the draft standing orders should be submitted for certification as soon as the Act becomes applicable to the establishment. It implies that such submission of draft can be done even on the penultimate day of the sixth month. (b) As you are well aware, the certification of standing orders is an administrative act comprising of comparison and consultation and requires a reasonable time to complete. (c) As during the interrugnum i.e the period between the date of commencement of the application of the Act and the date of operation of the certified standing orders, the conditions of employment of the establishment can not remain undefined and be kept unknown to the workmen employed therein. Therefore, the model standing orders set out by the Appropriate Govt under its Rule making power are made compulsorily applicable during the period of interrugnum. (d) Had you taken note of the closing part of sec.12A(1), the confusion would not at all have arisen. In other words the explicit inclusion of the application of the provisions of secs.9, 13(2) and 13-A AND the exclusion of sec.13 ( i.e provisions relating to penalties and procedure) in the non obstante clause of sec.12-A together with its very caption indicates by implication that sec.12-A does not permit an employer to circumvent the provisions of the Act by simply adopting the model standing orders indefinitely and does not absolve the employer of his legal compliance with sec.3 (1),(2) and (3).
From India, Salem
I think that though you've understood the import of the provisions of sec.3 and 12A of the Standing Orders Act,1946, the non obstante clause " not withstanding any thing contained in sce. 3 to 12" finding place in the opening part of sec. 12A(1) still gives raise to the confusion you've narrated. The non obstante clause indicates that sec.12A is an independent section and as such in case of any inconsistencies between the provisions of sec.12A and those of secs.3 to 12, section 12A will prevail over. The reasons are:- (a) Section 3 (1) stipulates the time limit i.e six months withinwhich the draft standing orders should be submitted for certification as soon as the Act becomes applicable to the establishment. It implies that such submission of draft can be done even on the penultimate day of the sixth month. (b) As you are well aware, the certification of standing orders is an administrative act comprising of comparison and consultation and requires a reasonable time to complete. (c) As during the interrugnum i.e the period between the date of commencement of the application of the Act and the date of operation of the certified standing orders, the conditions of employment of the establishment can not remain undefined and be kept unknown to the workmen employed therein. Therefore, the model standing orders set out by the Appropriate Govt under its Rule making power are made compulsorily applicable during the period of interrugnum. (d) Had you taken note of the closing part of sec.12A(1), the confusion would not at all have arisen. In other words the explicit inclusion of the application of the provisions of secs.9, 13(2) and 13-A AND the exclusion of sec.13 ( i.e provisions relating to penalties and procedure) in the non obstante clause of sec.12-A together with its very caption indicates by implication that sec.12-A does not permit an employer to circumvent the provisions of the Act by simply adopting the model standing orders indefinitely and does not absolve the employer of his legal compliance with sec.3 (1),(2) and (3).
From India, Salem
On 22nd I have continued the discussion. But that is not found place here. How can I recover it?
From India, Chennai
From India, Chennai
I once again continue my discussion with Mr. Sri Umakanthan, who has sent his invaluable opinion.
Of course, Sec. 12 A, as you have stated the application is "Temporary". But it is categorically stated the the application of Sec. 9, Sec. 13(2) and Sec. 13A is to those model standing orders so long they are applicable to the industrial estt. Thus, according to Sec. 9 the management has to post the model standing orders as was applicable to the certified standing orders. Sec.13(2) is strictly applicable to certified standing orders. However, since it has been extended to Model SOs by virtue of Sec. 12A it is nevertheless applicable to Model SOs. If we just go a little to the later provision i.e. 13(3), it is not that easy to file a direct prosecution obtaining the permission from the Govt. as ages would expire in obtaining the same, by which time limitation for prosecution may also barred. As specified in 13A it is also applicable to Model standing orders. Then the entire situation comes to one point, what the the time to be considered as temporary. since it was not specified in the enactment any management can now dwell upon years together on model standing orders. Thus, under the above circumstances the provision appears to be a blanket permission to the management, of course under disguise, to resort to model standing orders for years. Can you offer your opinion on this?
From India, Chennai
Of course, Sec. 12 A, as you have stated the application is "Temporary". But it is categorically stated the the application of Sec. 9, Sec. 13(2) and Sec. 13A is to those model standing orders so long they are applicable to the industrial estt. Thus, according to Sec. 9 the management has to post the model standing orders as was applicable to the certified standing orders. Sec.13(2) is strictly applicable to certified standing orders. However, since it has been extended to Model SOs by virtue of Sec. 12A it is nevertheless applicable to Model SOs. If we just go a little to the later provision i.e. 13(3), it is not that easy to file a direct prosecution obtaining the permission from the Govt. as ages would expire in obtaining the same, by which time limitation for prosecution may also barred. As specified in 13A it is also applicable to Model standing orders. Then the entire situation comes to one point, what the the time to be considered as temporary. since it was not specified in the enactment any management can now dwell upon years together on model standing orders. Thus, under the above circumstances the provision appears to be a blanket permission to the management, of course under disguise, to resort to model standing orders for years. Can you offer your opinion on this?
From India, Chennai
Dear KESAV,
To me, the most difficult part in law to remember is the numbers of sections and of corresponding rules which happen not to be the points of frequent reference in our practical compliance. So let me do away with the section numbers as I don't have the Act book on hand right now and present my views as simply as am able to understand....
(1) The purpose of the Standing Orders Act,1946 is to require the industrial employers to exactly define the conditions of service of their employees and bring them to their notice so that the employees are well aware of their contractual rights and responsibilites and unnecessary friction in the employment relations is avoided.
(2) The Act is applicable to every industrial establishment where 100 or more workmen are/were employed.
(3) Since the conditions of employment thus defined require mutual compliance, arbitrariness should not be there in its framing. So there is a tripartite consultative arrangement involving the employer, employees and the certifying officer under the Act which is a time-consuming process.
(4) In order to avoid interpretative tussles and to serve as model conditions of service and to temporarily give effect to the purpose of this unique legislation during the entire intervening period between the date of application of the Act to the concerned industrial establishment and the date of formal certification of the original standing orders, Model Standing Orders are made temporarily applicable. Though It is just a stop-gap arrangement, in order to confer the efficacy of the certified orders, it is also required to be made known to the workmen.
(5) Draft standing orders submitted need not be a replica of the model orders. For example, take the case of prohibition of smoking except in earmarked places within the establishment finding place in the list of misconducts mentioned in the model orders.. If it is a explosives manufacturing factory, not only smoking but also having inflammable articles like match boxes/ cigar lighters is to be prohibited bringing which into the list of misconducts. So it becomes imperative on the part of the employer to get the certification process completed as expeditiously as possible according to the specific requirements of the establishment.
(6) Mere adoption of the model orders even after the expiry of six months can not absolve the employer of his liability to submission of draft standing orders for certification by the efflux of time because it is a continuing offence escaping the ambit of limitation for prosecution.
Therefore, in my considered opinion the operation of the model standing orders to an establishment till the certification of its draft standing orders in reality is not only temporary concession but also an adhoc arrangement and as such by no stretch of imagination it could be considered as a blanket permission.
From India, Salem
To me, the most difficult part in law to remember is the numbers of sections and of corresponding rules which happen not to be the points of frequent reference in our practical compliance. So let me do away with the section numbers as I don't have the Act book on hand right now and present my views as simply as am able to understand....
(1) The purpose of the Standing Orders Act,1946 is to require the industrial employers to exactly define the conditions of service of their employees and bring them to their notice so that the employees are well aware of their contractual rights and responsibilites and unnecessary friction in the employment relations is avoided.
(2) The Act is applicable to every industrial establishment where 100 or more workmen are/were employed.
(3) Since the conditions of employment thus defined require mutual compliance, arbitrariness should not be there in its framing. So there is a tripartite consultative arrangement involving the employer, employees and the certifying officer under the Act which is a time-consuming process.
(4) In order to avoid interpretative tussles and to serve as model conditions of service and to temporarily give effect to the purpose of this unique legislation during the entire intervening period between the date of application of the Act to the concerned industrial establishment and the date of formal certification of the original standing orders, Model Standing Orders are made temporarily applicable. Though It is just a stop-gap arrangement, in order to confer the efficacy of the certified orders, it is also required to be made known to the workmen.
(5) Draft standing orders submitted need not be a replica of the model orders. For example, take the case of prohibition of smoking except in earmarked places within the establishment finding place in the list of misconducts mentioned in the model orders.. If it is a explosives manufacturing factory, not only smoking but also having inflammable articles like match boxes/ cigar lighters is to be prohibited bringing which into the list of misconducts. So it becomes imperative on the part of the employer to get the certification process completed as expeditiously as possible according to the specific requirements of the establishment.
(6) Mere adoption of the model orders even after the expiry of six months can not absolve the employer of his liability to submission of draft standing orders for certification by the efflux of time because it is a continuing offence escaping the ambit of limitation for prosecution.
Therefore, in my considered opinion the operation of the model standing orders to an establishment till the certification of its draft standing orders in reality is not only temporary concession but also an adhoc arrangement and as such by no stretch of imagination it could be considered as a blanket permission.
From India, Salem
Thank you very much for your opinion. Can I now interpret that the management has to apply for certification of Standing orders within six months and until the draft standing orders certified by the certifying officer the modal standing orders come into play. In case who have not applied within 6 months he has to be subjected to penal provisions. According to you the period of application of model standing orders is between the application i.e. within 6 months and thirty days from the date of certification was made by the certifying officer. The management has to face the prosecution after the expiry of 6 months from the date when the provisions made applicable to his industry. Even if he submits his draft standing orders after the expiry of 6 months, the law does not prevent the certifying officer from taking up prosecution against the employer. Had there been any decisions from any courts to uphold your version? It's very much appreciated if a piece of judgment in support of your version is available.
From India, Chennai
From India, Chennai
I would like to further add in this that I came across a similar situation where a pharmaceutical company of Gujarat has not made certified their standing orders. Under RTI the DLC has stated that they have not made certified their standing order, the company is 110 years old where as the company is giving ibn writing that they are following Standing orders by attaching I cards of workers working in factory, which in no way is a reply of certfying standing orders. For field workers they are transferring across India which is violation of Model Standing Order. How to overcome this tricky situation of employers? How to penalise them, please enlighten.
From India, Kanpur
From India, Kanpur
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Industrial Employment Standing Orders Act 1946.pdf