Ttk Healthcare Limited vs The President
2022 Latest Caselaw 10300 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 5TH DAY OF JULY, 2022
                       BEFORE
        THE HON'BLE MS. JUSTICE JYOTI MULIMANI
     WRIT PETITION NO.23489 OF 2021 (L-RES)
BETWEEN:

TTK HEALTHCARE LIMITED,
NO.28, HOSKOTE INDUSTRIAL AREA,
BANGALORE RURAL DISRICT - 562 114.
REPRESENTED BY ITS ASSISTANT
VICE-PRESIDENT-OPERATIONS,
SRI N.BASKAR,
AGED 47 YEARS.                         ... PETITIONER

(BY SRI. S.N.MURTHY, SENIOR ADVOCATE FOR
    SRI. SOMASHEKAR, ADVOCATE)

AND:

1.     THE PRESIDENT,
       BANGALORE EAST INDUSTRIAL
       WORKERS UNION (CITU),
       BEHIND TIN FACTORY,
       UDAYANAGAR,
       DOORAVANINAGAR POST,
       BENGALURU - 560 016.

2.     THE DEPUTY LABOUR COMMISSIONER AND
       CERTIFYING OFFICER-DIVISION-2,
       OFFICE OF THE LABOUR DEPARTMENT,
       KARMIKARA BHAVANA,
       BANNERGHATTA ROAD,
       BENGALURU - 560 029.

3.     THE ADDITIONAL LABOUR COMMISSIONER (IIR)
       AND APPELLATE AUTHORITY,
                                  2




     OFFICE OF THE LABOUR DEPARTMENT,
     KARMIKARA BHAVAN,
     BANNERGHATTA ROAD,
     BENGALURU - 560 029.         ... RESPONDENTS

(BY SRI. SUBBA RAO, SENIOR ADVOCATE FOR
    SRI. L.MURALIDHAR PESHWA, ADVOCATE FOR R1;
    SMT.K.SHOBHA, HCGP FOR R2 & R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.


     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED      FOR           ORDERS,       COMING     ON      FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:


                              ORDER

Sri.S.N.Murthy., learned Senior Counsel on behalf of

Sri.Somashekar., for petitioner and Sri.Subba Rao.,

learned Senior Counsel on behalf of Sri.L.Muralidhar

Peshwa., for respondent No.1 have appeared through

video conferencing.

Smt.K.Shobha., learned HCGP for Respondents 2 and

3 has appeared in person.

2. The facts can be stated quite shortly as under:

TTK Healthcare - the petitioner has Certified

Standing Orders on 24.07.2013 under the provisions of

Industrial Employment (Standing Orders) Act, 1946.

Clause 15 pertains to retirement of workers at the age of

58 years.

The first respondent Union submitted Charter of

Demands dated:07.11.2016. In this, Clause 20 pertains to

retirement demanding enhancement of existing age of 58

years to 60 years.

It is stated that there were marathon discussions on

the Charter of Demands and ultimately a settlement was

signed on 28.04.2018 for the period 01.01.2017 to

31.12.2020. It is averred that Clauses 12(31), 12(32) and

12(39) of the terms of settlement pertains to Union

agreeing not to raise any fresh demands and dropping rest

of the demands contained in Charter of Demands

dated:07.11.2016. Thus, the Union had agreed in the

settlement to drop the demand for enhancement of

retirement age from 58 years to 60 years.

When matters stood thus, Union - the first

respondent by letter dated:01.06.2019 requested the

Deputy Labour Commissioner and Certifying Officer - the

second respondent to amend the Certified Standing Orders

to enhance the age of retirement from 58 years to 60

years.

TTK Healthcare Limited - the petitioner filed reply

dated:13.08.2019 and 22.09.2020 that the request of the

Union for enhancing the retirement age from 58 years to

60 years is not maintainable and may be rejected.

It is averred that the Certifying Officer has referred

to the Judgment of the Apex Court reported in BARAUNI

REFINERY 1991 (1) LLJ 46, but did not follow the same.

After hearing the parties, the Certifying Officer passed an

order dated:15.02.2021 allowing the request of Union and

increased/enhanced the retirement age from 58 years to

60 years by amending Clause 15 of the Certified Standing

Orders.

Aggrieved by the order of the Certifying Officer, TTK

Healthcare Limited - the petitioner filed an Appeal under

Section 6 of the Industrial Employment (Standing Orders)

Act, 1946 before the Additional Labour Commissioner (IR)

and Appellate Authority - the third respondent. The Union

filed objections to the appeal on 28.07.2021. After hearing

the parties, the Appellate Authority upheld the order of the

Certifying Officer and dismissed the appeal vide order

dated:18.11.2021.

The order passed by the Certifying Officer and the

Appellate Authority have been challenged in the present

Writ Petition on several grounds as set out in the

memorandum of Writ Petition.

3. Learned counsel for petitioner and respondents

have urged several contentions.

Sri.S.N.Murthy, learned Senior counsel primarily

contended that the TTK health Care - the petitioner and

the Union - first respondent are bound by the terms of the

settlement. The settlement is for a period of three years

from 01.01.2017 to 31.12.2020. The Union agreed not to

raise any fresh demands and dropping the rest of the

demands contained in Charter of Demands. Hence, the

application seeking amendment of Standing Orders is not

maintainable.

To substantiate the said contention, Sri.S.N.Murthy.,

learned senior counsel for petitioner has relied on the

following decisions:

1. BARAUNI REFINERY PRAGATISHEEL SHRAMIK PARISHAD VS. INDIAN OIL CORPORATION LIMITED - (1991) 1 SCC 4.

   2. KENNAMETAL              INDIA          EMPLOYEES
      ASSOCIATION       VS.        KENNAMETAL     INDIA

LIMITED AND OTHERS - W.A.NO.400/2011 DATED:27.07.2011.

3. ITI LIMITED VS. VENUGOPALAN.N -

W.A.NO.6812/2003 DATED:22.03.2010.

4. GUEST, KEEN, WILLIAMS PR LTD., CALCUTTA VS. P.J.STERLING AND OTHERS - AIR 1959 SC 1279.

5. RAJU.M.C      VS.         EXECUTIVE        DIRECTOR,
  KARNATAKA       VIDYUTH         KHARKHANE      LTD.    -

W.P.NO.34992/1982 DATED:12.10.1982.

6. VIKRANTH TYRES EMPLOYEES UNION VS. ADDITIONAL LABOUR COMMISSIONER AND APPELLATE AUTHORITY AND OTHERS IN W.A.NO.375/2021 DATED:01.04.2021, HIGH COURT OF KARNATAKA.

7. MANAGEMENT          OF     M/S       JK   TYRE     AND
  INDUSTRIES      LTD.,       VS.   VIKRANTH         TYRES
  EMPLOYEES       UNION           AND    ORS.    -     SLP
  NO.13389/2021.
8. M/S.    ADITYA        AUTO       PRODUCTS          AND

ENGINEERING INDIA PVT. LTD., VS. M/S. ADITYA AUTO PRODUCTS (NTTF) EMPLOYEES UNION & ORS. - SLP NO.24902/2019.

9. STATE OF ORISSA AND ORS. VS. DHIRENDRA SUNDAR DAS AND ORS. - AIR 2019 SC 2331.

10.       M/S.   WES         COAST       PAPER       MILLS
  COMPANY LTD., VS. THE GOVERNMENT OF
  KARNATAKA              -          W.A.NO.2256/2018
  DATED:01.10.2020.

Sri.Subba Rao, learned Senior counsel for the

Union - first respondent strenuously urged that the

settlement period has ended on 31st day of December

2020. The respondent moved an application for

amendment of Standing Orders. The Authority

concerned i.e., the Certifying Officer and the Appellate

Authority passed the orders after the completion of the

period of settlement. Therefore, he submitted that the

orders passed by the Authorities are just and proper.

To substantiate the said contentions, learned counsel

for respondent placed reliance on the following decisions:

1. ROHTAK AND HISSAR DISTRICT ELECTRIC SUPPLY CO. LTD., VS. STATE OF U.P. AND OTHERS - AIR 1966 SC 1471.

2. IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE LTD., VS. THE WORKMEN AND ANOTHER - AIR 1961 SC 1175.

3. MANAGEMENT OF FEDERAL MOGUL GOETZE INDIA PVT. LTD., VS. ADDITIONAL LABOUR COMMISSIONER (ADMINISTRATION) & APPELLATE AUTHORITY UNDER INDUSTRIAL

EMPLOYMENT (STANDING ORDERS) ACT, 1946 AND OTHERS - W.A.NO.2771/2019.

4. M/S.BRITISH PAINTS (INDIA) LTD. VS. ITS WORKMEN - AIR 1966 SC 732.

5. THE U.P. STATE ELECTRIC BOARD AND ANOTHER VS. HARI SHANKAR JAIN AND OTHERS - 1978 (4) SCC 16.

6. M/S. ADITYA AUTO PRODUCTS AND ENGINEERING INDIA PVT. LTD., VS. M/S.

           ADITYA     AUTO     PRODUCTS      EMPLOYEES
           UNION      &      ORS.    -    W.A.NO.1/2019
           DATED:17.07.2019.

7. MANAGEMENT OF MANIPAL POWER PRESS VS. SADANANDA DEVADIGA AND OTHERS - SCC 2004 KAR 2096.

4. Heard the contentions urged on behalf of the

parties and perused the Writ papers with care.

5. The sole question to be answered is whether

amendment/modification of the Certified Standing Order is

justified in law?

The facts have been sufficiently stated. This is a

simple case of amendment of Standing Orders.

Before, I answer the point let me quickly glance

through the aims and objectives of The Industrial

Employment (Standing Orders) Act, 1946.

The Industrial Employment (Standing Orders) Act,

1946 is a special enactment. It is a special piece of

Legislation.

The first objective of the Act is to provide Regular

Standing Orders for factories, workers and the main

professional or working relationship. The second aim is to

ensure that all employees recognize their employment

terms and conditions they are expected to follow or adhere

to. This is to help minimize the exploitation of workers

against their will and knowledge. The third objective

supports the promotion of industrial peace and harmony

by supporting fair industrial practices.

Suffice it to note that the Industrial Employment

(Standing Orders) Act, 1946 (20 of 1946) provides for a

mechanism for amendment of the Standing Orders.

Section 3, 4, 5, 6 and 10 of the Act of 1946 reads as

under:

"3. Submission of draft standing orders. - (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.

4. Conditions for certification of standing orders. - Standing orders shall be certifiable under this Act if --

(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.

5. Certification of standing orders.-- (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 submitted

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 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

6. Appeals. -(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 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 10.- Duration and modification of standing orders.-

(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 workmen 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."

As is well known that The Standing Orders Act was

enacted to define with sufficient precision the conditions of

employment for workers employed in Industrial

establishments and to make the same known to them. The

object of the Act was to have uniform Standing Orders in

respect of the matters enumerated in the schedule to the

Act regardless of the time of their appointment. With this

in view the Act was enacted to apply to all industrial

establishments wherein 100 or more workmen were

employed on any date of the preceding 12 months. Within

six months from the date on which this enactment

becomes applicable to an industrial establishment, the

employer is obliged by Section 3 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 in such draft standing orders

provision shall be made 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 practicable, in

conformity with such model. Section 4 provides that the

Standing Orders shall be certifiable if (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 or otherwise in conformity with the

provisions of the Act. It further casts a duty on the

Certifying Officer or Appellate Authority to adjudicate upon

the fairness and reasonableness of the provisions of any

Standing Orders. On receipt of the draft Standing Orders,

Section 5 requires the Certifying Officer to forward a copy

thereof to the trade union, if any, of the workmen, or

where there is no such a 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 desire to make to the draft Standing Orders.

Thereafter the Certifying Officer must hear the concerned

authorities and decide whether or not any modification of

or addition to the draft submitted by the employers is

necessary to render the draft Standing Orders certifiable

under the Act. He is then expected to certify the draft

Standing Orders with modifications, if any, and send

authenticated copies thereof in the prescribed manner to

the employer, to the trade union or other prescribed

representatives of the workmen within seven days. Section

6 provides for an appeal against the order of the Certifying

Officer. The Appellate Authority has to communicate its

decision to the Certifying Officer, to the employer and the

trade union or other prescribed representative of the

workmen within seven days from the date of its order.

Under Section 10 (2), it is open to an employer or

workmen or a trade union or other representative body of

the workmen to have the Standing Orders modified by

filing an application for modification of the Standing Orders

and when such an application is filed for modification, it

will have to be dealt with in the same manner as if an

application is made for certification of the Standing Orders.

As is well known that section 10 (2) of the Act gives

ample power to the Certifying Officer to modify the

Standing Orders.

In the present case, the Standing Orders duly

certified as above for TTK Healthcare on 24.07.2013. It is

not in dispute that the Management entered into a

settlement with the Union on 28.04.2018 for a period of

three years from 01.01.2017 to 31.12.2020. The notice of

termination is dated 03.11.2020.

Suffice it to note that the Government of Karnataka

vide Notification No.LD 72 LET 2013, Bengaluru,

dated:23.03.2017 amended Model Standing Orders by

increasing the age of retirement on superannuation from

58 years to 60 years for both workmen and the Clerical

and other Ministerial Staff, for Industrial establishments in

the State of Karnataka, as per the provisions under the

Industrial Employment Standing Orders Act, 1946 and the

Rules made thereunder. It is relevant to note that the

Rules have been notified in the Gazette on 28.03.2017.

The Union submitted a letter dated:01.06.2019 to

the Deputy Labour Commissioner and Certifying Officer

seeking amendment of the Standing Order. The Certifying

Officer after hearing the parties amended the Standing

Orders thereby enhanced the age of retirement from 58 to

60 years vide order dated:15.02.2021. Aggrieved by the

order of the Certifying Officer, the Management preferred

an appeal before the Appellate Authority and the Authority

confirmed the order of the Certifying Officer on

18.11.2021.

The TTK Health Care - the petitioner has

exhaustively relied upon BARAUNI REFINERY case

reported in AIR 1990 SC 1801 before the Authorities.

Even before this Court also the petitioner placed much

reliance on the said decision to contend that BARAUNI'S

case clearly stipulates that during the currency of period of

settlement, an application for modification of the Standing

Orders is not maintainable; and any demand which will

have financial liability on the company cannot be raised

and particularly regarding the age of retirement which

involves financial burden on the company. Learned Senior

counsel has drawn the attention of the Court to paragraph

6, 9 and 10 of the decision.

By way of answer, Sri.Subba Rao, learned Senior

counsel contended that in BARAUNI's case, the Apex

Court has held the Certifying Officer under the Standing

Orders Act has the jurisdiction to entertain the application

for amendment of a Standing Order. Counsel also

submitted that even in BARAUNI's case, the Regional

Labour Commissioner passed the order enhancing the age

of retirement from 58 years to 60 years. The order is made

during the currency of the period of settlement. Hence, it

was argued that the contention with regard to

maintainability of the application is unsustainable in law.

I have considered the rival contentions urged on

behalf of respective parties and perused the decision with

utmost care.

At paragraph 6 in BARAUNI's case, the Apex Court

has referred to the points formulated by the High Court.

The first point relates to the contention whether the

Certifying Officer has the jurisdiction to entertain an

application for amendment of a Standing Order.

Suffice it to notice that the High Court had answered

the first point in the affirmative in favor of the workmen

and the Apex court has confirmed the finding on the

question of jurisdiction to entertain an application during

the currency of the period of settlement. In other words, in

BARAUNI's case, the Apex Court has held that the

application is maintainable and the Certifying officer has

the jurisdiction to entertain the application during the

currency of the period of settlement.

I may venture to notice that in BARAUNI's case,

there is no reference to the date of the application.

Nevertheless, as could be seen from the narration of dates,

admittedly, the period settlement was from 01.05.1982 to

30.04.1986. The Regional Labour Commissioner passed

order enhancing the age of superannuation on 11th of

October 1984 that means obviously the application would

have been filed during the currency of the period of

settlement. The Apex Court in extenso referred to the

relevant provisions of the Act and concluded that the

Certifying Officer has the jurisdiction to entertain an

application during the currency of the period of settlement.

The issue is no longer res-integra. Hence, the contention of

the petitioner that the application is not maintainable must

necessarily fail.

It is further noticed that the Division Bench of this

Court in ADITYA AUTO PRODUCTS AND ENGINEERING

INDIA LTD VS ADITYA AUTO PRODUCTS EMPLOYEES

UNION AND OTHERS in W.A.No.01/2019 has held that

the order passed by the Authorities after the expiry of the

terms of the settlement is in accordance with the law. The

order of Division Bench was challenged before the Apex

Court and the Apex Court has dismiss the petition.

Even in the present case also the Authorities have

passed the orders after the expiry of the period of

settlement. It is needless to say that the workmen have

filed an application for amendment under the provisions of

the Statute and the Certifying Officer and the Appellate

Authority in exercise of statutory power passed the order.

It is perhaps well to remember that the orders are made

after the expiry of the period of settlement. Therefore, the

contention that the orders are made during the

subsistence of the settlement is liable to be rejected.

It is needless to observe that the Certified Standing

Orders made in the State of Karnataka provide for

enhancement of age of retirement on superannuation from

58 to 60 years.

In my considered opinion, the Certifying Officer was

certainly justified in allowing the application submitted by

the Union - first respondent. The Appellate Authority is

also justified in affirming the order passed by the

Certifying Officer.

To conclude, I can only say this much that there is

no infirmity in the orders. Resultantly, the Writ Petition is

dismissed.

Counsel for petitioner and respondent have cited a

number of cases, but I do not think that the law is in

doubt. Each decision turns on its own facts. The present

case is also tested in the light of the aforesaid decisions.

Sd/-

JUDGE

TKN