Sec. 3 of the IESO Act, 1946 mandates the 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 on the erring employer who fails to submit the draft standing orders under Sec. 3 of the Act to the certifying officer. Sec. 12A speaks to the deemed adoption of Model standing orders from the date on which this Act becomes applicable until the standing orders are finally certified by the Certifying officer, using the words "notwithstanding anything contained in Sec. 3 to 12."
Is Sec. 12A 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 that merely relying on Model standing orders for decades is sufficient? In such a case, is there any possibility of taking up prosecution against any employer for violating Sec. 3? Please discuss. - Kesava Panda
From India, Visakhapatnam
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10Is Sec. 12A 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 that merely relying on Model standing orders for decades is sufficient? In such a case, is there any possibility of taking up prosecution against any employer for violating Sec. 3? Please discuss. - Kesava Panda
From India, Visakhapatnam
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Sec. 3 of the IESO Act, 1946 mandates the 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 erring employer who fails to submit the draft Standing Orders under Sec. 3 of the Act to the Certifying Officer. Sec. 12A speaks to the deemed adoption of Model Standing Orders from the date on which this Act becomes applicable and ending with the date on which the SOs are finally certified by the Certifying Officer, using the words "Notwithstanding anything contained in Sec. 3 to 12". Is Sec. 12A not contradictory to Sec. 3? Does Sec. 12A not send wrong signals to industries that there is no necessity to design Standing Orders of their own and merely dwelling upon Model Standing Orders for decades is enough? In such a case, is there any possibility to take up prosecution against any employer for violating Sec. 3? Please discuss. Kesava Panda
From India, Visakhapatnam
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From India, Visakhapatnam
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Dear friend,
I believe that although you have understood the importance of the provisions of Sec. 3 and 12A of the Standing Orders Act, 1946, the non obstante clause "notwithstanding anything contained in Sec. 3 to 12" appearing in the opening part of Sec. 12A(1) still gives rise to the confusion you have mentioned. The non obstante clause indicates that Sec. 12A is an independent section and, therefore, in case of any inconsistencies between the provisions of Sec. 12A and those of Secs. 3 to 12, Section 12A will prevail.
The reasons are as follows:
(a) Section 3(1) specifies the time limit, i.e., six months within which the draft standing orders should be submitted for certification once the Act becomes applicable to the establishment. This implies that such a submission of the draft can be done even on the penultimate day of the sixth month.
(b) As you are aware, the certification of standing orders is an administrative process involving comparison and consultation, which requires a reasonable amount of time to complete.
(c) During the interim period, i.e., the time between the commencement date of the Act's application and the effective date of the certified standing orders, the employment conditions of the establishment cannot remain undefined and unknown to the workers employed there. Therefore, the model standing orders established by the Appropriate Government under its rule-making power are mandatorily applicable during this interim period.
(d) If you had considered the concluding part of Sec. 12A(1), the confusion would not have arisen. In other words, the explicit inclusion of the application of the provisions of Secs. 9, 13(2), and 13-A, along with the exclusion of Sec. 13 (i.e., provisions regarding penalties and procedures) in the non obstante clause of Sec. 12-A, together with its title, implies that Sec. 12-A does not allow an employer to bypass the Act's provisions by merely adopting the model standing orders indefinitely. It also does not relieve the employer of the legal obligation to comply with Sec. 3(1), (2), and (3).
I hope this clarifies the points of confusion you raised.
Best regards, [Your Name]
From India, Salem
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I believe that although you have understood the importance of the provisions of Sec. 3 and 12A of the Standing Orders Act, 1946, the non obstante clause "notwithstanding anything contained in Sec. 3 to 12" appearing in the opening part of Sec. 12A(1) still gives rise to the confusion you have mentioned. The non obstante clause indicates that Sec. 12A is an independent section and, therefore, in case of any inconsistencies between the provisions of Sec. 12A and those of Secs. 3 to 12, Section 12A will prevail.
The reasons are as follows:
(a) Section 3(1) specifies the time limit, i.e., six months within which the draft standing orders should be submitted for certification once the Act becomes applicable to the establishment. This implies that such a submission of the draft can be done even on the penultimate day of the sixth month.
(b) As you are aware, the certification of standing orders is an administrative process involving comparison and consultation, which requires a reasonable amount of time to complete.
(c) During the interim period, i.e., the time between the commencement date of the Act's application and the effective date of the certified standing orders, the employment conditions of the establishment cannot remain undefined and unknown to the workers employed there. Therefore, the model standing orders established by the Appropriate Government under its rule-making power are mandatorily applicable during this interim period.
(d) If you had considered the concluding part of Sec. 12A(1), the confusion would not have arisen. In other words, the explicit inclusion of the application of the provisions of Secs. 9, 13(2), and 13-A, along with the exclusion of Sec. 13 (i.e., provisions regarding penalties and procedures) in the non obstante clause of Sec. 12-A, together with its title, implies that Sec. 12-A does not allow an employer to bypass the Act's provisions by merely adopting the model standing orders indefinitely. It also does not relieve the employer of the legal obligation to comply with Sec. 3(1), (2), and (3).
I hope this clarifies the points of confusion you raised.
Best regards, [Your Name]
From India, Salem
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On 22nd I have continued the discussion. But that is not found place here. How can I recover it?
From India, Visakhapatnam
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From India, Visakhapatnam
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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 that the application of Sec. 9, Sec. 13(2), and Sec. 13A is to those model standing orders so long as they are applicable to the industrial establishment. Thus, according to Sec. 9, the management has to post the model standing orders as 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 be barred. As specified in 13A, it is also applicable to Model standing orders. Then the entire situation comes to one point, what is 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, Visakhapatnam
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Of course, Sec. 12 A, as you have stated, the application is "Temporary". But it is categorically stated that the application of Sec. 9, Sec. 13(2), and Sec. 13A is to those model standing orders so long as they are applicable to the industrial establishment. Thus, according to Sec. 9, the management has to post the model standing orders as 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 be barred. As specified in 13A, it is also applicable to Model standing orders. Then the entire situation comes to one point, what is 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, Visakhapatnam
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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 I am able to understand.
(1) The purpose of the Standing Orders Act, 1946, is to require 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 responsibilities 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 the 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 an explosives manufacturing factory, not only smoking but also having inflammable articles like matchboxes or 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 cannot absolve the employer of his liability to submission of draft standing orders for certification by the efflux of time because it is a continuing offense 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 a temporary concession but also an ad hoc arrangement and as such by no stretch of imagination could be considered as a blanket permission.
From India, Salem
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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 I am able to understand.
(1) The purpose of the Standing Orders Act, 1946, is to require 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 responsibilities 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 the 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 an explosives manufacturing factory, not only smoking but also having inflammable articles like matchboxes or 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 cannot absolve the employer of his liability to submission of draft standing orders for certification by the efflux of time because it is a continuing offense 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 a temporary concession but also an ad hoc arrangement and as such by no stretch of imagination could be considered as a blanket permission.
From India, Salem
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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? Until the draft standing orders are certified by the certifying officer, the model standing orders come into play. In the case of those who have not applied within 6 months, they have 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 made by the certifying officer. The management has to face prosecution after the expiry of 6 months from the date when the provisions are made applicable to their industry. Even if they submit their draft standing orders after the expiry of 6 months, the law does not prevent the certifying officer from taking up prosecution against the employer.
Have 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, Visakhapatnam
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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 made by the certifying officer. The management has to face prosecution after the expiry of 6 months from the date when the provisions are made applicable to their industry. Even if they submit their draft standing orders after the expiry of 6 months, the law does not prevent the certifying officer from taking up prosecution against the employer.
Have 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, Visakhapatnam
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I would like to further add that I came across a similar situation where a pharmaceutical company in Gujarat has not certified their standing orders. Under RTI, the DLC has stated that they have not certified their standing order. The company is 110 years old, and they claim in writing that they are following the Standing Orders by attaching ID cards of workers in the factory. However, this is not a valid certification of the standing orders.
For field workers, they are transferring them across India, which is a violation of the Model Standing Order. How can employers navigate this tricky situation? How can they be penalized? Please provide some insights.
From India, Kanpur
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For field workers, they are transferring them across India, which is a violation of the Model Standing Order. How can employers navigate this tricky situation? How can they be penalized? Please provide some insights.
From India, Kanpur
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