Elaborate on the need of standing orders.

Discuss the salient

features of the Industrial Employment(standing
orders)Act,1946.
ANSWER: Introduction

The Industrial Employment (Standing Order) Act, 1946 (hereby referred to as ‘IESO’)

precisely defines the conditions of employment under an employer to both the employer
and the workmen. Before the IESO Act was passed, there was a lack of order and clarity
regarding the terms of employment by an employer. The workmen at that time were hired
on a contractual basis individually, and in most cases these contracts were either express or
implied, thus often leading to a misunderstanding of expectations between the employer
and the workmen.
In many cases, these terms and conditions of hiring were ambiguous and led to friction
between the workmen and the management. The lack of rules for securing permanency of
the job, fair deal and disciplinary action on petty matters was a worrying problem for
industrial workmen. There was no provision against abrupt dismissal or wrongful
termination. The workmen had no safeguards against any disciplinary actions that the
employers took for they didn’t have any guidelines or rules protecting their interest. Even in
large industries, if there was a standing order, there was no particular guidelines that it had
to follow or any legislation governing the enforcement of the same.
With the concept of Trade Unionism coming into play, the State and the Tripartite Labour
Conference became the voice of the workmen and helped pass the Industrial Employment
(Standing Order) Act in 1946 to ensure clear and well-defined employment conditions
or standing orders that helped establish smoother working relations between industrial
workmen and employers.
The objective of the IESO Act is to regulate the conditions of recruitment, discharge,
disciplinary action, holidays, classification of workers, mechanism of wage rates, attendance
issues, etc.
Anything that requires ‘employers in industrial establishments formally to define conditions
of employment under them’ falls within the scope of the IESO Act.
The Act makes it binding for employers to ‘define with sufficient precision the conditions of
employment and to make those conditions known to the workmen.
The IESO Act helped introduce a uniformity or terms and conditions of employment in
respect of workmen belonging to the same category and discharging the same or similar
work in an industrial establishment. Overall, the IESO Act helped bring regulation and a
sense of order amongst the workmen and the employers.
This Act requires the employers to define the conditions of service in their establishments
and to put them in writing and then get them certified by the Certifying Officer to avoid any
unnecessary industrial disputes in the future between the employers and the workmen. The
standing orders of the said industrial establishment must conform to the model standing
orders but not necessarily consist only of the model standing order. If the establishment
wishes to add to the standing orders, then they can do so, provided the draft of the same
gets approved by the Certifying Officer. 
In the case of Avery India Ltd. v. Second Industrial Tribunal, West Bengal it was held that the
provisions as to the age of retirement in the standing orders of an establishment would
apply to all the employees irrespective of whether or not they were part of the
establishment where they work prior to or subsequent to the standing orders coming into
force, even though there was no such provision for the age of retirement in the past. 
Standing Orders
The term ‘Standing Orders’ refers to the rules relating to the matters defined in the
Schedule of the IESO Act. These matters should be according to the Schedule, provided in
Standing Orders under this Act as follows:
 Classifications of workmen, e.g., temporary, permanent, apprentice, probationers,
etc.
 Manner of intimating to workmen periods and hours of work, holidays, paydays and
wage rates.
 Shift working.
 Attendance and late coming.
 Conditions of procedure in applying for and the authority which may grant leave and
holidays.
 The requirement to enter premises by certain gates and liability to search.
 Closing and reopening of sections of the industrial establishment, and temporary
stoppages of work and the rights and liabilities of the employer and workmen arising
therefrom.
 Termination of employment and the notice thereof to be given by employer and
workmen.
 Suspension or dismissal for misconduct, and acts or omissions which constitute
misconduct.
 Means of redress for workmen against unfair treatment or wrongful executions by
the employer or his agents or servants.
 Any other matter which may be prescribed.
It shall be obligatory upon the employer to make provision in the Standing Orders in respect
of any matter provided in the Schedule of the Act. Once a provision is made it can be
modified only in accordance with the provision of Section 10(2) of the Act.
Nature of Standing Orders
Though the legal nature of Standing Orders is mostly considered to be statutory in nature
and the same has been reinforced in several judgements by the Apex Court, there have
been several arguments debating the claim. The nature of Standing Orders has been
considered as contractual at times, and an ‘award’ at others. Meanwhile, the argument that
the nature of Standing Order is ambiguous and inconclusive seems to stand corrected as it
fails to be put in one category without solid arguments against the claim of its nature as
statutory, contractual or an award.
Statutory nature of Standing Orders
The very first argument of Standing Orders as being statutory in nature comes from the
case The Bagalkot Cement Co. Ltd. Vs. R.K. Pathan & Ors. wherein the Supreme Court stated
that:
“The object of the Act as we have already seen, was to require the employers to make the
conditions of employment precise and definite and the act ultimately intended to prescribe
these conditions in the from of standing orders so that what used to be governed by a
contract hereto before would now be governed by the statutory standing orders…”.
This decision of the Supreme Court was relied upon in various other judgements to conclude
that Standing Orders, once certified, are statutory in nature. This was reinforced by the High
Court of Gujarat in the case of Tata Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu wherein
the judge distinguished between a statutory obligation and a contractual obligation and
therefore came to the conclusion that certification of standing orders under the IESO Act
creates statutory rights and obligations.
Another argument pertaining to the statutory nature of standing orders is that the
Certifying Officer, in certifying the draft of the standing orders made by the employer, is part
of a delegated legislation. The process of hearing from both parties before certifying the
standing orders may as well be seen as a consultation of sorts to those affected by the
decision. This, in turn, makes the Certifying Officer, part of a rule-making process, thus
making the entire process statutory in nature.
Arguments against the statutory nature of standing orders can be put forward as follows:
 If we are to assume that the standing orders are statutory in nature, then they are in
contradiction to the fundamental rights given to citizens in our constitution; the
constitutional validity of these statutory rights and obligations against our
fundamental rights can be argued by parties under Article 32 and Article 226 of the
constitution. Another aspect to consider is the infringement of Article 14 and the
Right to Equality caused by assuming certified standing orders as statutory in nature
and applying it to workmen of like industries and under similar circumstances.
  The second argument against the statutory nature of standing orders is that
Tribunals are not supposed to have the power to override provisions having
statutory effect. Industrial Tribunals, under The Industrial Disputes Act, 1947, have
 the power to create new rights and obligations and to vary terms of an agreement or
contract pertaining to the proprietary or legality of an order passed by an employee
under standing orders and the application and interpretation of standing orders. If
we consider certified standing rights as statutory in nature, it negates the power for
the tribunals to override and create changes and modifications in the standing
orders, thus hampering its power to provide industrial justice.
 Section 10(1) of the IESO Act clearly states that even after the certification of the
standing orders, they are liable to change on agreement between the employers and
the workmen. This is in complete contradiction to the statutory nature of standing
orders as no statute can be modified on agreement between two parties. Provisions
with true statutory effects are not susceptible to amendments based on agreements
between two parties.
 Lastly, the Act imposes restrictions on the bargaining power of the employers
curtailing the freedom of contract so that employers must present draft standing
orders which are compatible with the statute. In no way does the Act delegate any
legislative powers to any authority but rather, it imposes an obligation on an
individual employer to make rules keeping in mind the model standing orders given
in the schedule. Furthermore, the Certifying officer has only limited judicial power.
Thus, we understand that certified standing orders are not delegated legislation and
hence, are not statutory in nature.
Standing Orders as an ‘award’
Section 4 of the IESO Act states that the decision maker or the Certifying Officer, after
hearing both the parties, adjudicates upon the “fairness or reasonableness” of standing
orders laying down the conditions of the employment. This, in turn, makes standing orders
as a kind of “award”. But this cannot be the case, as the Industrial Disputes Act, 1947 does
not consider the Certifying Officers as the decision makers in matters of industrial disputes
and thus the standing orders cannot be an award. Also, the Certifying Officer does not, in
any way or form, settle an industrial dispute; he merely modifies or certifies the draft
standing orders after hearing both the parties. Another aspect to consider would be that if
we consider the standing order as an award, certain provisions pertaining to limitations on
lock-outs and strikes would come into play as given under the Industrial Disputes Act, 1947.
Lastly, Section 13(2) of IESO Act makes the employer liable for any contravention of the
standing orders, thus contradicting the principle that an award is as binding and applicable
to one party as it is to the other.
So we conclude that certified standing orders are neither completely statutory in effect nor
do they fall under the category of an award.
Standing Orders as special kinds of contracts
The certified standing orders have a statutory force but they are not necessarily statutory in
nature as we have already discussed. The standing order implies a contract between the
employer and the workman. Therefore, the employer and workman cannot enter into
contract overriding the statutory contract as embodied in the certified standing orders.
While the standing orders are in force it is not permissible for the employer to seek their
statutory modifications which leads to there being one set of standing orders in respect of
certain employees and another set for others.
Therefore, no workman can be appointed by the employer with terms and conditions
different from those defined in the standing orders unless the standing orders are modified
in accordance with the provisions of matter discussed in the Schedule of the IESO Act. It is
not open to an Industrial Tribunal to ignore an existing standing order in matters that refer
to individual discipline. And no Industrial Tribunal can make amendments and modifications
in standing orders unless they are contractual in nature. 
Thus, clearly strengthening the argument for the contractual nature of the standing orders.
Conclusion
When we consider the nature of Standing Orders individually as statutory, contractual or as
an award, we can conclude positively that it doesn’t fit under any one category completely.
There are solid arguments against successful categorization of Standing Orders and thus the
nature of Standing Orders can be concluded as amorphous and ambiguous in nature.

SCOPE AND COVERAGE OF THE INDUSTRIAL EMPLOYMENT(STANDING ORDERS)ACT,1946

Application of the Act
Acts make clear both the parties (employer and workman)
This Act is applicable to every state except Jammu and Kashmir throughout the India.
This Act is applicable to all the industries wherein minimum 100 workmen been employed in
an industry
Industries to which this Act is not Applicable
Sec- 13(B) Act mot apply to certain industrial establishment
 
Any industrial establishment for which following rule are applicable: –
1. Fundamental and supplementary rules
2. Civil service rules (state government employees) classification control service
temporary service rules
3. Civil service temporary service rules
4. Civil service regulations
5. Civilians defence service rules
 6. Indian railway establishment code any other rules and regulations notified by the
appropriate Government
If any industry are following the rules they are exempted from this Application 1946
This rule is not applicable to any industrial establishment which is run by a private
management.
Appropriate Government 2(b)
Central Government is deemed to be the Appropriate Government for following
1. Any industry which is under the control of central government
2. Railway administration
3. Major port mine or oil filed
Only for these industries central government is appropriate government. in all other cases
state government is Appropriate government.
2(C): – certifying officer
1. Labor commissioner
2. Regional labor commissioner
3. Any other officer appointed by the appropriate government as a certifying officer.
 
Sec 2(g): – Standing order: –
Standing order is set of rules specified in this schedule of the act. It was enacted to prevent
exploitation of the workman. Employer used to give his own conditions
Within the schedule they have specified certain rules or subject matter of the specified set
of rules are 
1.  Classification of workman (whether he is a temporary or permanent, Badli
workman)
2. Working hours, holidays as well as wage rates
3. Shift working
4. Attendance and late coming 
5. Procedure in applying leave and holidays 
6. Requirement to enter premises by certain or specific gates and liability to search
7. Closing and opening up industrial establishment
8. Termination of employment and procedure for serving the notice
 9. Suspension or dismissal for misconduct or any act or omission
10. Remedies available for a workman in case of unfair labor practices
11. Any other matter which may be prescribed.
 
Sec – (3) Submission of draft standing orders
Which is nothing but standing order before approval is draft standing order
3(1): – every existing industry at the time of passing this enactment within a span of 6
months from the date on passing of which the enactment was passed they have to draft of a
standing order and that must be submit it to certifying officer
3(2):- the draft standing order should consist of or in connection with every subject matter
specified in the schedule of the Act
Model standing order – in case if the employer has made model standing order so that MSO
should be in conformity with that of draft standing order
3(3): – draft so shall be accompanied by a statement giving all the particulars of all the
workmen who have been employed in an industrial establishment and should be submit to
certifying officer
3(4): – in case of more than one employer they should submit joint standing order (in case
of group of employers)
 
Sec (4): – condition for certification of standing order
What are all the conditions to be fulfilled to get certification 
1. Certifying officer will verify whether the provision has made by employer for all the
subject matter mentioned in the schedule
2. Standing order should also in conformity with the provision of this Act
3. Certifying officer have the authority to decide whether to grant the certification and
he may also suggest for modification of the standing order in the form of addition of
rules in the draft standing order and after it is fulfilled, he will certify.
 
Sec (5): – certification of standing order
When the draft standing order is submitted, he shall forward it a copy to trade union or
workman representative.
If certifying order is satisfied by fulfilling all the conditions u/s -4 then it shall send to trade
union or workman representative after certifying it will sent to trade union
Inviting objections as for the standing order is the purpose to send to workman
representatives. They will have 15 days’ time to send objections from the date on which it is
served to workman representative.
In case if the objectives are sent then certifying officer, he provides opportunities for both
the employer and employee
After opportunity of being heard he will decide whether to grant or not and pass an order.
In case if he feels any modifications, he can suggest and certify it.
That certification order shall be sent within a span of 7 days after approval is given that
order should be sent to trade union or workman representative
Once standing order is certified then condition of the service of employment of the
workman,
Standing order will be bind on employees as well as employer it includes successors, legal
heirs.
 
Sec (6): – Appeals
Any employer, trade union, representation of the workman who may be aggrieved by the
order of certifying officer may make an appeal to the appellant authority within a span of 30
days from the date of certifying order is received by trade union
The decision of appellant authority shall be final binding on all the parties
Appellant authority has the power to modify or suggest for any additional information
The appellant authority shall send the final copy or order copy within a span of 7 days to the
certifying officer 
In case if the appellant authority suggests the modification, it shall send back copy along
with draft standing order with the parties
Appellant authority has the power to modify on its own if it modifies then that copy shall
send back to the parties.
 
Sec (7):- date of operation of standing order
Every certifying standing order shall come in to operation after the expiry of 30 days from
the date of passing order 
If no appeal is preferred from the date of expiry of 30 days it comes in to force
If any appeal is preferred after the expiry of 7 days it shall come in to operation from the
date of appeal order is passed.
 
Sec (8):- register of standing order
A certified standing order shall be filed in a register maintained by the purpose or Act 
At any time or any person may make an application to view the standing order by the
certifying officer along with the prescribed fee.
 
Sec (9): – posting of standing orders
Posting means displaying
The certifying standing order shall be prominently displayed by the employer in a English
language as well as local language which is understood by the majority of the workman.
 He should maintain some special board wherein he should post the certified standing order
Copy of standing order shall be displayed or posted in all the departments where workmen
are employed.
 
Sec (10): – Duration and modification of standing order
If some modification is required to modify what is the duration 
If there is any agreement between the employee and worker it can be notify notice in the
empire of 6months from the date on which it come into force or from the date of
enforcement
In case if we need to modify earlier to the period he should take permission from the
certifying officer the employer should make an application by sending application with
notification standing order and get it approved by the certifying officer. They should attach 5
copies of proposed notified standing order and he should also attach copy of agreement
between the employer and trade union.
 
 Sec (11): – power of certifying officer
Every certifying officer and appellant authority shall have all the powers of civil court for the
purpose of this evidence as per sec – 345 and 346 of crpc to consider the certifying officer as
civil court.
 
Sec 12(A): – temporary application of model standing order 
The prescribed model standing order till they get the certification of standing order they
should apply model standing order prescribed by the Act
This provision is not applicable to the temporary application of model standing order to the
state of Gujarat and Maharashtra is a appropriate Government.
 
Sec -13 – penalties and procedures
It is mandatory on the part of every employer must make a standing order and get approved
by the certifying officer.
In case if the employer fails to submit the draft standing order within the prescribed time
limit then the employer may penalize.
If the notification of standing order is not as per the provision of sec (10) then that is also
punishable.
Penalty is 5000 rupees employer is liable to pay 5000 
In case of continuing offence for each day the additional 200/- per day should be paid by the
employer 
If the employer contravenes the provision of any of the standing order then he shall be
punishable with fine 100 rupees and in case of continuing offence 25 rupees per each day
Any court which is not below the ranking of metropolitan magistrate or judicial magistrate
of second class is having jurisdiction to entertain this case.
 
Sec -13(A) interpretation of standing order
When there is any dispute as to the obligation or interpretation to the standing order then
that question may be preferred to any one of the labor court either by the employer or
trade union or representative of workmen.
After receiving the application labor court shall give an opportunity for both the parties then
decide the dispute. 
Whatever the decision given by labor court shall be final or binding on the parties.
 
Conclusion :
This act administrates relation between employee and employer or workmen / trade union
and the boss.A industry with 100 or more than 100 employees require certain rules and
regulations to run such industry.
Standing orders can  also  be called as constitution of industries providing guidelines and
rules for the better functioning of an industry.
Hence , standing orders fulfils the constitutional objective of securing soci_economic justice
in an industry.