indusrial employment wsa

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    THE INDUSTRIAL EMPLOYMENTTHE INDUSTRIAL EMPLOYMENT(STANDING ORDER) ACT,1946(STANDING ORDER) ACT,1946THE INDUSTRIAL EMPLOYMENTTHE INDUSTRIAL EMPLOYMENT

    (STANDING ORDER) ACT,1946(STANDING ORDER) ACT,1946

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    The main cause of friction b/w management & workers inindustrial undertakings in India were mainly due to absence ofclear out & precise condition of employment.

    This is why discussion on the subject at tripartite Indian Labourconference in 1943, 1944 & 1945 was made.

    So this discussion come with a conclusion of having a separate

    central law who makes its obligatory on the part of employers inlarge industrial concern in the country to enforce with theapproval of the government standing orders defining preciselythe condition of employment under them.

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    SCOPE & EXTENTy Extends to the whole of India

    y Applies to every industrial establishment wherein100 or more worker are employed or wereemployed on any day of preceding 12 month.

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    ACT DOES NOT APPLYy

    To the Bombay Industrial Relation Act, 1946y Madhya Pradesh Industrial Employment( standing order ) Act,1961

    Also according to the section 13-B act does not apply to certainindustrial establishments i.e. the act does not apply to such

    workmen employed in any industrial establishment as are covered

    by the following rules & regulations:y The fundamental &supplementary rulesy The civil service rules (classification, control, appeal)y The civil service rules (temporary service)y The revised leave rules

    y The civil service regulationsy The civilians defense service rulesy The Indian railways establishment codey Or any other rules & regulation that may be notified in this behalf

    by the appropriate government in the official gazette.

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    LATEST AMENDMENTy The act was made in1982y The amendment of industrial employment rules was

    made to prevent sexual harassment of employees invarious forms.

    Sexual harassment includes:

    y Any behavior directly or by implication involving

    physical contact & advances or a demand or a requestfor sexual favors or sexually colored remarks orshowing pornography or any other unwelcomephysical, verbal, or non-verbal conduct of sexualnature shall be constructed as sexual harassments.

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    MATTERS TO BE PROVIDED IN

    STANDING ORDERS UNDER THIS

    ACT:The Schedule

    1. Classification of the workmen eg: whetherpermanent, temporary, apprentices, probationers onbodies.

    2. Manners of the intimating to workmen periods &hours of work, holidays, pay-days & wage rates.

    3. Shift working

    4. Condition of procedure in applying for & theauthority which may grant leave & holidays.

    5. Attendance & late coming.

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    6. Requirement to enter premises by certain gates &liability to search.

    7. Closing & responding of sections of industrialestablishment & temporary stoppages of work & therights & liabilities of the employer & workmenarising there from.

    8. Termination of employment & the notice thereof tobe given by employer & workmen.

    9. Suspension or dismissal for misconduct or omissionswhich constitute misconduct.

    10. Means of redress for workmen against unfairtreatment or wrongful extractions by the employer orhis agents or servants.

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    SPECIAL FEATURES OF ACT1. The employer of every industrial establishment to which

    the act applies is required to frame draft standing order &to submit them to certifying officer.

    2. The certified officer is empowered to modified or add to

    the draft standing order.3. A group of employers of similar industrial establishments

    may submit joint standing order.

    4. The government may by rules set out model standingorders for the purpose of this act & the draft standingorder framed by an employer should as far as practicablebe in conformity with model standing order.

    Continue....

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    5. The act normally applies to every industrialestablishment where in 100 or more workmen are

    employed.6. The certifying officer & appellate authorities shallhave all the powers of civil court in respect of certainmatters.

    7. The employers can be panelized for failure to submitdraft standing order.

    8. The appropriate government may by notification inofficial gazette exempt any establishment from any

    provision of this act.9. Also the appropriate government may, after previous

    publication by notification in the official gazette,make rules.

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    DEFINITIONSDEFINITIONSy APPELLATE AUTHORITY:

    an authority appointed by the appropriategovernment by notification in the official gazette to

    exercise in such area as may be specified in thenotification the function of an appellate authorityunder this act:

    Provided that in relation to an appeal pending before

    an industrial court or other authority immediatelybefore the commencement of the industrialemployment amendment act, 1963, the court orauthority shall be the appellate authority shall be theappellate authority [section 2(a)].

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    y APPROPRIATE GOVERNMENT:

    means in respect of industrial establishment under thecontrol of the central government or a railwayadministration or in a major port, mine or oilfield, thecentral government, & in all other cases, the stategovernment [section 2(b)]

    CERTIFYING OFFICER:

    means a labour commissioner or a regional labour

    commissioner, & includes any other officer appointed bythe appropriate govt. by notification in official gazette, toperform all or any of the function of a certifying officerunder this act [section 2]

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    y EMPLOYER:

    means the owner of an individual establishment towhich this act for the time being applies, & also includes-

    1. In a factory, any person named under clause (f) of sub-section (1) of section 7 of the factories act 1948

    2. In any industrial establishment under the control of any

    dept. of any govt. in India, the authority appointed bysuch govt. in this behalf; or where no authority is soappointed the head of the dept.

    STANDING ORDER:means rules relating to matters set out in the schedule[section 2(g)].

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    PROCEDURE FORPROCEDURE FOR

    CERTIFICATION(SECTIN 3)CERTIFICATION(SECTIN 3)y Within 6 months from the date on which this act is

    applicable the employer of an industrial establishment isrequired to submit.

    y To the certifying officer 5 copies of the draft standing

    orders proposed to be adopted by him in his industrialestablishment together with the prescribed particulars ofthe workmen, employed & the name of trade union if anyto which they belong.

    y A group of employers in similar industrial establishmentmay submit a joint draft of standing orders as per conditionprescribed.

    y This draft of standing orders should be in conformity withthe model standing orders & every matter set out inschedule.

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    y On receipt of the draft, the certifying officer shall forward acopy thereof to the trade union, if any, of the workmen orwhere there is no such trade union to the workmen in the

    prescribed from requiring objections, if any, which theworkmen may desire to make to the draft standing ordersto be submitted by him within 15 days from the receipt ofthe notice.

    y So after giving the opportunity of being heard, thecertifying officer shall decide whether or not anymodification or addition to the draft is made to make itcertifiable under the act & shall make an order in writing.

    y The certifying officer after certifying the draft , shall send within 7 days, copies of the certified standing ordersauthenticated in the prescribed manner & of his order tothe employer or to the trade union or other representativesof the worker(section 5).

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    yThe age of superannuation for certificationof standing orders could be mutually agreed

    b/w management &workers & every workeron reaching the age of superannuation hadto retire from the service.

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    ACCRDING TO SECTION 4 OF THEACCRDING TO SECTION 4 OF THE

    ACT STANDING ORDER SHALLACT STANDING ORDER SHALL

    CERTIFIABLE IF:CERTIFIABLE IF:--

    y In the draft provision is made for every matter stated

    in the schedule to the act which is applicable toindustrial establishment &

    y The draft is otherwise in conformity with theprovisions of the act.

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    SOME IMPORTANT POINTSSOME IMPORTANT POINTS

    y According to this act, certifying officer is under a legalduty to consider that standing orders are in conformitywith the act. And also the reasonableness and fairnessof the standing order.

    y The draft must be in conformity with the modelstanding order (i.e. prescribed by appropriategovernment)

    y Conformity here does not mean that it should be inidentical words but it does mean that in substanceconform to the model prescribed by appropriategovernment.

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    CERTIFYING OFFICERS &CERTIFYING OFFICERS &

    APPELLATE AUTHORITIES TO HAVEAPPELLATE AUTHORITIES TO HAVE

    POWERS OF CIVIL COURTPOWERS OF CIVIL COURT

    y Every certifying officer & appellate authority shall have allthe powers of a civil court for the purpose of receiving

    evidence, administering oaths, enforcing the attendance ofwitness & compelling the discovery & the production ofdocuments & shall be deemed to be a civil court within themeaning of sections 480 & 482 of the code of criminalprocedure.

    y Clerical or arithmetical mistakes in any order passed by acertifying officer or appellate authority or errors arisingtherein from any accident slip or omission, may at any timebe corrected by the officer or authority, as the case may be(

    section 11).

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    APPEALSAPPEALSy Any employer, workmen, trade union or other

    prescribed representative of the workmen

    aggrieved by the order of the certifying officer, maywithin 30 days from the date on which copies aresent, appeal to the appellate authority whosedecision shall be final.

    y The appellate authority shall within 7 days of itsorder send copies thereof to the certifying officer ,to the employer and to the trade union or otherprescribed representative of the workmen.

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    DATE OF OPERATION OFDATE OF OPERATION OF

    STANDING ORDERSTANDING ORDER

    yStanding order will, unless an appeal is

    preferred , come into operation on theexpiry of 30 days from the date on which theauthenticated copies of the same are sent or

    where appeal is preferred, on which theexpiry of 7 days from the date on whichcopies of order of the appellate authority aresent.

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    REGISTER OF STANDING ORDERREGISTER OF STANDING ORDER

    y A copy of all standing orders as finally

    certified under this act shall be filled by thecertifying officer in a register in theprescribed form and the certifying officershall furnish a copy of the same to any

    person applying on payment of theprescribed fee.

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    PASTING OF STANDING ORDERPASTING OF STANDING ORDER

    yStanding orders as finally certified,

    shall be pasted by the employer inEnglish and in language understood bythe majority of the workmen on special

    board at the near entrance.

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    DURATION AND MODIFICATIONDURATION AND MODIFICATION

    OF STANDING ORDERSOF STANDING ORDERS

    yStanding orders, finally certified under this

    act, on the agreement b/w the employer andthe work men be liable to modification untilthe expiry of 6 months from the date on

    which the standing orders or lastmodification thereof come into operation.

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    ORAL EVIDENCE INORAL EVIDENCE IN

    CONTRADICTION OF STANDINGCONTRADICTION OF STANDINGORDERSORDERS

    yNo oral evidence having the effect of addingto or varying or contradicting s.o., shall beadmitted by any court.

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    PAYMENT OF SUBSISTANCEPAYMENT OF SUBSISTANCE

    ALLOWANCE (SECTION 10ALLOWANCE (SECTION 10--A)A)y Section 10-A makes provision for payment by an employer

    to a workman who has been suspended by the employerpending investigation or inquiry into complaint or charges

    of misconduct against the workman the subsistenceallowance shall be payable:

    a) At the rate of the 50% of the wages which the workmanwas entitled to immediately preceding the date of suchsuspension for the first 90 days of suspension;&

    b) At the rate of 75%of such wages for the remaining periodof suspension if the delay in completion of disciplinaryproceeding against such workman is not directlyattributed to the conduct of such workman.

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    LEGAL EFFECT OF STANDINGLEGAL EFFECT OF STANDING

    ORDERSORDERSy Once the standing order come into operation, they have

    certain legal effects.y Have a statutory force under the act.

    y Govern all relations b/w the employer & the employees.y Binding on both the employers & employees in

    employment at the time standing orders came into force &those employed thereafter.

    y It is not permissible for the employer to seek their statutory

    modification in respect of such employee & another for restof the employees.y Employer, who violets these certified standing orders, may

    be punished with a fine.

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    PENALTIES & PROCEDUREPENALTIES & PROCEDURE

    y An employer, who fails to submit draft standing order asrequired by section 3 shall be punishable with fine whichmay extend to 5000 rs. & in case of a continuing offencethan its extend to 200 rs. For every day after the first,during which the offence continues.

    y An employer, who does any act in contravention of thestanding orders finally certified under this act for his

    industrial establishment shall be punishable with finewhich extend to 100 rs. & in case of a continuing offencethan its extend to25 rs. For every day after the first.

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    y No prosecution for an offence punishable under thissection shall be instituted except with the previoussanction of the appropriate government.

    y No court, inferior to that of a presidency magistrate ormagistrate of second class shall, try any offence underthis section 13.

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    POWER TO EXEMPTPOWER TO EXEMPTy Appropriate government may, by notification in the

    official Gazette, exempt conditionally orunconditionally any industrial establishment or classof industrial establishments from all or any of the

    provision of this act (section 14).

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    DELEGATION OF POWERSDELEGATION OF POWERS

    y The appropriate government may by notification inthe official gazette, delegate the exercise of any power.

    y The matters in relation to which the powers are

    delegated & conditions under which such delegation ismade must be specified in the direction.

    y Central government, it can delegate its authority as toany officer or authority subordinate to it or to stategovernment.

    y When the appropriate government is the stategovernment it can delegate its powers to any officer orauthority subordinate to it(section 14-A).

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    POWER TO MAKE RULESPOWER TO MAKE RULES

    (SECTION 14(SECTION 14--A)A)1) The appropriate government, may after publication, by

    notification in this official gazette make rules to carry outthe purpose of this act.

    2) In particular & without prejudice to the generality of thefore going power such rules may-

    a) Prescribed additional matters to be included in theschedule & the procedure to be followed in modifyingstanding orders certified under this act in accordance

    with any such addition;b) Set out model standing orders for the purpose of this act;

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    c) Prescribe the procedure of certifying officers appellateauthorities;

    d) Prescribe the fee which may be charged for copies ofstanding orders entered in the register of standing

    order;e) Provide any other matter which may is to be or may beprescribed provided that before any rules are madeclause(a), representative of both employers & workman shall be calculated by appropriategovernment.

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