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Judgment
Ram Mohan Reddy, J.—This petition, though listed for preliminary hearing, with the consent of the learned Counsel for parties, is finally heard and disposed of by this order. Petitioner, an ''employer'' falling within the definition of the said term in clause (d) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946, (for short ''the Act''), aggrieved by the order dated 22.11.2013, Annexure-E, of the Labour Commissioner invoking sub-section (1) of Section 13 of the Act to direct prosecution of the petitioner for noncompliance with section 3 of the Act in the matter of not submitting the draft standing orders, has presented this petition.
Learned Counsel submits,
"(a) firstly, that the show cause notice dated 27.9.2013, Annexure-C, immediately preceding the order impugned was issued by a sub-delegatee of the Labour Commissioner, the delegate of the State, in terms of the notification issued under Section 14A of the Act, to discharge functions of the State Government in directing prosecution under Section 13 of the Act. According to the learned Counsel, the legal maxim ''delegatus non potest delegare'' (or delegari) applies and the order, Annexure-E is vitiated.
(b) secondly, that the show cause notice did not make reference to the date on which the Act became applicable to the petitioner/employer-industry, though the draft standing orders was submitted on 2.9.2013 and a proceeding initiated by the certifying officer fixing the date of hearing as 5.10.2013 on which date, complainant-Kannika Sangha had actively participated in the proceeding, hence the order impugned merely recording the aforesaid facts does not demonstrate compliance with sub-section (1) of Section 13 of the Act."
Learned Counsel for respondent No. 4/Karmika Sangha seeks to sustain the order impugned as fully justified, not calling for interference. Learned Counsel adds that, prima facie, there is material to establish violation of Section 3 of the Act, calling forth prosecution under section 13.
Learned Government Advocate, though fairly submits that the show cause notice dated 27.9.2013, Annexure-C preceding the order impugned was issued by a person who is not the delegatee of the State, nevertheless, only points to the petitioner the lodging of the alleged complaint by Karmika Sangha in the matter of non-compliance of Section 3 of the Act by the employer, to add that there being no dispute that the order impugned was passed by delegatee of the State Government, none other than the Labour Commissioner, the order does not suffer from competence.
Sub-section (1) of Section 3 of the Act reads thus:
"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."
Sub-section (3) of Section 3 of the Act reads thus:
"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."
The aforesaid provisions make it abundantly clear that the statute mandates the employer to submit to the Certifying Officer, five copies of the draft standing orders within six months from the date on which the Act becomes applicable to the industry. Therefore, it was for the petitioner to point out the date on which the Act became applicable and whether the submission of the draft standing orders on 2.9.2013 did fall within the period prescribed and if not, furnish necessary explanation for not doing so.
Although, learned Counsel for petitioner points to Section 12A of the Act to submit that if the draft standing orders is not submitted by the employer, the model standing orders is applicable till such time the Certifying Officer certifies the standing orders, is unacceptable. Sub-section (1) of Section 12A reads thus:
"Notwithstanding anything contained in sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the standing orders as finally certified under this Act come into operation under section 7 in that establishment, the prescribed model standing orders shall be deemed to be adopted in that establishment, and the provisions of Section 9, sub-section (2) of section 13 and Section 13A shall apply to such model standing orders as they apply to the standing orders so certified."
From a reading of the aforesaid provision, what can be deciphered is that the mandate of Section 3 is required to be complied with by the employer and until such time, the Certifying Officer under the Standing Orders certifies the draft standing orders, the model standing orders would be applicable.
There can be no doubt that section 13(1) of the Act provides for penalties and procedure including that of punishment for failure to submit draft standing orders as required by Section 3 of the Act. Section 14-A enables the State Government to delegate its powers in the matter of compliance with Section 13(1) and in that regard, issued a notification dated 3.4.1970 delegating its power to the Labour Commissioner.
Accepting that the aforesaid notification providing for delegation of power by the State Government to the Labour Commissioner, nevertheless, the show cause notice, Annexure-C, preceding the order impugned is issued by a person who had no competence, since it is signed by someone for and on behalf of the Labour Commissioner. It cannot but be said that the order impugned is a fall out of the show cause notice. The show cause notice and the order impugned are not shown to be two separate, different and independent actions of the Labour Department, since the contents of the show cause notice makes reference to the failure on the part of the employer to submit the draft standing orders, over which, the Labour Department received a complaint from the Karmika Sangha. A perusal of contents of Annexure-C discloses that it is forwarding the complaint of the Karmika Sangha to the employer and calling for its explanation, in relation to the failure to submit the draft standing orders.
The show cause notice, Annexure-C, essentially suffers from illegality since issued by an incompetent person and secondly, since there is no application of mind over the complaint lodged by Karmika Sangha. It was the duty of the Labour Department and its officials to have made an inspection of the records maintained by the petitioner employer over the date on which the Act became applicable to the employer and thereafter, issue the show cause notice calling for explanation from the employer. It is also not known as to what are the duties of Officers of the Labour Department in such matters, although, Labour Inspectors are required to certify the acquittance register maintained by the employer under various labour laws in the State of Karnataka. The question, therefore is, who is responsible for the fiasco? Is it the Labour Commissioner, Assistant Labour Commissioner or the Employer. It is needless to state that the employers would stand to benefit, if the Labour Department does not exercise its powers under the relevant laws. If a machinery is provided by the statute, then it is needless to state, it is to be acted upon and the Labour Department should not wait for Karmika Sangha to lodge complaints over non-compliance of statutory provisions. The officers manning the Labour Department have to prosecute employers who willfully commit default in complying with the mandatory provisions of law.
Yet again the Labour Commissioner, the delegate of the State, while exercising jurisdiction under sub-section (1) of Section 13 of the Act is bound to apply its mind to all relevant facts and material particulars including dates, record reasons and findings to conclude whether the petitioner/employer had, in fact, committed breach of section 3 of the Act. The assigning of reasons, findings and conclusion would enable to understand as to what was running in the mind of the maker of the order. The order impugned, Annexure-E apart from extracting certain paragraphs of the complaint of the Karmika Sangha and explanation to the show cause notice in the form of abridging the contentions, jumped to the conclusion, to prosecute the petition. It is elsewhere said, absence of reasons and findings tantamount to denial of justice.
In the circumstances, there is a need to interfere with the order, Annexure-E. The petition is allowed in part. The order dated 22.11.2013, Annexure-E of the first respondent directing sanction of prosecution of petitioner under sub-section (3) of Section 13 of the Act is read down as a show cause notice and the petitioner is directed to file his explanation making reference to all relevant material, dates and particulars, within a fortnight from today and if so done, the Labour Commissioner to pass orders strictly in accordance with law and in the light of the observation, supra.