Certifying, Appealing and Modifying Standing Orders

Some words this chapter uses

Certify means to approve formally, so that the document becomes the operative standing orders of the establishment.

Authenticated means marked as genuine in the manner the rules prescribe.

Deemed to have been certified means treated by the statute as certified although the officer has not acted.

Appellate authority is the authority appointed by the appropriate Government by notification to hear appeals under section 32.

Subsistence allowance is the money paid to a worker while he is suspended and therefore not working, so that he can live while the inquiry runs.

Ordinarily, in section 38(1), signals a norm rather than an absolute bar. The section provides its own consequence for delay, in section 38(3)(b).

Section 30: preparing and certifying the draft

30(1): the employer drafts

The employer shall prepare draft standing orders within six months from the date of commencement of this Code, based on the model standing orders referred to in section 29, in respect of the matters specified in the First Schedule, and on any other matter he considers necessary for his establishment considering the nature of its activity, provided such provision is not inconsistent with any provision of the Code and covers every matter set out in the First Schedule.

Three obligations are packed in there. The draft must be based on the model; it must cover every First Schedule matter; and anything extra must not be inconsistent with the Code.

30(2): consultation before submission

The employer shall consult the Trade Unions, or the recognised negotiating union, or the members of the negotiating council, in respect of the draft, and thereafter forward it, electronically or otherwise, to the certifying officer.

The word "thereafter" fixes the order. Consultation comes before submission, not after. It connects Chapter IV to section 14: who must be consulted depends on who has been recognised, which is the subject of [Recognition: The Negotiating Union and Negotiating Council].

30(3): the short cut, and it is a real one

Where an employer adopts a model standing order of the Central Government with respect to matters relevant to his establishment, that model standing order shall be deemed to have been certified under the section, and he forwards the information to the certifying officer in the prescribed manner. A proviso allows the certifying officer, if he has any observation, to direct the employer to amend the standing order so adopted within the prescribed period.

This is new and it is the employer's fast route. Take the Government's model as it stands and there is no certification proceeding at all. The price is that he gets the model rather than rules fitted to his own plant, and the officer may still require amendment.

30(4): modifications, on the same timetable

The employer prepares the draft of any modifications required in the standing orders and forwards them for certification of those modifications only, within six months from the date the Chapter becomes applicable to his establishment.

30(5): what the certifying officer does

On receipt of a draft under sub-section (1) or (4), the certifying officer shall issue notice to:

• (i) the Trade Union or negotiating union of the establishment, or the members of the negotiating council; or
• (ii) where no Trade Union is operating, to such representatives of the workers chosen in the prescribed manner,

seeking their comments; and after receiving the comments he shall give an opportunity of being heard to the negotiating union or council, or to the Trade Unions or the workers' representatives, and decide whether any modification or addition is necessary to render the draft certifiable, and shall make an order in writing.

Clause (ii) is the provision that keeps the scheme honest in an unorganised plant. Where there is no union, the workers still get notice, still comment, and still are heard, through representatives chosen in the prescribed manner.

The sixty-day proviso, and the deeming that follows

The certifying officer shall complete the procedure within sixty days from receipt, both for a draft standing order and for draft modifications, failing which the draft standing orders or the modifications shall be deemed to have been certified on the expiry of that period.

This cuts both ways and a good answer says so. It protects the employer against an officer who never acts, and it means that an officer who lets sixty days pass certifies, by silence, a draft he may never have read. The workers' protection then rests entirely on the appeal in section 32.

30(6): the test of certifiability

Standing orders are certifiable if:

• (a) provision is made for every matter set out in the First Schedule which is applicable to the establishment; and
• (b) they are otherwise in conformity with the provisions of this Code.

30(7): fairness and reasonableness

It shall be the function of the certifying officer or the appellate authority referred to in section 32 to adjudicate upon the fairness or reasonableness of the provisions of any standing orders keeping in view the provisions of the model standing orders referred to in section 29.

This is the most important sub-section in Chapter IV. Without it the officer would be a clerk checking that all eleven Schedule items appear somewhere. With it he is an adjudicator on the merits, and the model standing orders are the yardstick against which fairness is measured. A provision markedly harsher than the model has to justify itself.

A note of history worth one line in an answer. Under the repealed Standing Orders Act 1946 the certifying officer originally had no such power; it was added by amendment years later, precisely because certification without it had proved to be a formality. The Code carries the power in the section from the start.

30(8) to (11): the rest of the machinery

30(8): the certifying officer shall certify, and within seven days thereafter send copies of the certified standing orders or modifications, authenticated in the prescribed manner, to the employer and to the negotiating union or council, or the Trade Union, or the workers' representatives.

30(9): the draft must be accompanied by a statement giving prescribed particulars of the workers employed, the Trade Union to which they belong, and the negotiating union or council if any.

30(10): a group of employers in similar establishments may submit a joint draft, and for the specified proceedings the words "employer", "Trade Union" and "negotiating union or negotiating council" include all of them.

30(11): standing orders existing on the date of commencement of the relevant provisions continue, so far as not inconsistent with the Code or the rules, and are deemed to be certified under sub-section (8).

Sub-section (11) is the transitional provision for Chapter IV, and it does for standing orders what section 9(4) does for union registrations: nobody starts again.

Section 31: the powers of the officer

Every certifying officer and the appellate authority has all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, and compelling the discovery and production of documents, and is deemed to be a civil court within the meaning of sections 345 and 346 of the Code of Criminal Procedure 1973.

Section 31(2) allows clerical or arithmetical mistakes, or errors from an accidental slip or omission, in an order of a certifying officer to be corrected at any time by that officer or his successor.

The powers in sub-section (1) follow from section 30(7). An officer who must adjudicate on fairness needs to be able to take evidence and compel documents, and the deeming as a civil court for the two CrPC sections gives him the means to deal with contempt in the face of the proceeding.

Section 32: the appeal

Who may appeal: an employer, or a Trade Union, or the negotiating union or negotiating council, or, where there is no negotiating union or council, any union or such representative body of the workers.

Against what: the order of the certifying officer under section 30(5).

Within what time: sixty days of receipt of the order.

To whom: the appellate authority appointed by the appropriate Government, by notification, which disposes of the appeal in the prescribed manner.

Notice how wide the standing is. It is not confined to the recognised union. Where there is no negotiating union or council, any union or representative body of the workers may appeal, so the workers of an unorganised plant are not shut out.

And remember section 30(7) applies to the appellate authority too, in terms. The appeal is therefore an appeal on fairness and reasonableness, not merely on legality.

Section 33: when they come into operation, and who must see them

33(1): the standing orders or modified standing orders come into operation:

• unless an appeal is preferred, on the expiry of thirty days from the date authenticated copies are sent under section 30(8); or
• where an appeal is preferred, on the expiry of seven days from the date copies of the appellate authority's order are sent in the prescribed manner.

The thirty days exist to let the sixty-day appeal period begin sensibly, and the seven days after an appeal reflect that the matter has already been decided twice.

33(2): the text of a standing order as finally certified shall be maintained by the employer in such language and in such manner for the information of the concerned workers as may be prescribed.

Sub-section (2) is small and indispensable. Rules a worker cannot read are not rules he can obey. The provision requires the text to be kept in the prescribed language and manner for the workers' information, and by section 29(2) it applies to model standing orders in the interim period as well.

Section 34: the register

A copy of all standing orders as finally certified shall be filed by the certifying officer in a register, or uploaded in electronic form or such other form as prescribed, and the certifying officer shall furnish a copy to any person applying for it on payment of the prescribed fee.

"Any person" is deliberate. A worker, a union, a researcher or a prospective employee may obtain a copy. The orders are public.

Section 35: modification

35(1): certified standing orders shall not, except on an agreement between the employer and the workers, or a negotiating union or a Trade Union or other representative body of the workers, be liable to modification until the expiry of six months from the date the standing orders or the last modifications came into operation.

35(2): subject to that, an employer or worker or a Trade Union or other representative body may apply to the certifying officer to have the standing orders modified, in the prescribed form, accompanied by copies of the proposed modifications; and where the modifications are proposed by agreement, a certified copy of that agreement shall be filed with the application.

35(3): the foregoing provisions apply to such an application as they apply to the certification of the first-time standing orders.

So the six-month bar is not absolute: agreement lifts it. And note who may apply under sub-section (2): an individual worker may, not only a union.

Section 36: no oral evidence to contradict

No oral evidence having the effect of adding to, or otherwise varying or contradicting, standing orders as finally certified shall be admitted in any Court.

This is a rule of evidence and it protects both sides. An employer cannot say "there was an understanding that lateness meant instant dismissal" when the standing orders say otherwise; a worker cannot say a supervisor promised him something the orders do not give. The certified document is the document.

Section 37: interpretation goes to the Tribunal

If any question arises as to the application or interpretation of standing orders certified under section 30(8), or of modifications made by agreement, the employer, or any worker or workers concerned, or the Trade Union in relation to the workers employed in the establishment may apply to the Tribunal within whose territorial jurisdiction the establishment or the office, section or branch is situated; and the Tribunal shall, after giving all parties a reasonable opportunity of being heard, decide the question, and its decision shall be final and binding on the employer and the workers.

Two points. The certifying officer settles what the orders shall say; the Tribunal settles what they mean. And an individual worker may apply, not only the union.

Section 38: the ninety days and the subsistence allowance

This is the provision a student will actually use, and it is the one most often left out of an answer.

38(1): where a worker is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct, that investigation or inquiry, or where there is an investigation followed by an inquiry then both, shall be completed ordinarily within a period of ninety days from the date of suspension.

38(2): the certified or modified standing orders shall provide that where a worker is so suspended, the employer shall pay subsistence allowance at the rates in sub-section (3) for the period of suspension.

38(3): the subsistence allowance shall be:

• (a) fifty per cent. of the wages the worker was entitled to immediately preceding the date of suspension, for the first ninety days of suspension; and
• (b) seventy-five per cent. of such wages for the remaining period, if the delay in completing the disciplinary proceedings is not directly attributable to the conduct of the worker.

Read (a) and (b) together with (1) and the design appears. The inquiry is meant to finish in ninety days. If it does not, the cost of the delay shifts to the employer, whose payment rises from half to three-quarters, unless the delay is directly attributable to the worker's own conduct. A worker who is himself spinning the proceeding out does not get the increase.

And note that section 38(2) works through the standing orders. The obligation is expressed as a requirement that the standing orders shall provide for it, so it becomes a term of the establishment's own certified rules.

A worked example

The facts. The Wada packaging plant is inside Chapter IV, as the previous chapter showed. It has a registered union which has been recognised as the sole negotiating union under section 14.

Step one. The employer prepares a draft based on the model standing orders, covering all eleven First Schedule matters, within six months of commencement, section 30(1).

Step two. He consults the negotiating union, section 30(2), and thereafter forwards the draft, electronically or otherwise, with the section 30(9) statement of the workers employed and their union.

Step three. The certifying officer issues notice to the negotiating union for comments, section 30(5)(i), receives them, gives an opportunity of being heard, and decides whether modification or addition is necessary, making an order in writing.

The union objects that the draft makes "any absence without prior written permission" a misconduct punishable with dismissal. This is exactly what section 30(7) is for: the officer adjudicates on the fairness or reasonableness of the provision keeping in view the model standing orders. If the model treats absence differently, the draft has to justify the departure.

Step four. The officer certifies and, within seven days, sends authenticated copies to the employer and the union, section 30(8).

Step five. No appeal is filed. The orders come into operation on the expiry of thirty days from the sending of those copies, section 33(1). The employer must maintain the text in the prescribed language and manner for the workers' information, section 33(2), and the certifying officer files a copy in the register and must give a copy to any person who applies and pays the fee, section 34.

Change it: the union appeals. It has sixty days from receipt of the order, section 32, to the appellate authority appointed by the appropriate Government. The orders then come into operation on the expiry of seven days from the sending of the appellate order, section 33(1).

Change it again: the certifying officer does nothing for sixty-five days. By the proviso to section 30(5) the draft is deemed to have been certified on the expiry of sixty days. The union's remedy is the appeal under section 32.

Four months later the union wants a clause changed. Section 35(1) bars modification until six months from the date the orders came into operation, except on an agreement. So either the employer agrees, in which case a certified copy of the agreement is filed with the application under section 35(2), or the union waits.

A worker, Rakesh, is suspended on 1 March pending an inquiry into alleged theft. The inquiry must ordinarily be completed within ninety days, section 38(1). He must be paid subsistence allowance at fifty per cent. of his previous wages for the first ninety days, section 38(3)(a). The inquiry drags to 1 August because the employer's witness is unavailable; the delay is not attributable to Rakesh, so from day ninety-one he must be paid seventy-five per cent., section 38(3)(b).

At the hearing the employer's manager says there was always an understanding that theft meant dismissal without inquiry, though the standing orders provide for an inquiry. Section 36 shuts that out: no oral evidence having the effect of adding to, varying or contradicting the certified standing orders is admissible in any Court.

Rakesh and the employer then disagree about what a clause of the standing orders means. That is a question of interpretation, and under section 37 the employer, the worker or the Trade Union may apply to the Tribunal, which decides after hearing all parties, and its decision is final and binding.

What this does NOT mean

It does not mean certification is a formality. Section 30(7) makes fairness and reasonableness the officer's function, and section 31 gives him civil court powers to take evidence and compel documents.

It does not mean the employer must draft at all. Section 30(3) lets him adopt the Central Government's model standing order, which is then deemed certified, subject to the officer's power to direct an amendment.

It does not mean silence by the officer defeats the employer. After sixty days the draft is deemed certified. The workers' answer is the appeal.

It does not mean only unions can act. Where no union operates, workers' representatives are noticed and heard under section 30(5)(ii), and any union or representative body may appeal under section 32. An individual worker may apply for modification under section 35(2) and for interpretation under section 37.

It does not mean standing orders are unalterable. They cannot be modified for six months except by agreement, and thereafter on application under section 35.

It does not mean the Tribunal certifies. The certifying officer and the appellate authority decide what the orders say; the Tribunal decides what they mean.

It does not mean section 38(1) is an absolute time limit. The word is "ordinarily", and the sanction for delay is the increase in subsistence allowance under section 38(3)(b), not invalidity.

Limits, criticism and amendments

The deeming provision in the proviso to section 30(5) is the most criticised feature. A draft becomes certified because an officer did not act within sixty days, and nothing in the section requires him to have read it. The workers' protection collapses into the section 32 appeal, which requires them to know that the sixty days have run.

Section 30(3) has the same structure of concern. Adoption of the model is deemed certification, so there is no proceeding in which the workers are heard at all; the only check is the certifying officer's power, on his own observation, to direct an amendment.

Section 38(1) is a norm rather than a rule. "Ordinarily within ninety days" is not a bar, and a worker whose inquiry runs for a year has no remedy under this section beyond the higher rate of allowance.

And the subsistence rates are a floor, not a wage. Fifty per cent. of wages for three months is a serious loss for a worker suspended on a charge that may not be made out.

Against all that, the Chapter is markedly better drafted than the Act it replaces. The fairness power is in the section from the start rather than added by amendment; consultation before submission is compulsory; workers without a union are expressly brought into the certification and the appeal; and section 38's time limit and subsistence allowance are new statutory protections.

Quick revision

• 30(1): draft within six months, based on the model, covering every First Schedule matter, nothing inconsistent with the Code.
• 30(2): consult the Trade Unions or negotiating union or council, then forward.
• 30(3): adopting the model is deemed certification; the officer may direct amendment.
• 30(5): notice for comments to the union, or where none, to workers' representatives; opportunity of being heard; order in writing. Proviso: sixty days, failing which DEEMED certified.
• 30(6): certifiable if every applicable First Schedule matter is provided for and it is otherwise in conformity with the Code.
• 30(7): the officer and the appellate authority adjudicate on fairness or reasonableness, keeping the model in view.
• 30(8): certify, then send authenticated copies within seven days. 30(10): joint draft by a group of similar employers. 30(11): existing standing orders continue and are deemed certified.
• 31: powers of a civil court for evidence, oaths, attendance and discovery; deemed a civil court for sections 345 and 346 CrPC; clerical errors correctable at any time.
• 32: appeal within sixty days; by the employer, a Trade Union, the negotiating union or council, or where there is none, any union or representative body.
• 33(1): operation on thirty days from sending copies, or seven days after an appellate order. 33(2): text maintained for the workers' information in the prescribed language and manner.
• 34: register, or electronic form; copy to any person on payment of the fee.
• 35: no modification for six months except by agreement; thereafter an employer or worker or union may apply; a certified copy of any agreement is filed.
• 36: no oral evidence adding to, varying or contradicting certified standing orders in any Court.
• 37: application or interpretation goes to the Tribunal; decision final and binding.
• 38: inquiry ordinarily within ninety days; subsistence allowance 50% for the first ninety days, 75% thereafter if the delay is not directly attributable to the worker.

Test yourself

1. Describe the procedure for certification of standing orders. Under section 30(1) the employer prepares a draft within six months of commencement, based on the model standing orders, covering every matter in the First Schedule and anything else he considers necessary, provided it is not inconsistent with the Code. Under section 30(2) he consults the Trade Unions or the negotiating union or council and thereafter forwards the draft to the certifying officer, accompanied by the section 30(9) statement. Under section 30(5) the officer issues notice for comments to the union, or where none operates to workers' representatives chosen in the prescribed manner, gives an opportunity of being heard, decides whether any modification or addition is necessary and makes an order in writing, completing the procedure within sixty days, failing which the draft is deemed certified. Under section 30(6) the orders are certifiable if every applicable First Schedule matter is provided for and they are otherwise in conformity with the Code, and under section 30(7) the officer adjudicates on their fairness or reasonableness keeping the model orders in view. Under section 30(8) he certifies and sends authenticated copies within seven days to the employer and the union or workers' representatives.

2. What is the significance of section 30(7)? It makes it the function of the certifying officer and of the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders, keeping in view the model standing orders. Without it certification would be a filing exercise in which the officer merely checked that all the Schedule items appeared. With it he decides on the merits, and the model standing orders are the yardstick, so a provision markedly harsher than the model must justify itself. Under the repealed Act of 1946 the officer originally had no such power and it had to be added by amendment; the Code carries it from the start.

3. When do certified standing orders come into operation, and can they be changed? Under section 33(1), unless an appeal is preferred, on the expiry of thirty days from the date authenticated copies are sent under section 30(8); where an appeal is preferred, on the expiry of seven days from the date copies of the appellate authority's order are sent. Under section 35(1) they are not liable to modification until the expiry of six months from the date they or the last modifications came into operation, except on an agreement between the employer and the workers or a negotiating union, Trade Union or other representative body. Thereafter, under section 35(2), an employer, a worker, a Trade Union or other representative body may apply to the certifying officer, and by section 35(3) the certification provisions apply to that application as they do to first-time orders.

4. A worker is suspended pending an inquiry that takes seven months. What is he entitled to? Under section 38(1) the investigation or inquiry, or both where there is an investigation followed by an inquiry, should ordinarily have been completed within ninety days of suspension. Under section 38(3)(a) he is entitled to subsistence allowance at fifty per cent. of the wages he was entitled to immediately before suspension for the first ninety days, and under section 38(3)(b) at seventy-five per cent. for the remaining period, provided the delay in completing the disciplinary proceedings is not directly attributable to his own conduct. Section 38(2) requires the certified standing orders themselves to provide for this payment.

5. What is the effect of sections 36 and 37? Section 36 excludes evidence: no oral evidence having the effect of adding to, or otherwise varying or contradicting, standing orders as finally certified shall be admitted in any Court, so neither side may set up an understanding inconsistent with the certified text. Section 37 allocates jurisdiction: where a question arises as to the application or interpretation of certified standing orders, or of modifications made by agreement, the employer, any worker or workers concerned, or the Trade Union may apply to the Tribunal within whose territorial jurisdiction the establishment is situated, and the Tribunal, after giving all parties a reasonable opportunity of being heard, decides the question, its decision being final and binding.

6. Comment on the deeming provision in the proviso to section 30(5). It provides that where the certifying officer does not complete the procedure within sixty days of receiving a draft standing order or draft modifications, the draft is deemed to have been certified on the expiry of that period. It protects an employer against administrative inaction, which is a real problem. But it also means a draft may become the establishment's certified standing orders although no officer has considered its fairness or reasonableness under section 30(7) at all, and the workers' only remaining protection is the appeal under section 32, which they must file within sixty days of an order that in this situation was never made. Section 30(3), under which adoption of the model standing order is deemed certification without any proceeding, raises the same concern in a milder form, since there the content is the Government's own model.