The main legal principle established is that proposed measures affecting service conditions, if found to constitute a change in service conditions under the relevant statutory provisions, may be deemed as an unfair labour practice under the MRTU and PULP Act, 1971.

This petition, filed under Articles 226 and 227 of the Constitution of India, challenges an order passed by the Industrial Court, Mumbai, on a complaint filed by the Respondent Union, under Section 28 read with Item 5 of Schedule II and Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971. In its impugned order, the Industrial Court upheld the Respondent’s contention of unfair labour practice only under Item No.9 of Schedule IV and dismissed the complaint as regards Item 5 of Schedule II and Item 10 of Schedule IV. Accordingly, in this petition, we are concerned only with the acceptance of the complaint of unfair labour practice under Item 9 of Schedule IV.

2. The basis of the complaint of the Respondent union was a notice issued by the Petitioner proposing four measures with a view to “maintain proper discipline”. The first three measures (Item Nos.1 to 3) dealt with the matter of attendance (namely, debiting of “casual Leave” for three late reportings, “leave without pay” if the concerned employee had no casual leave to his credit, and forwarding of an “outdoor duty slip” for approval for proceeding on outdoor duty). The fourth measure (Item No.4) provided for treatment of holidays, including the weekly holidays, falling within the period of leave, as follows :

“All holidays including the weekly holidays falling within the period of any kind of leave shall be treated as leave.” It was the case of the Respondent union that these four measures amounted to a change of service conditions and accordingly, required a notice of change within the meaning of Section 9A of the Industrial Disputes Act, 1947. Whilst the Industrial Court rejected the Respondent union’s case that Item Nos.1 to 3 of the notice amounted to a change of service conditions, it held that insofar as Item No.4 was concerned, it was indeed a change in service conditions and required a notice of change in accordance with Section 9A. This determination is challenged in the present petition.

3. Mr.Talsania, learned Senior counsel appearing for the Petitioner, urges the following points :

(i) In the first place, he submits that the service conditions themselves have to be, in the first place, found by the court in a reference under the Industrial Disputes Act and cannot be found for the first time by the Industrial Court considering a complaint under Section 28 read with Item 9 of Schedule IV of MRTU and PULP Act. He relies upon the judgment of the Supreme Court in the case of Cipla Ltd. Vs. Maharashtra General Kamgar Union, (2001) 3 SCC 101 in this behalf.

(ii) Secondly, it is submitted that standing orders are statutorily imposed service conditions and that an employer desiring to implement the standing orders cannot be said to effect any change in service conditions. He relies on the judgments of the Supreme Court in the cases of Rajasthan State Road Transport Corporation vs. Krishna Kant, (1995) 5 SCC 75 and Western India Match Co.Ltd. vs. Workmen, (1974) 3 SCC 330 in support.

(iii) Thirdly, it is submitted that standing orders supersede any contractual stipulation to be found in the contract of service between the employer and the employees.

4. Section 9A is in the following terms :

“9A. Notice of change. No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,( a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twentyone days of giving such notice: Provided that no notice shall be required for effecting any such change( a) where the change is effected in pursuance of any settlement or award; or (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rul