( 1 ) THE petitioner-Bank has challenged the order of Certifying officer purporting to be exercising his power under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the said Act) claiming that the said Act does not apply to the petitioner-Bank. if that is so, clearly the order of said certifying officer shall be without jurisdiction and therefore, of no effect.

( 2 ) FOR this purpose, the learned Advocate Shri Clerk appearing on behalf of the petitioner-Bank has referred to Sec. 1 (3) of the Act to show that the Act applies to "industrial Establishment". He submitted that the petitioner-Bank is not an "industrial Establishment" as defined by the Act. We have, therefore to turn to definition of clause 2 (e) contained in the said Act where Industrial Establishment Act has been defined and for this purpose we may confine ourselves to sub-clause (i) which reads as under :" (I) an "industrial establishment" as defined in clause (ii) of Sec. 2 of the payment of Wages Act, 1936".

( 3 ) IT is not in dispute between the parties that no other sub-clause is relevant for the present purpose and the Bank can fall if at all in sub-clause (i) of the definition clause 2 (e ). As sub-clause (i) refers to "industrial establishment" as defined in clause (ii) of Sec. 2 of the Payment of Wages Act, 1936, we are required to refer to that Act for understanding the meaning of said definition as contained in the said Act. When we turn to Sec. 2 (ii) of the Payment of wages Act, we find the following definitions :" (II) Industrial Establishment means any - (a) tramway or motor omnibus service; (b) dock, wharf or jetty; (c) inland steam-vessel; (d) Mine, quarry or oil-field; (e) plantation; (f) workshop or other establishment in which articles are produced, adapted or manufactured with a view to their use, transport or sale". In order to put both these references to the aforesaid definitions in proper perspective, we have to keep in view Sec. 1 (3) of the said Act which reads as under :"it applies to every industrial establishment wherein one hundred or more workmen are employed or were employed on any day of the preceding twelve months; provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less than one hundred as may be specified in the notification". The said Act came to be enacted in the year 1946 and definition of Industrial establishment as contained in the Payment of Wages Act applicable at that time is quoted hereinabove. If we try to gather the meaning to the word "industrial establishment" in the background of the said definition of the Payment of Wages act as it stood in 1946, it becomes at once clear that the petitioner-Bank will not be covered by the said Act.

( 4 ) HOWEVER, subsequent to the aforesaid position in the year 1946 there have been changes in the definition, as contained in the Payment of Wages Act, whereby three clause namely f, g and h came to be added, of which the last one is of relevance for our purpose which reads as under :" (H) any other establishment or class of establishment which the Central government or State Government may having regard to the nature thereof, the need for protection of persons employed therein and other relevant circumstances, specify by notification in the Official Gazette".

( 5 ) PRECISELY for this reason, the learned Advocate Shri Clerk had submitted that this being a case of legislation by incorporation, the position as available at the time of enactment of a particular statute, should be borne in mind and therefore, when said Act came to be enacted in the year 1946, the position available under the Payment of Wages Act, 1936 at that time alone, would be material and any other subsequent addition or amendment thereto will be of no avail.

( 6 ) FO