JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
The petitioner has challenged the validity and correctness of the impugned award dated February 5, 1983 passed by the Labour Court, Allahabad in Adjudication Case No. 122 of 1989. The aforesaid award was enforced by publication on the notice board of the Labour Court under Section 6-N of the U.P. Industrial Disputes Act, 1947 on July 12, 1993.
2. The brief facts are that the petitioner is a registered Society under the Societies Registration Act, 1860. It is claimed that Hindi Sahitya Sammelan Prayag is an Educational Institution/University and the examinations conducted by the Society are recognised by the Government of India as well as various, Universities of the Country. Respondent No. 2 is alleged to have been appointed on the post of Clerk in the year 1969 by the petitioner in the Examination Department. He issued a charge-sheet on October 31, 1987 and was dismissed from employment for indulging in major misconduct w.e.f. August 11, 1988 after holding a domestic enquiry.
3. The workman being aggrieved by the order of dismissal raised an industrial dispute against his termination of service. On conciliation proceedings having failed the following matter of dispute was referred for adjudication before the Labour Court, Allahabad where it was registered as Adjudication Case No. 122 of 1989.
" Vernacular matter omitted."
Before the Labour Court respondent No. 2 filed his written statement of demand inter alia, stating that the enquiry was against the principle of natural justice and that the Management had failed to prove the charges levelled against him. In para 11 of the written statement it was alleged that before passing the dismissal order dated August 2, 1988 and the employer had not served him with any report and show cause notice. It is stated that thus the employer had violated the mandatory provision of Model Standing Order and therefore, the order of dismissal of the petitioner from service was illegal and liable to be quashed.
4. The stand of the petitioner before the Labour Court was that the respondent-workman had indulged in major misconducts for which he was charge-sheeted and terminated from service after holding a fair and proper domestic enquiry. It was also stated before the Labour Court that neither the petitioner was required to give copy of the report of the Enquiry Officer to the workman-respondent No. 2 nor was required to give a second show cause notice to the respondent-workman against the proposed punishment before terminating his services. The Labour Court framed two following additional issues:-
1. Whether the domestic enquiry conducted by the Enquiry Officer was fair and proper or not?
2. Whether before passing the dismissal order, employer has given any show cause notice to the workman or not? If not its effect?
5. The parties filed documentary evidence and gave oral evidence in support of their case. On behalf of the employer, Sri Krishna Prasad Vaishya (E.W. 1) and Sri Shiv Shankar Misra, Office Superintendent (E.W.2) gave oral statements.
6. The Labour Court decided issue No. 1 against the workman-respondent holding that the domestic enquiry against the petitioner was fair and proper. In so far as issue No. 2 is concerned, the Labour Court held that in view of the admitted position that the provisions of Model Standing Orders are applicable upon the establishment of the employers, workman, should have been given copy of the findings of the enquiry report and second show cause notice before passing the final order of dismissal. Since these were not given to him, the punishment of dismissal was not legal, justified and proper and the workman is entitled to be reinstated but he will be deemed to be under suspension. The Labour Court further held that he would only be entitled to receive suspension allowance for the intervening period and directed the petitioner to pay the workman suspension allowance w.e.f. August 11, 1998 till further action was taken by the employers as directed by the Labour Court in the award.
7. Aggrieved from the impugned award, the petitioner has filed the present writ petition on the ground that the provisions of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the Act, 1946) are not applicable to the establishment of the petitioner, as the petitioner is not an 'Industrial Establishment' as contemplated under Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946 which is applicable to every establishment wherein hundred or more workmen were employed. The establishment of the petitioner does not come within the meaning of an industrial establishment as defined under the Act. Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946 as defined under the Industrial Establishment is as under:
"2(e) 'industrial establishment' means-
(i) an industrial establishment as defined in Clause (ii) of Section 2 of the Payment of Wages Act, 1936; or
(ii) a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948; or
(iii) a railway as defined in Clause (4) of Section 2 of the Indian Railways Act, 1890; or
(iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employer-workmen."
In Clause 2(e) of the aforesaid definition of 'Industrial Establishment' under the Act, 1946, the definition of Industrial Establishment as defined in Clause (ii) of Section 2 of the Payment of Wages Act, 1936 has been adopted. The definition of Industrial Establishment in Section 2(ii) of the Payment of Wages Act, 1936 is as under:
" (ii) Industrial or other establishment means any-
(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;
(aa) air transport service other than such service belonging to or inclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India.
(b) dock, wharf or jetty;
(c) inland vessel, mechanically propelled;
(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.
(g) Establishment in which any work relating to the construction, development, or maintenance of buildings, roads, bridges, Or canals, or relating to operations connected with navigation, irrigation or to the supply of water or relating to the generation transmission and distribution of electricity or any other form of power is being carried on.
(h) Any other establishment or class of establishments which the Central Government or a State Government may, having regard to the nature thereof, the need of protection of persons employed therein and other relevant circumstances specify, by notification in the official gazettee."
8. It is submitted that no notification has been issued by the State Government under Sub-section (5) of Section 1 of the Payment of Wages Act, 1936 extending the provisions of the Payment of Wages Act to the establishment of the petitioner and as such, in the circumstances, the Model Standing Orders of the State Government are not applicable to the establishment of the petitioner nor the petitioner was required to give any second show cause notice to the workmen as there was no other Rule requiring the same. The counsel for the petitioner has placed reliance on the judgments passed by the Apex Court in the case of Management, Shahdara (Delhi), Saharanpur Light Railway Company Ltd. v. S.S. Railway Workers Union AIR 1969 SC 513 and submits that the condition in the modified Standing Orders for giving a second show cause notice at the stage of imposing punishment of removal has been held by the Hon'ble Supreme Court as not fair and reasonable. It is stated that the Apex Court has set aside the same on which the reliance has been placed by the Labour Court while passing the impugned order.
9. It is also submitted that the services of respondent No. 2 had been terminated on August 11, 1988 after holding a fair and proper domestic enquiry after complying with the principle of natural justice. Reliance has been placed on Hon'ble Supreme Court in Managing Director, E.C.I.L., Hyderabad v. B. Karunakar AIR 1994 SC 1074 : 1993 (4) SCC 727 : 1994-I-LLJ-162 that the requirement of the second show cause notice in compliance of the principle of natural justice has been made prospective to all establishments as held in Union of India v. Mohd. Ramzan AIR 1991 SC 471 : 1991 (1) SCC 588 : 1991-I-LLJ-29 case to apply prospectively i. e. after November 20, 1990.
10. The counsel for the respondents has vehemently urged that the activity of the establishment of the petitioner is commercial as it owned printing press and publishes books for use and their sale in the market on considerable price. It is stated that Section 2(ii) of the Payment of Wages Act, 1936 also applies to the petitioner establishment as it is a 'Commercial Establishment' under the provisions of U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962. According to the counsel for the respondents Section 2 (4) of the U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 provides the definition of Commercial Establishment which is as under:
"'Commercial Establishment' means any premises, not being the premises of a factory, or a shop wherein any trade, business, manufacture or any work in connection with, or incidental or ancillary thereto, is carried on for profit and includes a premises wherein, journalistic or printing work or ................"
11. It is further submitted Section 18 of the U.P. Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 provides that the provision of Payment of Wages Act, 1936 would be applicable upon the employees working in the Commercial Establishment under this Act as such the establishment of the petitioner is an Industrial Establishment under the provisions of Payment of Wages Act, 1936 as well as under the provisions of Industrial Employment (Standing Orders) Act, 1946. It is stressed that it was admitted case of the employers that the provisions of Model Standing Orders are applicable upon the establishment of the petitioner and that it is settled law that admission is best evidence. It is urged that provision of Industrial Employment (Standing Orders) Act, 1946 is Central Act and therefore is applicable to the petitioners as it is also well settled that if the State Act is silent or there is no provision then provisions of the Central Act would be applicable and as the provisions of Model Standing Orders were not followed in dismissing the services of respondent No. 2 the termination was illegal.
12. The counsel for the petitioner rebutting the arguments of the counsel for the respondents raised a plea that the petitioner's Institution does not fall within the ambit of definition of 'Industrial Establishment'. It is stated that respondent No. 2 was working as Clerk in the Examination Department of the petitioner institution and that it was never the case of the respondent-workman that he was working in the Press which is a separate establishment and that this plea has been raised before this Court for the first time during the course of argument at the stage of final hearing. It is stated that even otherwise it was upon the workman to have pleaded and proved before the Labour Court that he was employed in the press and cannot be permitted to take this plea for the first time in this writ petition.
13. It is well settled law that if the point is (sic) not raised before the Lower Court, then for the first time the same cannot be raised in the writ petition. It is evident from the record and from the written statement of the workman that he was employed as a Clerk in the. Examination Department of Hindi Sahitya Sammelan and not in the Press. The Industrial Employment (Standing Orders) Act, 1946 apply to every industrial establishment wherein hundred or more workmen were employed on any day of the preceding twelve months. It is also not an establishment covered under Section 2(h) of the aforesaid Act.
14. The Labour Court was duty bound to have considered that this aspect of applicability of the Model Standing Orders. The Industrial Employment (Standing Orders) Act, 1946 as stated above, do not apply to the petitioner establishment as it is not factory. State of Uttar Pradesh, has issued notification that the Act shall apply to all the industrial establishments in the State which employ less than 100 workmen, in which the employers voluntarily apply for certification of the Standing Orders in accordance with the Act. (Vide Notification No. 2828 (LL)/XVIII-450 (LL)-50, dated November 15, 1950, published in U.P. Gazette, dated November 18, 1950, Pt. I, p. 894). Further the Government has directed that the Act shall apply to all industrial establishments which are factories within the meaning of Section 2(m) of the Factories Act, 1948 vide Notification No. 5022(V)/XXXVI-3-57/SO(1)-77 dated January 20, 1978 (1978 LLT-V-80). The admitted fact is that there are no Certified Standing Orders in the petitioner educational institution and they have not applied for certification of the Standing Orders in respect of its educational society. Hence, the Model Standing Orders would not apply automatically. The Labour Court without verifying the fact as to whether the Industrial Employment (Standing Orders) Act, 1946 apply to the petitioner establishment or not, taking the statement of EW-1 as gospel truth applied the provisions of Section 2(e) of the Model Standing Orders and held that the termination of services of the workman were illegal as second show cause notice under the Model Standing Orders had not been given to him. In the State of Uttar Pradesh, the Model Standing Orders were notified on July 24, 1992 and came into force with effect from that date after publication in the gazette. The termination of the services of the workman are alleged to have taken place in the year 1988. There is also no material on record by which the Labour Court could have come to the conclusion that the petitioner establishment were employing more than 100 employees and Industrial Employment (Standing Orders) Act was applicable, hence the Labour Court has committed an error apparent on the face of the record in holding that the Industrial Employment (Standing Orders) Act, 1946 will be applicable to the petitioner establishment. The position is that even if the Model Standing Orders have been applicable in a subsequent amendment the same will not apply as it is incorporated in the Certified Standing Orders. The Apex Court in para 18 of the judgment given in Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union (supra) has held that under the Industrial Employment (Standing Orders) Act, 1946 modification of the Standing Orders requiring of giving a second show cause notice at the stage of imposition of punishment of removal was not considered to be fair or reasonable and should therefore be set aside. In industrial matters such a requirement of Article 311 does not appear to be either necessary or proper and will not be equated with civil servants. Paragraph 18 of the judgment is as under:
"As regards the modification requiring a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such notice. In none of the decisions given by the Courts or the Tribunals such a second show cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment of that Article. To import such a requirement from Article 311 in industrial matters does not appear to be either necessary or proper and would be equating industrial employees with civil servants. In our view, there is no justification on any principle for such equation. Besides, such a requirement, would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in as short a time as possible. In our view it is not possible to consider this modification as justifiable either on the ground of reasonableness or fairness and should therefore be set aside."
15. The respondent-workman is neither a Government servant nor an industrial worker and is not covered under the Industrial Employment (Standing Orders) Act, 1946. The aforesaid Act, 1946 is a Special Act dealing with specific subject namely, the condition of service enumerated in Schedule-I of the Act, 1946. Since the petitioner was not an industrial worker, the application of the Industrial Employment (Standing Orders) Act, 1946 did not apply to the educational institution of the petitioner under the aforesaid Act.
16. The Model Standing Orders cannot be applied to educational institution of the petitioner establishment. This is the only ground on which the relief was granted by the Labour Court which is wrong.
17. For the reasons stated above, the writ petition is allowed. The impugned award of the Labour Court is quashed.