The purpose of this post is to gain from the discussion in this interesting thread.
The purpose is not to argue or debate.
The agreement may not prevail upon statue.
Standing Orders; these are statutorily imposed conditions of service.
When the terms and conditions of service in the appointment letter are inconsistent with Standing Orders, the latter will prevail.
It is felt that:
---- Neither Agreement nor and appointment letter can override the standing orders.
----Standing orders and rules that are statutory and have statutory force.
-----Once the standing orders framed by employer are certified they have the force of law. As against them conditions of service contained in appointment letter or contract of employment do not have statutory force.
Once there is a conflict between the provision of law or an instrument having force of law and the contract entered into between the parties, the former will prevail.
>> Supreme Court of
India
Western India Match Company Ltd vs Workmen
HELD :
(2) Since, according to the Standing Order, a workman s all not be kept on probation for more than 2 months, the letter of appointment (or special agreement) is inconsistent with the Standing Order to the extent of the additional 4 months' probation. [437E-G]
(3) The inconsistent part of the agreement is ineffective and unenforceable. [439F]
>> Full bench of;
Allahabad High Court
Srivastava (S.P.) And Anr. vs Banaras Electric Light And Power
“The basic and general conditions contained in standing orders can not be bye passed by adopting the device of special agreements………………………………The intention of a legislature in providing for statutory standing orders and laying down the only mode in which they can be modified and attached penal consequences to violation of standing orders, was necessary to prohibit terms of contract which contravene a standing order which would be struck by section 23 of the Contract Act, also.”
>>
Allahabad High Court
R.P. Garg Son Of Sri B.P. Garg vs Indian Oil Corporation Ltd. ... on 1 December, 2006
“These Model Standing Orders being statutory in nature supersedes the terms and conditions contained in the letter of the appointment. ‘
Western Indian Match Company Ltd. v. Workman . In this case the
Apex Court held that where the terms of the agreement were inconsistent with the Standing Order, the terms of employment as per the Standing Order would prevail over the express terms of the contract of service. In other words, the terms and conditions of employment inconsistence with the Standing Orders would not survive. Thus, from the above it is evident that the Standing Orders, which have the statutory force would prevail over the terms and conditions of the letter of appointment.
>> It is requested that the citations and judgments confirming that conditions in agreement/offer letter/appointment letter/contract of employment will prevail upon standing orders may kindly be shared. This shall help all.
The offer letter is issued after selection of the candidate in the interview and it is a token of offer of appointment being made to the selected candidate. Upon joining the establishment the detailed appointment letter citing the T&C, service conditions is issued to the candidate that has accepted the offer and has joined. The appointment letter shall override the offer letter. After appointment the establishment may introduce special agreements and such agreements may state that the agreement shall supersede the appointment letter or it shall prevail in addition to agreement.
>> The Minimum Notice and Terms of Employment Acts quoted by the querist is some Irish Act and it shall not be applicable in India.
>> The IT/ITeS/BPO companies are covered by various enactments e.g; Shops and Commercial Establishments Act, Payment of Wages Act, and if no exemption is granted by the State Government from the provisions of Industrial Employment Standing Orders Act, the standing orders may apply. If standing orders are not certified Mode Standing Orders shall apply.
For the application of standing orders an establishment may not necessarily be factory alone.
The querist may provide some basic information to his labor consultant/service lawyer e.g;
The querist and redg. office/HO of the company is in which state?
What is the designation and nature of the duties of the querist?
How many employees are employed in the company?
And his lawyer may opine that notice period during period of probation id NIL and the employee shall fall within the category of ‘Workman’ as in ID Act and ‘Employee’ as in Shops and Commercial Establishments Act.
>> In the absence of coverage as ‘Workman’ and ‘Employee’ the notice period may be as per job advertisement, offer letter, appointment letter, contract of employment etc
Valuable advice of learned experts/members is sought.