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S. SAGHIR AHMAD, J. – Bharat Petroleum Corporation Ltd. was incorporated in 1976.
- On 4-12-1985, the appellant submitted Draft Standing Orders to the Certifying Officer
for certification under the Industrial Employment (Standing Orders) Act, 1946 (“the Act”)
which were intended to be applicable to the Marketing Division, Western Region, including
its Head Office at Bombay. On receipt of the Draft Standing Orders, the Certifying Officer
issued notices to various employees’ unions and after following the statutory procedure and
after giving the parties an opportunity of hearing, certified the Draft Standing Orders on 14-
10-1991 by an order passed under Section 5 of the Act. The Draft Standing Orders, as
submitted by the appellant, were not certified in their entirety but were modified in various
respects. - One of the clauses of the Draft Standing Orders which was not certified by the
Certifying Officer, related to the representation of an employee in the disciplinary
proceedings. The result was that the provision relating to the representation of an employee
during departmental proceedings, as contained in the Model Standing Orders, continued to
apply to the appellant’s establishment. - Aggrieved by the order passed by the Certifying Officer, two appeals, one by the
present appellant and the other by Respondent 1, were filed before the appellate authority and
the latter, by its order dated 23-11-1993, certified the Standing Orders as final. The clause
relating to the representation of an employee during disciplinary proceedings, as set out in the
Draft Standing Orders, was approved and the order of the Certifying Officer in that regard
was set aside. The Standing Orders, as finally certified by the appellate authority, were
notified by the appellant on 30-11-1993 and it was with effect from this date that they came
into force. - The order of the appellate authority was challenged by Respondent 1 in Writ Petition
No. 231 of 1994 in the Bombay High Court which admitted the petition on 15-3-1994 but
refused the interim relief with the direction that during the pendency of the writ petition, a
charge-sheeted workman would be permitted to be represented at the departmental enquiry, at
his option, by an office-bearer of the trade union of which he is a member. Since this order
was contrary to the Standing Orders, as certified by the appellate authority, the appellant filed
Special Leave Petition (Civil) No. 12274 of 1994 in which this Court, on 30-9-1994, passed
the following order:
“Issue notice. Interim stay of the direction of the High Court by which any
office-bearer of the Union who may not be a workman of the petitioner-Corporation
is permitted to represent the delinquent workman. It is made clear that in the
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meanwhile, the workman may be represented by any other workman who is an
employee of the petitioner-Corporation.” - By its judgment dated 18-9-1995, this Court set aside the interim order passed by the
Bombay High Court and directed the High Court to pass a fresh interim order in the writ
petition after hearing the parties. - In December 1995, Respondent 1 took out a Notice of Motion but the High Court, by
its order dated 11-12-1995, rejected the same. However, the High Court, by its final judgment
dated 28-6-1996, allowed the writ petition and the order dated 23-11-1993 passed by the
appellate authority by which the clause relating to the representation of an employee during
the disciplinary proceedings, as contained in the Draft Standing Orders, was certified, was set
aside and the order dated 14-10-1991 passed by the Certifying Officer was maintained. It is
against this judgment that the present appeals have been filed and the only question with
which we are concerned in these appeals is as to whether an employee, against whom
disciplinary proceedings have been initiated, can claim to be represented by a person, who,
though, is a member of a trade union but is not an employee of the appellant. - Para 14(4)(ba) of the Model Standing Orders, as framed by the Central Government
under the Act for industrial establishments, not being industrial establishments in coal mines,
provides as under:
“In the enquiry, the workman shall be entitled to appear in person or to be
represented by an office-bearer of a trade union of which he is a member.” - Clause 29.4 of the Draft Standing Orders, as certified by the appellate authority by its
judgment dated 23-11-1993, provides as under:
“29.4 If it is decided to hold an enquiry, the workman concerned will be given an
opportunity to answer the charge/charges and permitted to be defended by a fellow
workman of his choice, who must be an employee of the Corporation. The workman
defending shall be given necessary time off for the conduct of the enquiry.” - The vital difference between the Model Standing Orders, as set out above, and the
Draft Standing Orders, as certified by the appellate authority, is that while under the Model
Standing Orders, a workman can be represented in the departmental proceedings by an officebearer of a trade union of which he is a member, he does not have this right under the Draft
Standing Orders, as certified by the appellate authority, which restrict his right of
representation by a fellow workman of his choice from amongst the employees of the
appellant-Corporation. The contention of the learned counsel for the appellant is that the
Model Standing Orders framed by the Central Government under the Industrial Employment
(Standing Orders) Central Rules, 1946 can operate only during the period of time when the
Standing Orders are not made by the establishment itself. If and when those Standing Orders
are made which, in any case, have to be compulsorily made in terms of the Act, they have to
be submitted to the Certifying Officer and if they are certified, they take effect from the date
on which they are notified and effectively replace the Model Standing Orders. The order of
the Certifying Officer is appealable before the appellate authority and the appellate authority
can legally interfere with the order passed by the Certifying Officer and set it aside or uphold
it. There is no restriction under the Act that the management or the establishment, or, for that
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matter, the employer would adopt the Model Standing Orders. It is contended that the
Standing Orders have only to be in consonance with the Model Standing Orders besides being
fair and reasonable. - The submission of the learned counsel for Respondent 1, on the contrary, is that the
Standing Orders, as framed by the management, have to be on the lines indicated in the
Model Standing Orders and there cannot be a departure either in principle or policy from the
Model Standing Orders. It is contended that once it was provided by the Model Standing
Orders that an employee of the Corporation can be represented by an employee of another
establishment with the only restriction that he should be an office-bearer of a trade union, it
was not open to the appellant to have made a provision in their Standing Orders that an
employee of the Corporation would be represented in the disciplinary proceedings only by
another employee of the Corporation. It is contended that this departure is impermissible in
law and, therefore, the High Court was justified in setting aside the order of the appellate
authority which had certified the Draft Standing Orders submitted by the appellant. - The Industrial Employment (Standing Orders) Act, 1946 was made by Parliament to
require employers of all industrial establishments to define formally the conditions of
employment on which the workmen would be engaged. - The object underlying this Act, which is a beneficent piece of legislation, is to
introduce uniformity of terms and conditions of employment in respect of workmen
belonging to the same category and discharging the same and similar work under the
industrial establishment and to make the terms and conditions of industrial employees well
settled and known to the employees before they accept the employment. - The Act applies to every industrial establishment wherein hundred or more workmen
are employed. - “Model Standing Orders” have been defined in Section 2(ee). They mean Standing
Orders prescribed under Section 15 which gives rule-making power to the appropriate
Government and provides, inter alia, that the Rules so made by the Government may set out
Model Standing Orders for the purpose of this Act. - Section 12-A provides as under:
“12-A. Temporary application of model standing orders.- (1) Notwithstanding
anything contained in Sections 3 to 12, for the period commencing on the date on
which this Act becomes applicable to an industrial establishment and ending with the
date on which the standing orders as finally certified under this Act come into
operation under Section 7 in that establishment, the prescribed model standing orders
shall be deemed to be adopted in that establishment, and the provisions of Section 9,
sub-section (2) of Section 13 and Section 13-A shall apply to such model standing
orders as they apply to the standing orders so certified.
(2) Nothing contained in sub-section (1) shall apply to an industrial
establishment in respect of which the appropriate Government is the Government of
the State of Gujarat or the Government of the State of Maharashtra.”
212 - This section provides that the Model Standing Orders will be applicable to an
industrial establishment during the period commencing on the date on which the Act becomes
applicable to that establishment and the date on which the Standing Orders, as finally certified
under this Act, come into operation. - Section 7 of the Act sets out the date on which the Standing Orders or amendments
made thereto would become operative. It provides as under: (Section 7 as amended in
Maharashtra by Act 21 of 1958)
“7. Date of operation of standing orders and model standing orders, together
with all certified amendments.- Standing orders or model standing orders together
with all the amendments shall, unless an appeal is preferred under Section 6, come
into operation on the expiry of thirty days from the date on which authenticated
copies thereof are sent under sub-section (3) of Section 5, or where an appeal as
aforesaid is preferred, on the expiry of seven days from the date on which copies of
the order of the appellate authority are sent under sub-section (2) of Section 6.” - The Standing Orders are certified under Section 5. The procedure for certification of
the Standing Orders is set out therein and it will be useful to quote Section 5 at this stage:
“5. Certification of amendments.- (1) On receipt of the draft under Section 3, the
Certifying Officer shall forward a copy thereof to the trade union, if any, of the
workmen, or where there is no such trade union, to the workmen in such manner as
may be prescribed, or the employer, as the case may be, together with a notice in the
prescribed form requiring objections, if any, which the workmen, or employer may
desire to make to the draft amendments to be submitted to him within fifteen days
from the receipt of the notice.
(2) After giving the employer, workmen submitting the amendment and the
trade union or such other representatives of the workmen as may be prescribed an
opportunity of being heard, the Certifying Officer shall decide whether or not any
modification of the draft submitted under sub-section (1) of Section 3 is necessary,
and shall make an order in writing accordingly.
(3) The Certifying Officer shall thereupon certify the draft amendments after
making any modifications therein which his order under sub-section (2) may require,
and shall within seven days thereafter send copies of the model standing orders,
together with copies of the certified amendments thereof, authenticated in the
prescribed manner and of his order under sub-section (2) to the employer and to the
trade union or other prescribed representatives of the workmen.” - The order certifying the Standing Orders is made under sub-sections (2) and (3) of the
Act. - After certifying the Standing Orders or the Draft Amendments, the Certifying Officer
is required to send copies of the Certified Standing Orders, authenticated in the prescribed
manner, to the employer as also to the trade union or other prescribed representatives of the
workmen. Once the Standing Orders are certified, they constitute the conditions of service
binding upon the management and the employees who are already in employment or who
may be employed after certification
213 - The basic principle is that an employee has no right to representation in the
departmental proceedings by another person or a lawyer unless the Service Rules specifically
provide for the same. The right to representation is available only to the extent specifically
provided for in the Rules. For example, Rule 1712 of the Railway Establishment Code
provides as under:
“The accused railway servant may present his case with the assistance of any
other railway servant employed on the same Railway (including a railway servant on
leave preparatory to retirement) on which he is working.” - The right to representation, therefore, has been made available in a restricted way to a
delinquent employee. He has a choice to be represented by another railway employee, but the
choice is restricted to the Railway on which he himself is working, that is, if he is an
employee of the Western Railway, his choice would be restricted to the employees working
on the Western Railway. The choice cannot be allowed to travel to other Railways. - Similarly, a provision has been made in Rule 14(8) of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965, where too, an employee has been given the
choice of being represented in the disciplinary proceedings through a co-employee. - We have seriously perused the judgment of the High Court which, curiously, has
treated the decision of this Court in Crescent Dyes and Chemicals Ltd. case as a decision in
favour of Respondent 1. The process of reasoning by which this decision has been held to be
in favour of Respondent 1 for coming to the conclusion that he had a right to be represented
by a person who, though an office-bearer of the Trade Union, was not an employee of the
appellant is absolutely incorrect and we are not prepared to subscribe to this view.
Consequently, we are of the opinion that the judgment passed by the High Court insofar as it
purports to quash the order of the appellate authority, by which the Draft Standing Orders
were certified, cannot be sustained. - The contention of the learned counsel for Respondent 1 that the Standing Orders as
made by the appellant must conform to the Model Standing Orders cannot be accepted. It is
true that originally the jurisdiction of the Certifying Officer as also that of the appellate
authority was very limited and the only jurisdiction available to them under the Act was to see
whether the Standing Orders made by the establishment and submitted for their certification
conformed to the Model Standing Orders. This required the process of comparison of the
Draft Standing Orders with the Model Standing Orders and on comparison, if it was found
that the Draft Standing Orders were in conformity with the Model Standing Orders, the same
would be certified even if they were not reasonable or fair. The workmen practically had no
say in the matter and they would not be listened even if they agitated that the Draft Standing
Orders were not fair or reasonable. - In 1956, radical changes were introduced in the Act by Parliament as a result of which
not only the scope of the Act was widened, but jurisdiction was also conferred upon the
Certifying Officer as also the appellate authority to adjudicate upon and decide the question
relating to fairness or reasonableness of any provision of the Standing Orders. - In the instant case, the Standing Orders as finally certified cannot be said either to be
not in consonance with the Model Standing Orders or unreasonable or unfair.
214 - The Model Standing Orders, no doubt, provided that a delinquent employee could be
represented in the disciplinary proceedings through another employee who may not be the
employee of the parent establishment to which the delinquent belongs and may be an
employee elsewhere, though he may be a member of the trade union, but this rule of
representation has not been disturbed by the Certified Standing Orders, inasmuch as it still
provides that the delinquent employee can be represented in the disciplinary proceedings
through an employee. The only embargo is that the representative should be an employee of
the parent establishment. The choice of the delinquent in selecting his representative is
affected only to the extent that the representative has to be a co-employee of the same
establishment in which the delinquent is employed. There appears to be some logic behind
this as a co-employee would be fully aware of the conditions prevailing in the parent
establishment, its Service Rules, including the Standing Orders, and would be in a better
position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and
early disposal. The basic features of the Model Standing Orders are thus retained and the right
of representation in the disciplinary proceedings through another employee is not altered,
affected or taken away. The Standing Orders conform to all standards of reasonableness and
fairness and, therefore, the appellate authority was fully justified in certifying the Draft
Standing Orders as submitted by the appellant. - The appeals are consequently allowed. The impugned judgment dated 28-6-1996,
passed by the Bombay High Court, insofar as it relates to the clauses in question which are
the subject-matter of these appeals, is set aside and the order passed by the appellate authority
certifying the Draft Standing Orders is upheld.
