-

BHARAT PETROLEUM CORPORATION LTD. A

v.

MAHARASHTRA GENERAL KAMGAR UNION AND ORS.

DECEMBER 14, 1998

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.]

B

Labour Law :

Standing

Orders-Certified by the

Certifj1ing Authority and Model

standing Orders framed by the Central Government under Industrial C

Employment (Standing Orders) Act, I946-Inconsistency-Domestic enquiry­

Representation

of the delinquent by another person-Right to-Held, available

to the delinquent only to the extent specifically provided

in the service

rules--Provision

in the Draft Standing orders permitting the delinquent to

be represented by a fellow workmen

of the same establishment-Held, neither

unreasonable nor unfair nor lacked consonance with Model Standing

Orders

which permitted representation of the delinquent by a Member of the union

D

of which the delinquent was a member, although that member was employed

elsewhere-Industrial Employment (Standing Orders ) Act,

1946, Sections

5,6,2(ee),

I 2-A 7, JO af!d I 5(2)(bj-lndustrial Employment (Standing Orders)

Central Rules, 1946-Model Standing Orders, para

14(4)(ba)-Railway E

Establishment Code, Rule 1712-Central Civil Services (CCA) Rules, 1965,

Rule 14(8)-Departmental Enquiry-Natural Justice-Hearing.

Industrial Employment (Standing Orders) Act, 1946,

Section 4 (as

amended in 1965), 5 and 6-Jurisdiction of CertifYing Officer and Appellate

Alllhority-Held. i:1· not limited to examining whether the Draft Standing F

Order conformed to the Model Standing Orders but extends to determination

of fairness and reasonableness of the provisions of the Standing Orders.

Industrial Employment (Standing Orders)

Act,

I 946-Nature and scope of­

Held, is a beneficent piece of legislation-Interpretation of Sta/lites-Beneficent

legislation.

Industrial Employment (Standing Orders) Act, 1946 Sections 5(2) &

(3)-Certification of Standing Orders-Effects of-Held, Certified Standing

Orders constitute the conditions of service binding upon the management

and new employees.

G

Draft Standing

Orders were submitted by the appellant to the Certifying H

517

518 SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.

A Officer for certification under Industrial Employment (Standing Orders)

Act, 1946. It was certified with various modifications . One of the clauses

of the Draft Standing Orders which was not certified related to the

representation

of an employee, during departmental proceedings and as a

result of which provisions

as contained in the Model Standing Orders framed

B by the Central Government continued to apply to the appellant's Establishment

On appeal filed on behalf of the appellant as well as by Respondent l before

the Appellate Authbrity the clause relating to the representation

of an

employee during the departmental proceedings, as set out

in the Draft

Standing Orders, was approved. The order of the Appellate Authority was

challenged by Respondent l before the High Court, was set aside

by it Hence

C this appeal.

It was contended by the appellant that Model Standing Orders would

operate only during the period

of time when the Standing Orders were not

framed by the Establishment itself.

On the contrary, it was contended by

Respondent l

that Draft Standing Orders as framed by the Establishment

D could not depart either in policy or principle from the Model Standing

Orders.

Allowing the appeal, this

Court

HELD : I. In departmental proceedings an employee has no right to

represent

another person or a lawyer unless the Service Rules specifically

E provide for the same. The right to representation is available only to the

extent specifically provided in the Rules.

Under Rule 1712 of the Railway

Establishment Code a choice

is given to the delinquent 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

F Railway his choice could be restricted to the employees working on the

Western Railways. 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 an employee

has been given the choice

of being represented in the disciplinary proceedings

through a co-employee. [527-G; 528-A-BI

G

Kalindi & Ors. v. Tata Locomotive and Engineering Comany Ltd., AIR

(1960) SC 914: [196013SCR407; Dunlop Rubber Company v. Workmen,

11965) 2 SCR 139: AIR (1965) SC 1392; (1965) (1) LLJ 426 and Glaxo

Industries(/) Ltd.

v.

Presiding Officer, Labour Court Meerut, (1983) Lab &

Ind. Cases 1909; AIR (1984) SC 505 [1984) I SCR 230: [1984) I SCC 1,

H relied on.

"•

B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION 519

2. The object underlying the Industrial Employment (Standing Orders) A

Act, 1946, 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 B

employment. [524-C)

3.

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 C

conformed to the Model Standing Orders. This required the process of

compariso~ of the Draft Standing Orders with the Model Standing Orders

and on comparison if it was found that if the Draft Standing Orders are in

conformity with the Model Standing Orders, the same will be certified even

if they

are not reasonable or fair. [530-F)

The workmen practically have no say

in the matter and they would not

be listened even

if

t~ey agitate that the Draft Standing Orders are not fair

or reasonable. [530-G)

D

4.1. In 1956, radical changes were introduced in the Act by the

Parliament as a result of which not only the scope of the Act was widened, E

but jurisdiction was also conferred upon the Certifying Officers as also the

Appellate Authority to adjudicate upon and decide the question relating to

fairness

or reasonableness of any provision of the Standing

Orders.

[530-H; 531-A)

4.2. Model Standing Orders, no doubt, provided that a delinquent employee F

could be represented in the disciplinary proceeding 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 G

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 H

·

520 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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 proceeding for a fair

and early disposal. The basic features of the

Model Standing Orders,

are thus retained and the right of representation

B 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. [531-C-FI

C 4.3. 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. [531-BI

Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd., (19841

3

SCR 325: (1984) 3 SCC 369: AIR (1984) SC 1064; Agra Electric Supply

D Co. Ltd v. Alladdin, (1970) I SCR 808: (196912 SCC 598: AIR (1970) SC

512: Workmen v. Firestone Tyre & Rubber Co. of India (P.) Ltd, (1973) 3

SCR 587 : (1973) I SCC 813: AIR (1973) SC 1227 and Glaxo Industries

(/)Ltd.

v. Presiding Officer, Labour Court, Meerut, (1983) Lab & Ind. Cases 1909: AIR (1984) SC 505: (19841 1 SCR 230 (19841 1 SCC 1, relied on.

E Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathy, [1992) Supp

3 SCR 559: (1993] 2 SCC 115, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 365-367 of

1997.

F From the Judgment and Order dated 28.6.96 of the Bombay High Court

in W.P. Nos. 231, 776 and 1462of1994.

Altaf Ahmad, Addititonal Solicitor General, P.H. Parekh, Krishan

Venugopal and Amit Dhingra for the Appellant.

G N.B.

Shetye, (Farookh Rasheed) for Ashok Kumar Gupta, A.M.

Khanwilkar and

V.D. Khanna for the Respondents.

The Judgment

of the Court was delivered by

S. SAGHIR AHMAD, J. The legal battle which started on a larger plane

H between the parties to this appeal. in 1984, has now narrowed down to only

..

B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S. SAGHIRAHMAD, J.] 521

one question, namely, the question relating to the representation of an A

employee in the disciplinary proceedings through another employee who,

though not

an employee of the appellant-corporation was, nevertheless, a

member

of the Trade

Union.

Bharat Petroleum Corporation Ltd., which is the appellant before us,

was incorporated

in 1976. B

On 4.12.1985, the appellant submitted Draft Standing Orders to the

w, Certifying Officer for certification under the Industrial Employment (Standing

Orders) Act, 1946 (for short, 'the Act') which were intended to be applicable

to the Marketing Division, Western Region, including its Head Office at

c 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 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.

D 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

E

Establishment.

"

Aggrieved by the order passed by the Certifying Officer, two appeals;

one by the present appellant and the other by respondent No. I, were filed

before the Appellate Authority and the latter, by its order dated 23rd

of

November, 1993, certified the Standing

Orders as final. The Clause relating to

F

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.

G

The order of the Appellant Authority was challenged by respondent

No. I 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 H

522 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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

B the petitioner corporation is pennitted to represent the delinquent

workman. It

is made clear that in the 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

C 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 No. I took out a Notice

of Motion but

the High Court, by its order dated 11.12.1995, rejected the same, However, the

D 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

E 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

F Government under the Act for Industrial Establishments, not being Industrial

Establishments

in coal-mines, provides as under:-

G

"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 (para-3) : If it is decided to hold an enquiry the workman concerned

will be given

an opportunity to answer the charge/charges and

H pennitted to be defended by a fellow workman of his choice, who must

·-

-

-

BP CORPN. LTD. v. MAHA. GENERAL KA MG AR UNION [S. SAGHIR AHMAD, J.J 523

be an employee of the Corporation, The workman defending shall be A

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 office bearer of a Trade

Union of which B

he is a member, he does not have this right under the Draft Standing Orders,

as certified by the Appellate A~•thority, which restrict his right ofrepresentation

by a fellow workman

of his choice from amongst the employees of the

appellant-Corporation. The contention

of the learned

c;iunsel for the appellant

is that the Model Standing Orders, framed by the Central Government under

C

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

D

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 matter, the employer would, adopt the Model Standing Orders.

It is E

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 the respondent

No.I, on the

contrary,

is that the Standing Orders, as

framP-d by the Management, have to

be on the 1

in es indicated in the Model Standing Orders and there cannot be F

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 G

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.

H

524 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A The Industrial Employment (Standing Orders) Act, 1946 was made by

the Parliament to require employers of all industrial Establishments to define

fonnally the conditions of employment

on which the workmen would be

engaged as pointed out by this

Court in Salem Erode Electricity Distribution

Company Pvt. Ltd v. Employees Union, (I 966) I LLJ 443 =AIR (I 966) SC 808

B = [ 1966] 2 SCR 498, followed by its other decision in Glaxo Laboratories (I)

Ltd v. Presiding Officer, labour Court, Meerut, (1983) Labour & Industrial

Cases 1909 =AIR 1984 SC 505 = (1984] l SCR 230 = (1984] I SCC I.

The object underlying this Act, which is a beneficent piece of legislation,

is to introduce uniformity of terms and conditions of employment in respect

C of workmen belonging to the same category and discharging 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

D more workmen are employed.

"Model Standing Orders" have been defined in Section 2(ee). They

mean standing Orders nrescribed under section 15 which gives rule-making

power

to the appropria1e Government and provides, inter alia, that the Rules

so made by the Government may set out Model Standing

Orders for the

E purpose of this Act.

F

Section I 2(a) provides as under:-

"12-A. Temporary application of model standing orders:- (I)

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 came 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

G apply to such model standing orders as they apply to the standing

H

orders so certified.

(2) Nothing contained

in sub-section (I) 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."

-

--

BP CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION (S. SAGHIR AHMAD, J.l 525

This section provides that the Model Standing Order will be applicable A

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 B

or amendments made thereto would become op.:rative. It provides as under:-

"7. Date of operation of standing orders or amendments.-Standing

Order of 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 C

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

appellant 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 D

quote Section 5 at this stage:-

"5. Certification of amendments.--{I) 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 E

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, the workmen submitting the

amendments 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

F

shall make an order in writing accordingly. G

(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 H

526 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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."

B

The order certifying the Standing Orders is made under Sub-section (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

C Orders are certified, they constitute the conditions of service binding upon,

the employment or who may be employed after certification as was laid down

by this Court

in Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd

and

Ors., AIR (1984) SC 1064 = [1984] 3 SCC 369 = [1984] 3 SCR 326, wherein

reliance was placed on an earlier decision

in Agra Electric Supply Company

Ltd.

v. Alladin, AIR

(1970) SC 512 = [1970] I SCR 808 = [1969] 2 SCC 598,

D in which aiso it was laid down that the Certified Standing Orders bind all

those in employment at the time

of service as well as those who are appointed

thereafter, (see also:

Workmen Firestone Trye and Rubber Company of India

Pvt. Ltd. v. Management, AIR (1973) SC 1227 = [1973] 3 SCR 587 = [1973] I

SCC 813 and Glaxo Laboratories {I) Ltd v. Presiding Officer, Labour Court,

E Meerut, 1983 Labour and Industrial Cases (1909) =AIR (1984) SC 505 =

[1984] 1 scR23o = [1984] I sec 1.

F

The order of the Certifying Officer is appealable under Section 8.

Section I 0 provides as under:-"

IO. Duration and modification of standing orders. (I) Standing Orders

or the amendments finally certified under this Act shall not, except on

agreement between the employer and the workmen or a trade union

or other representative body

of the workmen be liable to modification

until the expiry

of six months from the date on which the standing

G orders or the amendments or the last modifications thereof came into

operation and where model standing orders have not been amended

as aforesaid, the model standing orders shall not be liable to such

modification until the expiry

of one year from the date on which they

were applied under

Section 2-A.

H (2) Subject to the provision of sub-section (I), an employer, or

BP CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S. SAGHIR AHMAD, J] 527

workman or a trade union or other representative body of the workmen A

or any prescribed representative of workmen desiring to modify the

standing orders

of the model standing orders together with the

amendments,

as finally certified under this Act, or the model standing

orders applied under Section 2-A, as the case may be, shall make an

application to the certifying

Officer in that behalf, and such application B

shall be accompanied by five copies of the standing orders, or the

model standing orders, together with all amendments thereto

as certified

under this Act

or model standing orders in which shall be indicated

the modifications proposed to be made and where such modifications

are proposed to

be made by

a~reement between the employer and

workmen

or a trade union or

other· representative body of the workmen C

certified copy of the agreement shall be filed along with the application.

(3) The foregoing provisions

of this Act shall apply in respect of

an application under sub-section (2) as they apply to the certification

of the first amendments.

D

(4) Nothing contained in sub-section (2) shall apply to an industrial

establishment

in respect of which the appropriate Government is the

Government

of the

State of Gujarat."

Section I 0 provides for duration and modification of Model Standing

Orders. The Standing Orders finally certified under the Act cannot be modified E

except on an agreement between the employer and the workmen or a Trade

union

or other representative body of the workmen until the expiry of six

months from the date on which they came into operation.

Before coming to the core question, we may first consider the right

of

an employee to be represented in the disciplinary proceedings and the extent F

of the right.

The basic principle

is that

al) employee has no right 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 G

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." H

528 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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

B Western Railway. The choice cannot be allowed to travel to other Railways.

c

D

E

F

Similarly, a provision has been made in Rule 14(8) of the

Central Civil

Services (Classification, Control & Appeal) Rules, 1965, where too, an employee

has been given the choice

of being represented in the disciplinary proceedings

through a co-employee.

In

Kalindi and Ors. v. Tata Locomotive & Engineering Company Ltd.,

AIR

(1960) SC 914 = [1960] 3 SCR 407, a Three-Judge Bench observed as

under:-"

Accustomed as we are to the practice in the courts of law to

skilful handling

of witnesses by lawyers specially trained in the art of

examination and cross-examination of witnesses, or first inclination is

to think that a fair enquiry demands that the person accused

of an act

should have the assistance

of some person, who even if not a lawyer

may be expected to examine and cross-examine witnesses with a fair

amount

of skill. We have to remember however in the first place that

these are not enquiries

in a court of law. It is necessary to remember

also that

in these enquiries, fairly simple questions of fact as to

whether certain acts

of misconduct were committed by a workman or

not only fall to be considered,

and straightforward questioning which

a person

of fair intelligence and knowledge of conditions prevailing

in the industry will be able to do will ordinarily help to elicit the

truth.

It may often happen that the accused workman will be best

suited, and fully able to cross-examine the witnesses who have spoken

against him and to examine witnesses

in his favour.

It is helpful to consider in this connection the fact that ordinarily

G in enquiries before domestic tribunals the person accused of any

misconduct conducts his own case.

Rules have been framed by

Government

as regards the procedure to be followed in enquiries

against their

own employees. No provision is made in these rules

that the person against

whom an enquiry is held may be represented

by anybody

else. When the general practices adopted by domestic

H tribunals is that the person accused conducts his own case, we are

B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S SAGHIR AHMAD, J.] 529

unable to accept an argument that natural justice demands that in A

the case of enquiries into a charge-sheet of misconduct against a

workman he should be represented

by a member of his Union. Besides

it is necessary to remember that

if any enquiry is not otherwise fair,

the workman concerned can challenge its validity

in an industrial

dispute.

Our conclusion therefore is that a workman against whom an

enquiry

is being

held by the management has no right to be represented

at such enquiry by a representative

of his

Union: though of course

an employer

in his discretion can and may allow his employee to avail

B

himself of such

assistance." (Emphasis supplied) C

In another decision, namely Dunlop Rubber Company v. Workmen,

[ 1965] 2 SCR 139 = AIR ( 1965) SC 1392 = 1965 (I) LLJ 426, it was laid down

that there was no right to representation in the disciplinary proceedings by

another person unless the Service Rules specifically provided for the same.

The matter again came to be considered by a Three-Judge Bench

of this D

Court in Crescent Dyes and Chemicals Ltd. v Ram Naresh Tripathi. [1993]

2

SCC 115 = [1992] Suppl. 3 SCR 559 = (1992) 3 Scale 518, and Ahmadi, J. (as

he then was) in the context

of

Section 22(ii) of the Maharashtra Recognition

of Trade Unions and Unfair Labour-Practices Act, 1971, as also in the conte)

of domestic enquiry, upheld the statutory restrictions imposed on delinquents

choice

of representation in the domestic enquiry through an agent. It was laid E

down as under:-

11. A delinquent appearing before a Tribunal may feel that the

right to representation is implied in the larger entitlement

of a fair

hearing based on the rule

of natural justice. He may, therefore, feel

that refusal to be represented by an agent of his choice

would F

tantamount to denial of natural justice. Ordinarily it is considered

desirable not to restrict this right

of representation by counsel or an

agent

of one's choice but it is a different thing to say that such a right

is an element of the principles of natural justice and denial thereof

would invalidate the enquiry. Representation through counsel can be

G

restricted by law as for example,

Section 36 of the Industrial Disputes

Act, 1947, and so also by certified Standing Orders. In the present

case the Standing Orders permitted an employee to be represented by

a clerk or workman working in the same department as the delinquent.

So also the right to representation can be regulated or restricted by

statute." H

530 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A The earlier decisions in Kalindi & Others v. Tata Locomotive &

Engineering

Co, Ltd. (supra); Dunlop Rubber Co. v. Workmen (supra) and

Brooke Bond India

(P.) Ltd. v. Subba Raman (S.) and Another, 1961 (2) LLJ

417, were followed and

it was held that the law in this country does not

concede an absolute right

of representation to an employee as part of his

B right to be heard. It was further specified that there is no right to representation

as such unless the company, by its Standing

Orders, recognizes such a right.

In this case, it was also laid down that a delinquent employee has no right

to be represented

in the departmental proceedings by a lawyer unless the

facts involved

in the disciplinary proceedings were of a complex nature in

which case the assistance of a lawyer could be permitted.

c

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. 's case (supra) as a decision in favour of the respondent No. I.

The process

of reasoning by which this decision has been held to be in

favour

of respondent No. I for coming to the conclusion that he had a right

D 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 in so far as it purports

to quash the order

of the Appellate Authority, by which the Draft Standing

E

Orders were certified, cannot be sustained.

The contention

of the learned counsel for Respondent No. 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

F 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 Order with the Model Standing Orders and

on comparison

if it was found that the Draft

Standing Orders, were in

G conformity with the Model Standing Orders, the same would be certified even

if they were not reasonable or fair. The workmen practically has 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 the Parliament

H as a result of which Pot only the scope of the Act was widened, but jurisdiction

)

B.P. CORPN. LTD. v MAHA. GENERAL KAMGAR UNJON [S. SAGHIR AHMAD, l.] 531

was also conferred upon the Certifying Officer as also the Appellate Authority A

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.

B

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 C

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 D

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 E

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. F

The appeals are consequently allowed. The impugned judgment dated

28.6. 1996, passed by the Bombay High Court,

in so far as it relates to the

Clauses

in question which is the subject matter of these appeals, is set aside

and the order passed

by the Appellate Authority certifying the Draft Standing

Orders

is upheld. There will be no order as to costs. G

RK.S. Appeal allowed.