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PETITIONER: BHARAT PETROLEUM CORPORATION LTD.

       Vs.

RESPONDENT: MAHARASHTRA GENL.KAMGAR UNION & ORS.

DATE OF JUDGMENT:       14/12/1998

BENCH: S.SAGHIR AHMAD, D.P. WADHWA.,

JUDGMENT:

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S.SAGHIR AHMAD. J, -----------------

       The legal battle which started  on  a  larger  plane between  the  parties  to  this  appeal.  in  1984,  has now narrowed down to only one  question,  namely,  the  question relating  to  the  representation  of  an  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.

On 4.12.1985, the appellant submitted Draft Standing  Orders to  the  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  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.

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 No.1, 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 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

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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  Appellant  Authority  was  challenged  by respondent  No.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 (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         meanwhile,  the  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 No. 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 thee 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         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."

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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 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 thee 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  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 the respondent No.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  Appellant  Authority  which  had certified  the  Draft  Standing  Orders  submitted  by   the appellant.

       The Industrial  Employment  (Standing  Orders)  Act, 1946  was made by the Parliament to require employers of all industrial Establishments to define formally 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.   VS Employees Union, 1966 (1) LLJ 443 = AIR 1966 SC 808 = 1966 (2) SCR  498,  followed by  its  other  decision  in Glaxo Laboratories (I) Ltd. vs. Presiding Officer,  Labour  Court,  Meerut,  1983  Labour  & Industrial Cases 1909 = AIR 1984 SC 505 = 1984 (1) SCC 1.

       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

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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 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 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 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."

       This  section provides that the Model Standing Order 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:-         "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  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 Order 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:-

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       "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,   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 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-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 Orders are certified, they constitute the condition of who *** ready *** management ***** employment or who may be employed after certification as was laid down  by  this Court in Sudhir Chandra Sarkar vs.  Tata iron and Steel Company Ltd.  & Ors.,  AIR  1984  SC  1064  = (1984)  3  SCC  309 = 1984 (3) SCR 325, wherein reliance was placed on  an  earlier  decision  in  Agra  Electric  Supply Company Ltd.   vs.   Alladin, AIR 1970 SC 512 = 1970 (1) SCR 808 = (1869) 2 SCC 598, in which also 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.  vs.  Management,  AIR  1973  SC 1227  +  1973  (3)  SCR  587  =  (1973)  1 SCC 813 and Glaxo Laboratories (I) Ltd.  vs.  Presiding Officer, Labour Court, Meerut, 1983 Labour & Industrial Cases 1909 =  AIR  1984  SC 505 = 1984 (1) SCR 230 = (1984) 1 SCC 1).

       The  order  of  the Certifying Officer is appealable under Section 6.

       Section 10 provides as under:-

       "10.    Duration   and   modification   of  standing

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       orders.(1) 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         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.

       (2) Subject to the provision of sub-section (1),  an         employer,  or  workman  or  a  trade  union or other         representative body of the workmen 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 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 agreement         between the employer and workmen or a trade union or         other representative body of the  workmen  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.

       (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 10 provides for duration and modification of Model Standing  Orders.    The   Standing   Orders   finally certified  under  the  Act  cannot  be modified 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 of the right.

       The basic principle is that an 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   example,  Rule  1712  of  the  Railway Establishment Code provides as under:

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       "The  accused  railway  servant may present his case         with the assistance of  any  other  railway  servant         employed   on   the   same  railway  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  & 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.   vs.  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  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 tribunals is  that  the  person  accused         conducts  his  own  case, we are unable to accept an         argument that natural justice demands  that  in  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.

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               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  himself   of   such         assistance."

                                       (Emphasis supplied)

       In another decision, namely  Dunlop  Rubber  Company vs.   Workmen,  1965  (2) SCR 139 = AIR 1965 1392 = 1965 (1) 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  Court  in  Crescent  Dyes  and Chemicals Ltd.   vs Ram Naresh Tripathi.  (1993) 2 SCR 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  context  of domestic  enquiry, upheld the statutory restrictions imposed on delinquents choice  of  representation  in  the  domestic enquiry through an agent.  It was laid 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 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         restricted by law as for example, Section 36 of  the         Industrial  Disputes  Act,  1947,  and  so  also  by         certified 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."

       The earlier decisions in Kalindi & Others vs.   Tata Locomotive &  Engineering  Co,  Ltd.  (supra); Dunlop Rubber Co.  vs.  Workmen (supra) and Brooke Bond India (p) Ltd.  vs 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 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.

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       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.1.  The process of reasoning by which this decision has  been  held  to  be  in favour  of respondent No.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 in so far 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 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  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, 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 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.

       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

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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, 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.