Important Point
Standing Order restricting a workman to get the assistance of his choice to be defended in departmental enquiry who must be employer in the establishment conforms to all standard of reasonableness and fairness and such a Standing Order cannot be said to be against the Model Standing Order.

Headnote:Industrial Employment (Standing Orders) Act, 1946-Section 5 read with Sections 2(ee) and 12A and 15 - Industrial Employment (Standing Orders) Central Rules, 1946 - Standing Orders - Draft-Certification of-Draft Standing Order providing that in case of domestic inquiry workmen concerned will be permitted to be defended by fellow workman of his choice who must be employee of establishment -Plea that Draft Standing Order was contrary to Model Standing Order and a workman should be permitted to be represented by a person who, though, is a member of Trade Union but not an employee of establishment-Certifying authority acceeding to plea of workmen-Appellate authority approving draft -High Court quashing order of appellate authority-Cannot be sustained Draft Standing Order conforms to all standards of reasonableness and fairness.
       Held : 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 & Appeal) Rules, 1965, where too, an employee has been given the choice of being represented in the disciplinary proceedings through a co-employee. (Paras 23, 24 & 25)
       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. (Para 34)

Judgment

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.

2. 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 for 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 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.

3. 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.

5. 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 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.

5. The order of the Appellate 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 officer 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 meanwhile, the workman may be represented by any other workman who is an employee of the petitioner corporation.”

6. 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.

7. 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

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1998 Supreme(SC) 1236

Cases Referred (8)