2008 Supreme(Bom) 848

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C.DHARMADHIKARI, J.
Municipal Corporation of Gr.Bombay – Petitioner
Versus
General Secretary, BEST Workers’ Union – Respondent
WRIT PETITION NO.1249 OF 2008
DECIDED ON : 23rd June 2008

The standing orders do not get vitiated nor do they become unreasonable or unfair because second opportunity is not to be found therein.

Headnote:

STANDING ORDER - AMENDMENT - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 10(2) - BOMBAY INDUSTRIAL RELATIONS ACT, 1946 - SECTION 35(2), 36(3), 39(1) - PRINCIPLES OF NATURAL JUSTICE - SHOW CAUSE NOTICE - REASONABLENESS - FAIRNESS - INDUSTRIAL PEACE - Held, the impugned orders directing addition to standing order 23(a) are unsustainable. The authorities below have clearly erred in law and have ignored the binding principles which have to be applied while considering such issues in industrial matters.

Fact of the Case:

The petitioner, Municipal Corporation of Greater Mumbai, through its General Manager, Bombay Electric and Supply and Transport Undertaking (BEST), challenged the order dated 30th December 2002 delivered by the Dy.Commissioner of Labour and Settlement Officer, which has been confirmed by the President Industrial Court on 16th August 2007. The respondent is Trade Union registered under the Trade Union’s Act. It is represented and approved Union for the Transport Industry of the petitioner. The petitioner pointed out that the respondent by letter dated 5th March 2002 moved the Commissioner of Labour for alterations in the Standing Orders settled for the employees of the Undertaking. It was their case that standing order No.23(b) provides that the delinquent employee be given an opportunity to show cause as to why proposed punishment should not be imposed upon him. However, this standing orders deals with the procedure in respect of summary enquiry. The contention of the Union is that the Standing Order No.23(a) does not have a similar provision which gives an opportunity to the delinquent employee to show cause as to why proposed punishment should not be imposed against him, in an enquiry conducted under the standing orders. Therefore, it was their case that the protection similar to that of Standing Order No.23(b) must also be provided in Standing Order No.23(a). According to respondent, the General Manager delegates the powers to designated officers to issue charge sheets in departmental enquiry and impose punishment provided for in the Standing Order. The officer to whom powers are delegated conducts the enquiry and records findings and also imposes necessary punishment.

Finding of the Court:

The impugned orders directing addition to standing order 23(a) are unsustainable. The authorities below have clearly erred in law and have ignored the binding principles which have to be applied while considering such issues in industrial matters. Once their orders are vitiated on account of misdirection in law and failure to apply their mind to settled principles, then, they cannot be upheld. This Court would be failing in its constitutional duty if it upholds the orders which are patently unsustainable.

Issues: Whether the existing standing order of the petitioner undertaking requires any amendment much less amendment proposed by the Union so also certified by the Authority?

Ratio Decidendi: The Supreme Court decisions clearly lay down one principle viz., the standing orders do not get vitiated nor do they become unreasonable or unfair because second opportunity is not to be found therein. In fact, in the earlier decisions of the Supreme Court, a contention was raised before it that a notice contemplated by the then Article 311 must be imported in to industrial matters. That contention was specifically turned down. The Supreme Court held that to equate enquiries and employment so also matters falling under Article 311 with Industrial matters, would be equating industrial employees with civil services for which there is no justification on any principle. The Supreme Court sounded a note of caution that importing such concept would unnecessarily prolong disciplinary enquiries which is not in the interest of Industrial Peace. Interest of industrial peace demands early and expeditious disposal of disciplinary enquiries. Therefore, the modification was not held to be justifiable on the ground of reasonableness or fairness.

Final Decision: Petition allowed.