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1990 Supreme(Mad) 283
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE NAINAR SUNDARAM
S. Alamelu - Appellant
Versus
Superintending Engineer, South Arcot Electricity System (S), Villupuram - Respondents
Writ Appeal No. 1070/1985
Decided On : 29 March 1990
Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, prevail over Regulations and a violation of a Regulation that is not enumerated as misconduct in the Standing Orders cannot attract disciplinary action.
Headnote:
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT - STANDING ORDERS - TAMIL NADU ELECTRICITY BOARD EMPLOYEES CONDUCT REGULATIONS - MISCONDUCT - CERTIFIED STANDING ORDERS UNDER THE ACT PREVAIL OVER REGULATIONS - VIOLATION OF REGULATION NOT ENUMERATED AS MISCONDUCT IN STANDING ORDERS CANNOT ATTRACT DISCIPLINARY ACTION.
Fact of the Case:
The petitioner, a physically handicapped woman, was married to a man who already had a wife. She was issued a charge memorandum for violating Regulation 25(2) of the Tamil Nadu Electricity Board Employees Conduct Regulations, which prohibits a woman employee from contracting a marriage with any person who has a wife living, without first obtaining the permission of the Board. The petitioner challenged the charge memorandum by way of a writ petition, contending that the violation of the Regulation was not a misconduct enumerated in the Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, and therefore could not attract disciplinary action.
Finding of the Court:
The court held that the Certified Standing Orders under the Act prevail over the Regulations and that a violation of a Regulation that is not enumerated as misconduct in the Standing Orders cannot attract disciplinary action. The court relied on several Supreme Court judgments, including U.P. State Electricity Board v. Hari Shankar Jain and Glaxo Laboratories (I) Ltd. v. Labour Court, Meerut, which held that the Act and the Standing Orders formulated and certified under it have a statutory flavor and that ordinary canons of construction of statutes would be attracted where a dispute arises about their construction or interpretation.
Issues: Whether the violation of a Regulation that is not enumerated as misconduct in the Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, can attract disciplinary action.
Ratio Decidendi: The court held that the Certified Standing Orders under the Act prevail over the Regulations and that a violation of a Regulation that is not enumerated as misconduct in the Standing Orders cannot attract disciplinary action. The court reasoned that the Act and the Standing Orders formulated and certified under it have a statutory flavor and that ordinary canons of construction of statutes would be attracted where a dispute arises about their construction or interpretation. The court also noted that the purpose of the Act is to ameliorate the conditions of the weaker partner in the industry and that the conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
Final Decision: The court allowed the writ appeal, set aside the order of the single judge, and allowed the writ petition. The court made no order as to costs.
Nainar Sundaram, J.
The petitioner in W.P. No. 11462 of 1985 is the appellant in this writ appeal. The respondent in the writ petition is the respondent in this writ appeal. We are referring to the parties as per their nomenclature in the writ petition for the sake of convenience. The petitioner was initially appointed by the Superintending Engineer, South Arcot Electricity System (South), Villupuram, to the post of Junior Assistant in the year 1970. Her service were regularised and subsequently in 1980 she was promoted as an Assistant. There is no dispute that the petitioner is a physically handicapped person in that she does not have her left forearm. She claims that she could not secure life partner on account of her physical handicap and sympathy flowed from her brother-in-law, namely, her younger sister's husband and he took her in marriage even though his marriage with the petitioner's younger sister was subsisting. This happened in the year 1973. On 1st July, 1985 a charge memorandum was issued to the petitioner putting forth the following charge :
"Tmty. S. Alamelu, then Assistant, Revenue Unit, Virdhachalam (now working at Revenue Unit, Perambalur, Trichy Electricity System/North) has married one Thiru A. Singaravelu, Assistant, who has a wife living, during 1973 without obtaining the prior permission of the Board. The above act constitutes misconduct as per Regulation 25(2) of Tamil Nadu Electricity Board Employees Conduct Regulations." *
2. The petitioner came to this Court impeaching this charge memorandum by way of the writ petition. Three contentions were put forth before the learned single Judge, who heard and disposed of the writ petition. The first contention in substance was that there are Certified Standing Orders under the Industrial Employment (Standing Orders) Act, 20 of 1946, hereinafter referred to as the Act, and they do not set out any such misconduct and the Regulations cannot he invoked as done in the charge memorandum. The second contention was that if there is a conflict between the Certified Standing Orders and the Regulations, the former alone must prevail. The third contention was that if it is a question of obtaining a permission, that could be accorded even now. The learned single Judge did not countenance any of the three contentions, and as a result, dismissed the writ petition. This has obliged the petitioner to prefer this writ appeal.
3. Mr. K. Chandru, learned counsel for the petitioner, would primarily contend that to the parties the Act applies and pursuant to the provisions of the Act, Standing Orders got formulated and certified and they have settled and must be deemed to have settled all matters that are required to be settled by the provisions of the Act, which take in also acts and omissions, which would constitute misconduct; and a violation of the prescription of the Regulation as complained of and adumbrated in the charge memorandum is not one such misconduct and hence it is not permissible to have recourse to the Regulation to penalise the petitioner. In answer, Mr. K. P. H. Thulasiraman learned counsel for the respondent, would submit that when there is a Regulation, prohibiting the contracting of another marriage, as happened in the present case, without the prior permission, there could be disciplinary action treating such violation as a misconduct, and the absence of enumeration of that misconduct in the Certified Standing Orders would not abrogate such powers.
4. There is no dispute that the Act applies to the parties. If that is so, it is statutorily incumbent to formulate Standing Orders and get them certified under the Act. Pending such certification, the Model Standing Orders under the Act and the Rules framed thereunder shall govern. There is no dispute that there are Certified Standing Orders to govern the rights and obligations of parties in respect of matters covered by the Act and the Rules. They take in acts and omissions which would constitute miscondu
