The failure to comply with the mandatory provisions of Rule 17(4)(c) and 17(5) of the Model Standing Orders vitiates the domestic enquiry and the order of dismissal.

1. This write petition has been filed by the Secretary. Ambattur Industrial Estate and Engineering Employees Union, Madras-50 on behalf of 17 workers belonging to the first respondent-management, Arc Engineering Works, Ambattur Industrial Estate, Madras-58 to quash to award passed by the Second Additional Labour Court, Madras on 13-12-1974 in I.D. No. 120 of 1973. The facts of the case may be briefly stated as follows : On and from 22-2-1972 the entire workmen of the first respondent-management went on strike to press certain demands which accounting to them were legitimate. Thereafter the management charge-sheeted the said 17 workmen for certain acts of misconduct indulged by them during the period of the strike. The management held a domestic enquiry. The enquiry officer fund that the 17 workmen were guilty of the charge levelled against them. The management accepted the report of the enquiry officer and dismissed all the workmen from service by the order dated 26 July, 1972. At the instance of the petitioners, the Government of Tamil Nadu referred the question of their non-employment for adjudication by the Labour Court, Madras under S. 10 of the Industrial Disputes Act. The Second Additional Labour Court, Madras took the mater on file as I.D. No. 120 of 1973. The Labour Court passed an award on 13-12-74. The Labour found that a proper domestic enquiry was held and that the enquiry officer rightly found that the workmen were guilty of acts of violence and riotous and disorderly behavior. In this view, the Labour Court finally held that the dismissal of the 17 workmen by the management was justified and that they were not entitled to any relief. Hence this write petition.

2. Mr. Fenn Walter, the learned counsel for the petitioner raised two contentions : (1) There are no certified standing order for the management. The management is governed by the Industrial Employment (Standing Orders) Act, 1946. Under S. 12A of the said Act, in cases where there are no certified standing orders applicable to an industrial establishment the prescribed model standing orders shall be deemed to be adopted and applicable. Section 15 of the said Act confers power on the appropriate Government to make rules for the purposes of the Act. Sub-section 2(b) to S. 15 state that such rule may set out model The Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947 have been framed by the State Government in accordance with S. 15 of the said Act. Rule 4 of the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947 states that the Model Standing Orders for the purpose of the Act applicable to the workmen in industrial establishments and the working journalists in news paper shall be those set out in Schedules 1 and 2 to the Rules respectively. Rule 17(4) (c) of the Model Standing Orders provides that if on the conclusion of the enquiry the workman has been found guilty of the charge framed against him, it is necessary to give the workmen a reasonable opportunity of making representation on the penalty proposed. Mr. Fenn Walter, argued that in this particular instance, no second show-cause notice as contemplated under Rule 17(4) (c) of the Model Standing Orders was served on the workmen to show-cause why they should not be dismissed from service. Hence, the domestic enquiry itself was vitiated. Therefore, the finding of the Labour Court that there was a regular domestic enquiry was liable to be set aside. (2) Rule 17(5) of the Model Standing Orders provides that in awarding the punishment the employer shall take into account, the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances that may exist. In this particular case, the management in awarding the punishment of dismissal did not take into account the previous record of the workmen as enjoyed by rule 17(5) of the Model Standing Orders. On this ground also, in the submission of Mr. Fenn Walter, the domestic enquiry m