Municipal Corporation of Gr. Bombay Vs General… — Service and Employment | Bombay HC (2008)

Municipal Corporation of Gr. Bombay Vs General… — Service and Employment | Bombay HC (2008)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1249 OF 2008

Municipal Corporation of
Gr.Bombay through the
General Manager, Bombay
Electric Supply and Transport
Undertaking.. Petitioner
Versus
General Secretary, BEST
Workers’ Union.. Respondent

Mr.S.K.Talsania, Senior Advocate with Mayur
Shett and Kavita Anchan i/b. M/s.M.V.Kini & Co.
for petitioner
Mr.C.U.Singh, Senior Advocate with Mr.N.D.Nagle
for respondent

CORAM :S.C.DHARMADHIKARI, J.
DATE:23rd June 2008

ORAL JUDGEMENT:-

.Rule.Mr.Nagle waives service for

respondents. By consent, rule is made returnable
forthwith.

2.By this petition under Article 226 of the

Constitution of India, the petitioner, Municipal
Corporation of Greater Mumbai, through its
General Manager, Bombay Electric and Supply and
Transport Undertaking (BEST), challenges 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.

3.The petitioner is engaged in the supply
of electricity so also conduct and maintenance of
Public Transport Service in Greater Mumbai. The
undertaking of the petitioner is registered as
such under section 11 of the Bombay Industrial
Relations Act, 1946. (B.I.R.Act for short). 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.

4. The petitioner states that Standing

Orders (Transport section) of the petitioner
undertaking are settled by the Commissioner of
Labour under section 35(2) of the B.I.R. Act,
1946. They are also settled by the Industrial
Court under section 36(3) of the said Act. The
alterations therein made by the Commissioner of
Labour under section 39(1) of the Act have also
come into effect and the standing orders as
altered came into operation on and from 1st
September 1955.

5.The petitioners point 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.

6.It is their case that the officer
conducting the enquiry does not have sufficient
independence as they are officers subordinate to
the General Manager. Therefore, the standing

order No.23(a) should also provide for an
opportnity to show cause against proposed
punishment. This would be in accordance with the
principles of natural justice. The respondents,
therefore, requested the Commissioner of Labour
to alter the standing orders as per the Annexures
submitted along with the letter.

7.Thepetitionersubmittedits

reply/response to the Union’s letter. It is
contended that standing order No.23 provides for
two types of enquiries. There is a regular
enquiry for grave offence and that is covered by

Standing Officer No.23(a). Standing Order
No.23(b) is summary trial for minor
penalties/punishment. It was contended by the
petitioner that both standing orders provided for
adherence to principles of natural justice in the
conduct of disciplinary enquiry against the
delinquent employee. A careful perusal of
Standing Order No.23(a) would indicate that at

the regular enquiry for imposing major
penalty/punishment, the enquiry officer is also
the disciplinary authority. He is required to
give full opportunity to the delinquent employee
and his representative to answer the charge and
to be defended before trying officer. Evidence
is led, cross examination of the witness takes
place and in the final submissions, which are
made before the enquiry officer/trying officer,
the employee concerned is given an opportunity to
urge that he may be exonerated of the charges and
no punishment be imposed against him. Thus, the
opportunity of showing cause against any
punishment is inbuilt in the procedure prescribed
by standing order No.23(a). The Standing Order
No.23(b) is speaking of minor punishments. These
are penalties which are to be imposed in summary
trials/enquiry. The procedure of summary enquiry
does not contemplate defence by the delinquent
employee through the defence representative. Nor
does it contemplate leading of evidence or cross

examination of witness. In a summary enquiry the
employee, on being orally informed about the
misconduct, is given an opportunity to submit his
defence either in writing or orally to the
enquiry officer, who is also empowered to pass
appropriate punishment against him. After
considering the statements made in writing or
orally the officer proceeds to pass such an order
as he deems fit. The element to show cause
introduced in standing order No.23(b)(i) is by
way of an exception. That is not contemplated in
Standing Order No.23(a). However, now the
delinquent employees in case of summary trials
are allowed to be represented as per the
provisions of M.R.T.U. and PULP Act, 1971.
Since, a comprehensive procedure is set out and a
delinquent employee has adequate opportunity to

show cause against the charges, so also the
proposed punishment, therefore, there is no
question of permitting any amendment in Section
23(a) which has been sought in the light of

standing order 23(b). Once, the permission is
given to the delinquent employee in case of
summary trial to be represented in the manner
laid down in the M.R.T.U. and PULP Act, that
standing order itself is redundant. The
petitioner pointed out that the reliance on the
case of Union of India and Ors. Vs. Mohammed
Ramzan Khan reported in 1991 (I) CLR 61 is
misplaced. In terms thereof, a copy of the
enquiry report along with recommendations, if
any, in the matter of proposed punishment should
be given to the employee. However, the Supreme
Court judgement must be seen in the context of
the fact that the enquiry officer and
disciplinary authority may be distinct. If they
are different, then, the requirement laid down in
the Supreme Court decision would apply. As far
as petitioner is concerned, the enquiry officer
is also disciplinary authority and, therefore,
Mohd.Khan’s case will have no application.
Reliance was also placed upon a decision of the

Supreme Court in the case of Managing Director,
ECIL (Electronic Corporation of India Ltd.)
Hyderabad Vs. B.Karunakar, reported in A.I.R.
1994 SC 1074. For all these reasons the
petitioner submitted before the authority that no
change or alteration is necessary or should be
made in the standing order No.23(a).

8.It is clarified by both sides before me
that the petition concerns only this amendment
and, therefore, other aspects or other
alterations sought need not be considered or gone
into.

9.The Dy.Commissioner of Labour before whom
the matter was placed referred to both standing
orders and the rival contentions as noted above.
In para 3 of the decision of the Dy.Commissioner
of Labour, this is what is observed:-

"3.In Standing Order No.23(a) at the

end of the first paragraph following
should be added - "an employee who as a
result of such trial is ordered to suffer
any punishment shall be served a show
cause notice providing him an opportunity
to file his say in respect of the
proposed punishment being imposed upon
him". After receiving the explanation
from the delinquent employee in this
respect within the reasonable time only
and after duly considering the
submissions made in this respect by the
delinquent employee the final order
should be passed."

10.Insuchcircumstances,the

Dy.Commissioner of Labour passed the following
order.

"1.The existing Standing Order No.22
in the settled standing order is deleted.

"2.The proposal seeking deletion of
Appendix XV attached to the Leave Rules
is rejected;

"3.In Standing Order No.23(a) at the
end of the first paragraph following
should be added - "an employee who as a
result of such trial is ordered to suffer
any punishment shall be served a show
cause notice providing him an opportunity
to file his say in respect of the
proposed punishment being imposed upon
him". After receiving the explanation
from the delinquent employee in this
respect within the reasonable time only
and after duly considering the
submissions made in this respect by the
delinquent employee the final order
should be passed."

"4.Since in view of statutory
amendment in the Schedule I of the B.I.R.
Act the existing settled Standing Order
should be altered after the Applicant
Union and the Management undertaking
finalise the draft for inclusion at the
appropriate place in the existing settled
Standing Orders and submit the same for
settlement under section 39(1) of the
Bombay Industrial Relations Act, 1946."

11.Being aggrieved and dissatisfied with the
order of the Dy.Commissioner of Labour/Settlement
Officer, the petitioner preferred an Appeal under
section 36 of the B.I.R. Act being Appeal (IC)
No.96 of 2003 before the Industrial Court,
Maharashtra State. After referring to the
factual position, the petitioner appellant
contended that the order of the Dy.Commissioner
is uncalled for since the standing order 23(a)
provides sufficient safeguards to the employee to

defend himself before the enquiry officer. The
delinquent employee has opportunity to engage his
representative before the enquiry officer and to
make submissions based on the evidence so also
regarding the charges levelled against him. The
delinquent employee is given opportunity to
submit before the Disciplinary authority that he
may be exonerated of the charges and no
punishment be imposed on him. Thus, the element
of showing cause against the punishment is in
built in the standing order 23(a). The
petitioners distinguished the law laid down in
Supreme Court’s decision relied upon by the
Union. Petitioner’s appeal dated 3rd June 2003
was time barred, according to petitioner and,
therefore, the application for condonation of
delay was preferred. The same was accompanied by
an affidavit of Mr.Ashok Walawalkar, Personnel
Officer, BEST and he pointed out that Undertaking
decided to file an Appeal against the order dated
30th December 2002 passed by the Dy.Commissioner,

Labour. The petitioner Appellant received the
certified copy of the order on 5th February 2003
and, therefore, there is delay in filing of the
appeal.

12.Petitioner’s appeal was placed before the
President Industrial Tribunal and, after hearing
both sides, the Industrial Tribunal observed that
it is imperative that the petitioner completes
domestic enquiry within six months. However, the
petitioner has not pointed out as to how any
prejudice or inconvenience will be caused to them
if the delinquent employee is given opportunity
to say something about the proposed punishment.
The argument is, therefore, not acceptable. The
learned President then referred to case law i.e.
a decision of the Madras High Court, decision of
this Court and ultimately held that a delinquent
employee must be given opportunity to say
something about punishment. Considering the
existing standing order, there is no such

opportunity. He has no right to submit anything
about his past record which is taken into
consideration by the enquiry officer for imposing
punishment. The enquiry officer invariably
considers past service record of the delinquent
employee and imposes punishment in the absence of
any version of the employee. In the opinion of
the Industrial Court, it is obvious that under
the existing provisions, the principles of
natural justice have not been followed and by
amendment this aspect can be taken care of. For
this reason and finding that the
Dy.Commissioner’s order is just and proper, the
learned President refused to interfere with it.
Thus, he dismissed petitioner’s appeal by the
impugned order.

13.These orders are under challenge in the
present petition.

14.Mr.Talsania, learned Senior Counsel

appearing for petitioner has taken me through the
standing orders which are certified under the
B.I.R. Act and particularly standing order
No.23. He submits that the only reason assigned
by the Dy.Commissioner is to be found in para 3
of his order reproduced above. There is nothing
which would indicate any unfairness or
unreasonableness in the existing provisions
warranting any amendment or alterations thereto.
He submits that the lower appellate court also
committed the same error inasmuch as it failed to
assign any reasons for the proposed changes or
alterations. Mr.Talsania submits that merely
because in the opinion of the authorities, it
would be better that a provision for showing
cause against the proposed penalty is
incorporated does not mean that the standing
orders shall be changed or altered. He submits
that in the BEST, ordinarily the Enquiry Officer
and disciplinary authority are one and the same.
The Enquiry Officer himself takes into account

the past record of delinquent employee and
mitigating circumstances. There is no outsider
involved in the conduct of enquiry. In such
circumstances, there was no warrant for
interfering with the standing orders and
directing any changes or alterations thereto.
Mr.Talsania was at pains to point out that such
provisions for second show cause notice was
existing in Article 311(2) of the Constitution of
India before its amendment. However, after
amendment of the said Article/Constitutional
provision, the provision of second opportunity is
deleted and challenge thereto has also failed.
In that light he invited my attention to the
decision in Tulsiram Patel’s case reported in
A.I.R. 1985 S.C. 1416. He submits that the
decision in Mohd.Khan’s case and D.Karunakar’s
rendered by the Supreme Court are not relevant on
the issue of punishment. They considered the
aspect of supply of enquiry officer’s report. In
such circumstances, the petition be allowed as

the impugned orders, in his submission, suffer
from total non application of mind and are
otherwise vitiated by serious errors apparent on
the face of record. He submits that the
authorities failed to read the standing orders in
their proper perspective. If they are considered
in the context of the trials and enquiries which
are proposed for imposing minor penalties and
major punishments, then, there cannot be any
confusion and no second opportunity is
contemplated. There are inbuilt safeguards and
checks and, therefore, there is no question of
any amendment or alterations. More so, when the
standing order provides for two appeals against
the final decision.

15.Mr.Singh,learnedSenior Counsel

appearing for respondent Union supported the
impugned order. He submits that there is no
question of any practice or usage in the
petitioner governing the issue of amendment to

standing orders. He has invited my attention to
standing orders 20, 21(2) and (3) and 23. He
submits that there is absolutely no prejudice if
the amendment or alteration is made. There is
distinction between "an officer holding enquiry"
and the "officer awarding punishment". He also
emphasised the words "answering the charge"
appearing in clause 23(a). He submits that the
exercise contemplated is only answering the
charges in the charge sheet. There is no
question of any cause being shown against the
punishment. Mr.Singh urges that an enquiry
commences with the issuance of charge sheet and
concludes by either the order of exoneration or
dismissal. At all stages, the employee has a
right to be heard and principles of natural
justice have to be adhered to. He submits that
opportunity which is provided for in the existing
standing order is restricted. As far as
punishment is concerned, all factors such as
gravity of the charges, past service, extenuating

or aggravating circumstances would go into
consideration and that can be only at the stage,
the punishment is imposed. Prior thereto, if an
opportunity to show cause is provided for, then,
a public body like petitioner should have no
objection in granting the same at the stage of
imposition of punishment. The amendments
proposed are consistent with the principles of
fairness, reasonableness and justice and,
therefore, there is no warrant for interfering
with the impugned orders. Consequently, the
petition be dismissed.

16.Mr.Talsania in support of his submissions
has relied upon following decisions:-

(Management, Shahdara (Delhi) Saharanpur
Light Railway Co. Ltd., Vs.S.S.Railway
Workers Union.

(iii)A.I.R. 1985 S.C. 1416 (Union of
India Vs. Tulsiram Patel and Ors.)

(iv)1991 (1) CLR 61 (Union of India
and Ors. Vs. Mohd.Ramzan Khan)

17.Mr.Singh on the other hand has invited my
attention to the decision of the Supreme Court in
the case of Union of India Vs. Mohd.Ramzan Khan.
He has also relied upon the decision of the
Supreme Court in the case of Institute of
Chartered Accountants of India Vs. L.K.Ratna and
Ors. Mr.Singh has also placed reliance upon a
decision of the Supreme Court in the case of
Yoginath Bagde Vs.State of Maharashtra reported
in A.I.R. 1999 S.C. 3734. He submits that
principles of natural justice would encompass

such a second opportunity and that is how this
Court should uphold the amendment to the standing
order in question.

18.With the assistance of learned Senior
Counsel appearing for both sides, I have perused
the petition and annexures thereto. The only
question that falls for my consideration is
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? In other words,
whether the second show cause notice i.e. an
opportunity against the proposed punishment is
necessary and absence thereof would mean that the
opportunity to delinquent employee to defend
himself is not complete.

19.The enquiry as far as the standing orders
are concerned is limited. It is well settled
that the authorities who are in charge of

certifying so also considering alterations and
amendments to the standing orders must satisfy
themselves as to whether the existing provisions
are unfair or unreasonable soas to warrant any
alteration or change therein. I will have to
apply these principles to the present case.

20.Standing orders which are applicable in
the BEST cover several aspects. As far as
misconduct is concerned, standing order 19
provides that any employee found guilty of
misconduct shall be liable to be dismissed by the
competent authority. The word "Competent
Authority" is defined to mean the General
Manager, the Dy.Gen.Manager or any officer duly
authorised by the Gen.Manager and notified in
that behalf. The term "Gen.Manager" is defined
in standing order 3(c) to mean the officer
appointed by Municipal Corporation as Gen.Manager
or the officer acting for him for the time being.

19.The acts or omissions on the part of an
employee set out in standing order 20 have been
termed as amounting to misconduct. It is not
necessary to enumerate these acts for the purpose
of present controversy.

21.Standing order 21 provides that subject
to provisions of standing order 23 an employee
found guilty of misconduct may be punished in one
or more of the following ways. It would be
desirable to reproduce this standing order.

"21.(1) Subject to the provisions of

Standing Order 23, an employee found
guilty of misconduct may be punished in
one or more of the following ways by:-

(a)being warned or censured; or

(b)being fined, subject to and in
accordance with the provisions of the

Payment of Wages Act, 1936, and/or the
Minimum Wages Act, 1948 and Rules
thereunder,where applicable; or

(c)in the case of the outdoor staff
of the Traffic Department being sent to
school for a period not exceeding one day
at a time for each separate act of
misconduct; or

(d)being suspended for a reasonable
period not exceeding three months
depending upon the gravity of the
offence, by an order in writing signed by
the Competent Authority; or

(e)being demoted and/or reduced in
grade; provided that in cases where the
punishment of reduction in grade is in
excess of two years, the General Manager
or any officer duly authorised and

notified by him may review, in
consultation with the Representative and
Approved Union, the punishment of
reduction in grade at the end of two
years and every two years thereafter, if
necessary, in the light of the record
during the respective two years, if the
employee or his representative under
Section 30 of the Bombay Industrial
Relations Act, 1946 makes a request to
that effect, on the expiry of a period of
not less than two years from the date the
punishment was given effect to. Such a
review will be made within a period of
two months from the date of the receipt
of the representation. If on such review
the record of the employee during the
period of two years under reference, is
found to be satisfactory, the salary of
the employee will be restored with effect
from the first day of the month following

the month in which the representation is
received.

(Provided further that where the punishment of
reduction in grade in excess of two years is
imposed on the employee in lieu of dismissal or
discharge, on humanitarian grounds, the case may
be reviewed at the end of four years and every
two years thereafter, if necessary, in the light
of the record during the respective four years or
two years, as the case may be, subject to the
other procedure mentioned earlier in this behalf
remaining the same).

(This Standing order will be deemed to have come
into force with effect from 27.3.1985 i.e. he

date on which the settled standing order is
entered into the register by the Assistant
Registrar under the B.I.R. Act).

(f)being discharged from service;

or

(g)being dismissed without notice or
any compensation in lieu of notice; or

(h)The stoppage or postponement of
an annual increment in the incremental
grade: provided that in cases where the
punishment of the stoppage or
postponement of an annual increment in
the incremental grade is in excess of two
years, the General Manager or any officer
duly authorised and notified by him may
review, in consultation with the
Representative and Approved Union, the
punishment of stoppage or postponement of
an annual increment at the end of two
years and every two years thereafter, if
necessary, in the light of the record
during the respective two years, if the
employee or his representative under

Section 30 of the Bombay Industrial
Relations Act, 1946 makes a request to
that effect, on the expiry of a period of
not less than two years from the date the
punishment was given effect to, such a
review will be made within a period of
two months from the date of the receipt
of the representation. If on such review
the record of the employee during the
period of two years under reference, is
found to be satisfactory the salary of
the employee will be restored with effect
from the first day of the month following
the month which the representation is
received."

Provided further that where the punishment of
"stoppage or postponement of annual increment in
the incremental grade" in excess of two years is
imposed on an employee in lieu of "dismissal" or
"discharge" on humanitarian grounds, the case may

be reviewed at the end of four years and every
two years thereafter, if necessary, in the light
of the record during the respective four years or
two years, as the case may be, subject to the
other procedure mentioned earlier in this behalf
remaining the same.

(@)This Standing Order will be deemed to
have come into force with effect from 27.3.1985
i.e. the date on which the settled standing
order is entered into the register by the
Assistant Registrar under the B.I.R. Act).

(2)In the case of misconduct likely
to result in discharge or dismissal, the
enquiry shall be conducted by an officer
authorised in this behalf by the General
Manager.

(3)An officer awarding punishment
for any misconduct shall take into

account the gravity of the misconduct,
the previous record, if any, of the
employee and any extenuating or
aggravating circumstances that may exist.
A copy of the order passed by the
Departmental Head or the Officer
conducting the enquiry shall on request
be supplied to the employee concerned.
In the case of offences for which the
Undertaking intends to punish the
employee concerned with the punishments
referred to in sub-clause (a) to (c) of
Standing Orders 21 (1) the Undertaking
shall allow the employee or his
representative to look into the record
and proceedings of the enquiry held
against him."

Thus, the standing order 21 provides for
punishment which includes punishment of fine,
warning or censure, suspension, demotion and/or

reduction in grade, discharge from service or
Dismissal without notice or any compensation in
lieu of notice , stoppage or postponement of
annual increment.

22.Proviso appearing at the end of the
Standing Order regarding penalty of stoppage or
postponement of an annual increment is a
safeguard wherein the penalty may be reviewed at
the end of four years and every two years
thereafter, if necessary, in the light of the
record. Standing order 21(2) states that in the
case of misconduct likely to result in discharge
or dismissal, the enquiry shall be conducted by
an officer authorised by the Gen.Manager. The
officer awarding punishment for any misconduct
shall take into account the gravity of the
misconduct, the previous record, if any of the
employee and any extenuating or aggravating
circumstances that may exist. A copy of the
order passed by the departmental head or officer

conducting enquiry shall on request be supplied
to the employee concerned. This would not be
necessary in case punishment proposed is under
Clause 1(a)to (c). Standing order 22 provides
for warning or censuring an employee subject to
and in accordance with the provisions of Payment
of Wages Act, and/or Minimum Wage Act and Rules
thereunder where applicable, fined for any of the
acts and omissions mentioned therein.

23.Then comes Standing Order 23 and it reads

thus:-

"23(a)Anemployeecharged with
misconduct of a nature which (if
established) is likely to lead to the
imposition of any of the penalties (e) to
(h) or suspension for a period exceeding
seven days under sub-clause (d) of clause
(1) of Standing Order 21, shall be given
a charge sheet in writing clearly setting

forth the circumstances appearing against
him and requiring explanation and the
date and time at which the case will be
heard, which date shall not be less than
two days after the service of the notice.
At the hearing of the case, he shall be
given an opportunity to answer the charge
and permitted to be defended by
representative under Section 30 of the
Bombay Industrial Relations Act, 1946, or
by an employee of his choice. Except for
reasons to be recorded in writing by the
officer holding the enquiry, the employee
shall be permitted to produce witnesses
in his defence and cross examine any
witnesses on whose evidence the charge
rests. A concise summary of the evidence
led on either side and the employee’s
plea shall be recorded"

"@.An employee, who as a result of

such trials is ordered to suffer any
punishment, shall have a right of appeal
to the officer immediately superior to
the one who has imposed the punishment;
provided that such appeal is lodged
within 14 days of the receipt in writing
of the order appealed against. Provided
further that where the punishment imposed
in one of discharge or dismissal, the
employee shall have a right of second
appeal to the General Manager or any
other officer duly authorised by him and
notified, provided that such appeal is
lodged within 14 days of the receipt in
writing of the order in the first appeal
as aforesaid.

.At the hearing of any appeal
provided for under this Standing Order,
the employee concerned may be represented
by his representative under Section 30 of

the Bombay Industrial Relations Act,
1946, or any person of his choice.

.(This Standing Order will be
deemed to have come into force with
effect from 3.3.1989 in terms of section
35(4) of BIR Act, 1946.)

(b)Anemployeecharged with
misconduct of a nature which (if
established) is likely to lead to the
imposition of any of the penalties (a) to
(c) or suspension for a period not
exceeding seven days under sub-clause (d)
of clause (1) of Standing Order 21, may
be tried summarily provided that:

(i)the employee concerned is given
an opportunity to show cause as to why
the proposed penalty should not be
imposed;

(ii)brief notes on the charge and the
plea put in by the employee is maintained
by the management for their own record,
and

(iii)the employee may appeal against
any punishment inflicted as a result of
such trail to the Officer immediately
superior to the one who has imposed the
punishment, provided such appeal is
lodged within 14 days of the receipt in
writing of the order appealed against;
he may be represented at the hearing of
such appeal by any other employee of the
Undertaking."

24.A bare perusal of the same would indicate
that an employee charged with misconduct of a
nature (if established) likely to lead to
imposition of any of the penalties specified in

sub-clause (e) to (h) of clause 1 of Standing
Order 21 or suspension for a period exceeding
seven days under standing order 21(i)(d), then,
he shall be given charge sheet in writing clearly
setting forthwith the circumstances appearing
against him and requiring explanation by the date
and time at which the case will be heard which
date shall not be less than two days, after the
service of notice. At the hearing of the case,
he shall be given an opportunity to answer the
charge and he may be permitted to defend also in
the manner set out in the standing order.
Barring exceptions for which reasons have to
recorded in writing by the enquiry officer, the
employee is permitted to produce witness in his
defence and cross examine any witnesses on whose
evidence, the charge rests. The concise summary
of evidence led on either side and employee’s
plea is recorded. Even after the amendment
provisions with regard to Appeals to superior
officer and second appeal to Gen.Manager is

retained and there is no question of any
alterations thereto.

25.Standing order 23(b) provides for a
summary enquiry/trial where minor penalty is
sought to be imposed. There the employee
concerned is given an opportunity to show cause
as to why the proposed penalty should not be
imposed. Brief notes on the charge and the plea
put in by the employee is maintained by the
management for their own record and the employee
is provided with an opportunity of appeal against
any punishment inflicted as a result of the
summary trial.

26.Mr.Talsania is right in his submission
that Standing Order No.23(b) provides for an
opportunity to show cause against the proposed
penalty because the trial is summary and is only
with regard to penalties, which are minor. In
such cases, the summary trial may not as

comprehensive as in the case of a misconduct
which leads to imposition of penalties specified
in sub-clause (e) to (h) of Standing Order No.21
or suspension for a period exceeding seven days
which are major punishments. The entire
procedure as stipulated in sub-clause (a),
therefore, may not be necessarily have to
followed in summary trials. It is, therefore,
when minor penalty is sought to be imposed that
an opportunity to show cause against the penalty
is provided for and an Appeal in case the
concerned employee is not satisfied with the
outcome, is provided. The Dy.Commissioner was of
the opinion that the standing order No.23(a) at
the end of first para should have the addition
which is set out by him in the order. That
addition is that if as a result of trial, the
employee is ordered to suffer any punishment,
then, he shall be served with a show cause notice
providing him an opportunity to file his say in
respect of proposed punishment being imposed upon

him. The amendment is not be happily worded by
the Dy.Commissioner of labour but in his opinion,
if any punishment is proposed against the
employee, then he shall be served with a show
cause notice so that he gets an opportunity to
file his say in respect of proposed punishment
being imposed upon him. Mr.Singh’s contention is
that such an amendment or alteration causes no
prejudice inasmuch as all that is provided for is
an opportunity to file say against the proposed
punishment. Merely because, the amendment
proposes issuance of a show cause notice does not
mean that any prejudice is caused straight away,
is his submission. An additional safeguard when
a person/employee who is working in a public body
should only be construed as fair and reasonable,
according to Mr.Singh.

27.It is not possible to accept this
contention of Mr.Singh for more than one reason.
In the case of S.S.Railway Company Vs. Workers’

Union, reported in A.I.R. 1969 S.C. 513 an
identical controversy fell for determination of
the Supreme Court. Before the Supreme Court an
appeal was preferred by special leave by the
employer. It raised the question as to the scope
of section 10(2) of the Industrial Employment
(Standing Order) Act 1946, as amended.

28.Standing orders of the appellant before
the Supreme Court were certified by the Regional
Labour Commissioner and both the company and
workmen filed appeals against the order
certifying them. The appeals were also disposed
off. Thereafter, the respondent Union applied
for certain modifications some of which were
certified by the Regional Labour Commissioner.
The appellant company filed an appeal against the
order of the Chief Labour Commissioner. Once
again further application for modification was
made by the Union which was allowed by Regional
Labour Commissioner on 2nd September 1965. The

Union filed an appeal against this order. The
Chief Labour Commissioner by the impugned order
directed certain modification. Though the
company objected to all the modifications before
the Supreme Court, only four modifications were
in issue.

29.I am notconcerned with other

modifications, save and except the fourth
modification to standing order No.11(VII) (c),
before the Supreme Court.

30.For the purpose of clarification and to
avoid any confusion it would be desirable to
reproduce that standing order:-

.The modification allowed was as

follows:

."In case the management propose
to remove the workman from service they

shall serve on the workman separate show
cause notice to that effect."

31.Thus, the amendment/modification was
identical to the one before me.

32.Dealing with rival contentions in that
regard, the Supreme Court observed thus:-

"18.As regards the modification
requiring a second show cause notice,
neither the ordinary law of the land nor
the industrial law requires an employer
to give such a notice. In none of the
decisions given by Courts or the
tribunals such a second show cause notice
in case of removal has ever been demanded
or considered necessary. The only class
of cases where such a notice has been
held to be necessary are those arising
under Article 311. Even that has now

been removed by the recent amendment of
that Article. To import such a
requirement from Article 311 in
industrial matters does not appear to be
either necessary or proper and would be
equating industrial employees with civil
servants. In our view, there is no
justification on any principle for such
equation. Besides, such a requirement
would necessarily prolong disciplinary
enquiries which in the interest of
industrial peace should be disposed of in
as short a time as possible. In our
view, it is not possible to consider this
modification as justifiable either on the
ground of reasonableness or fairness and
should therefore be set aside."

33.The judgement was by a three judge bench.
The Hon’ble Justice Bhargava (as His Lordship
then was) delivered a separate opinion/judgement

but as far as the subject standing order is
concerned, the learned Judge concurred with the
majority and that is how para 30 of the Supreme
Court decision reads:-

."30.As a result, I would partly allow
the appeal and set aside the order of the
Chief Labour Commissioner (Central),
permitting modifications mentioned by him
in his Order at items Nos.1,3,5 and 6
relating to Standing Orders 9(a), 12(A)
and 11 (vii). In the circumstances of
this case, I would direct parties to bear
their own costs of this appeal. Appeal
partly allowed."

34.Both learned Counsel invited my attention
to a later decision of the Supreme Court in the
case of ACC Vs. T.C.Shrivastav, reported in
A.I.R. 1984 S.C. 1227. The principal question

raised before the Supreme Court was whether the
certified standing order 17 contemplates second
opportunity being given to a workman after
conclusion of enquiry into his misconduct and
before inflicting on him punishment of dismissal
and if it so contemplates, then, whether the
enquiry gets vitiated by not affording him such
an opportunity. It is not necessary to go into
detailed facts except that a retired Judge of the
Madhya Pradesh High Court was appointed an
Arbitrator. He gave his award and held that
enquiry which was otherwise fair and valid was
vitiated because no opportunity was given to show
cause against the proposed punishment. The
appellant company before the Supreme Court filed
writ petition before the High Court and writ
petitions were dismissed by the High Court. That
is how, the matter was carried to the Supreme
Court. Para 7 reproduces the rival contentions
and in para 8, the Supreme Court follows the
earlier three Judge Bench decision (supra) and

observed thus:-

"8.At the outset the legal position
as has been clarified by this Court in
the Saharanpur Light Railway Co’s case
(AIR 1969 SC 513) (supra) may be sated.
In the context of certain modification
sought to be introduced in a Standing
Order requiring a second show cause
notice this Court has observed thus (para
18): ......

"It is thus clear that neither under the
ordinary law of the land nor under
industrial law a second opportunity to
show cause against the proposed
punishment is necessary. This, of
course, does not mean that a Standing
Order may not provide for it but unless
the Standing Order provides for it either
expressly or by necessary implication no

inquiry which is otherwise fair and valid
will be vitiated by non-affording of such
second opportunity. The question is
whether para 3 of the Standing Order
No.17 provides for such second
opportunity being given to the
delinquent? The relevant words are "all
dismissal orders shall be passed by the
Manager after giving the accused an
opportunity to offer any explanation".
The underlined words are wholly
inappropriate to convey the idea of a
second hearing or opportunity on the
question of punishment but appropriate in
the context of seeking an explanation in
regard to the alleged misconduct charged
against him. An ‘explanation’ is to be
called from the "accused" which suggests
that the same is to be called for prior
to the recording of a finding that the
delinquent is guilty of misconduct; it

is the alleged misconduct that is to be
explained by him and not the proposed
punishment. On a plain reading of the
relevant words no second opportunity of
showing cause against the proposed
punishment is contemplated either
expressly or by necessary implication.
In other words, it is clear to us that
the opportunity spoken of by para 3 of
S.O.17 is the opportunity to be given to
the delinquent to meet the charges framed
against him. In this connection, it will
be pertinent to mention that the
concerned S.O. was framed and came into
force on March 1, 1946 and was duly
certified on October 16, 1952 under the
Industrial Employment (Standing Orders)
Act, 1946 i.e. prior to the enunciation
of the Law by Courts regarding the
observance of the principles of natural
justice such as issuance of a charge

sheet, holding of an inquiry, opportunity
to lead evidence, etc. and it is
well-known that after the enunciation of
these principles model standing orders
have been framed to provide for the
detailed steps required to be undertaken
during a domestic inquiry. Since the
instant standing order was certified
prior to the formulation of the above
principles it merely contains a bald
provision for giving the accused an
opportunity to offer any explanation. In
other words, different stages in domestic
inquiry were never in the contemplation
of the framers of the S.O. That being
the position, it would be difficult to
attribute any intention to the framers
thereof to provide for a second
opportunity being given to the delinquent
of showing cause against the proposed
punishment. The latter part of para 3

merely casts a unilateral obligation on
the concerned authority or the officer to
give due consideration to the gravity of
the misconduct and the previous record of
the delinquent in awarding the maximum
punishment."

35.Thus, the Supreme Court concluded that
neither under the ordinary law of the land nor
under the Industrial law the second opportunity
to show cause against the proposed punishment is
necessary. However, this does not mean that the
standing order cannot be made providing for
second opportunity. However, unless the standing
order provides for the second opportunity
expressly or by necessary implication no enquiry
which is otherwise fair and valid will be
vitiated by non affording of such second
opportunity.

36.In the submission of Mr.Singh appearing
for Union, these observations of the Supreme
Court leave a door open for the Union to apply
for modification/alterations. Thus, a standing
order could have been made providing for second
opportunity. The Supreme Court decision goes
ahead and holds that such an opportunity can be
read even by necessary implications. However,
the standing order 17 of the subject
establishment which was reproduced by the Supreme
Court in para 7 of this decision did not provide
for second opportunity nor was it read into it.
Mr.Singh would urge that the same was not done
because the standing order itself contemplates
due consideration to the gravity of misconduct
and previous record of the workman. In the
present case that is not so provided. If at all
it is contemplated that is only when the case
falls under standing order 21(3).

37.In my view, both 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. To
my mind, this binding decision cannot be ignored
by me. Mr.Singh does not dispute that the
decision deals with industrial matters and
standing orders applicable to industrial
establishment. He does not dispute that the
petitioner is an industrial establishment. He
does not dispute that it is covered by B.I.R.
Act and has been given a status of "Industry".
In such circumstances and on this undisputed
position, it will not be possible to hold that
the Supreme Court decisions relied upon by
Mr.Talsania would not be applicable. They are
squarely applicable. Further there is no
conflict nor is, there any thing in the later
decision which dilutes the principle laid down in
para 18 of Saharanpur Railway’s case.

38.Further, it would not be possible to
agree with Mr.Singh that the enquiry officer who
may be the disciplinary authority or may not be

the disciplinary authority is completely
prohibited from taking any explanation on record
about the proposed punishment. In case, the
enquiry officer and the disciplinary authority
are the same, then, standing order No.21 (3)
which lays down that an officer awarding
punishment for any misconduct shall taken into
account the gravity of misconduct and other
aspects would certainly come into play. Further,
the requirement of supplying the copy of the
order passed by the departmental head or the
officer conducting the enquiry is also specified
under standing order 21(3). Thus, merely because
in Standing Order No.23(a), there is no second
opportunity and, therefore, there will be
complete non consideration of the above
principles, is not a correct reading of the
standing order. The punishment has to be awarded
taking into account the above aspects. If the
enquiry officer and the disciplinary authority
are one and the same, then, he is bound to go

into these aspects before awarding punishment.
Further, during the course of an enquiry, the
employee or his representative is not prohibited
from furnishing an explanation with regard to the
charges but also about the punishment. In other
words, the opportunity to answer the charge
contemplated under Standing Order No.23(a) is
always there. While answering charge, the
employee alternatively and without prejudice to
his pleas on merits can always contend that even
if the charges are held to be proved the acts of
misconduct are not such as would warrant extreme
punishment. He can highlight his past record so
also place on record the mitigating
circumstances, if any. Thus, on the enquiry
officer’s record both versions would be there.

39.In any event, once there is a right of
Appeal to the superior authority and the
authority would be superior to the one who has
imposed punishment, then, the appeal cannot be

held to be a restricted challenge. The appeal
would be with regard to the conclusion on merits
of the charges and also on the punishment. That
is not the only appeal contemplated. There is a
further appeal when the punishment is of
discharge or dismissal and that lies to the
General Manager as is clear from the standing
orders. At the hearing of both appeals, the
employee concerned may be represented by a
representative under section 30 of the B.I.R.
Act or any person of his choice. In such
circumstances, there is no question of altering
or amending standing order 23(a) so as to make it
complete, fair and reasonable. There is nothing
unfair or unreasonable in this standing order
merely because second opportunity as demanded by
the Union is not provided therein.

40.In the view I have taken, it would not be
necessary to now make a detailed reference to the
decisions of the Supreme Court in the case of

Mohd.Khan or Karunakar. Further, it is not
necessary to enter into any larger controversy.
Suffice it to state that Mr.Talsania brought to
my notice these decisions and further, the
decision in Tulsiram Patel (supra). He has
relied upon para 68 of the judgement of the
Supreme Court in Tulsiram Patel. The said para
reads thus:-

"68.The question which then arises
is, "Whether the Constitution

(Forty-second Amendment) Act, 1976, which
further amended substituted clause (2) of
Article 311 with effect from 1st January
1977, has made any change in the law?"
The amendments made by this Act are that
in clause (2) that portion which required
a reasonable opportunity of making
representation on the proposed penalty to
be given to a Government servant was
deleted and in its place the first

proviso was inserted, which expressly
provides that it is not necessary to give
to a delinquent government servant any
opportunity of making representation on
the proposed penalty. Does this affect
the operation of the original proviso
which, by the Constitution (Forty-second
Amendment) Act, became the second
proviso? Such obviously was not and
could not have been the intention of
Parliament. The opening words of the
second proviso remain the same except
that the word "further" was inserted
after the word "Provided, because the
original proviso by reason of the
insertion of another proviso before it
became the second proviso. It should be
borne in mind that the show cause notice
at the punishment stage was originally
there as a result of the interpretation
placed by the Judicial Committee in

Lall’s case (A.I.R. 1948 P.C. 121) and
by this Court in Khem Chand’s case
(A.I.R. 1958 S.C. 300) upon the phrase
"a reasonable opportunity of showing
cause against the action proposed to be
taken in regard to him". Clause (2) as
substituted by the Constitution
(Fifteenth Amendment) Act merely
reproduced the substance of what was held
in Khem Chand’s case. The words which
originally found a place in clause (2),
"a reasonable opportunity of showing
cause against the action proposed to be
taken in regard to him", do not any more
feature in clause (2). All that clause
(2) now provides is an inquiry in which
the government servant is informed of the
charges against him and given a
reasonable opportunity of being heard in
respect of those charges. Clause (2)
taken by itself even without the first

proviso does not provide, expressly or
impliedly, for any opportunity to make a
representation against the proposed
penalty. After the Constitution
(Fifteenth Amendment) Act this second
opportunity formed a separate part of
clause (2), which part was deleted by the
Constitution (Forty-second Amendment)
Act. Thus, when the second proviso
states in its opening words that
"Provided further that this clause shall
not apply", it means that whatever
safeguards are to be found in clause (2)
are wholly taken away in a case where any
of the three clauses of the second
proviso is attracted. In this
connection, the following observations of
this Court in the case of Suresh Koshy
George Vs. University of Kerala (1969) 1
SCR 317 at pages 326-327) are pertinent."

".There seems to be an erroneous
impression in certain quarters evidently
influenced by provisions in Article 311
of the Constitution particularly as they
stood before the amendment of that
article that every disciplinary
proceeding must consist of two inquiries,
one before issuance of show cause notice
to be followed by another inquiry
thereafter. Such is not the requirement
of the principles of natural justice.
Law makers may not prescribe such a
course."

".In Associated Cement Companies
Ltd. Vs. T.Shrivastava (1984) 3 SCR
361, this Court held that "neither under
the ordinary law of the land nor under
industrial law a second opportunity to
show cause against the proposed
punishment necessary." Since a right to

such opportunity does not exist in law,
it follows that the only right which the
government servant had was to make a
representation on the proposed penalty
was to be found in clause (2) of Article
311 prior to its amendment by the
Constitution (Forty-second Amendment)
Act. This right having been taken away
by the Constitution (Forty Second
Amendment) Act, there is no provision of
law under which a Government servant can
claim this right."

41.The Supreme Court goes further and holds
that the right of second representation/second
show cause notice, therefore, does not exist in
law. Therefore, it follows that the only right
which the Government servant has is to make
representation on the proposed penalty was to be
found in clause (2) of Article 311, prior to this
amendment by the 42nd Amendment Act. This right

has been taken away by the 42nd Amendment Act and
there is no provision of law under which
Government servant can claim this right. Far
from supporting Union’s cause of equating the
rights and claiming equality on the basis of
parity with Government servant, these
observations would seem to go contrary to it.
Thereafter, my attention was invited to the
decision of the Supreme Court in the case of
Yoginath Bagde (Supra).

41.Once again the decision deals with a case
of judicial officer who was proceeded under the
service rules. Further, the controversy before
the Supreme Court was whether a second
opportunity is necessary when the disciplinary
authority differs with the findings of enquiry
officer and proposes penalty against the
delinquent judicial officer. While that exercise
was undertaken, the principles of natural justice
were not adhered to and that is how the matter

went to the Supreme Court. The Judicial Officer
succeeded in his challenge because the Supreme
Court was of the view that these principles have
not been followed. It is apparent from the
observations of the Supreme Court that they were
made in the context of the peculiar controversy
of a disciplinary authority differing with the
findings and conclusions of the enquiry officer.
When the enquiry officer fully exonerates but the
disciplinary authority feels that, that
conclusion needs to be revised or changed or
altered completely or qua some charges, then, the
Supreme Court holds that mere show cause notice
would not be enough but a copy of the findings
recorded by the enquiry officer as also the
reasons recorded by the disciplinary committee
while disagreeing with the findings, though
communicated but that was not sufficient. The
delinquent was required to show cause only
against punishment proposed by the disciplinary
authority. The disciplinary authority has taken

final decision that the charges against the
appellants were proved. It was not communicated
to the delinquent judicial officer that the
disciplinary committee had only come to a
tentative decision and he could, therefore, show
cause. Apart from the fact that the Disciplinary
authority was in error while recording
disagreement with the Enquiry officer. The
observations in para 33 must be read in the
backdrop of this peculiar fact situation. They
cannot be read torn out of context soas to confer
a right on an industrial employee as demanded by
the Union in the present case.

42.The last decision which needs to be noted
is that of Institute of Chartered Accountants Vs.
L.K.Ratna (supra). First of all it must be noted
that this decision deals with Chartered
Accountants and their Professional Regulations.
Secondly, the facts before the Supreme Court were
that the respondent submitted written statement

to the Institute denying that he was guilty of
professional misconduct and he set out detailed
statement reasons in support of his stand. The
Institute came to a prima facie opinion that the
respondent was guilty of professional misconduct.
It referred the case to disciplinary committee
which consisted of the President of Council and
other members so also Government nominee. The
disciplinary Committee gave personal hearing to
respondent and his Advocate. The Disciplinary
Committee submitted its Report to the Council
opining that respondent was guilty of
professional misconduct, more particularly set
out in para 8 of the decision of Supreme Court.
The Council considered the report of disciplinary
committee and found that respondent was guilty of
misconduct. The Institute wrote to respondent
that it found him guilty of professional
misconduct and his name was proposed to be
removed from the list of members for a period not
exceeding five years. He was also informed that

he would be called upon to appear before the
Council at its next meeting but in case he did
not wish to be heard in person he could send his
written representation. The scope of oral
hearing was also indicated.

43.Respondent filed a petition in Bombay
High Court which was allowed and it was held that
the Council should have given an opportunity to
the Member to represent before it against the
report of disciplinary committee and that the
President and Vice President and the two members
of the Institute who were members of the
disciplinary committee were disqualified from
participating in the proceedings of the Council.
The matter was remanded for fresh consideration.
The appeal from Single Judge’s decision to the
Division Bench was also rejected that is how the
matter was carried to the Supreme Court. In that
context the observations relied upon by Mr.Singh
in para 12 have been made. Thus, it was held by

the Supreme Court that the Council has before it
the report of the disciplinary committee. The
Council will take into regard the allegations,
his defence, evidence and conclusion of the
disciplinary committee. Therefore, when the
member who has participated in the enquiry has no
opportunity to demonstrate the error in the
findings, before the Council, then, the entire
exercise would get vitiated. Therefore, even
though the member has participated in the enquiry
he would be entitled to an opportunity of hearing
before the Council finds him guilty on this
point.

44.It is not possible to accept the
contention of Mr.Singh that this decision lays
down an absolute principle. He further relies
upon para 17 of the decision. It is not
necessary to enter into any larger controversy.
From earlier decisions to Tulsiram Patel and till
the latest decision, we have travelled a lot.

Now mere infraction or breach of principles of
natural justice may not alone result in the cause
of employee being accepted. The Supreme Court,
in appropriate cases, has read into all this
element of prejudice being established, if there
is a breach or infraction. Therefore, it is not
as if there is an absolute principle which
Mr.Singh would like me to read in these
decisions. That apart, the decision has been
rendered in the context of the facts before the
Supreme Court and the Regulations before it. In
the light of the clear pronouncement of the
Supreme Court to the contrary in the industrial
matters, it would not be possible to read into
the present standing order, the requirement of
second show cause notice straight away. The
absence of the same does not mean that the
standing order as existing is unreasonable or
unfair.

45.As a result of the above discussion, the

impugned orders cannot be sustained. The
authorities below have clearly erred in directing
addition to standing order 23(a). They have
misdirected themselves 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.

46.In such circumstances, there is enough
substance in the contentions of Mr.Talsania that
the orders would cause serious prejudice as well.
Merely because another view is possible according
to authorities below, it was not necessary to
issue the directions as prayed for by the Union.
For these reasons also the impugned orders cannot
be sustained.

47.In the result, the petition succeeds.
Rule is made absolute in terms of prayer clause
(a). However, in the circumstances of the case
there will be no costs.

48.At this stage Mr.Nagle appearing for
respondents pray for stay of this order. Upon a
query to him as to whether amendment to standing
order has come into effect, it is fairly stated
that the same has not been given effect to. In
such circumstances, no question of granting stay
of this judgement and order arises, more so, when
it interprets the existing standing order and
decides the issue of them requiring any
alterations or amendment. If union succeeds in
its challenge to this judgement, then, needless
to state that the earlier position would be
restored. In other words, the orders of
authorities would be restored. Therefore, stay
cannot be granted and the request in that behalf

is refused.

(S.C.Dharmadhikari, J.)