1998 (12) TMI 616 - SC - Indian Laws

Supreme Court Upholds Regulation of Representation in Disciplinary Proceedings

The Supreme Court held that the right to representation in disciplinary proceedings is not absolute and can be regulated by certified Standing Orders. The ... Representation in disciplinary proceedings by a trade-union office-bearer who is not an employee of the employer - requirement of conformity of certified standing orders with the Model Standing Orders - power of the Certifying Officer and Appellate Authority to adjudicate fairness and reasonableness of standing ordersRepresentation in disciplinary proceedings by a trade-union office-bearer who is not an employee of the employer - An employee under disciplinary proceedings cannot insist on being represented by a person who, though an office-bearer of his Trade Union, is not an employee of the employer. - HELD THAT: - The Court held that there is no absolute or inherent right of a delinquent workman to be represented in domestic disciplinary enquiries by a chosen agent unless such a right is specifically conferred by the service rules or certified standing orders. Prior decisions (Kalindi, Dunlop, Crescent Dyes and others) establish that representation in disciplinary proceedings is a creature of rule/standing order and may be restricted by statute or certified rules. The certified Draft Standing Orders permitted representation by a fellow workman who must be an employee of the Corporation; this restriction is a permissible regulation of the choice of representative and does not amount to denial of natural justice where the right of representation exists only to the extent allowed by the applicable rules.The High Court's conclusion that a delinquent may be represented by an office-bearer of the Trade Union who is not an employee of the Corporation is incorrect and is set aside.Requirement of conformity of certified standing orders with the Model Standing Orders - Standing Orders framed by an establishment need not be verbatim replicas of the Model Standing Orders; departures are permissible so long as the certified Standing Orders remain consonant with the Model's basic features and are not unreasonable or unfair. - HELD THAT: - The Court explained that although the Model Standing Orders provide a template, after amendments to the Act the Certifying Officer and Appellate Authority have power to examine and certify Standing Orders on the basis of fairness and reasonableness, not merely mechanical conformity. A provision restricting the representative to a co-employee of the same establishment does not alter the fundamental feature that a delinquent may be represented by an employee; it merely narrows the field of choice for sound administrative reasons and therefore does not make the certified provision impermissible.The contention that certified Standing Orders must strictly conform in principle and policy to the Model Standing Orders is rejected.Power of the Certifying Officer and Appellate Authority to adjudicate fairness and reasonableness of standing orders - The Appellate Authority was within jurisdiction in certifying the Draft Standing Orders which restrict representation to co-employees, the provision being neither unreasonable nor unfair. - HELD THAT: - The Court noted the evolution of the Act which invested the Certifying Officer and the Appellate Authority with the jurisdiction to consider fairness and reasonableness of Standing Orders. On applying that standard to the clause in question, the Court found logic in limiting representation to a co-employee who would be familiar with the establishment's conditions and service rules; the basic right to employee representation was retained. Consequently, the Appellate Authority's certification could not be impugned on grounds of unreasonableness or unfairness.The Appellate Authority's certification of the Draft Standing Orders is upheld as valid.Final Conclusion: The appeals are allowed. The Bombay High Court's judgment insofar as it set aside the Appellate Authority's certification of the Clauses governing representation in disciplinary proceedings is quashed; the Appellate Authority's order certifying the Draft Standing Orders is upheld. No order as to costs. Issues Involved:1. Representation of an employee in disciplinary proceedings.2. Applicability and modification of Model Standing Orders.3. Jurisdiction and powers of the Certifying Officer and Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946.Summary:1. Representation of an Employee in Disciplinary Proceedings:The core issue in this case was whether an employee, against whom disciplinary proceedings have been initiated, can claim to be represented by a person who, though a member of a Trade Union, is not an employee of the appellant-corporation. The Model Standing Orders u/s 14(4)(ba) allowed a workman to be represented by an office bearer of a trade union of which he is a member. However, Clause 29(4) of the Draft Standing Orders, as certified by the Appellate Authority, restricted this right to representation by a fellow workman who must be an employee of the Corporation. The Supreme Court held that the right to representation is not an absolute right and can be regulated or restricted by statute or certified Standing Orders. The Court concluded that the High Court erred in quashing the order of the Appellate Authority, which had certified the Draft Standing Orders.2. Applicability and Modification of Model Standing Orders:The Industrial Employment (Standing Orders) Act, 1946, mandates that Model Standing Orders apply temporarily until the establishment's own Standing Orders are certified. The appellant argued that once the Standing Orders are certified, they replace the Model Standing Orders. The respondent contended that the Standing Orders must conform to the Model Standing Orders without deviation. The Supreme Court clarified that the Standing Orders need to be in consonance with the Model Standing Orders and be fair and reasonable, but they do not have to be identical. The Court found that the certified Standing Orders were reasonable and did not deviate significantly from the Model Standing Orders.3. Jurisdiction and Powers of the Certifying Officer and Appellate Authority:The Certifying Officer and the Appellate Authority have the jurisdiction to certify Standing Orders and ensure they are fair and reasonable. The Supreme Court noted that the jurisdiction of these authorities was expanded in 1956 to include adjudicating the fairness and reasonableness of the Standing Orders. The Court upheld the Appellate Authority's decision to certify the Draft Standing Orders, finding them to be in compliance with the Act and reasonable.Conclusion:The Supreme Court allowed the appeals, set aside the Bombay High Court's judgment, and upheld the order of the Appellate Authority certifying the Draft Standing Orders. The Court emphasized that the right to representation in disciplinary proceedings is not absolute and can be restricted by certified Standing Orders. The certified Standing Orders were found to be reasonable and in consonance with the Model Standing Orders.