1 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 2 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 3 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. 4 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 5 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. The petitioner submitted its 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 6 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 7 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 8 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 9 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 10 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. In such circumstances, the Dy.Commissioner of Labour passed the following order. "1. The existing Standing Order No.22 in the settled standing order is deleted. 11 "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." 12 "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 13 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, 14 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 15 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 16 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 17 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 18 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, learned Senior 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 19 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 20 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:- (i) A.I.R. 1969 S.C. 513 (Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd., Vs.S.S.Railway Workers Union. 21 (ii) A.I.R. 1984 S.C. 1227 (Associated Cement Companies Ltd. Vs.T.C.Shrivastava and Ors.( (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 22 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 23 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. 24 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 25 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 26 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 27 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; 28 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 29 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 30 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