*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +WRIT PETITION NO. 24231 OF 2001 %Dated 14.03.2011 # The Divisional Electrical Engineer (Operations), AP Transco Limited, Guntur. ..... PETITIONER VERSUS $ 1. The Labour Court, Guntur and another ...RESPONDENTS ! Counsel for Petitioner: Mr. P.R.BALARAMI REDDY ^ Counsel for Respondents : Mr. M.PITCHAIAH < GIST: > HEAD NOTE: ? Cases referred: 1. 1999 LABOUR & INDUSTRIAL CASES 1004 2. AIR 1979 SC 65 3. 1958(1) SCR 1052 4. 2000(1) ALT 637 5. AIR 1979 SC 1652 6. AIR 1984 SC 289 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.24231 OF 2001 ORDER: This writ petition has been instituted on behalf of the Andhra Pradesh Transmission Corporation Limited (henceforth referred to as ‘the Transco’) calling in question the validity and legality of the Award passed by the Labour Court, Guntur, in I.D.No.149 of 1999 on 30-10- 2000, which was published on 24-04-2001. The Andhra Pradesh State Electricity Board (for short ‘The Board), was the predecessor in interest of the Transco. The Board was created in terms of Section 48 of the Indian Electricity Supply Act, 1948. It had employed several persons on casual basis, on contract basis and also to work as Village Electricity Workers. By virtue of a settlement arrived at with the recognized trade union, the Board has taken a policy decision to absorb certain categories of employees in its service on regular basis and the scheme in this regard containing terms and conditions, subject to which the absorption has to be ordered, has all been spelt out through their B.P.Ms.No.36, dated 18-05-1997. The eligible persons were required to be absorbed into the category of Junior Lineman, L.D.Clerk / Typist and Sub Engineers. The 2nd respondent workman worked as a Village Electricity Worker and, thus, became qualified for consideration of absorption. He was subjected to the process of selection including interview for appointment as Junior Lineman on 17-09-1997. Since, he was one of the selected candidates, the Transco offered him appointment as Junior Lineman on 28-04-1998 in their Guntur Division. The 2nd respondent workman accepted the same and started performing his duties with effect from 30-04-1998. When the Transco received a complaint against one other individual, who is also selected like the 2nd respondent workman, that bogus educational certificate was produced by such individual, it ordered for investigation into the complaint into the educational qualifications produced by the 2nd respondent workman also. As a part of the inquiry, when the matter was taken up with the Headmaster, Zilla Parishad High School, Medikonduru, Guntur District, the said Headmaster through his letter dated 24-07-1998, has set out that there is no record in the school in proof of issuing the certificate in favour of the 2nd respondent workman, which was produced by him. That triggered the disciplinary proceedings against the 2nd respondent workmen by issuing a charge sheet to him on 09-04-1999 and the explanation of the 2nd respondent workman was called for. In response thereto, the 2nd respondent workman, is said to have, admitted that there was some mistake that crept into the matter and solicited to be pardoned. The Inquiry Officer, therefore, did not prefer to examine any witnesses, but however, examined the 2nd respondent workman and based there on concluded his inquiry holding the 2nd respondent workman guilty of the charges framed against him. While enclosing a copy of the Inquiry Report, a show cause notice was issued on 09- 07-1999, proposing to dismiss the 2nd respondent workman from service. The 2nd respondent workman got issued a legal notice in response thereto on 03-08-1999. Ultimately, the Divisional Engineer (Operations) of Transco, Guntur, imposed the punishment of dismissal from service on the 2nd respondent workman through his Proceedings dated 18-08-1999. This gave raise to an industrial dispute being raised by the said workman before the Labour Court bearing I.D.No.149 of 1999. The 2nd respondent workman has contended before the Labour Court that the inquiry was not conducted properly and that the principles of natural justice have been violated in the process and that the findings recorded by the Inquiry Officer are perverse and that he has been denied a fair and reasonable opportunity of establishing his defence as the Transco failed to examine the Headmaster of the school, who has issued the certificate, which formed the basis for the disciplinary action against him. Importantly, it was contended that the Transco cannot place any reliance upon the Disciplinary Regulations or the Conduct Regulations framed by it, inasmuch as they have not been got published by the Government and further no Standing Orders have been got certified and published in accordance with the Industrial Employment Standing Orders Act, 1946. Therefore, the whole process undertaken by the Transco is contrary to law and hence, the order of punishment of dismissal from service is liable to be set at naught. The Labour Court examined the entire matter and returned a finding that the workman has admitted only submission of the school certificate at the time of interview and, therefore, it does not amount to admission of guilt of producing a false or bogus certificate. In view of this finding of fact by the Labour Court, it had concluded that the disciplinary inquiry is vitiated for non- examination of any witnesses on behalf of the Transco and not providing a fair or reasonable opportunity for the workman to establish his defence. It is no doubt true that if a charge sheet is laid against a workman making specific allegation of misconduct committed by him and if he were to admit the same, there was no necessity for the disciplinary authority to conduct any further inquiry into the matter. The admission of guilt by an employee will be sufficient enough for the disciplinary proceedings to be concluded straight away against him. But if, on the other hand, the disciplinary authority were to have no unequivocal admission of guilt by the employee or the workman before him, the burden lies on the disciplinary authority to establish the guilt of the employee by bringing on record such material in the form of evidence, which will form the substratum for establishing the guilt of the employee. In the instant case, the disciplinary authority was armed with a communication from the Headmaster, Zilla Parishad High School, Medikonduru, Guntur District, which formed the basis for throwing an allegation against the 2nd respondent workman that he has produced a bogus educational certificate. From the record brought before the Labour Court, the Labour Court has clearly understood that the 2nd respondent workman has only admitted of some error on his part in the matter and sought for pardon, but he has not specifically admitted the misconduct of producing a false or bogus educational certificate. Therefore, the Labour Court returned a finding of fact that there was no admission made by the workman of his guilt of the charges framed against him. This is one probable view. In such an event, there is, absolutely, no contra material on record of this case to call this finding of fact recorded by the Labour Court to be a perverse finding. If the workman has not admitted the guilt of charges laid against him, it is the fundamental obligation of the Transco to bring home his guilt by bringing, on record of the disciplinary inquiry, such material in the form of evidence as it would establish the guilt of the workman. It is not in dispute that no witnesses were examined by the Domestic Tribunal. It straightaway proceeded to examine the workman and concluded the inquiry. Therefore, the Transco had failed to discharge the initial burden lying on it to bring home the guilt of the workman by leading specific evidence in respect of the charge laid against him. Until and unless this primary onus is discharged by the employer, no obligation to prove his defence shifts on to the shoulders of the employee. It is one thing to say about the sufficiency of the material, but it is altogether a different thing to say that the initial burden of establishing the charge itself has been not discharged. Further, when the Headmaster of the school has been contacted by the Divisional Engineer, he sent up a communication raising doubts about the genuineness of the certificate produced by the workman. Unless the Headmaster has been examined and the workman has been provided with an opportunity to cross-examine him the workman could not have established his defence properly and he could not have brought home his defence that he is not guilty of producing any false educational certificate. He would have an opportunity to explain away the adverse material which lent support to suspect the genuineness of the certificate produced by him. In that view of the matter, non-examination of the Headmaster of the school, certainly, amounts to denying a fair and reasonable opportunity of enabling him establish his defence. The learned counsel for the 2nd respondent workman has rightly placed reliance upon the Judgment rendered by this Court in N.SUBRAHMANYAM v. CHAIRMAN, VISAKHAPATNAM PORT TRUST AND OTHERS[1], in support of the above plea. In normal circumstances, I would have rest contended holding that the Labour Court has not committed any illegality in arriving at the aforementioned findings and, thus, setting aside the dismissal order passed by the Transco, however, the learned counsel for the 2nd respondent has raised a contention that in the absence of certified Standing Orders in accordance with the Industrial Employment Standing Orders Act, the Transco could not press into service the Regulations framed by the Board in accordance with Section 79(c) of the Indian Electricity Supply Act. T he aforesaid contention has also been pressed into service before the Labour Court and the Labour Court has accepted the same. Therefore, it is required of me to consider this contention. The Industrial Employment Standing Order Act, 1946, henceforth referred to as `Standing Orders Act’ has been ushered in requiring employers and industrial establishments formally to define conditions of employment under them. It was considered expedient to require employers in industrial employments to define with sufficient precision the conditions of employment under them and more importantly, to make those conditions known to workmen employed in the industrial establishment concerned. As per sub-section (3) of Section 1, the Standing Orders Act applies to every industrial establishment wherein 100 or more workmen are employed. Therefore, it is hardly in doubt that to A.P. Transco the provisions of the Standing Orders Act apply. It will also be appropriate to notice the definition of Standing Orders as set out in Section 2(g) of the Standing Orders Act, as meaning rules relating to matters set out in the schedule. The schedule appended to this Act provided for matters concerning classification of workmen, intimation to workmen, periods and hours of work, holidays, pay days, wage rates, conditions of shift working, matters relating to attendance and late coming, conditions and procedure relating to applying for and granting leaves and holidays, termination of employment, suspension or dismissal for mis- conduct, means of redress for workmen against unfair treatment etc. It is therefore clear that every industrial establishment to which the Standing Orders Act is attracted is required to frame rules relating to matters specified in the schedule of the said Act and notify the same. Section 3 of this Act dealt with the procedure relating to the submission of draft standing orders within six months from the date on which the Act becomes applicable. The Certifying Officer shall scrutinize the same and if he was satisfied that a provision is made in the draft standing orders for every matter set out in the schedule of the Act and they are otherwise in conformity with the provisions of the said Act. However, before certifying the draft standing orders, the Certifying Officer was required to forward a copy thereof to the trade union, if any of the workmen or where there is no such trade union to the workmen inviting objections if any. After giving an opportunity to the employer and the trade union or such other representatives of the workmen, the Certifying Officer was required to decide whether any modifications or additions to the draft standing orders are necessary. Thereupon, the Certifying Officer was required to certify the Standing Orders and shall send copies of the Certified Standing Orders as authenticated by him to the employer and to the trade union within seven days. In terms of Section 7 of the said Act, the Standing orders shall come into operation on the expiry of thirty days from the date on which the authenticated copies are sent up by the Certifying Officer. Its also noteworthy that an appeal is also provided for against the decision of the Certifying Officer to an appellate authority. In terms of Section 8, the finally certified standing orders are required to be filed in a register by the Certifying Officer while the employer was required to permanently post them in English and also in the local language on special boards to be maintained for the said purpose at or near the entrance through which majority of the workmen enter the industrial establishment and also at all departments thereof where workmen are employed. The Certified Standing Orders shall not, except on agreement between the employer and the workmen, be modified. Similarly, there should be a minimum of six months time gap between any such successive modifications of the standings orders. Section 13 recognised the failure of the employer to submit draft standing orders or any attempt to unauthorisedly modify the standing orders once they are certified, as punishable with fine which may extend to Rs.5,000/- and in case of continuing offence with a further fine which may extend to Rs.2000/- for every day thereafter. Section 12A has been added by amending Act 39 of 1963, making a transitory provision for applying the model standing orders prescribed for suitable adoption by every industrial establishment to which the Act applies. Rule 3 of the Industrial Employment (Standing Orders) Central Rules, 1946, set out the Model Standing Orders in Schedule 1 thereof. Section 14 of the Act empowers the appropriate Government by notification in the Official Gazette exempt either conditionally or unconditionally any industrial establishment from all or any of the provisions of the Act. There is no dispute that there was no exemption granted by the Government in favour of the petitioner establishment or it’s predecessor in interest. Therefore, a perusal of the above provisions of the Standing Orders Act makes it abundantly clear that no industrial employer shall leave the rules relating to the conditions of service of workmen employed in an industrial establishment to which the Act applies to remain undefined or obscure. In other words, the Standing Orders Act thrusts a compulsion upon every employer so long as it is not exempted in terms of Section 14, to precisely define all matters, subject matter of which are notified in the schedule to the Standing Orders Act and get the same certified after following the due process in that regard and also exhibit the same at prominent places of the industrial establishment concerned, for the benefit of consultation by any workmen concerned. Further, any person who is interested in securing a copy of the certified standing orders can also approach the certifying officer and secure a copy thereof. The whole scheme of the Act is intended for ensuring that the conditions of service of the workmen are all, not only defined very precisely, leaving no scope for doubt or disguise, but they are made available for common knowledge and consultation of everyone and anyone concerned. Section 13-B of the Standing Orders Act which came to be inserted by Amending Act 36 of 1956, renders the provisions of the Standing Orders Act not to apply to certain industrial establishments insofar as the workmen employed therein or persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Services) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply. Therefore, Section 13-B has carved out an exception from the applicability of the provisions of the Standing Orders Act to the workmen employed in certain industrial establishments where the conditions of service of such workmen are precisely defined and are notified in the Official Gazette. The purport of Section 13-B deserves a careful analysis. That I will consider a little later. The Electricity (Supply) Act, 1948, has been enacted providing for the coordinated development of electricity in our country. The Electricity (Supply) Act is intended essentially for regulating the rationalization of the production and supply of electricity and for taking measures conducive to the electrical development. Since, it was required to provide for all incidental matters connected therewith, exhaustive provisions have been made therein. Section 15 of the Electricity (Supply) Act granted power to every State Electricity Board to appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its functions. Hence, while conferring power on the State Electricity Board to make regulations, Section 79 of the Electricity (Supply) Act conferred power for making the regulations on various matters provided therein. Clause (c) thereof is of significance for our inquiry and hence it is apt to quote it: “79(c) – the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service.” Therefore, the State Electricity Board has been conferred power to make regulations dealing with matters connected to the duties and officers and other employees their salaries and allowances and other conditions of service and such regulations are required to be notified in the Official Gazette. Thus, the Andhra Pradesh State Electricity Board has framed regulations governing various conditions of service of its employees and notified the same in the Official Gazette, as is required by Section 79 of the Electricity Supply Act. Therefore, a question would arise as to whether between the Standing Orders Act and the Electricity (Supply) Act, which should be treated or considered as a special piece of legislation, requiring strict compliance with. This very question has engaged the attention of the Supreme Court in U.P. State Electricity Board v. Hari Shanker[2]. Justice O.Chinnappa Reddy, speaking for the Bench, repelled the contention that Section 79-C of the Electricity (Supply) Act being a special law made later on, prevailed over the provisions of the Industrial Employment (Standing Orders) Act. In paragraph 9 of the said judgment, it is thus held: “…….It is impossible to conceive that Parliament sought to abrogate the provisions of the Industrial Employment (Standing Orders) Act embodying as they do hard-won and precious rights of workmen and prescribing as they do an elaborate procedure, including a quasi-judicial determination, by a general, incidental provision like Section 79(c) of the Electricity (Supply) Act. It is obvious that Parliament did not have before it the Standing Orders Act when it passed the Electricity Supply Act and Parliament never meant that the Standing Orders Act should stand pro tanto repealed by Section 79(c) of the Electricity Supply Act. We are clearly of the view that the provisions of the Standing Orders Act must prevail over Section 79(c) of the Electricity Supply Act, in regard to matters to which the Standing Orders Act applies.” Therefore, it is now clear that Section 79-C of the Electricity (Supply) Act cannot be construed as to prevail over the provisions of the Standing Orders Act, which required standing orders to be framed, certified and exhibited to be followed from then onwards. An analysis of the provisions of the Standing Orders Act as was already noticed by me supra, makes it clear that a compulsion has been thrust on every employer by the said Act to submit the draft standing orders for scrutiny of the Certifying Officer who after providing an opportunity to a trade union or a representative of the workmen and upon being satisfied that the draft standing orders are in conformity with the provisions contained in the Standing Orders Act, then alone can certify the same but not otherwise. This is a quasi judicial exercise, not a mechanical act on the part of the certifying officer. Further, the decision of the Certifying Officer is an appealable one. Therefore, the Parliament has considered this mechanism as a safety valve against thrusting unilaterally defined and unsuitable conditions of service by the employers on their workmen. Certification of the Standing Orders of an industrial establishment to which the Act applies provides for a participatory role for the trade union and if there is no trade union organized in the industrial establishment, to the workmen or at least to their representative. Objections can be raised by such workmen and such objections call for the specific attention in an objective manner by the Certifying Officer or the appellate authority as the case may be. Therefore, the process conceived of providing for a right of participation in the hands of the workmen. The workmen can make their voice heard and recognized while prescribing the conditions of service in an industrial establishment. Therefore, it is inevitable for every industrial establishment to follow this procedure and get their standing orders certified. As was already noticed supra, matters relating to termination and dismissal and the fair procedure by which the same can be brought about are undoubtedly matters of grave concern to the larger work force. Therefore, their voice needs to be recognized while defining the procedure touching upon such conditions of service. This is the inevitable consequence of the Standing Orders Act. What is the significance of Section 13-B which renders the provisions of the Standing Orders Act not to apply to certain industrial establishments? The answer to this question is contained in the very provision itself. The Central Government as well as State Governments which also offer employment to the work force on a large scale have already prescribed fundamental and supplementary rules detailing at great length on various matters concerning the conditions of service of their employees. The whole gamut of classification, disciplinary control and redressal mechanism thereafter have all been detailed in the Civil Services (Classification, Control and Appeal) Rules. Similarly, even temporary servants had the benefit of precise conditions of service in the form of Civil Services (Temporary Services) Rules. Same is the case with civilians in defence services and those employed in the Indian Railways to whom the establishment code is a bible providing for every contingent circumstance that will have a bearing upon their conditions of service. When once these rules have been framed in such great detail, though unilaterally, it was assumed by the Parliament that no unfair practice or exploitative mechanism would ever be resorted to by the Central or State Governments while framing the conditions of service of its work force. Therefore, there is no further necessity to follow the elaborate procedure of framing and getting certified separate standing orders for them. Hence, provision is made exempting them from the operation of the Standing Orders Act. In the instant case, not one of the rules mentioned in Section 13-B of the Industrial Standing Orders Act do apply to the workmen employed in the Electricity Board or their successor institutions. It is one thing to say that they borrowed such rules like fundamental rules when it comes to the question of application to their servants. But, it is not the same as those fundamental rules of the State servants or Central servants will not be applicable automatically to the employees of the State Electricity Boards or their successors. Therefore, by virtue of Section 13-B, the question of the regulations framed by the Electricity Board framed under Section 79-C of the Electricity (Supply) Act prevailing over the Standing Orders Act would not arise. The regulations, if any framed by