IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.29694 of 1995 Between: THE GENERAL SECRETARY, ASIAN PAINTS EMPLOYEES UNION, REGD. NO. A-1148, C/O.ASIAN PAINTS (I) LTD., I.D.A., PHASS - II, PATACHANCHERU, MEDAK DIST. ..... PETITIONER AND 1 THE CHAIRMAN, INDUSTRIAL TRIBUNAL - I, CHANDRAVIHAL COMPLEX, NAMPALLY, HYDERABAD. 2 THE MANAGEMENT OF ASIAN PAINTS (I) LTD., PHASE - II, I.D.A., PATANCHERU, MEDAK DIST, 3 THE CERTIFYING OFICER UNDER THE INDUSTRIAL EMPLOYEMENT (S.O.) ACT- CUM - DY. COMMISSIONER OF LABOUR, R.R.DISTRICT, HYDERABAD. ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to ISSUE A WRIT, ORDER OR DIRECTION MORE PARTICULARLY ONE IN THE NAUTRE OF WRIT OF CERTIORARY BY CALLING THE RECORDS PERTAINING TO S.O.A.NO. 2 OF 1993 AND QUASH THE ORDER PASSED IN S.O.A.NO.2 OF 1993 DATED 18/10/1995 BY RESPONDENT NO.1 AND GRANT SUCH FURTHER ORDER OR ORDERS AS DEEMED FIT BY THIS HON'BLE COURT IN THE INTEREST OF JUSTICE AND UNDER THE CIRCUMSTANCES OF THE CASE. Counsel for the Petitioner: Mr.M.RADHA KRISHNA MURTHY Counsel for the Respondent Nos.1&3: GP FOR LABOUR Counsel for the Respondent No.2: Mr. P. NAGESWARA SREE The Court made the following : THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.29694 of 1995 ORDER: This Writ Petition is filed seeking a Certiorari to call for the records relating to the Order dated 18-10-1995 passed in S.O.A.No.2 of 1993 on the file of the Industrial Tribunal-I, Hyderabad and to quash the same. Petitioner is the General Secretary of Asian Paints Employees’ Union, Patancheru, Medak District. It seems, the second respondent- employer proposed amendment of the Standing Orders. Therefore, the petitioner was issued with a notice dated 8.1.1993. The petitioner filed his objections. After considering the said objections and on hearing both parties, the third respondent passed order dated 24.8.1993 in Proceedings No.D/8434/92, which reads as under: “Proposed Amendment: Clause 18.3 The 1st part of the clause i.e. ‘provided that where a workman is convicted for criminal offence of a grave nature by a Court of Law’ is deleted and substituted by the following: ‘Provided that where a workman convicted for criminal offence of a grave nature by a Court of Law, the workman will be removed or dismissed from the service without following procedure laid down under clause 17.4 to 17.7 of the standing orders’. Insofar as rejecting other part of clause, the management of the Asian Paints (India) Ltd., filed appeal S.O.A.No.2 of 1993 before the Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946 (first respondent). The appellate authority, however, after hearing both the parties, allowed the appeal as sought for by the management. Thus, the second part of amendment, which was rejected by the primary authority, was also reversed and amendment as sought for by the employer was granted. Aggrieved by the same, the present writ petition is filed. The amendment approved by the appellate authority reads as under: “No order of suspension as a penalty or of dismissal under sub-clause (c) or (d) of clause (1) of this Standing Order shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4) provided that where a workman is convicted for criminal offence of a grave nature by a court of law or where the Managing Director or General Manager of the Company is satisfied, for reasons to be recorded in writing that the workman indulges in activities prejudicial to the interest of the Company, he may be discharged from service without following the procedure laid down in Standing Order 18.4 i.e. the disciplinary action procedure”. The portion with which the petitioner is prejudicially affected is ‘where the Managing Director or General Manager of the Company is satisfied, for reasons to be recorded in writing that the workman indulges in activities prejudicial to the interest of the Company, he may be discharged from service without following the procedure laid down in Standing Order 18.4 i.e. the disciplinary action procedure’. According to the petitioner, such a drastic amendment of the Standing Order under clause 18.4 would give unbridled power to the management in terminating/discharging the services of employees i.e. members of the petitioner association. The learned counsel for petitioner submits that it is neither a Defence organisation nor the organisation is something to do with national security etc. Therefore, conferring such a power on the management would definitely prejudice the interest of the workman. He further contends that nothing prevents the management from conducting an enquiry even if the employee is involved in a misconduct, which is prejudicial to the interest of the organisation. In support of his contention, learned counsel relied upon the decision reported in WORKMEN OF HINDUSTAN STEEL LTD. v. HINDUSTAN STEEL LIMITED[1]. Whereas, learned counsel for the respondent-Management contended that M/s.Asian Paints (India) Limited is an All India Organization and it has got branches all over the country. Its Headquarters is located in Bombay. In fact, the matter of certification of modification of the Certified Standing Orders for workers other than clerks employed in M/s.Asian Paints (India) Limited, Bhandup, Bombay- 78 was taken up and in fact, such an amendment was proposed and it was ordered. The same has been adopted here in Andhra Pradesh and after looking into the said amendment, the authorities have permitted the amendment of Certified Standing Orders of the Company in the State of Andhra Pradesh. This was, in fact, accepted by the Union in the State of Maharashtra; whereas, in the State of Andhra Pradesh such an objection was taken by the petitioner. However, the appellate authority, after considering the amendment of the State of Maharashtra, has allowed the amendment. Further, such an amendment cannot be said to be unreasonable or arbitrary. In this regard, learned counsel relied upon a Judgment of the Apex Court reported in AJIT KUMAR NAG v. G.M.(P.J.), I.O.C. LTD.[2]. In AJIT KUMAR NAG’s case (supra), the decision relied upon by the learned counsel for the petitioner in WORKMEN OF HINDUSTAN STEEL LTD. v. HINDUSTAN STEEL LIMITED (1 supra) was referred to and discussed and it was held as under: “20. We are unable to agree with Mr.Rao. It is no doubt true that the provision which came up for consideration before a two-Judge Bench in Hindustan Steel Limited (II) was against an order passed by the Corporation. It was similar to Clause (vi) of Standing Order 20 which this Court is called upon to consider. At the same time, however, it cannot be overlooked that two-Judge Bench proceeded to consider the validity of the provision on the anvil of Article 311 which could not be attracted as it was not applicable. The point was settled and finally decided by the Constitution Bench of this Court in Hindustan Steel Limited (I). Unfortunately, however, the attention of the Court was not invited to the said case and in Hindustan Steel Limited (II), the Court proceeded as if the employees of the Corporation were governed by Article 311. Hindustan Steel Limited (II) is thus per incuriam. It could not have applied Article 311 had the attention of the two-Judge Bench been drawn to the decision of the Constitution Bench in Hindustan Steel Limited (I). AIR 1985 SC 251 : 1985 Lab IC 534 = AIR 1970 SC 1150 : 1970 Lab IC 1029. 34. We are unable to agree with the learned counsel. The law is clear on the point. Tulsi Ram Patel dealt with a similar provision and held it to be constitutionally valid and intra vires Article 14. Since it related to civil servants under the Union or under a State, Clause (c) provided for the satisfaction by the President or the Governor, as the case may be, "in the interests of the security of the State". Certified Standing Orders of the respondent-Corporation have limited application to the Corporation. There was, therefore, no question of security of State and hence, the limited power is conferred on the General Manager of security of the Corporation. General Manager is the highest administrative head of the Corporation. So it cannot be contended that the power has been conferred on a petty officer of the Corporation. 54. When an intra-court appeal was filed against that order, the Division Bench again considered the contentions raised by the appellant. Dealing with the argument that the documents were not given, it was submitted on behalf of the Corporation that no such prayer was made. The Court, therefore, observed relying on a decision of this Court in Aligarh Muslim University and others v. Mansoor Ali Khan, AIR 2000 SC 2783 that no prejudice had been caused to the appellant. The Court examined the report and perused the record. It was disclosed from the material placed before the Court that there was a situation which created disorder in the establishment for which police had to be called for and the General Manager (PJ) in-charge had to rush late at night. People were frightened and there was ultimatum by staff-members due to which there was a possibility of break down of the entire system. The Division Bench, therefore, stated; "These are situations with which the person at the spot has to deal with. The authority on the spot is the best judge of the situation prevailing. It is he who has to assess the situation and take steps". In the light of prevailing circumstances, the Division Bench observed, the action could not be termed as illegal, unlawful or perverse. Regarding mala fide, the Court noted that adequate material had not been placed on record which would go to show that the order was malicious or mala fide. The Division Bench, therefore, dismissed the appeal. 2002 AIR SCW 2976 : 2000 All LJ 2436 55. In our view, neither the learned single Judge nor the Division Bench has committed any error of law and/or of jurisdiction which deserves interference in exercise of discretionary jurisdiction under Article 136 of the Constitution. As is clear, the situation has been created by the appellant. It was very grave and serious and called for immediate stern action by the General Manager. Exercise of extraordinary power in exceptional circumstances under Standing Order 20 (vi) in the circumstances, cannot be said to be arbitrary, unreasonable or mala fide. It is well- settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy". [vide E.P. Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC 3]. There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high decree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa and others v. State of Maharashtra and others, (1976) 1 SCC 800; "It (mala fide) is the last refuge of a losing litigant". AIR 1974 SC 555 : 1974 Lab IC 427 = AIR 1977 SC 448 56. We hold Clause (vi) of Standing Order 20 of the Certified Standing Orders of the respondent-Corporation valid, constitutional and intra vires Article 14 of the Constitution. We also hold the action taken by the General Manager of the respondent-Corporation dismissing the appellant-petitioner from service as legal and lawful. We thus see no substance either in the appeal or in the writ petition and both are, therefore, dismissed…..” In view of the above, I am of the opinion that the issue that arises for consideration in this Writ Petition is squarely covered by the Judgment relied upon by the respondent-Management in AJIT KUMAR NAG’s case (2 supra). Therefore, the amendment of Certified Standing Orders cannot be said to be either invalid or ultra vires of Article 14 of the Constitution of India. The decision made in pursuance of the amended provisions, if any, can always be liable to be challenged as arbitrary. In the result, the impugned Order dated 18-10-1995 passed by the 1st respondent in S.O.A.No.2 of 1993 is confirmed. The Writ Petition is devoid of merits and is liable to be dismissed. Accordingly, the Writ Petition is dismissed. No order as to costs. 25-3-2008 prk [1] 1985(1) LLN 789 (SC) [2] 2005(3) LLJ 1129 (SC)