Case: Bharat Petroleum Corporation Ltd Vs. Maharashtra Genl.Kamgar Union &amp; Ors

3. On 4.12.1985, the appellant submitted Draft Standing Orders to the Certifying Officer for certification underthe Industrial Employment (Standing Orders) Act, 1946 (for short, `the Act) which were intended to be applicable to the Marketing Division, Western Region, including its Head Office at Bombay. On receipt of the Draft Standing Orders, the Certifying Officer issued notices to various employees Unions and after following the statutory procedure and after giving the parties an opportunity of hearing, certified the Draft Standing Orders on 14.10.1991 by an order passed under Section 5 of the Act. The Draft Standing Orders, as submitted by the appellant, were not certified in their entirety but were modified in various respects.4. One of the Clauses of the Draft Standing Orders, which was not certified by the Certifying Officer, related to the representation of an employee in the disciplinary proceedings. The result was that the provision relating to the representation of an employee, during departmental proceedings, as contained in the Model Standing Orders, continued to apply to the appellants Establishment.5. Aggrieved by the order passed by the Certifying Officer, two appeals; one by the present appellant and the other by respondent No. 1, were filed before the Appellate Authority and the latter, by its order dated 23rd of November, 1993, certified the Standing Orders as final. The Clauses relating to the representation of an employee during disciplinary proceedings, as set out in the Draft Standing Orders, was approved and the order of the Certifying Officer, in that regard, was set aside. The Standing Orders, as finally certified by the Appellate Authority, were notified by the appellant on 30.11.1993 and it was with effect from this date that they came into force.6. The order of the Appellate Authority was challenged by respondent No. 1 in Writ Petition No. 231 of 1994 in the Bombay High Court which admitted the petition on 15.3.1994 but refused the interim relief with the direction that during the pendency of the Writ Petition, a charge-sheeted workman would be permitted to be represented at the departmental enquiry, at his option, by an office bearer of the Trade Union of which he is a member. Since this order was contrary to the Standing Orders, as certified by the Appellate Authority, the appellant filed Special Leave Petition (Civil) No. 12274 of 1994 in which this Court, on 30.9.1994, passed the following Ordernotice. Interim stay of the direction of the High Court by which any Office bearer of the Union who may not be a workman of the petitioner corporation is permitted to represent the delinquent workman. It is made clear that in the meanwhile, the workman may be represented by any other workman who is an employee of the petitionerits Judgment dated 18.9.1995, this Court set aside the interim order passed by the Bombay High Court and directed the High Court to pass a fresh interim order in the Writ Petition after hearing the parties.7. In December, 1995, respondent No. 1 took out a Notice of Motion but the High Court, by its order dated 11.12.1995, rejected the same. However, the High Court, by its final judgment dated 28.6.1996, allowed the Writ Petition and the order dated 23.11.1993, passed by the Appellate Authority, by which the Clause relating to the representation of an employee during the disciplinary proceedings, as contained in the Draft Standing Orders, was certified, was set aside and the order dated 14.10.1991, passed by the Certifying Officer, was maintained. It is against this judgment that the present appeals have been filed and the only question with which we are concerned in these appeals is as to whether an employee, against whom disciplinary proceedings have been initiated, can claim to be represented by a person, who, though, is a member of a Trade Union but is not an employee of the appellant.

Reasoning:
28. The contention of the learned counsel for Respondent No. 1 that the Standing Orders made by the appellant must conform to the Model Standing Orders cannot be accepted. It is true that originally the jurisdiction of the Certifying Officer as also that of the Appellate Authority was very limited and the only jurisdiction available to them under the Act was to see whether the Standing Orders made by the Establishment and submitted for their certification conformed to the Model Standing Orders. This required the process of comparison of the Draft Standing Orders with the Model Standing Orders and on comparison if it was found that the Draft Standing Orders were conformity with the Model Standing Orders, the same would be certified even if they were not reasonable or fair. The workmen practically had no say in the matter and they would not be listened even if they agitated that the Draft Standing Orders were not fair or reasonable.In the instant case, the Standing Orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair.31. Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not be disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a co-employee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co- employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant.