TMI Blog1998 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... rtifying 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 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. 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 appellant s Establishment. 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 Clause relating to the representation of an employee during disciplinary proceedings, as set out in the Draft Standing Orders, was approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for Industrial Establishments, not being Industrial Establishments in coal-mines, provides as under:- In the enquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member. Clause 29(4) of the Draft Standing Orders, as certified by thee Appellate Authority by its judgment dated 23.11.1993, provides as under:- 29.4 (para-3) : If it is decided to hold an enquiry the workman concerned will be given an opportunity to answer the charge/charges and permitted to be defended by a fellow workman of his choice, who must be an employee of the Corporation, The workman defending shall be given necessary time off for the conduct of the enquiry. The vital difference between the Model Standing Orders, as set out above, and the Draft Standing Orders, as certified by the Appellate Authority, is that while under the Model Standing Orders, a workman can be represented in the departmental proceedings by an office bearer of a Trade Union of which he is a member, he does not have this right under the Draft Standing Orders, as certified by the Appellate Authority, which restrict his right of representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kmen would be engaged as pointed out by this Court in Salem Erode Electricity Distribution Company Pvt. Ltd. VS Employees Union, 1966 (1) LLJ 443 = AIR 1966 SC 808 = 1966 (2) SCR 498, followed by its other decision in Glaxo Laboratories (I) Ltd. vs. Presiding Officer, Labour Court, Meerut, 1983 Labour Industrial Cases 1909 = AIR 1984 SC 505 = 1984 (1) SCC 1. The object underlying this Act, which is a beneficent piece of legislation, is to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging same and similar work under the industrial Establishment and to make the terms and conditions of industrial employees well-settled and known to the employees before they accept the employment. The Act applies to every Industrial Establishment wherein hundred or more workmen are employed. Model Standing Orders have been defined in Section 2(ee). They mean standing Orders prescribed under section 15 which gives rule-making power to the appropriate Government and provides, inter alia, that the Rules so made by the Government may set out Model Standing Orders for the purpose of this Act, Section 12(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, if any, which the workmen, or employer may desire to make to the draft amendments to be submitted to him within fifteen days from the receipt of the notice. (2) After giving the employer, the workmen submitting the amendments and the trade union or such other representatives of the workmen as may be prescribed an opportunity of being heard the certifying officer shall decide whether or not any modification of the draft submitted under sub-section (1) of Section 3 is necessary, and shall make an order in writing accordingly. (3) The Certifying Officer shall thereupon certify the draft amendments after making any modifications therein which his order under sub-section (2) may require, and shall within seven days thereafter send copies of the model standing orders together with copies of the certified amendments thereof, authenticated in the prescribed manner and of his order under sub-section (2) to the employer and to the trade union or other prescribed representatives of the workmen. The order certifying the Standing Orders is made under Sub-section (2) and (3) of the Act. After certifying the Standing Orders or the Draft Amendments, the Certifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch application shall be accompanied by five copies of the standing orders, or the model standing orders, together with all amendments thereto as certified under this Act or model standing orders in which shall be indicated the modifications proposed to be made and where such modifications are proposed to be made by agreement between the employer and workmen or a trade union or other representative body of the workmen certified copy of the agreement shall be filed along with the application. (3) The foregoing provisions of this Act shall apply in respect of an application under sub-section (2) as they apply to the certification of the first amendments. (4) Nothing contained in sub-section (2) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat. Section 10 provides for duration and modification of Model Standing Orders. The Standing Orders finally certified under the Act cannot be modified except on an agreement between the employer and the workmen or a Trade union or other representative body of the workmen until the expiry of six months from the date on which they came into operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions prevailing in the industry will be able to do will ordinarily help to elicit the truth. It may often happen that the accused workman will be best suited, and fully able to cross-examine the witnesses who have spoken against him and to examine witnesses in his favour. It is helpful to consider in this connection the fact that ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case. Rules have been framed by Government as regards the procedure to be followed in enquiries against their own employees. No provision is made in these rules that the person against whom an enquiry is held may be represented by anybody else. When the general practices adopted by domestic tribunals is that the person accused conducts his own case, we are unable to accept an argument that natural justice demands that in the case of enquiries into a charge-sheet of misconduct against a workman he should be represented by a member of his Union. Besides it is necessary to remember that if any enquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute. Our conclusion therefore is that a wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to an employee as part of his right to be heard. It was further specified that there is no right to representation as such unless the company, by its Standing Orders, recognizes such a right. In this case, it was also laid down that a delinquent employee has no right to be represented in the departmental proceedings by a lawyer unless the facts involved in the disciplinary proceedings were of a complex nature in which case the assistance of a lawyer could be permitted. We have seriously perused the judgment of the High Court which, curiously, has treated the decision of this Court in Crescent Dyes and chemicals Ltd. s case (supra) as a decision in favour of the respondent No.1. The process of reasoning by which this decision has been held to be in favour of respondent No.1 for coming to the conclusion that he had a right to be represented by a person who, though an office-bearer of the Trade Union, was not an employee of the appellant is absolutely incorrect and we are not prepared to subscribe to this view. Consequently, we are of the opinion that the judgment passed by the High Court in so far as it purports to quash the order of the Appellate Authority, by which the D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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