Holding

A workman may be represented in disciplinary proceedings only by a fellow employee of the same establishment; the certified standing orders, which are consistent with the Model Standing Orders and are reasonable, are valid and binding.

Summary

Bharat Petroleum Corporation Ltd. submitted draft standing orders for certification under the Industrial Employment (Standing Orders) Act, 1946. The draft was partially certified, and the clause on representation of a workman in disciplinary proceedings was left unmodified, thereby retaining the Model Standing Orders provision that allowed representation by a trade‑union office‑bearer. The Maharashtra General Kamgar Union challenged this, arguing that the certified standing orders must not depart from the Model Standing Orders and that a workman should be allowed representation by a union officer even if he is not an employee of the corporation. The Supreme Court examined the scope of the Act, held that certified standing orders bind the parties, that the certifying authority may assess fairness as well as conformity, and that the right to representation is limited to a fellow employee of the same establishment unless the service rules expressly provide otherwise. Consequently, the Court upheld the certified standing orders and rejected the union’s claim of a broader right of representation. The appeal was allowed, setting aside the High Court judgment.

Issues considered

The extent to which certified standing orders must conform to the Model Standing Orders, particularly regarding the right of representation in disciplinary proceedings.
Whether an employee can be represented by a trade‑union office‑bearer who is not an employee of the employer under the certified standing orders.
Whether the certifying officer and appellate authority may examine the fairness and reasonableness of standing‑order provisions, not merely their conformity to the Model Standing Orders.
The continuing applicability of Model Standing Orders after the employer’s own standing orders have been certified.

Legislation cited

Central Civil Services (Classification, Control & Appeal) Rules, 1965s. Rule 14(8)
Industrial Disputes Act, 1947s. Section 36
Industrial Employment (Standing Orders) Act, 1946s. 10, s. 2(a), s. 2(ee), s. 4, s. 5, s. 6, s. 7, s. 8

Subjects

representationdisciplinary proceedingsstanding ordersmodel standing ordersindustrial employment actnatural justicelabour law

Judgment

BHARAT PETROLEUM CORPORATION LTD. A
v.
MAHARASHTRA GENERAL KAMGAR UNION AND ORS.

DECEMBER 14, 1998

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] B

Labour Law :

Standing Orders-Certified by the Certifj1ing Authority and Model
standing Orders framed by the Central Government under Industrial C
Employment (Standing Orders) Act, I946-Inconsistency-Domestic enquiry-
Representation of the delinquent by another person-Right to-Held, available
to the delinquent only to the extent specifically provided in the service

- rules--Provision in the Draft Standing orders permitting the delinquent to
be represented by a fellow workmen of the same establishment-Held, neither
unreasonable nor unfair nor lacked consonance with Model Standing Orders
which permitted representation of the delinquent by a Member of the union
D

of which the delinquent was a member, although that member was employed
elsewhere-Industrial Employment (Standing Orders ) Act, 1946, Sections
5,6,2(ee), I2-A 7, JO af!d I 5(2)(bj-lndustrial Employment (Standing Orders)
Central Rules, 1946-Model Standing Orders, para 14(4)(ba)-Railway E
Establishment Code, Rule 1712-Central Civil Services (CCA) Rules, 1965,
Rule 14(8)- Departmental Enquiry-Natural Justice-Hearing.

Industrial Employment (Standing Orders) Act, 1946, Section 4 (as
amended in 1965), 5 and 6-Jurisdiction of CertifYing Officer and Appellate
Alllhority-Held. i:1· not limited to examining whether the Draft Standing F
Order conformed to the Model Standing Orders but extends to determination
of fairness and reasonableness of the provisions of the Standing Orders.
Industrial Employment (Standing Orders) Act, I 946-Nature and scope of-
Held, is a beneficent piece of legislation-Interpretation ofSta/lites-Beneficent
legislation.
G
Industrial Employment (Standing Orders) Act, 1946 Sections 5(2) &
(3)-Certification of Standing Orders-Effects of-Held, Certified Standing
Orders constitute the conditions of service binding upon the management
and new employees.
Draft Standing Orders were submitted by the appellant to the Certifying H
517
518 SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.

A Officer for certification under Industrial Employment (Standing Orders)
Act, 1946. It was certified with various modifications . One of the clauses
of the Draft Standing Orders which was not certified related to the
representation of an employee, during departmental proceedings and as a
result of which provisions as contained in the Model Standing Orders framed
B by the Central Government continued to apply to the appellant's Establishment
On appeal filed on behalf of the appellant as well as by Respondent l before
the Appellate Authbrity the clause relating to the representation of an
employee during the departmental proceedings, as set out in the Draft
Standing Orders, was approved. The order of the Appellate Authority was
challenged by Respondent l before the High Court, was set aside by it Hence
C this appeal.

It was contended by the appellant that Model Standing Orders would
operate only during the period of time when the Standing Orders were not
framed by the Establishment itself. On the contrary, it was contended by
Respondent l that Draft Standing Orders as framed by the Establishment
D could not depart either in policy or principle from the Model Standing
Orders.

Allowing the appeal, this Court
HELD : I. In departmental proceedings an employee has no right to
represent another person or a lawyer unless the Service Rules specifically
E provide for the same. The right to representation is available only to the
extent specifically provided in the Rules. Under Rule 1712 of the Railway
Establishment Code a choice is given to the delinquent to be represented by
another railway employee, but the choice is restricted to the Railway on
which he himself is working, that is, if he is an employee of the Western
F Railway his choice could be restricted to the employees working on the
Western Railways. The choice cannot be allowed to travel to other Railways.
Similarly, a provision has been made in Rule 14(8) of the Central Civil
"•
Services (Classification, Control and Appeal) Rules 1965 where an employee
has been given the choice of being represented in the disciplinary proceedings
through a co-employee. [527-G; 528-A-BI
G
Kalindi & Ors. v. Tata Locomotive and Engineering Comany Ltd., AIR
(1960) SC 914: [196013SCR407; Dunlop Rubber Company v. Workmen,
11965) 2 SCR 139: AIR (1965) SC 1392; (1965) (1) LLJ 426 and Glaxo
Industries(/) Ltd. v. Presiding Officer, Labour Court Meerut, (1983) Lab &
Ind. Cases 1909; AIR (1984) SC 505 [1984) I SCR 230: [1984) I SCC 1,
H relied on.
B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION 519
2. The object underlying the Industrial Employment (Standing Orders) A
Act, 1946, 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 the 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 B
employment. [524-C)

3. 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 C
conformed to the Model Standing Orders. This required the process of
compariso~ of the Draft Standing Orders with the Model Standing Orders
and on comparison if it was found that if the Draft Standing Orders are in
conformity with the Model Standing Orders, the same will be certified even
if they are not reasonable or fair. [530-F)
D
The workmen practically have no say in the matter and they would not
be listened even if t~ey agitate that the Draft Standing Orders are not fair
or reasonable. [530-G)

4.1. In 1956, radical changes were introduced in the Act by the
Parliament as a result of which not only the scope of the Act was widened, E
but jurisdiction was also conferred upon the Certifying Officers as also the
Appellate Authority to adjudicate upon and decide the question relating to
fairness or reasonableness of any provision of the Standing Orders.
[530-H; 531-A)

4.2. Model Standing Orders, no doubt, provided that a delinquent employee F
could be represented in the disciplinary proceeding 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 been
disturbed by the certified standing orders, inasmuch as it still provides that G
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 H ·
520 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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 proceeding for a fair and early disposal. The basic features of the
Model Standing Orders, are thus retained and the right of representation
B 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. [531-C-FI

C 4.3. 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. [531-BI

Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd., (19841
3 SCR 325: (1984) 3 SCC 369: AIR (1984) SC 1064; Agra Electric Supply
D Co. Ltd v. Alladdin, (1970) I SCR 808: (196912 SCC 598: AIR (1970) SC
512: Workmen v. Firestone Tyre & Rubber Co. of India (P.) Ltd, (1973) 3
SCR 587 : (1973) I SCC 813: AIR (1973) SC 1227 and Glaxo Industries
(/)Ltd. v. Presiding Officer, Labour Court, Meerut, (1983) Lab & Ind. Cases
1909: AIR (1984) SC 505: (19841 1 SCR 230 (19841 1 SCC 1, relied on.

E Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathy, [1992) Supp
3 SCR 559: (1993] 2 SCC 115, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 365-367 of
1997.

F From the Judgment and Order dated 28.6.96 of the Bombay High Court
in W.P. Nos. 231, 776 and 1462of1994.

Altaf Ahmad, Addititonal Solicitor General, P.H. Parekh, Krishan
Venugopal and Amit Dhingra for the Appellant.

G N.B. Shetye, (Farookh Rasheed) for Ashok Kumar Gupta, A.M.
Khanwilkar and V.D. Khanna for the Respondents.

The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. The legal battle which started on a larger plane
H between the parties to this appeal. in 1984, has now narrowed down to only
B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S. SAGHIRAHMAD, J.] 521

one question, namely, the question relating to the representation of an A
employee in the disciplinary proceedings through another employee who,
though not an employee of the appellant-corporation was, nevertheless, a
member of the Trade Union.

Bharat Petroleum Corporation Ltd., which is the appellant before us,
was incorporated in 1976. B
On 4.12.1985, the appellant submitted Draft Standing Orders to the
w, Certifying Officer for certification under the 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 c
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.
D
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
E
Establishment.
Aggrieved by the order passed by the Certifying Officer, two appeals;
"
one by the present appellant and the other by respondent No. I, 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
F
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.
G
The order of the Appellant Authority was challenged by respondent
No. I 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 H
522 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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 Order:-

"Issue notice. Interim stay of the direction of the High Court by
which any Office bearer of the Union who may not be a workman of
B the petitioner corporation is pennitted 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 petitioner
corporation." ·-
By its judgment dated 18.9 .1995, this Court set aside the interim order
C 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.

In December, 1995, respondent No. I took out a Notice of Motion but
the High Court, by its order dated 11.12.1995, rejected the same, However, the
D 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
E 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.

Para 14(4)(ba) of the Model Standing Orders, as framed by the Central
F Government under the Act 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."
-
G
Clause 29(4) of the Draft Standing Orders, as certified by the 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
H pennitted to be defended by a fellow workman of his choice, who must
BP CORPN. LTD. v. MAHA. GENERAL KA MG AR UNION [S. SAGHIR AHMAD, J.J 523

be an employee of the Corporation, The workman defending shall be A
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 B
he is a member, he does not have this right under the Draft Standing Orders,
as certified by the Appellate A~•thority, which restrict his right ofrepresentation
by a fellow workman of his choice from amongst the employees of the
appellant-Corporation. The contention of the learned c;iunsel for the appellant
is that the Model Standing Orders, framed by the Central Government under C
the Industrial Employment (Standing Orders) Central Rules, 1946 can operate
only during the period of time when the Standing Orders are not made by the
Establishment itself. If and when those Standing Orders are made which, in
any case, have to be compulsorily made in terms of the Act, they have to be
submitted to the Certifying Officer and if they are certified, they take effect
from the date on which they are notified and effectively replace the Model D
Standing Orders. The order of the Certifying Officer is appealable before the
Appellate Authority and the Appellate Authority can legally interfere with the
order passed by the Certifying Officer and set it aside or uphold it. There is
no restriction under the Act that the Management or the Establishment, or,
for that matter, the employer would, adopt the Model Standing Orders. It is E
contended that the Standing Orders have only to be in consonance with the
Model Standing Orders besides being fair and reasonable.

The submission of the learned counsel for the respondent No.I, on the
contrary, is that the Standing Orders, as framP-d by the Management, have to
be on the 1in es indicated in the Model Standing Orders and there cannot be F
a departure either in principle or policy from the Model Standing Orders. It

- is contended that once it was provided by the Model Standing Orders that
an employee of the Corporation can be represented by an employee of
another Establishment with the only restriction that he should be an office-
bearer of a Trade Union, it was not open to the appellant to have made a G
provision in their Standing Orders that an employee of the Corporation would
be represented in the disciplinary proceedings only by another employee of
the Corporation. It is contended that this departure is impermissible in law
and, therefore, the High Court was justified in setting aside the order of the
Appellate Authority which had certified the Draft Standing Orders submitted
by the appellant. H
524 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A The Industrial Employment (Standing Orders) Act, 1946 was made by
the Parliament to require employers of all industrial Establishments to define
fonnally the conditions of employment on which the workmen would be
engaged as pointed out by this Court in Salem Erode Electricity Distribution
Company Pvt. Ltd v. Employees Union, (I 966) I LLJ 443 =AIR (I 966) SC 808
B = [ 1966] 2 SCR 498, followed by its other decision in Glaxo Laboratories (I)
Ltd v. Presiding Officer, labour Court, Meerut, (1983) Labour & Industrial
Cases 1909 =AIR 1984 SC 505 = (1984] l SCR 230 = (1984] I SCC I.

The object underlying this Act, which is a beneficent piece of legislation,
is to introduce uniformity of terms and conditions of employment in respect
C 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
D more workmen are employed.
"Model Standing Orders" have been defined in Section 2(ee). They
mean standing Orders nrescribed under section 15 which gives rule-making
power to the appropria1e Government and provides, inter alia, that the Rules
so made by the Government may set out Model Standing Orders for the
E purpose of this Act.

Section I 2(a) provides as under:-

"12-A. Temporary application of model standing orders:- (I)
Notwithstanding anything contained in Sections 3 to 12, for the period
commencing on the date on which this Act becomes applicable to an
F
industrial establishment and ending with the date on which the standing
orders as finally certified under this Act came into operation under
Section 7 in that establishment, the prescribed model standing orders
shall be deemed to be adopted in that establishment, and the provisions -
of section 9, sub-section (2) of Section 13 and Section 13-A shall
G apply to such model standing orders as they apply to the standing
orders so certified.

(2) Nothing contained in sub-section (I) shall apply to an Industrial
Establishment in respect of which the appropriate Government is the
Government of the State of Gujarat or the Government of the State of
H Maharashtra."
BP CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION (S. SAGHIR AHMAD, J.l 525

This section provides that the Model Standing Order will be applicable A
to an Industrial establishment during the period commencing on the date on
which the Act becomes applicable to that Establishment and the date on
which the standing orders, as finally certified under this Act, come into
operation.

Section 7 of the Act sets out the date on which the Standing Orders B
or amendments made thereto would become op.:rative. It provides as under:-

"7. Date of operation of standing orders or amendments.- Standing
Order of amendments shall, unless an appeal is preferred under Section
6, come into operation on the expiry of thirty days from the date on
which authenticated copies thereof are sent under sub-section (3) of C
Section 5, or where an appeal as aforesaid is preferred, on the expiry
of seven days from the date on which copies of the order of the
appellant authority are sent under sub-section (2) of Section 6."

The Standing Orders are certified under Section 5. The procedure for
certification of the Standing Orders is set out therein and it will be useful to D
quote Section 5 at this stage:-

-- "5. Certification of amendments.--{I) On receipt of the draft under
Section 3, the Certifying Officer shall forward a copy thereof to the
trade union, if any, of the workmen, or where there is no such trade
union, to the workmen in such manner as may be prescribed or the
employer, as the case may be, together with a notice in the prescribed
E

form requiring objections, 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.
F
(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. G
(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 H
526 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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.
B
After certifying the Standing Orders or the Draft Amendments, the
Certifying Officer is required to send copies of the Certified Standing Orders,
authenticated in the prescribed manner, to the employer as also to the Trade
Union or other prescribed representatives of the workmen. Once the Standing
C Orders are certified, they constitute the conditions of service binding upon,
the employment or who may be employed after certification as was laid down
by this Court in Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd
and Ors., AIR (1984) SC 1064 = [1984] 3 SCC 369 = [1984] 3 SCR 326, wherein
reliance was placed on an earlier decision in Agra Electric Supply Company
Ltd. v. Alladin, AIR (1970) SC 512 = [1970] I SCR 808 = [1969] 2 SCC 598,
D in which aiso it was laid down that the Certified Standing Orders bind all
those in employment at the time of service as well as those who are appointed
thereafter, (see also: Workmen Firestone Trye and Rubber Company of India
Pvt. Ltd. v. Management, AIR (1973) SC 1227 = [1973] 3 SCR 587 = [1973] I
SCC 813 and Glaxo Laboratories {I) Ltd v. Presiding Officer, Labour Court,
E Meerut, 1983 Labour and Industrial Cases (1909) =AIR (1984) SC 505 =
[1984] 1 scR23o = [1984] I sec 1.

The order of the Certifying Officer is appealable under Section 8.

Section I 0 provides as under:-"

F IO. Duration and modification ofstanding orders. (I) Standing Orders
or the amendments finally certified under this Act shall not, except on
agreement between the employer and the workmen or a trade union
or other representative body of the workmen be liable to modification
until the expiry of six months from the date on which the standing
G orders or the amendments or the last modifications thereof came into
operation and where model standing orders have not been amended
as aforesaid, the model standing orders shall not be liable to such
modification until the expiry of one year from the date on which they
were applied under Section 2-A.

H (2) Subject to the provision of sub-section (I), an employer, or
BP CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S. SAGHIR AHMAD, J] 527

workman or a trade union or other representative body of the workmen A
or any prescribed representative of workmen desiring to modify the
standing orders of the model standing orders together with the
amendments, as finally certified under this Act, or the model standing
orders applied under Section 2-A, as the case may be, shall make an
application to the certifying Officer in that behalf, and such application B
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 a~reement between the employer and
workmen or a trade union or other· representative body of the workmen C
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.
D
(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 I 0 provides for duration and modification of Model Standing
Orders. The Standing Orders finally certified under the Act cannot be modified E
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 operation.

Before coming to the core question, we may first consider the right of
an employee to be represented in the disciplinary proceedings and the extent F
of the right.

The basic principle is that al) employee has no right representation in
the departmental proceedings by another person or a lawyer unless the
Service Rules specifically provide for the same. The right to representation
is available only to the extent specifically provided for in the Rules. For G
example, Rule 1712 of the Railway Establishment Code provides as under:

"The accused railway servant may present his case with the assistance
of any other railway servant employed on the same railway (including
a railway servant on leave preparatory to retirement) on which he is
working." H
528 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A The right to representation, therefore, has been made available in a
restricted way to a delinquent employee. He has a choice to be represented ·
by another railway employee, but the choice is restricted to the Railway on
which he himself is working, ·that is, if he is an employee of the Western
Railway, his choice would be restricted to the employees working on the
B Western Railway. The choice cannot be allowed to travel to other Railways.

Similarly, a provision has been made in Rule 14(8) of the Central Civil
Services (Classification, Control & Appeal) Rules, 1965, where too, an employee
has been given the choice of being represented in the disciplinary proceedings
through a co-employee.

c In Kalindi and Ors. v. Tata Locomotive & Engineering Company Ltd.,
AIR (1960) SC 914 = [1960] 3 SCR 407, a Three-Judge Bench observed as
under:-"

Accustomed as we are to the practice in the courts of law to
skilful handling of witnesses by lawyers specially trained in the art of
D
examination and cross-examination of witnesses, or first inclination is
to think that a fair enquiry demands that the person accused of an act
should have the assistance of some person, who even if not a lawyer
may be expected to examine and cross-examine witnesses with a fair
amount of skill. We have to remember however in the first place that
E these are not enquiries in a court of law. It is necessary to remember
also that in these enquiries, fairly simple questions of fact as to
whether certain acts of misconduct were committed by a workman or
not only fall to be considered, and straightforward questioning which
a person offair intelligence and knowledge of conditions prevailing
in the industry will be able to do will ordinarily help to elicit the
F 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
G 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
H tribunals is that the person accused conducts his own case, we are
B.P. CORPN. LTD. v. MAHA. GENERAL KAMGAR UNION [S SAGHIR AHMAD, J.] 529

unable to accept an argument that natural justice demands that in A
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.
B
Our conclusion therefore is that a workman against whom an
enquiry is being held by the management has no right to be represented
at such enquiry by a representative of his Union: though of course
an employer in his discretion can and may allow his employee to avail
himself of such assistance." (Emphasis supplied) C
In another decision, namely Dunlop Rubber Company v. Workmen,
[ 1965] 2 SCR 139 = AIR ( 1965) SC 1392 = 1965 (I) LLJ 426, it was laid down
that there was no right to representation in the disciplinary proceedings by
another person unless the Service Rules specifically provided for the same.

The matter again came to be considered by a Three-Judge Bench of this D
Court in Crescent Dyes and Chemicals Ltd. v Ram Naresh Tripathi. [1993]
2 SCC 115 = [1992] Suppl. 3 SCR 559 = (1992) 3 Scale 518, and Ahmadi, J. (as
he then was) in the context of Section 22(ii) of the Maharashtra Recognition
of Trade Unions and Unfair Labour-Practices Act, 1971, as also in the conte)\t
of domestic enquiry, upheld the statutory restrictions imposed on delinquents
choice of representation in the domestic enquiry through an agent. It was laid E
down as under:-

11. A delinquent appearing before a Tribunal may feel that the
right to representation is implied in the larger entitlement of a fair
hearing based on the rule of natural justice. He may, therefore, feel
that refusal to be represented by an agent of his choice would F
tantamount to denial of natural justice. Ordinarily it is considered
desirable not to restrict this right of representation by counsel or an
agent of one's choice but it is a different thing to say that such a right
is an element of the principles of natural justice and denial thereof
would invalidate the enquiry. Representation through counsel can be G
restricted by law as for example, Section 36 of the Industrial Disputes
Act, 1947, and so also by certified Standing Orders. In the present
case the Standing Orders permitted an employee to be represented by
a clerk or workman working in the same department as the delinquent.
So also the right to representation can be regulated or restricted by
statute." H
530 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A The earlier decisions in Kalindi & Others v. Tata Locomotive &
Engineering Co, Ltd. (supra); Dunlop Rubber Co. v. Workmen (supra) and
Brooke Bond India (P.) Ltd. v. Subba Raman (S.) and Another, 1961 (2) LLJ
417, were followed and it was held that the law in this country does not
concede an absolute right of representation to an employee as part of his
B 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.
c
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. I.
The process of reasoning by which this decision has been held to be in
favour of respondent No. I for coming to the conclusion that he had a right
D 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 Draft Standing
E Orders were certified, cannot be sustained.

The contention of the learned counsel for Respondent No. 1 that the
Standing Orders as 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
F 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 Order with the Model Standing Orders and
on comparison if it was found that the Draft Standing Orders, were in
G conformity with the Model Standing Orders, the same would be certified even
if they were not reasonable or fair. The workmen practically has 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 1956, radical changes were introduced in the Act by the Parliament
H as a result of which Pot only the scope of the Act was widened, but jurisdiction
B.P. CORPN. LTD. v MAHA. GENERAL KAMGAR UNJON [S. SAGHIR AHMAD, l.] 531

was also conferred upon the Certifying Officer as also the Appellate Authority A
to adjudicate upon and decide the question relating to fairness or
reasonableness of any provision of the Standing Orders.

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. B
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 C
a member of the Trade Union, but this rule of representation has not been
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 D
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 E
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. F
The appeals are consequently allowed. The impugned judgment dated
28.6. 1996, passed by the Bombay High Court, in so far as it relates to the
Clauses in question which is the subject matter of these appeals, is set aside
and the order passed by the Appellate Authority certifying the Draft Standing
Orders is upheld. There will be no order as to costs. G
RK.S. Appeal allowed.
)