Madras High Court
Tamil Nadu Electricity Board vs Central Organisation Of Tamil Nadu ... on 30 July, 1997
Equivalent citations: (1997)IILLJ1043MAD
JUDGMENT Shivappa, J.
1. This writ appeal is directed against the order of the learned single Judge, dated February 15, 1996, in W. P. No. 9198 of 1989.
2. The prayer of the writ petitioner in the writ ition was to quash the order dated April 5, 1989 passed by the respondent and to direct the respondent to take disciplinary action against the workmen only on the basis of certified standing orders framed under the Industrial Employment (Standing Orders) Act, 1946, (hereinafter refereed to as 'the Act'). Under the Act, Standing Orders will have to be certified in respect of the workmen employed by the first respondent herein and there were two standing or one to the clerical cadre and the other to the cardres other than clerical cadre. These orders occupied the field except with some minor modifications and without any difficulty in working out the problems in the event of eventuality not conducive to the establishment.
3. When once the Standing Orders are certified under Section 5 of the Act, by the Certifying Officer, the only recourse open to either the workmen or the employer is to file an appeal under Section 6 of the Act before appellate forum and after the disposal of such an appeal, the Standing Orders will come into force within 7 days from the date of disposal of the appeal by virtue of Section 7 of the Act. Under Sec. 10(1) of the Act, once the standing orders are finally certified, it is not open to the parties to seek for a modification until the exlpiry of six months from the date of the said certification. Whenever any modification is proposed to the existing standing orders by the respondent Board, the workmen employed by them keenly contested such modifications with the help of their trade unions and the matter was resisted before the certifying officer as well as before the appellate forums and at time modifications were made or done with the consent of the employees and after an agreement signed with the reconginsed union and the Board. During the year 1976, taking advantage of the emergency situation prevailing in the country the Board unilaterally proposed amendments under Section 10(2) of the Act. On resistance by the Unions, the amendments proposed by the Board were rejected by the Certifying Officer and the Board did not pursue any further appeal on such rejection. In the year 1978, again the Board proposed certain changes, some of them were drastic. The Certifying Officer by order dated March 31, 1980, rejected the alteration of terms of service conditions sought for by the appellant herein.
4. Being aggrieved by the decision of the Certifying Officer, the Board appealed to the Appellate Authority in Appeal No. S.O.A. 7 of 1980 and 8 of 1980. Both the appeals filed by the workmen as well as the Board came to be disposed of by a common order, dated April 5, 1982 and the contentions of the Board with reference to the inclusion of suo motu revision was rejected by the appellate authority. That order came to be passed as early as on April 5, 1992 and became operative after the expiry of 7 days as per Section 7 of the Act. 'Re appellant Board chose to invoke the writ jurisdiction of this Court, after a period of one year and W.P. No. 12241 of 1983 came up for admission on January 6, 1984 without any interim orders. Every time, when the Board initiated action aga the employees on the basis of eirculars by the Chairman to suit his own whims and fancies, it. was challenged in the Court of law by filing writ petitions, inter alia contending that such actions were outside the provisions of the certified standing orders. When all these matters were pending, the Board submitted a set of draft Standing Orders before the Certi"g Officer appointed under the Act. The Certifying Officer issued notice, dated October 5, 1986, calling upon the Unions to offer their remarks. Since the fresh certification proceedings were not authorised in law, Unions filed W.P. No. 12757 of 1986 and challenged the jurisdiction of the authority under the Standing 30 Orders Act in initiating those proceedings. This Court admitted the writ petition and granted interim injunction in W.M.P. No. 19465 of 1986. When the Board sought for vacation of the injunction by filing W.M.P. No. 6509 of 1987, this Court rejected the plea of the Board and confirmed the order of injunction by order dated July 15, 1989.
5. Knowing the futility of the stand taken by the Board, they withdrew the proceedings initiated for fresh Standing Orders, by their letter dated September 25, 1987. As a consequence of that, the Certifying Officer dismissed the certification proceedings by his order dated October 15, 1987. To the surprise of the petitioners union, the Board issued a circular, dated April 5, 1989, which was the subject matter of the writ petition for the relief mentioned above.
6. The Board resisted the writ petition inter alia contending that apart from the Conduct Regulations framed under the provisions of the Electricity (Supply) Act, the Board is also empowered to issue eirculars as and when exigencies warrant. Though the Regulation of the Conduct Regulations stipulated that in respect of matters in the Conduct Regulations for which there is a provision in the Standing Orders for the employees of the Board framed under the Act, the provision under the Standing Orders would prevail in regard to the employees governed b the Standing Orders. Clauses 19(1) and 30(0) of the Certified Standing Orders for clerical and non-clerical workmen contemplate that the respondent Board can take disciplinary action against any of the employees in the event of the employee committing a breach of any reasonable orders of the superiors which include any violation of the Conduct Regulations or circulars issued by the Board.
7. W.P. 5105 of 1980 was disposed of by this Court, following the view of the Supreme Court in Glaxo Lab. (I) Lid v. Labour Court, Meerut & Others (1984-1-LLJ-16), wherein the Apex Court has taken the view that an employee cannot be charge sheeted; in respect of an act of misconduct which is not provided for in the certified standing orders. Thus, this Court held that violation of Regulation 13 of the Conduct Regulations is not one of the misconducts of the certified standing orders applicable to the employees of the Board and in that view of the matter held that the action initiated cannot be proceeded with. A Review Petition was filed contending that by inadvertence, the provisions of the Standing Orders 19(1)/30(1) were omitted to be brought to the notice of the Division Bench. It came to be dismissed with some observations. A Special Leave Petition preferred against the judgment in W.A. No. 1070 of 1985, dated March 29, 1990 was dismissed by the Supreme Court, as there was some delay in preferring the Special Leave Petition and the Supreme Court was not inclined to accept the reasons adduced by the Board for condonation of the delay.
7A. The point which came up for consideration before the learned single Judge was whether the Board can issue circulars/memo, so as to govern disciplinary proceedings in respect of non-enumerated misconduct in the certified standing orders.
8. The learned single Judge, following the decision in S. Alamelu v. The Superintending Engineer, South Arcot Electricity System (South), Villupuram (1990-11-LLJ-96)(Mad) held that the Board cannot by-pass the provisions of the Industrial Employment Standing Orders and issue circulars so as to govern the disciplinary proceedings for violation of the conduct regulation. It is against this decision, the present appeal has been filed.
9. In the appeal, inter alia, it is contended (i) that the circular in the writ petition dated April 5, 1989 was in conformity with the provisions of the Standing Orders, therefore, no exceptions could be taken to the said circular. (ii) The learned single Judge ougth to have relied upon 2, the Division Bench Judgment of this Court, rendered in W.A. No. 1 1 94 and 1 1 95 of 1986 as well as Writ Appeal Nos. 703 and 704 of 1989 and followed the ratio of the judgments laid down in those writ appeals. (iii) The conduct regulations prescribed in detail the manner in which the employees of the Board should conduct themselves in the course of the employment with the appellant Board, it cannot be said that the same would amount to prescription of 3, misconduct outside the scope of the certified standing orders. In other words, by virtue of Clause 30(1)119 (1) of the certified standing orders, enumeration of the misconducts in the conduct regulations would become the part and parcel of the certified standing orders and for any violation of such prescribed conduct regulations the appellant Board was entitled to take appropriate disciplinary action.
10. The Supreme Court in Civil Appeal Nos. 1164, 1165 and 11472 of 1987, has held that the disciplinary authority to examine the tenability of the circular dated July 12, 1983 and the Standing Order 30 and the proceedings shall be 4, disposed of in accordance with law. For looking into the matter as indicated above, the disciplinary authority or the Inquiring Officer as the case may be would not be guided by what the High Court has said in the impugned order. Therefore, the effect or the impact of both the decisions referred to in the grounds of appeal is taken out as though indicating that it is no longer a binding precedent. In this fact situation, we see no merit in the contention that the learned 5 single Judge ought not to have taken into consideration or referred to the decision in the writ petition and the writ appeals referred to above.
11. The Board applied for certification and 10 later withdrew the said application on September 25, 1990. On September 5, 1988, the Board wrote to the Government to issue notification under Section 13-B of the Industrial Employment Standing Orders Act, 1948. Later by letter dated July 28, 1989 withdrew its request made to the Govermnent, stating that an amicable settlement on the question of wage revision has been arrived at with the Unions, agreeing that this issue of applicability of conduct regulations etc. can be amicably settled in discussions with them, and requested to keep the application in abeyance for the present. Having resorted to go for amendment under Section 10 if pursued, the Union would have had a right to say about the proposed amendment and then an appeal and then a judicial review. By withdrawing the same, that course of action was not made available to the employees. Later, another attempt thought of under Section 13-B was also made to be kept in abeyance at the instance of the Board and later a fresh circular was issued.
12. In Alamelu v. The Superinterendng Engineer, South Arcot Electricity System (S), Villupuram (supra), this Court has held that the Board cannot apply for amendment of the conduct regulations in case of employees governed by the certified standing orders. The Special Leave Petition filed against that judgment was 10 dismissed by the Supreme Court. In Dhanaraj v. T. N. E. B. & Others (1995-1-LU-931) also, this Court has taken similar view.
13. The Apex Court, in Glaxo Laboratories 15(1) Ltd. v. Labour Court, Meerut and Others (supra) has held that a non-enumerated misconduct cannot form subject matter of a disciplinary action. Following the said view, in U. P. State Electricity Board v. Hari Shankar Jain; (1978-11-LLJ-399) (SC) it has been held that without amendment to the certified standing orders and by including the various misconducts enumerated in the conduct regulations as applicable to workmen covered by the Standing Orders would really be by passing the provisions for amendment to certified standing orders prescribed under Section 10 of the Industrial Employment (Standing Orders) Act. In that view of the matter, we have no hesitation to conclude that the circular now issued is against the provisions of the Act. Therefore, we are in conformity with the view of the learned single Judge that lation cannot be re a service regu placed by a circular or a memorandum, introducing series of misconducts not enumerated in the Standing Orders. So as to ensure safeguard to the workmen they should know what are the service conditions and what constitutes misconduct, at the time of entry into service. In the Standing Orders, as many as 36 misconducts are enumerated. To read something else to that, it can be 21 done only by way of resorting to an amendment to the certified standing orders, under Section 10 of the Act which gives ample opportunity for the employees to have their say and to take the matter to the finality in the form of judicial review. What is not contemplated as a service condition when entered into service cannot he upset or reintroduced by way of a memorandum, which has no statutory value, unless it assumes a statutory significance by way of an amendment in the manner provided by law. Therefore, the decisions, which have no binding impact by virtue of the order of the Apex Court cannot be a ground to upset the findings of the learned single Judge. Since the order of the learned single Judge based on two decisions of the Division Bench of this Court in Alamelu v. S. E. Electricity System (supra) and J. Dhanraj v. T. N. E. B. And others ('supra) which decisions are based on the view of the Supreme Court in Gaixo Lab. (1) Ltd. v. Labour Court, Meerut and Others (supra), we have no other option than to confirm the order of the learned single Judge, which consequently leads to the dismissal of the appeal.
14. Accordingly, the writ appeal is dismissed with cost of Rs. 2,000/- (Rupees Two Thousand only) payable to the Respondent No. 1.