Patna High Court
Secretary, Bihar State Electrical ... vs Presiding Officer, Industrial ... on 12 July, 1994
Equivalent citations: (1995)ILLJ633PAT
JUDGMENT S.K. Chattopadhyaya, J.
1. In C.W.J.C. No. 1101 of 1989, the Secretary, Bihar State Electricity Supply Workers Union is the petitioner which has challenged the order dated November 17, 1989, as contained in Annexure - 1, passed by respondent No. 1 the Presiding Officer, Industrial Tribunal, Patna, by reason of which respondent No. 1 has retained, deleted and modified some of the clauses in the Standing Order. In C.W.J.C. No. 3396 of 1989, on the other hand, the Bihar State Electricity Board through its Secretary as petitioner has challenged the order dated August 21, 1987, passed by the Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946, respondent No. 2 as well as the judgment of the appellate authority dated November 17, 1988 as contained in Annexure to this application whereas Bihar Pradesh Vidyut Shramik Sangh through its Secretary has been made as respondent No. 5 in both the writ applications.
2. As facts in both the cases are common, it is desirable to mention the case of the parties in nutshell.
It appears that Bihar Rajya Vidyut Parishad Field Kamgar Union respondent No. 4 in C.W.J.C. No. 1101 of 1989 and respondent No. 3 in C.W.J.C.No. 3396 of 1989 (hereinafter referred to as 'Kamgar Union') filed an application before the respondent No. 2 under Section 10 of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as 'the Act') for modification of certified Standing Orders of the Bihar State Electricity Board (in short 'the Board'). On receipt of such application, respondent No. 2 issued notices to the Board as well as the registered Trade Unions, inviting objection thereto. The Board filed its objection against three items, namely, promotion, transfer and suspension in the proposed modification. The petitioner union filed its objection against the proposed modification and submitted its proposal for modifications with respect to promotion, suspension and transfer. After considering the objection and hearing the parties, the respondent No. 2 certified the Standing Order of the < Board and made provisions with respect of recruitment, promotion, transfer and suspension by its order dated August 21, 1988.
3. Being aggrieved by the aforesaid order, Board moved the Industrial Tribunal, an appellate authority constituted under the aforesaid Act. It appears that when the appeal was pending, a compromise was entered into between the petitioner Union and the Board. They filed separate applications before the appellate authority with a prayer to dispose of the appeal in terms of the accepted compromise. However, all the parties, except Kamgar Union accepted the said compromise. Rather Kamgar Union opposed the compromise orally without filing any written objection. On such objection being made, the Tribunal decided to dispose of the appeal on merit.
4. It appears after admitting the appeal, notices were sent to two Unions, namely, Bihar State Electricity Supply Workers Union and Bihar Pradesh Vidyut Shramik Sangh and they accordingly participated in the proceeding. When the hearing was taken up, a petition was filed on behalf of the Bihar State Electricity Supply Workers Union through one Chakradhar Prasad Singh for being impleaded as party but the prayer was rejected by the appellate authority.
5. Mr, Sivajee Pandey, learned counsel for the petitioner in C.W.J.C.No.llOl of 1989, at threshold had contended that the Act itself contains a schedule with regard to items of service conditions on which the Certifying Officer as well as the appellate authority will have a jurisdiction to certify Standing Order. But either of them cannot go beyond the items mentioned in schedule of Standing Order. It was next contended that the appellate authority was not justified in ignoring the compromise petition only on the objection raised by Kamgar Union and should not have decided the appeal on merit.
From respective plea of the parties, it appears that the petitioner has challenged some parts of the Clause 30(d) and Clauses 5,4, 18, 19,20 and 21 whe.eas the Board on the other hand, has challenged the Clauses 22(b), 22(c), 22(c)(2), 22(c)(3), 24 and 33(d).
6. Before discussing the objections made by the Board, it will be useful to notice the objection of the petitioner in respect of the aforesaid clauses. Clause 5 relates to promotion. It is contended that the appellate authority should not have modified the provisions for promotion as certified by the Certifying Officer, inasmuch as this was included within the term method of vacancies.
In this context, I may refer the existing provisions for promotion which was noted by the appellate authority, the same reads as follows:
"Promotion shall be granted on merit with due regard to seniority and by applying ob jective standard of assessment. The Board may provide suitable trade tests for depart mental examinations judging the merit of a candidate."
This existing provision was modified by the Certifying Officer by dividing the provisions in two parts. First part relates to promotion and the other to the removal of stagnation. The appellate authority relying on some case laws has come to the conclusion that this clause cannot form part of the Standing Order and therefore has to be deleted for the simple reason that item promo tion is not in the schedule.
7. Mr. Pandey attacking this finding of the appellate authority has argued that even though item promotion is not included in the schedule but the item being fair and reasonable and as such it was correctly certified by the Certifying Officer.
8. Section 2(g) of the Act defined 'Standing Orders' as rules relating to the matters set out in the schedule. Section 3 of the Act provides that within six months from the date on which the Act becomes applicable to an industrial establishment, the employer shall submit to the Certifiying Officer five copies of the draft 'Standing Orders' proposed by him for adoption in his industrial establishment. Sub-section (2) of Section 3 provides that provision shall be made in such draft for every matter, set out in the schedule, which may be applicable to the industrial establishment, and where Model Standing Orders have been prescribed, so far as is practicable, shall be in conformity with such model. Section 4 postulates that 'Standing Orders' shall be certifiable under this Act, if provision is made therein for every matter set out in the schedule which is applicable to the industrial establishment, and the Standing Orders otherwise is in conformity with the provisions of this Act.
This provision also says that it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders.
There is prescribed schedule under the Act which relates to the matters to be provided in Standing Orders under this Act. From perusal of the items specified in the schedule, it is amply clear that item 'promotion' does not find place in schedule of the Act.
9. In this context, it is necessary to refer to the Bihar Industrial Employment (Standing Orders) Rules, 1947, which have been framed in exercise of the powers conferred by Section 15(2) (b) of the Act. Rule 5 speaks of Model Standing Orders which shall be set out in Ap-pendix-A to these Rules. Perusal to Model Standing Orders as contained in Appendix-A to the aforesaid rules, it appears that item promotion is not there even in the Model Standing Orders. Mr Pandey has tried to convince the court by referring to item 11 of the schedule of the Act, which contemplates "any other matter which may be prescribed" and submits that even item promotion is not to be found either in the Model Standing Orders or in the schedule of the Act, on the ground of fairness and reasonableness this item should be incorporated in the certified Standing Orders. I am afraid this contention of Mr. Pandey cannot be held good. In the case of Workmen of Lakheri Cement Works Ltd. reported in 38(1970) FJR 342, the apex court has held that, there is no authority to extend the Standing Orders to the topics not mentioned in the first schedule of the Act. The Certifying authorities were quite justified in not including them in the certified Standing Orders
10. Taking into consideration this aspect of the matter, in my opinion the finding of the appellate authority deleting the item from the Standing Orders cannot be interfered with.
11. Challenging the jurisdiction of the appellate authority in retaining Clause 6(a) regarding 'transfer' Mr. Pandey has submitted that the appellate authority had no jurisdiction to retain this item, inasmuch as, item 'transfer' is not specified either in schedule of the Act or the Model Standing Orders. It is further contended that the appellate authority has wrongly interpreted item No. 4 of Rule 10-B of the Industrial Employment (Standing Orders) Central (Amendment) Rules, 1983 (hereinafter referred to as 'Central Rules') which was inserted by notification dated January 17, 1973 because it has no application to the industrial establishment controlled and or managed by State Government. Advancing his argument, Mr. Pandey has drawn our attention to 1 provision of Section 15 of the Act and has contended that it is only the appropriate Government may, after prior publication, in the official Gazette, make rules to carry out purposes of this Act. The appropriate Government under the 1 Central rule is the Central Government and the present case is not governed by Central Rules but by the Bihar Industrial Employment (Standing Orders) Rules, 1947 (in short 'Bihar Rules'). This, it is urged that the appellate authority has 2 wrongly placed reliance on Rule 10-B of the Central Rules.
12. Mr. Prasad, learned Senior appearing on behalf of the Board agreeing with the submission of Mr. Pandey submitted the item transfer could not have been added in this schedule. He has also submitted that Rule 10-A of the Central Rules, which has been relied by the appellate authority is not applicable to the industrial establishment under the control of the respective State Governments. Referring to Clauses 1 & 2 of the Central Rules, it is urged that this rule obviously apply la industrial establishments under the control of the Central Government or railway administration or in a major port, mine or oilfield and so the appellate court has committed an apparent error by relying on provisions of Rule 10-A for inserting item 'transfer' in the Standing Orders.
13. Strongly refuting this argument, advanced above, Mr. Rajeev Roy for the respondent No. 4 and 3 in C.WJ.C.No. 1.101 of 1989) and C.W.J.C.No.3396 of 1989) contended that the items which are already existing in the certified Standing Orders for the workmen of the Bihar State Electricity Board since 1976 cannot be held invalid merely on the ground that certain items were not in the schedule, It was contended that the Act is a beneficent piece of legislation and if the Management had objection to certain matters, being included in the Standing Orders, and if its inclusion was accepted by the workmen as well as the Certifying Officer as back as in 1976, there is no reason why the Act be so interpreted so as to strike off certain clauses of the Standing Orders. In this context, Mr. Roy drawing our attention to the Certified Standing Orders of the Board of 1976 has submitted that item 'transfer' exists in Clause-C of the said Standing Orders and the petitioner or the Board could have very well filed an application for modification under Section 10 of the Act after the Standing Orders were certified in 1976. But admittedly it was not done.
14. Secondly petitioner-Union did not file any objection to the draft proposal for amending the existing Standing Orders, which was filed by respondent No. 4 before the Certifying Officer. Moreover petitioner-Union did not even file any appeal against the modifying Standing Order.
15. Though Board filed objection and appeal before the Certifying Officer but in paras 19 to 22 of the memo of appeal, the Board has categorically admitted that 'transfer' is a condition of service, which is an essential feature and it has to be made on administrative grounds and also according to exigency of the situation.
16. In my opinion, argument of Mr. Roy is well founded and am conscious the decision of the Hon'ble Supreme Court in the case of Workmen ofLakheri Cement Works Ltd. v. Associated Cement Companies Ltd (supra), but in this particular case, it has to be noticed that the item 'transfer' was all along existing in the certified Standing Order, 1976 of the Board. It cannot be disputed that 'transfer' is an incident of service.
The employees of the Board being aware of this condition joined services under the Board. Moreover, from 1976 there was no grievance either on part of the employees or employer regarding this item. Rather the Board, before the appellate authority, specifically conceded the retention of the item 'transfer' in the Standing Order would be beneficial for both to the Board as well as its employees. Above all the petitioner-Union, neither filed any objection before the Certifying Officer nor any appeal before the Board. This inclusion thus cannot be challenged Board. This inclusion thus cannot be challenged in this Court by the petitioner. If the Management was of the view that this clause was against its interest or it was unnecessarily included in the Standing Orders, it was open to get it modified by a regular application in terms of Section 10 (2) of the Act. If the Management was not aggrieved with Clause 6 of the Standing Order of 1976, it cannot challenge the finding of appellate authority in this regard.
17. In the case of Abu Mohammad and Ors. v. State of Bihar and Ors. reported in 1977 Labour and Industrial Cases 1390, a Division Bench of this Court had to deal with somehow similar situation and after relying on Supreme Court decision, the Division Bench held that:
"The Act is a beneficent piece of legislation. In my view, therefore, if the Management has no objection to certain matters being included in the Standing Orders, and if its inclusion is accepted by the workmen as well as the Certifying Officer, I see no reason why the Act should be so interpreted as to strike off that clause in the Standing Orders. It must be accepted on all hands that providing wage slips to workmen is a beneficent Act. In terms of the scheme of the Act the provision regarding wage slips in Clause 14 must have been given in the draft by the Management or it may have found place after the objection of the workmen which was certified by the certifying officer. The furnishing of wage slips, therefore, became a condition of the employment although it was a matter not directly connected with the subjects enumerated in the schedule. But I see no reason for restricting the parties to the standing orders to its inclusion. If the management was of the view that clause was hurting it or that it was unnecessarily included in the standing orders, it was open to it to get it modified by a regular application in terms of Section 10(2) of the Act. Thus the Management was not aggrieved by inclusion of Clause 14, the workmen were not aggrieved and the certifying officer had no objection."
18. It is true that the appellate authority has mis-directed itself in placing its reliance on Rule 10-B of the Central Rules, inasmuch as, the aforesaid Central Rules do not apply to the Industrial Establishments under the control of the State Governments. My view finds support from Sub. Rule (2) of Rule 1, which, inter alia, contemplates that the rules extend to industrial establishments under the control of the Central Government or a railway administration or in a major port, mine or oilfield.
But in my view the finding of the appellate court cannot be interfered with only for this reason. I have already indicated my reasoning for holding that item 'transfer' as inserted by the appellate court was nothing new. It was already in existence since 1976. Therefore, for this simple reason the findings of appellate authority cannot be interfered with.
19. Attacking the findings of the appellate court in relation to payment of subsistence allowance Mr. Pandey urged that though payment of subsistence allowance is in the schedule, but it has been reduced by the appellate authority which is unreasonable and cannot be sustained. Mr. Prasad while agreeing with Mr. Pandey on this score submitted that Section 10 A of the Act clearly provides payment of subsistence allowance at a given rate and as such the appellate authority was not justified in modifying Clause 30 (d) of the Standing Order. Mr. Roy agreeing with the aforesaid submissions has urged that finding of the appellate authority in this regard is not reasonable,
20. Section 10-A of the Act has been newly inserted by Act 18 of 1982. From reading of the provision as a whole, it appears that this provision takes care of the employees who are put under suspension. The rate at which subsistence allowance is to be paid has also been prescribed under this section itself. In such circumstances, in my opinion, the amendment of Clause 30 (d) cannot sustain as such this should be deleted from the Standing Order.
21. Coming to the question of "Automatic Cessation" of employment as contained in Clause 24 of the impugned order Mr. Prasad submitted that as it is an old provision which was already inserted in certified Standing Orders of 1976 and therefore it should be retained with some modification. It is urged that the appellate authority has failed to consider Clause 9(4) of the Model Standing Orders and as such this finding of the appellate court must go.
22. Clause 9(4) of the Model Standing Order reads as follows:-
"If the workman remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless he (a) returns within 8 days of the expiry of the leave and (b) explains to the satisfaction of the Manager his inability to return before the expiry of his leave. In case the workman loses his lien on his appointment, he shall be entitled to be kept on the 'badli' list."
23. From this provision, it appears that even if for certain unavoidable circumstances a workman remains absent beyond the leave period or subsequently extended period, he shall loose his lien on his appointment unless he returns within 8 days of the expiry of the leave and gives satisfactory explanation to the management about his inability to return before the expiry of such leave. In my opinion this clause is violative of principle of natural justice. As per this provision, the workman is entirely on the mercy of the management which may or may not accept the explanation given by the defaulting workman, whatever genuine ground might be there. In a welfare State the fate of a workman cannot be allowed to be rested on the discretionary power of single individual, namely, the manager.
24. In a recent decision in the case of D.K. Yadav v. J.M.A. Industries Ltd. reported in (1993-II-LLJ-696) (SC) while interpreting Clause 13 (2) (iv) of the relevant Standing Orders their Lordships have observed as follows (p.700):
"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words, application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person.
It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner the Constitution Bench held that 'civil consequences' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary 4th edn, page 1487 defined civil rights are such as belonging to every citizen of the State or country ..... they include ..... rights capable of being enforced or redressed in a civil action ..... In State of Orissa v. (Miss) Binapani Dei this court held that each an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice."
Their Lordships further held that:
(p.701) "The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."
25. In the aforesaid observation it has been held that certified Standing Orders have statutory force which do not expressly exclude the application of the principle of natural justice. It is to be noted that though item automatic cessation of employment' finds place in the Model Rules it is not in the schedule of the Act. Therefore, in the given circumstances., I have no hesitation to hold that Clause 9(4) of the Model Standing Order is ultra vires to the Constitution, inasmuch as it offends Article 14 of the Constitution. In such view of the matter, the appellate court was justified in deleting this clause. In support of my conclusion it will be useful to notice a Bench decision in the case of Sobhana Das Gupta v. The State of Bihar and Ors., reported in 1974 PLJR 382.
26. Mr. Prasad referring to the clause relating. to privilege leave or annual leave with wages as contained in Clause 22(b) of the Standing Order, has contended that though item 5 talks of leave but it is only one of the conditions and procedure in applying for leave as to how leave is to be granted and by whom. Referring to Clause 9 of Model Standing Order, it is urged that though it speaks of leave but proviso to this rule contemplates that this provision shall not apply where sickness benefit are available under the Employees State Insurance Act, 1948. Continuing argument, it is submitted that this proviso has not been taken into consideration and as such the appellate authority has committed an error.
As against this Mr. Roy has submitted that these provisions are in existence since 1976 and the Board never questioned the quantum of leave before Certifying Officer and as such it cannot be allowed to raise this point before this Court. Secondly, it is contended that the Certified Standing Orders is in force since more than four years and as such it has attained its finality under Section 7 of the Act and cannot be challenged at this belated stage. It is also contended that taking together the provisions in item 5 of the Schedule of the Act and Clause-9 of Model Standing Order, finding of the appellate authority should not be interfered with.
Having heard the parties and going through the reasonings given by the appellate authority, I am of the view that retaining this clause is quite justified and cannot be interfered with.
27. On the aforesaid reasonings, in the Clause 22 (c) relating to "sick leave" and Clause 22 (c) (2) in relation to special sick leave cannot be deleted. No serious challenge has been made either by the Board or petitioner Union regarding Clause 8(a), terminal benefit, and in my opinion rightly.
28. In the result, these writ applications are allowed in part and the order of the Certifying Officer as well as the appellate authority are partly modified and affirmed to the extent indicated above. However, there will be no order as to costs.
Application allowed.