Andhra HC (Pre-Telangana)
Barigala Sailu And Anr. vs Singareni Collieries Company Limited, ... on 9 April, 2002
Equivalent citations: 2002(3)ALD619
JUDGMENT A. Gopal Reddy, J.
1. In these two writ petitions the Circular No.P.14/2643/IR/188 dated 11-2-2000 issued by the 1st respondent and consequential charge-sheets issued for disobeying the instructions are challenged. Since the issue involved in both the writ petitions is one and the same, they are heard together and disposed of by this common order.
2. The facts leading to filing these writ petitions are as under:
3. In W.P.No.1977 of 2001 the 1st petitioner is working as Head-Overman under the control of the 3rd respondent and the 2nd petitioner is working as Welder under the control of the 4th respondent. Both the petitioners are residents of Kothagudem town. While so, the 2nd respondent issued impugned circular dated 11-2-2000 imposing restriction on the employees of the Company from contesting in the elections to the Parliament/Legislative Assembly/ Municipalities/Panchayat Raj Institutions and other local bodies while continuing as employees of the Company. The said circular further states that if an employee wishes to contest in any of the abovementioned elections, he has to submit unconditional resignation before filing his nomination. It is also stated that the respondent-Company also assured to the trade unions that the said circular will not be given effect to. Meanwhile, the election process to the Kothagudem Municipality was already commenced and the election to the said Municipality was taken place on 9-3-2000. The petitioners, who have contested as Ward Councillors from Ward Nos. 16 and 17 of the Kothagudem Municipality have won the election. The 1st petitioner was also elected as Vice-Chairman of the said Municipality. While so, the petitioners 1 and 2 were served with charge-sheets dated 26-7-2000 and 25-7-2000 respectively proposing to take disciplinary action against them,
4. The petitioners are 3 in number in W.P. No. 10847 of 2001. The 1st petitioner is working as General Mazdoor under the control of the 3rd respondent and the petitioners 2 and 3 are working as Charger Safety Lamp and Head-Overman respectively under the control of the 4th respondent and all of them are residents of Yellandu town. The 1 st petitioner was elected as Chairman of the Yellandu Municipality in the previous elections held in the year 1995 and he completed his term successfully. The 2nd petitioner was elected as Councillor in the year 1981 and 1987 and also elected as Vice-Chairman during the period 1987-1992 to the Yellandu Municipality. The petitioners 1 to 3 contested as Ward Councillors from Ward Nos. 8th, 2nd and 6th respectively of the Yellandu Municipality in the elections held on 9-3-2000 and won the same. As the petitioners 1 to 3 have contested the elections contrary to the Circular dated 11-2-2000. they were issued with charge-sheets dated 3-8-2000, 2-8-2000 and 2-8-2000 respectively.
5. It is stated by the petitioners that on issuance of the Circular Memo dated 11-2-2000 the trade unions representing the workers have represented the matter before the 1st respondent requesting not to give effect the said Circular stating that the restrictions imposed in the Circular Memo are not finding place in the Certified Standing Orders of the Company, and from the date of its inception there was no restrictions on the employees from contesting the elections to the local bodies. In the absence of any prohibition, prohibiting or imposing restrictions for contesting the elections as specified in the Standing Order, the same cannot be enforced. The impugned Circular amounts to amending the Standing Orders and the same cannot be done without following the provisions of Industrial Employment (Standing Orders) Act, 1946 (for short 'the Act 20/46'). In view of the same, the Circular Memo cannot be enforced and the consequential charge-sheets issued by the 1st respondent are liable to be set aside.
6. In opposing the claim of the petitioners the respondent-Company filed a counter stating that the respondent organization is a State Government Undertaking and the State and Central Governments are holding shares at the ratio of 51:49. The respondent-Company is a coal mining industry and is engaged in exploration, excavation, extraction and selling of coal spread over in four districts of Andhra Pradesh i.e. Khammam, Karimnagar, Adilabad and Warangal employing about 1,06,000 employees in its various mines and departments. Employees of Government Departments and Public Sector Undertakings are expected to be politically neutral in the discharge of their duties. Employees cannot hold dual positions i.e., both in the organization as well as in a political/quasi political/office simultaneously which would result in:
(a) his not performing a normal day's work without causing inconvenience to the Company;
(b) interference in the working of his colleagues and his office;
(c) his indulging in discriminating activities influenced by political considerations.
Some of the employees of the respondent-Company are functioning in elected offices like Members/Sarpanches of Gram Panchayat/Municipalities and Member/ President of Mandal Praja Parishad and Zilla Parishads etc. Hence, the management of the respondent-Company has issued the impugned Circular barring its employees to contest in Municipal and other public body elections without obtaining prior sanction of the respondent-Company and the Circular does not bring about any change in the policy of the Company. It is also submitted that the respondent-Company is a Public Sector Undertaking set up for carrying out a public purpose. As an employer, the respondent-Company has to ensure that the employees carry out their functions without being influenced by extraneous/ political considerations in any manner and their behaviour does not give rise to any talk of favouritism in discharging their duties in the Company. If a person contests in elections to a municipal or public body, he naturally seeks support from political parties or various other persons in his constituency including some of the employees. "Without their support it is not possible for a person "to get elected. In turn, the elected person will be under the obligation to all those persons who are responsible for his success in the election. If such an elected person is an employee of a Public Sector Undertaking, the main object of which is production and productivity, safety, welfare etc., may be in a position to use his influence in discharge of his duties. Hence, in order to see that the functioning of the respondent-Company is free from political influence and favouritism and in order to ensure that the employees attend to their duties regularly the Circulars are issued. It is further stated that the impugned Circular was issued for smooth functioning of administration and development of work culture among its employees keeping the interest of the organization and in order to utilize their services in the company at full length in the hard days of achieving production and productivity as the respondent-Company is running under financial crises and keeping in view the fact that no person can sail on two boats. Inspite of clear instructions issued in the Circular, the petitioners have contested the elections held to the Kothagudem and Yellandu Municipalities on 9-3-2000 and won as Ward Councillors and continued in the services of the respondent-Company. Since the petitioners in both the writ petitions have violated the instructions issued by the Company, which constitute misconduct, disciplinary proceedings were initiated against them under the Company's Standing Orders No.25.3. The attendance particulars of the petitioners in both the writ petitions are also furnished in order to justify the action of the respondent for issuing the said Circular stating that their attendance during the year 2000 in comparison with the previous years establish a direct impact of holding electoral post over the attendance performance of the petitioners while discharging their duties as an employee of the respondent-Company. It is denied about the assurance given to the trade unions by the Company that said Circular dated 11-02-2000 will not be given effect to. As the petitioners have wilfully disobeyed the lawful instructions issued in Circular Memo dated 11-2-2000 the petitioners are issued with charge-sheets, to which the petitioners submitted their explanations. In view of the same, enquiry cannot be stalled and prayed for dismissal of the writ petitions.
7. It is contended by the learned Counsel for the petitioners that the Circular Memo dated 11 -2-2000 amounts to change in the service conditions and unless the Standing Orders prohibits the participation of the workmen in the local body elections, the respondent-Company cannot impose restrictions from contesting such elections. When the workmen are governed by Certified Standing Orders under the Act 20/46, the respondents without following the procedure contemplated under the said Act cannot issue the Circular. Before issuing the said Circular, draft amendment should have been circulated to the trade unions for filing objections and only after the objections are called for the same has to be certified by the authorities in terms of Section 3 of the Act 20/46 and without following the said procedure the Circular cannot be enforced restricting the rights of the employees to participate in the local body elections and places reliance on the judgments of the Supreme Court in Glaxo Laboratories (I) Limited v. Presiding Officer, Labour Court, Meerut, and Bharat Petroleum Corporation Limited v. Maharashtra General Kamgal Union, .
8. On the other hand, learned Standing Counsel for the respondent-Company contended that the petitioners have not chosen to challenge the Circular Memo dated 11-2-2000 before they are contesting the elections and challenged the same only on issuance of charge-sheets for disobeying the lawful and reasonable instructions issued in said Circular. In the absence of any service conditions in the Certified Standing Orders permitting the petitioners to participate in the elections, it is not open for them to contend that issuing the circular guidelines amounts to amending the Certified Standing Orders. Learned Standing Counsel further contends that all the misconducts cannot be enumerated in the Standing Orders, but Clause 25.3 of the Standing Orders itself authorizes the employer to issue any lawful or reasonable order if any wilful insubordination or disobedience takes place. The petitioners as a matter of right cannot contest in the elections while in service of the respondent-Company. Therefore, the same cannot be enumerated in the Company's Standing Orders. In support of his contention, he placed reliance on the following judgments of the Supreme Court.
1. Agnani v. Badri Das and others, AIR 1963 SC 684.
2. A.L Kalra v. P.E.G. India Limited, 1984 I LLJ 186.
3. M.S. Dhantwal v. Hindustan Motors, 1976 II LLJ 259.
He also contends that once the petitioners disobeyed the lawful orders, the same amounts to misconduct and the employer can proceed with the disciplinary enquiry for disobeying the same. The learned Standing Counsel also placed strong reliance on the judgment of the Supreme Court in GM(O), SBI v. S.B. I.S.U., 1998 (2) Scale 401, to substantiate his contention that Circular Memo did not bring any change in the service conditions of the workmen.
9. In view of the rival contentions, the only point that emerges for consideration is whether the Circular Memo issued by the respondent-Company amounts to amendment of the Certificate Standing Orders, if so whether they can be enforceable or not.
10. In Galaxo Laboratories' case (supra) the striking workmen boarded the bus and manhandled the lawful workmen who are desired to report for duty, on which they were charge-sheeted and they approached the Labour Court. The Labour Court held that upon a true construction of Certified Standing Order the Company is not entitled to charge-sheet the workmen for alleged acts of misconduct said to have been committed by them outside the premises of the establishment and not in the vicinity thereof. In view of the same, it was not open to the employer to hold an enquiry into the alleged act of misconduct against the workmen, which was confirmed by the Allahabad High Court and also the Supreme Court.
11. In Bharat Petroleum's case (supra) the Supreme Court considered the restrictions imposed by the employer in relation to representation of an employee in the disciplinary proceedings through another employee who, though not employee of the appellant-Coporation was, nevertheless, member of the trade union. The above two cases are misplaced to the facts of the present case.
12. The Apex Court in SBI Staff Union's case (supra) considered the similar Circular issued by the State Bank of India, directing the local head office to obtain an undertaking from the employees indicating that his contesting election will not interfere with his duties in the bank and he will not take any undue advantage of his position in the bank and in case he gets elected, he will immediately resign from the bank's service, failing which he will be liable to be discharged or the bank would be free to treat his letter seeking permission as a letter of resignation from the day he is declared elected. The said Circulars were challenged before this Court and this Court held that it amounts to change in service conditions of the workmen under Sections 9-A of the Industrial Disputes Act and set aside the same, and when the bank carried the matter in appeal the Supreme Court while allowing the appeal in paras 5 and 6 held as under:
"5. We fail to see how these Circulars can be said to violate Section 9-A of the Industrial Disputes Act, 1947. Under Section 9-A no employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change without notice as prescribed in that section. Schedule four set out the conditions of service for change of which notice is required to be given under Section 9-A. The conditions of service prescribed in the Fourth Schedule include, inter alia, wages, contribution to any provident fund or pension fund, compensatory and other allowances, hours of work, leave etc. Condition 8 is "Withdrawal" of any customary concession or privilege or change in usage". These customary concessions or privileges clearly relate to conditions of service or work. Participating in an election to a Municipal Council or local body is not a customary privilege connected with conditions of service of work. The Circulars of 28-1-1987 and 7-1-1987, therefore, do not bring about any change in the conditions of service of a workman. The Rules of Conduct of the Award staff have always included a rule to the effect that the employee of the bank may not accept office on Municipal Council or other public body without prior sanction of the bank. The circulars, therefore, do not bring about any change in this policy. The appellants have explained that the appellant-bank is a public sector undertaking set up for carrying out a public purpose. As an employer, the appellant-bank has to ensure that the employees carry out their functions without being influenced in any manner and their behaviour does not give rise to any talk of favouritism in granting loans, credit facilities or other facilities of the bank. When a person contests elections to a municipal or public body he naturally seeks support from political panties or various other persons in his constituency. Without their support it is not possible for a person to (sic) get elected. In turn, the elected person will be under an obligation to those persons who are responsible for his election. Such an elected person, if he is an employee of a public sector bank which deals with sanction of loans, advances, overdrafts etc., may be in a position to use his influence with officers regarding granting of these facilities. In order, therefore, that the functioning of the bank is free from political influences and favouritism, and in order to ensure that the employees attend to their duties during office hours, the Circulars have been issued.
6. The same Circulars were challenged before the Delhi High Court by an employee of the appellant-bank at Saharanpur branch in Uttar Pradesh. The petitioner before the Delhi High Court also desired to contest elections to the local Municipal Council. The Delhi High Court upheld the decision of the management that the petitioner's continuance as Municipal Councillor does affect his work in the bank and that there was no question of any violation of Article 19(l)(a), (b) and (c) of the Constitution. This decision of the Delhi High Court was upheld by this Court by a Bench of three Judges by its short speaking order dated 5-4-1991 dismissing the special leave petition from the judgment of the Delhi High Court."
13. Before proceedings to advert the issue it is relevant to notice the preamble of Act 20/46, which stated in categorical terms 'whereas it is expedient to require employers in industrial establishments to define with sufficient precision the condition of employment under them and to make said conditions known to workman employed by them'. Not only the object but the scheme of the Act is such that the employment defines precisely the conditions of employment of all the employees and have the same certified under the Act 20/46. In the Schedule Item 9 relates to suspension or dismissal for misconduct, and acts or omissions which constitute misconduct. It is also very difficult to conceive taking each individual item in the schedule how there can be restriction to restrict participation of workman in election to the local bodies and got elected. This is not a service condition which can be recognized or can be defined in the Standing Orders. The circular Memo dated 11-2-2000 is designed in the interest of discipline and good industrial growth on the assumption that active participation of the workers in politics in any of the specific ways will not be conductive to discipline or to the efficient industrial growth. If the workmen allowed to participate in the local body elections and got them elected and occupied the elected post, it would lead to anomaly situation, namely workmen cannot devote themselves fully to the industrial growth and the same will be lead to industrial unrest. There is nothing in the Circular prohibiting the workmen for having a mental sympathy or an inward leaning in favour of any particular political party 'as long as' it remains unexpressed in any of the methods declared objectionable by the rule of conduct. The prohibitions now under discussion are directed as political contributions of energy by a workman and were designed in the interest of an efficient service and contribution by the workmen in industrial growth by debarring them to take active part in politics.
14. The respondent-Company got certified Standing Orders in respect of M/s. Singareni Collieries Company Limited. Clause 25.3 of the Standing Orders reads as under:
Wilful insubordination or disobedience, whether alone or in conjunction with another or others of any lawful or reasonable order of a superior.
It is nowhere recognised under the Standing Orders, the right of the workers to participate in the election.
15. In M.S. Dhantwal's case (supra) the Supreme Court had an occasion to consider the effect of Section 33(2)(b) of Industrial Disputes Act, 1947, which makes it obligatory on the part of the employer to make an application to the Tribunal under the proviso only when he discharges or dismiss a workman for misconduct and whether such misconduct should be enumerated in the Standing Orders or not and held in para-26 as under:
"Standing Orders of a Company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. Ordinarily, the standing orders may limit the concept but not invariably so."
16. In this connection, it is relevant to note the observation of the Supreme Court of the United States in United Public Workers v. Mitchell, (1946) 91 Law Ed. 754. While considering the history of various items of legislations to the United States of America which consequently led the Congress Jo enact what is known as Hatch Act, 1939 at page 772 it observed as follows:
"The provisions of Section 9 of the Hatch Act and the Civil Service Rule 1 are not dissimilar in purpose from the status against political contributions of money. The prohibitions now under discussion are directed as political contributions of energy by Government employees. These contributions too have a long back ground of disapproval."
17. Once the right of the workman to contest the local body elections is not a service condition, which can be enumerated in the Standing Orders, imposing restrictions from participation, in the elections and occupying the electoral office in the Circular Memo will not amount to amending Standing Orders, as contended by the learned Counsel for the petitioners. Participation of the workers in the political activities and get them elected will definitely have an adverse impact on the industrial growth for the reason, if the workers allowed to participate in the elections they cannot concentrate on the job assigned to them with full devotion. As noticed in the counter, on getting the workers elected in the elections, their working days have reduced considerably, which necessitated the Company to issue the Circular prohibiting them from participation in the elections and occupying the electoral office, which is a lawful direction issued by the Company. If any worker failed to disobey the lawful direction, the same will amount to insubordination making himself liable for action by the employer. Clause 25.3 of the Certified Standing Orders of the Company clear and unequivocal terms envisages that wilful insubordination or disobedience of any lawful or reasonable order of superior amounts to misconduct.
18. In view of the same, the right of the employer to proceed in the matter by issuing charge memo cannot be faulted with and can be stalled.
19. From the conspectus of discussion and for the reasons made in the aforementioned paragraphs, I do not find any merit in these writ petitions and they are accordingly dismissed. No costs.